Master Services Agreement
DATAPLANET LIMITED, incorporated and registered in England and Wales with company number 15474820, whose registered office is at Henleaze House, 13 Harbury Road, Bristol, BS9 4PN ("Supplier") is an IT Services provider and value-added reseller in the UK, and has developed and will provide professional and managed services (including NCE CSP Managed Services, Goods and Deliverables) ("Services").
The "Client", the name of which is set out in the "Statement of Work" (the document describing the services proposed in response to a request from the Client to the Supplier, including, but not limited to, a proposal issued by the Supplier), wishes to use the Supplier's Services in its business operations (each a "Party" and together, the "Parties").
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. Multiple Statement of Works may be incorporated under this Agreement.
Clause and paragraph headings shall not affect the interpretation of this Agreement. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to writing or written includes e-mail. Any phrase introduced by the words including, includes, in particular or for example shall be construed as illustrative and shall not limit the generality of the related general words. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.1 The Client's order for the Services and Deliverables, as set out in the Client's purchase order form (the "Order") shall only be accepted when the Supplier acknowledges the Order in writing.
1.2 Any quotation given by the Supplier shall not constitute an offer and is only valid for: (a) thirty (30) days for professional and/or managed services; (b) seven (7) days for Goods, from its date of issue unless otherwise stipulated by the Supplier in writing and shall only become binding upon signing the Statement of Work.
2.1 In the event of any conflict or inconsistency between the Clauses of this Agreement, the Schedules, a Licence Agreement and the Statement of Work, the following order of precedence shall apply (in decreasing order): (a) the Statement of Work; (b) a Licence Agreement and CSP Agreement to the extent applicable; (c) the Schedules to this Agreement; and (d) the Clauses in this Agreement.
3.1 Commencing on the date the applicable Statement of Work is signed (the "Commencement Date"), the Supplier shall perform the Services as set out in the Statement of Work in accordance with this Agreement. In supplying the Services, the Supplier agrees that: (a) it shall supply the Services in accordance with the agreed Statement of Work in all material respects; (b) it shall use commercially reasonable endeavours to meet any performance timelines, but such timelines shall be estimates only and time shall not be of the essence; (c) the Services will be provided in a professional manner using reasonable care and skill; and (d) it will comply with all applicable laws, statutes and regulations.
3.2 Where the Services include the supply of Goods, the provisions of Schedule 2 shall apply.
3.3 The Supplier does not and cannot control the flow of data to or from its network and other portions of the internet. The Supplier disclaims any and all liability resulting from or related to third-party network events.
3.4 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 Services, including failure of Client hardware, software or operating system; partial or full failure of third-party services; or network connectivity issues.
3.5 Either Party may request changes to any Statement of Work (a "Change Request"). Any Change Request shall be made in writing and agreed to in writing by both Parties.
3.6 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.
3.7 The Supplier shall have the right to make changes to the Services which are necessary to comply with applicable laws or safety requirements.
4.1 The Client shall: (a) adhere to any fair usage policy as set out in the applicable Statement of Work; (b) co-operate with the Supplier in all matters relating to the Services; (c) provide the Supplier with access to premises, staff and equipment as reasonably requested; (d) provide accurate information and documentation in a timely manner; (e) use the Services only for lawful purposes; (f) remain responsible for the use of the Services under its control; (g) not provide the Services to third parties without the prior written consent of the Supplier; (h) ensure it has suitable licences in place for any third party software; (i) keep secure from third parties any passwords issued by the Supplier; (j) fully virus-check all data supplied to the Supplier; (k) use an up-to-date virus-scanning program on all Client's data; (l) permit the Supplier to install current versions of required software; (m) maintain and allow the Supplier continuous exclusive global admin access to the Client's Microsoft cloud services portals; (n) grant to Supplier a non-exclusive, royalty free licence to use Client-owned equipment solely for the purpose of delivering the Services; (o) appoint designated primary contacts with sufficient authority to give binding instructions; (p) adhere and agree to the CSP Agreement for Microsoft products; (q) assign the Supplier as Claiming Partner of Record (CPOR) and/or Digital Partner of Record (DPOR) and/or Partner Admin Link (PAL) for a minimum of twelve (12) months from project completion; (r) sign and deliver any Microsoft Proof of Execution (POE) within seven (7) days of issue; (s) keep Supplier Materials in safe custody; and (t) adhere to scheduled dates for provision of Services.
4.1(t) Liquidated damages for rescheduling or cancellation: (i) more than fourteen (14) days' notice - no charge; (ii) between seven (7) and fourteen (14) days' notice - 50% of Fees payable; (iii) less than seven (7) days' notice - 100% of Fees payable.
4.2 The Client will be responsible for obtaining and maintaining its own compatible computer system, equipment, software and communications lines. The Supplier has no responsibility for Client's Equipment unless supplied by the Supplier.
4.3–4.6 If the Supplier cannot perform due to a Client Default, the Supplier may suspend supply of the Services. The Supplier shall have no liability for losses arising directly or indirectly from the Client's failure to perform its obligations, and the Client shall reimburse the Supplier for costs arising from such default.
5.1 The Supplier warrants that the Services will be performed with reasonable skill and care and in accordance with the Statement of Work and this Agreement.
5.2 The warranty in Clause 5.1 shall not apply to the extent of any non-conformance caused by use of the Services contrary to the Supplier's instructions.
5.3 If the Services do not conform with the warranty, the Supplier shall use commercially reasonable endeavours to correct any such non-conformance promptly, or provide an alternative means of accomplishing the desired performance.
