Master services agreement

BACKGROUND

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

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

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

AGREED TERMS

1. INTERPRETATION

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

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

Applicable Data Protection Laws:

i) to the extent the UK data protection law applies: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and

ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier 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 applicable Party.

Background Materials: all Intellectual Property Rights, know-how, information, methodologies, techniques, tools, schemata, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited, to software, documentation, and data of whatever nature and in whatever media) owned, developed or controlled by the Supplier which may have been created outside the scope, or independently of, the Services and/or this Agreement, and including all updates, modifications, derivatives or future developments thereof.

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

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

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

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

Confidential Information: all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its Representatives) to the other Party and that Party’s Representatives in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.

Commencement Date: the date of this Agreement unless otherwise specified in the relevant Statement of Work.

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

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

Customer Agreement: the customer agreement, which is a direct agreement between the Client and Microsoft and is a condition of Cloud Solution Provider Program that the Client enters into this agreement, the terms of which are found here and which may be updated from time to time.

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

Client’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 Statement of Work.

Client Personal Data: any personal data which 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 Statement of Work.

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

Document: 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.

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

Dispute Resolution Procedure: the procedure described in Clause 26.

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

Fair Usage Policy: the fair usage policy as set out here.

Fees: the fees payable to the Supplier, as described in the 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 Statement of Work.

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.

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

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

Initial Term: means the period commencing on the Commencement Date 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.

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

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

Normal Business Hours: 9.00 am to 5.00 pm local UK time on Business Days unless otherwise stated in the applicable 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: a party to this Agreement or parties.

Professional Services: the service described in the Statement of Work to be performed by the Supplier in accordance with this Agreement.

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

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

Relief Events: the following events:

(a) any failure by the Client to comply with its obligations under this Agreement;

(b) any error or malfunction in the Business Systems or any other software, hardware or systems for which the Supplier is not responsible or any failure by the Client, its agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which the Supplier is not responsible;

(c) any failure by the Client or its agents or contractors (including any existing service provider) to provide any information, co-operation or instructions to the Supplier which is reasonably required by the Supplier for the proper performance of its obligations under this Agreement; or

(d) any of the causes or events set out in Clause 9.8.

Retail Prices Index: means the Retail Prices Index (all Items, excluding mortgages) as published by the Office for National Statistics from time to time, or failing such publication, such other index as the Parties may agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.

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

Services: the provision of Professional Services including consulting, advisory, integration or technical services, Managed Services, Goods, NCE Subscription Services and/or any other services performed by the Supplier under a Statement of Work or otherwise agreed further to the signed written agreement between the Parties.

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

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

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

Supplier: Kocho Group Limited incorporated and registered in England and Wales with company number 04308824 whose registered office is at Waverley House 4th Floor, 7-12 Noel Street, London, Westminster, England, W1F 8GQ.

Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Client and used directly or indirectly in the supply 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.

Term: the 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 the Supplier and/or the Client (as the case may be) during the provision of the Services.

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

Variations: any variations made through the Variation Agreement, a template of which is found here.

1.2 Clause, and paragraph headings shall not affect the interpretation of this Agreement.

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.8 A reference to writing or written includes e-mail.

1.9 Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.

1.10 References to Clauses are to the Clauses of this Agreement.

1.11 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.12 In the event of any conflict or inconsistency between the Clauses, the Schedules, the Statement of Work, the Licence Agreement and the Customer Agreement (including any changes or variations to each of the Clauses, the Schedules, 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;

(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 the Supplier shall provide Services to the Client.

2.2 Where the Services include the supply of:

(a) Professional Services, the Professional Services Terms of Schedule 1 apply;

(b) Managed Services, the Managed Services Terms of Schedule 2 apply;

(d) NCE Subscription Services, the NCE Subscription Services Terms of Schedule 4 apply.

2.3 This Agreement (i) is in substitution for any prior oral or other prior arrangements between the Supplier and the Client in connection with the purchase of the relevant Services; and (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 the Supplier is for budgetary purposes until financial and technical validation and shall not constitute an offer. Unless otherwise stated in the relevant quote or proposal, for:

(a) the supply of Goods, it is only valid for a period of seven (7) Business Days;

(b) Professional Services and Managed Services, it is only valid for a period of thirty (30) days,

from its date of issue unless otherwise agreed by the Supplier in writing and shall only become binding upon the signing of a Statement of Work.

3. RESPONSIBILITIES OF SUPPLIER

3.1 The Supplier shall:

(a) provide the Services in accordance with the terms of this Agreement and the Statement of Work during the Term and any Subsequent Term (if applicable) unless earlier terminated for any reason;

(b) use its commercially reasonable endeavours to complete any Deliverables by any dates set out under any Statement of Work but any such dates shall be estimates only;

(c) commit sufficient resources to the provision of the Services to enable their delivery in accordance with the Agreement and Statement of Work;

(d) provide the Services with due care, skill and ability in accordance with Good Industry Practice;

(e) take such steps as may be required to fulfil its obligations under this Agreement and any Statement of Work;

(f) utilising suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care;

(g) notify the Client promptly if the Supplier is unable to comply with any of the terms of this Agreement, any Licence Agreement or any Statement of Work; and

(h) where the Supplier is required to be on the Client Sites for the provision of any Services, observe and ensure that its personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Client Sites (if applicable) and which have been communicated to it a week prior to the Services commencing.

3.2 The Supplier shall co-operate with the Client in all matters relating to the Services and shall appoint a representative (“Supplier Representative”), as the contact throughout the Services.

3.3 The Client confirms that the Supplier may employ sub-contractors without seeking the prior consent of the Client. Notwithstanding the foregoing, the Supplier shall at all times be responsible for and liable in respect of the performance of all obligations under this Agreement, whether such obligations are performed by the Supplier itself, or any sub-contractor engaged by the Supplier and under the supervision of the Supplier.

3.4 For the avoidance of doubt, the Supplier 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 The Supplier 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 the Supplier requires access to the Client Site to perform the Services, the Client shall provide such access during Normal Business Hours and to provide a suitable work environment to enable the Supplier to perform such Services subject to the Supplier complying with such internal policies and procedures of the Client (including those relating to security and health and safety) as may be notified to the Supplier in writing from time to time.

4.2 The Client shall co-operate with the Supplier in all matters relating to the Services and shall appoint a minimum of two representatives (“Client Representatives”), who shall have authority to commit the Client on all matters relating to the relevant Service.

4.3 The Client agrees and acknowledges the terms of the applicable Licence Agreements and the terms of the Customer Agreement shall form part of this Agreement. For the avoidance of doubt, in the event the applicable Licence Agreements, and/or the Customer Agreement is not applicable to the Services being received or delivered by the Supplier to the Client under this Agreement, such agreements shall not apply.

4.4 The Client shall:

(a) 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 the Supplier) to allow the Supplier and its subcontractors full use in relation to the Services provided;

(d) adhere to the dates scheduled for provision of Services by the Supplier to the Client as stated in the applicable Statement of Work or otherwise agreed between the Parties in writing. In the event the Client wishes to reschedule or cancel the dates for the provision of Services, unless otherwise expressly set out in a Statement of Work, liquidated damages (“Liquidated Damages”) will become payable from the Client to the Supplier 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 Liquidated Damages are payable;

(b) if dates are changed or cancelled between seven (7) days and fourteen (14) days before the scheduled start date Liquidated Damages equivalent to fifty percent (50%) of the Fees for the Services to be provided at that time will be payable;

(c) if dates are changed or cancelled less than seven (7) days before the scheduled start date Liquidated Damages equivalent to one hundred percent (100%) of the Fees for the Services to be provided at that time will be payable;

(e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises;

(f) allow the Supplier or its designated subcontractors, global admin access to the Client’s relevant servers and networking systems for the duration of the Agreement;

(g) where a Microsoft Cloud service is deployed / utilised within the project (Azure, Enterprise Mobility Suite or Office365) the Supplier will be assigned to the cloud subscription/s as the Claiming Partner of Record 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 the Microsoft Proof of Execution (“POE”) within seven (7) days of the date of issue by Microsoft. In the event that the Client does not return the POE within the seven (7) days’ notice period, the Supplier may be entitled to charge the Client the amounts directly and the Client shall follow the payment terms in this Agreement;

(i) 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 the Supplier’s Equipment in accordance with the Supplier’s instructions from time to time and not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation;

(l) provide all information and make available all resources as reasonably requested by the Supplier in the execution of its obligations under this Agreement;

(m) use all reasonable efforts to follow the reasonable instructions of Supplier support personnel with respect to the resolution of defects;

(n) gather all relevant information prior to requesting assistance in respect of any defects including detailed defect description, and procedures required to replicate a problem if possible. Any additional information which may help in the diagnosis of a defect should be included such as network configuration details; and

(o) agree that if, in the course of performing the Services, it is reasonably necessary for the Supplier’s performance of its obligations under a Statement of Work for the Supplier to access or use any equipment, software or data of the Client (or which is in the possession of the Client) then it shall where it is able to do so grant to Supplier and any of its subcontractors a non exclusive, royalty free, terminable licence to use the same solely for the purpose of delivering the Services only for as long as is strictly necessary to deliver such Services.

4.5 The Client shall (unless otherwise specified in the Statement of Work or as otherwise set out in this Agreement):

(a) 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 the Supplier;

(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, the Supplier may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary.

4.6 In the event that the Client is in breach of its obligations under the Agreement (excluding payment obligations) then the Supplier shall provide written notice of such breach, specifying in detail the nature of the breach and providing thirty (30) days’ notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach the Supplier shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. The Supplier shall have no liability or responsibility should the Services fail to comply with the Statement of Works and/or Service Level Arrangements as a direct result of the Client (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.

4.7 In the event that the Client is in breach of its payment obligations under the Agreement then the Supplier shall provide written notice of such breach, specifying in detail the nature of the breach and providing fourteen (14) days notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach the Supplier shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. The Supplier shall have no liability or responsibility should the Services fail to comply with the Statement of Works and/or Service Level Arrangements as a direct result of the Client (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.

5. PROJECT ORGANISATION

5.1 If requested in writing by the Client or specified in the Statement of Work, the Client Representatives and the Supplier Representative shall have regular meetings to monitor and review the performance of this Agreement, to discuss any changes proposed in accordance with Clause 12 and to discuss the Service Level Arrangements.

5.2 Before each meeting, the Client Representatives shall notify the Supplier Representative, and vice versa, of any problems relating to the provision of the Services for discussion at the meeting. At each such meeting, the Parties shall agree a plan to address such problems. In the event of any problem being unresolved or a failure to agree on the plan, the matter shall be resolved in accordance with the Dispute Resolution Procedure. Progress in implementing the plan shall be included in the agenda for the next meeting.

6. 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, the Supplier may charge the Client for such delays in accordance with its Rates.

6.3 If no Fee is quoted, the Fee shall be calculated in accordance with the Supplier’s Rates set out in the relevant Statemen of Work as amended from time to time 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 the Supplier by the Client and/or which is available at that time and may be based on a number of assumptions set out in the relevant Statement of Work (“Assumptions”). If it materialises that in the Supplier’s reasonable opinion, the information provided and/or Assumptions made are incorrect, inaccurate or have changed and/or that the proposed scope of Services is not feasible, the Supplier shall be entitled to charge (at the Supplier’s current Rates) the Client for any Out of Scope Services or other additional Services provided to those detailed in the relevant Statement of Work together with all related costs and expenses incurred by the Supplier.

6.6 Where the Services are provided on a time-and-materials basis:

(a) the Supplier’s standard hourly or daily rates are calculated on the basis of Normal Business Hours;

(b) the Supplier shall be entitled to charge an overtime rate for time worked outside Normal Business Hours as set out in the Statement of Work;

(c) the Supplier shall complete the relevant time recording systems to calculate the Fees for each invoice charged on a time and materials basis.

6.7 The Supplier shall invoice the Fees in accordance with the payment intervals stated in the Statement of Work. Save where other payment terms are set out in the relevant Statement of Work, all Fees will be payable by direct debit. The Client shall provide the Supplier with valid up-to-date and complete payment information and direct debit authority.

6.8 The Fees exclude:

(a) (unless otherwise agreed and set out in the Statement of Work) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Supplier or its subcontractors in providing the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Client for the Services (“Expenses”). The Supplier shall obtain the Client’s prior written approval before incurring any such expense, material or service exceeding a total cost of fifteen hundred pounds (£1,500) in the aggregate per day and shall be payable by the Client in accordance with Clause 6.9; and

(b) unless otherwise set out in the Statement of Work, the costs of packaging, insurance and transport of the Goods.

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 the Supplier or unless otherwise set out in the Statement of Work. In the event the Client pays by direct debit, the details of such direct debit payments shall be set out in the Statement of Work, as applicable. 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 the Supplier’s bank account as advised by the Supplier 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 the Supplier 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 the Supplier may have, if payment of the Fees or any part thereof is overdue then unless the Client has notified the Supplier in writing that such payment is in dispute within ten (10) days of the receipt of the corresponding invoice the Supplier may, without prejudice to any other rights or remedies, charge the Client interest on the overdue amount at the rate of four percent (4%) per annum above 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 The Supplier shall not be obliged to provide any of the Services and/or deliver any Goods while any duly issued invoice(s) remain unpaid under any Statement of Work, but should the Supplier choose to continue to do so, this shall not in any way be construed as a waiver of the Supplier’s rights or remedies.

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, the Supplier may increase any fees related to Third Party Services in line with any increases imposed upon the Supplier 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, the Supplier reserves the right, on giving the Client thirty (30) days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date. If the Client does not agree with this increase, then they may terminate this Agreement upon thirty (30) days written notice and before such price increase takes effect. If the Supplier does not receive written notice within thirty (30) days, the Client is deemed to have agreed to the amendment to the Fees.

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 the Supplier under this Agreement;

(c) it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to the Supplier and any of its subcontractors, any materials reasonably necessary for the fulfilment of all its obligations under this Agreement; and

(d) the Supplier’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 the Supplier for use in the provision of the Services or otherwise in connection with this Agreement, shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.

7.2 The Supplier warrants and represents that:

(a) it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Supplier;

(b) it owns or has obtained valid licences, consents, permissions and rights to enable the Supplier to comply with this Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this Agreement including for the Client ‘s use and receipt of the Services, and the Supplier shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached;

(d) the Client’s use of any Supplier materials (excluding Third Party Services), 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. The Supplier does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice.

7.4 In the event that a defect, fault or impairment in the provision of the Service(s) causes a service interruption and the Supplier becomes aware of this either through the Client giving notification to the Supplier of such default, fault or impairment, or as a result of the Supplier’s monitoring, then the Supplier shall use its commercially reasonable endeavours to resolve that defect, fault or impairment as more fully set out in the Statement of Work and to the extent it reasonably can.

7.5 If the Supplier determines in its reasonable opinion that such a defect, fault or impairment results directly or indirectly from: (i) the negligence, act, omission, or default of the Client or 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 the Supplier may recover from the Client all reasonable costs to be incurred by it or on its’ behalf in connection with the remedy of such defect, fault or impairment. Therefore, for the avoidance of doubt, the Supplier can make no commitment to fix any fault and time is not of the essence.

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 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 the Supplier in advance. The Supplier may need to carry out an inspection of any cabling and advise the Client of any work to bring the IT Infrastructure up to standard operating conditions at the new location in order to remain eligible for coverage. The Supplier will provide a 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 The Supplier will request approval from the Client Representatives before making any significant changes to the Services. The Supplier will arrange any Scheduled Downtime in advance with the Client Representatives. The Supplier is not responsible for Unscheduled Downtime that is due to anything outside the Supplier’s control and the Supplier and its subcontractors may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs.

7.9 The Supplier 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 The Supplier 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. The Supplier 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.

7.11 The Service Level Arrangement is specific to directly provided Services of the Supplier and do not relate to Third Party Services (of which such Third Party Services will be governed by their own relevant service levels).

7.12 The Supplier 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, the Supplier 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 the Supplier or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by the Supplier.

8. DATA PROTECTION

8.1 The Supplier shall promptly notify the Client in writing of any loss or damage to the Client Data. The Supplier 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 the Supplier 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. The Supplier will use all reasonable endeavours to ensure that no data is lost, but disclaims all liability for the loss of any data. The Supplier 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), the Supplier will monitor the Client’ s backup systems for the purpose of checking that data is backed up, provided however that the Supplier 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, the Supplier 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 the Supplier 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 the Supplier shall, in relation to Client Personal Data:

(a) process that Client Personal Data only on the documented instructions of the Client, unless the Supplier is required by Applicable Laws to otherwise process that Client Personal Data. Where the Supplier is relying on Applicable Laws as the basis for processing Client Processor Data, the Supplier shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Client on important grounds of public interest. The Supplier shall inform the Client if, in the opinion of, the instructions of the Client infringe 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 the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to), 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 the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this Clause 8.7(f)‎ Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and

(g) maintain records to demonstrate its compliance with this Clause 8 and allow for reasonable audits by the Client or the Client‘s designated auditor, for this purpose, on reasonable written notice.

8.8 The Client hereby provides its prior, general authorisation for the Supplier to:

(a) appoint processors to process the Client Personal Data, provided that the Supplier:

(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 the Supplier 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 the Supplier; 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 the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection;

(b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection 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 The Supplier’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract insofar as it relates to the obligations set out in this Clause ‎8, or Applicable Data Protection Laws shall be limited to the amount set out in Clause 11.4.

8.10 To the extent that the Supplier cannot comply with a change to the Client’s instructions when processing Client Personal Data without incurring material additional costs:

(a) 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, on creation by the Supplier and upon the Supplier receiving payment in full, all Intellectual Property Rights in bespoke materials or code created exclusively under the Services (“Bespoke IPR”) for the Client shall vest automatically in the Client. The Supplier hereby assigns to the Client its present and future rights and full title and interest in such creations, including but not limited to workflows, widgets, business processes, and customised web coding which are used in order to provide the Services. The Client hereby provides an irrevocable, worldwide, royalty-free licence to the Supplier for the duration of this Agreement to use such Bespoke IPR strictly for the purposes of providing the Services.

9.2 Notwithstanding Clause 9.1 above, the Supplier 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 the Supplier during the performance of the Services that are of general application and that are not based on or derived from the Client’s business or Confidential Information (“General IP”, together with the Background Materials, the “Supplier Intellectual Property”). The Supplier grants to the Client a non-exclusive, irrevocable, worldwide royalty free and non-transferable licence to use the Supplier Intellectual Property solely for the purposes of utilising the Services and/or Deliverables.

9.3 The Supplier confirms that it has all the rights in relation to the Supplier Intellectual Property that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

9.4 The Client may not, at any time including after termination of this Agreement, share any Supplier Intellectual Property with any third party without the Supplier’s prior written consent. The Supplier may treat the Client’s breach of this Clause 9.4 as a breach of this Agreement.

9.5 The Client shall pay and indemnify Supplier, from and against all actions, claims, liabilities, demands, proceedings, reasonable costs suffered or incurred by the Supplier, arising by reason of claims that (1) Supplier’s possession of or use of the Client’s Intellectual Property Rights in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (2) the Client or any of its customers, modify, alter, replace combine with any other data, code, documents or other software, which alters the Supplier’s Intellectual Property and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.

9.6 The Supplier shall pay and indemnify Client, from and against all actions, claims, liabilities, demands, proceedings, reasonable costs suffered or incurred by the Client, arising by reason of claims that (1) Client’s possession of or use of the Supplier’s Intellectual Property in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (2) the Supplier modifies, alters, replaces combines with any other data, code, documents or other software, which alters the Client’s Intellectual Property Rights and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.

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 9.4 or Clause 9.5 (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 the Supplier is likely to be made or brought, the Supplier may at its own expense ensure that the Client is still able to use the Deliverables by either:

(a) modifying any and all of the provisions of the Deliverables without reducing the performance and functionality for any or all of the provision of the Deliverables, so as to avoid the infringement or the alleged infringement, provided that the terms herein shall apply mutatis mutandis to such modified or substituted services and such modified or substituted services shall be acceptable to the Client, such acceptance not to be unreasonably withheld; 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 the Supplier should reasonably have known or advised the Client the foregoing provisions of Clause 9.7, the Supplier shall have no obligation or liability for any IPR Claim to the extent such IPR Claim arises from:

(a) any use by or on behalf of the Client of the combination with any item not supplied or recommended by the Supplier where such use of the Deliverables directly gives rise to the claim, demand or action; or

(b) any modification carried out on behalf of the Client to any item supplied by the Supplier under this Agreement if such modification is not authorised by the Supplier in writing where such modification directly gives rise to a claim, demands or action.

10. LICENCES

10.1 The Supplier shall procure any Third Party Services required by the Client for the provision of the Services and as more fully set out in the Statement of Work. Except as expressly set out in the relevant Licence Agreement, the Supplier expressly excludes any warranty to the Client that the Third Party Services supplied or licensed under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in its marketing, sales or other associated documentations. The Client shall remain liable for any and all payments owed to the Supplier throughout this Agreement and until the end of the respective licence terms for such Third Party Services (the “Licence Fees”).

10.2 It is a condition 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 the Supplier or the relevant Third Party Supplier), the Supplier reserves the right to suspend the provision of the Services until such time as the Client enters into such Licence Agreement.

10.3 The Client shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged breach of such Licence Agreements.

10.4 The Client acknowledges that it is responsible for ensuring that the Client’s Hardware, and operating software for such Hardware is compatible with the Third Party Services and the Supplier gives no warranty in relation thereto unless agreed otherwise in writing between the Parties in the Statement of Work.

11. 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, the Client assumes sole responsibility for:

(a) all problems, conditions, delays, delivery failures (including any of those concerning transfer of data) and all other loss or damage arising from or relating to the Client ‘s or its agents’ or contractors’ (including any existing service provider’s) network connections, telecommunications links or facilities, including the internet and acknowledges that the Services and the Deliverables may be subject to limitations, delays and other problems inherent in the use of such connections, links or facilities; and

(b) loss or damage arising from or relating to any Relief Event.

11.2 This Clause 11 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of:

(a) any breach of this Agreement; and

(b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

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;

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 price paid 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 the Supplier shall be limited to one hundred and twenty five percent (125%) of the price paid for the Services pursuant to the applicable Statement of Work during the twelve (12) months preceding the date on which the claim arose.

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;

(d) loss of business opportunity;

(e) loss of goodwill and reputation;

(f) loss or corruption of data.

11.7 Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier 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.

11.8 Except as expressly and specifically provided in this Agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

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 The Supplier 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;

(d) Cyber Insurance- limit £25,000 in the aggregate.

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 Supplier Representative (as appropriate) and shall set out the change in sufficient detail so as to enable the other Party to make a proper assessment of such change.

12.2 Where the Parties propose a Change Request the Supplier shall provide a written estimate of the likely time required to implement the change, any necessary variations to the Fees as a result of the change, the likely effect of the change on the Services; and any other impact of the change on the terms of this Agreement. The Client shall notify the Supplier whether it accepts or reasonably rejects the Change Request within five (5) Business Days of its receipt of the written estimate.

12.3 Until such time as a Change Request has been agreed to by the Parties, the Parties shall continue to perform their respective obligations under the Statement of Work without taking into account the Change Request. Once duly agreed by both Parties, the Change Request shall be deemed incorporated into Agreement and Statement of Work and the Supplier shall commence performance of the Change Request accordingly.

12.4 Neither Party shall be required to accept any Change Request made by the other Party and shall not be bound by the Change Request unless it has been agreed in writing as set out above.

12.5 Unless otherwise agreed in writing, Supplier shall be entitled to charge the Client at Supplier’s then current Rates for investigating, reporting on and, if appropriate, implementing any Change Request requested by the Client.

13. CONFIDENTIALITY

13.1 Each Party agrees and undertakes that it will treat all Confidential Information disclosed to it by the other Party in connection with the Services as strictly confidential and shall use it solely for the purpose intended by the Services and shall not, without the prior consent of the other Party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes intended by the relevant Statement of Work.

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.

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.

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) the other Party 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;

(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.

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) the Supplier shall immediately cease provision of the Services;

(b) the Client shall pay any and all invoices and sums due and payable up to and including the date of termination including (1) all remaining amounts owing up to the end of the Initial Term or the Subsequent Term (as applicable); (2) any Licence Fees as set out under Clause 10.1; and (3) any termination fees that the Supplier incurs from any of its Third Party Suppliers as a consequence of such early termination. The Supplier shall use reasonable endeavours to mitigate any loss but the Client acknowledges and agrees that any Third Party Supplier fees may not be mitigated by the Supplier and the Client shall not hold the Supplier responsible if its incurs full termination fees;

(c) the Client shall return all of the Supplier’s Equipment. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of the Supplier’s Equipment. Until the Supplier’s Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping; 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 not 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), the Supplier shall only retain the Client Data for a maximum period of three (3) months from the date of termination and may delete all such copies of its Client Data after the three (3) months period has ended.

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 the Supplier to the Client or from the Client to the Supplier pursuant to this Agreement or that any ‘relevant transfer’ occur for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). In the event that the Parties agree that TUPE does apply at either entry and/or exit then the provisions as set out here 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 lifetime of this Agreement and for a period of six (6) 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

Subject to Clause 11.3, and notwithstanding any other provision of this Agreement, the Supplier shall have no liability for failure to perform the Services or its other obligations under this Agreement if it is prevented, hindered or delayed in doing so as a result of any Relief Event.

17. FORCE MAJEURE

The Supplier shall have no liability to the Client under this Agreement and the Client shall have no obligation to pay the Fees if the Supplier is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by an event of Force Majeure except to the extent that the Supplier could reasonably have avoided such circumstances by fulfilling its obligations in accordance with the terms of this Agreement or otherwise exercising the level of diligence that could reasonably have been expected of it (having exercised Good Industry Practice), provided that:

(a) the Client is notified of such an event and its expected duration; and

(b) uses all reasonable endeavours to mitigate, overcome or minimise the effects of the event of Force Majeure concerned.

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.

18. ANTI-BRIBERY AND MODERN SLAVERY

18.1 The Supplier shall:

(a) comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010;

(b) promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Agreement.

18.2 The Supplier shall procure that any person associated with , who is performing services in connection with this Agreement, adheres to terms equivalent to those imposed on the Supplier in this Clause 18 (“Relevant Terms”). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Client for any breach by such persons of any of the Relevant Terms.

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), section 6(5) and (6) of that Act and section 8 of that Act respectively. For the purposes of this Clause 18 a person associated with the Supplier includes any subcontractor of the Supplier.

18.4 In performing its obligations under this Agreement, the Supplier shall:

(a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force the Modern Slavery Act 2015; 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. WAIVER

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.

20. SEVERANCE

20.1 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.

20.2 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.

21. ENTIRE AGREEMENT AND AMENDMENT

21.1 This Agreement (and its references to website address to further documentation), the Licence Agreements, the Statement of Works and the Customer Agreement constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.

21.2 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.

21.3 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.

21.4 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.

22. ASSIGNMENT

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

23. NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.

24. THIRD-PARTY RIGHTS

This Agreement is made for the benefit of the Parties, to it and (where applicable) their successors and permitted assigns, and Microsoft (in respect of enforcing the terms of the Customer Agreement) and is not intended to benefit or be enforceable by anyone else.

25. NOTICES

25.1 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.

25.2 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.

25.3 This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this Clause, “writing” shall include e-mail.

26. DISPUTE RESOLUTION

26.1 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”).

26.2 If the Parties are unable to resolve the Dispute within thirty (30) calendar days of delivery of the Dispute Notice, then each Party will promptly (but no later than five (5) Business Days thereafter):

(a) appoint a designated representative who has sufficient authority to settle the Dispute and who is at a higher management level than the person with direct responsibility for the administration of this Agreement (“Designated Representative”); and

(b) notify the other Party in writing of the name and contact information of such Designated Representative.

26.3 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.

26.4 If the Parties are unable to resolve the Dispute within thirty (30) calendar days after the appointment of both Designated Representatives, then either Party may proceed with any other available remedy.

27. MARKETING

Both Parties agree to reasonably cooperate in connection with the creation of mutually beneficial marketing communications, which shall include, at a minimum, a press release, case study and a reference to Client on Supplier’s website, provided that in no event shall either Party use the name, trademarks or other proprietary identifying symbols of the other Party without such Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.

28. GOVERNING LAW AND JURISDICTION

28.1 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.

28.2 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.

(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

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;

(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;

(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;

(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

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;

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

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.

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Master services agreement

SCHEDULE 1 – PROFESSIONAL SERVICES TERMS

SCHEDULE 2 – MANAGED SERVICES TERMS

SCHEDULE 3 – SUPPLY OF GOODS

SCHEDULE 4 – NCE SUBSCRIPTION SERVICES