5.5 The Supplier shall: (a) staff the support desk with skilled individuals; (b) maintain a team skilled in the platform; (c) undertake regular communication with the Client; (d) be a bona fide licensed user of all third party software; (e) notify the Client promptly if unable to comply with any terms; (f) use commercially reasonable endeavours to follow the Client's instructions; (g) provide all necessary co-operation; (h) comply with all applicable laws and regulations; and (i) carry out all Supplier responsibilities in a timely and efficient manner.
5.6 The Supplier shall be under no obligation to provide the Services outside Normal Business Hours (9.00am to 5.30pm local UK time on Business Days) unless otherwise agreed in writing.
6.1 The Supplier grants to the Client a non-exclusive, non-transferable right to permit Authorised Users to use the Subscription Services during the Term solely for the Client's internal business operations.
6.2 The Client undertakes that: (a) User Subscriptions shall not be used by more than one individual unless reassigned in its entirety; (b) each Authorised User shall keep passwords confidential; (c) the Client shall maintain an up-to-date list of Authorised Users; (d) the Client shall permit the Supplier to audit use of the services no more than once per quarter; (e) any passwords provided to non-Authorised Users must be promptly disabled; and (f) any underpayment of Fees identified in an audit must be paid within ten (10) Business Days.
6.3 The Client may request increases to User Subscriptions but is not permitted to decrease below the agreed Minimum Commitment.
7.1 The Client shall pay the Fees in accordance with any agreed Statement of Work. All Fees are exclusive of VAT, travel expenses, and costs of packaging, insurance and transport of Goods. Invoices are payable in full within fourteen (14) days from the date of invoice, without deduction or set-off. Time for payment is of the essence.
7.3 Where Services are provided on a time-and-materials basis: (a) a 'day' means a period of seven (7) hours including travel and breaks; (b) time of less than one (1) hour is charged on a pro-rata basis per thirty (30) minutes; and (c) the Supplier may vary hourly or day rates during the Term with written notice.
7.5 The Supplier shall not be obliged to provide any Services while any duly issued invoices remain unpaid.
7.6–7.9 The Supplier may increase Fees in line with increases from third party providers, RPI, or other factors beyond its control, with thirty (30) days' notice. If the Client does not agree to a Fee increase, they may terminate on thirty (30) days' written notice before the increase takes effect.
7.10 If the Client fails to pay any amount properly due and payable, the Supplier shall have the right to charge interest at a rate of four per cent (4%) per annum above the Bank of England base rate from the due date.
7.11 The Client shall not be able to dispute any amounts paid after a period of three (3) months has elapsed from the date of invoice.
8.1 The Supplier shall ensure that appropriate safety and security systems and procedures are maintained and enforced to prevent unauthorised access or damage to any Services, systems, networks or Client data, in accordance with Good Industry Practice.
8.2 Each Party shall promptly inform the other if it suspects or uncovers any breach of security and shall use all commercially reasonable endeavours to promptly remedy such breach.
9.1 Except for any warranties and service levels expressly set forth in this Agreement or in the Statement of Work, the Services are provided on an "as is" basis. The Supplier hereby disclaims all other express and/or implied warranties, including warranties of merchantability and fitness for a particular purpose.
9.2 In the event of a defect, fault or impairment causing a service interruption, the Supplier shall use commercially reasonable endeavours to resolve that defect to the extent it reasonably can.
9.3 If the Supplier determines that such a defect results from the negligence, act, omission or default of the Client, breach of this Agreement, or malfunction of equipment owned by the Client, the Supplier may recover all reasonable costs in connection with the remedy of such defect.
9.5 If the Client moves from one site to another or makes changes to any Client site, the Client must notify the Supplier in advance. The Supplier may carry out an inspection and provide a quotation for any additional resources required.
9.6–9.8 The Supplier will request approval before making significant changes to the Services. The Supplier reserves the right to take any action it perceives necessary to protect the Client's systems, making reasonable endeavours to notify the Client in advance.
9.11 The Supplier does not warrant that the Client's use of the Services will be uninterrupted or error-free.
10.1–10.2 The relevant Statement of Work shall specify which Deliverables are subject to Acceptance Testing. The Client shall have up to five (5) Business Days from delivery to confirm that a Deliverable conforms to the acceptance criteria. If the Client fails to reject a Deliverable within the Acceptance Period, the Deliverable shall be deemed accepted. Once accepted and payment settled, the Deliverable shall become the property of the Client.
11.1 This Agreement shall commence on the Commencement Date and shall remain in full force for the term specified in the Statement of Work (the "Initial Term"). Thereafter, this Agreement shall automatically renew for successive twelve (12) month terms unless a Party gives written notice not later than ninety (90) days before the end of the Initial Term or relevant Renewal Term.
11.2 Either Party may terminate this Agreement with immediate effect by giving written notice if: (a) the other Party commits a material breach and fails to remedy it within thirty (30) days - for the avoidance of doubt, non-payment shall be deemed a material breach; (b) the other Party is unable to pay its debts as they fall due; or (c) the other Party ceases or threatens to cease carrying on all or a substantial part of its business.
12.1 On termination, the Client shall pay any costs properly incurred by the Supplier including all outstanding Fees and any termination fees from Third Party Services. Any Deliverables not fully paid for shall be returned to the Supplier. The accrued rights and remedies of the Parties shall not be affected by termination. Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13.1 Nothing in this Agreement shall limit or exclude either Party's liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot lawfully be excluded or limited.
13.2 The Supplier's liability for breach of its obligations under Clause 16 (Intellectual Property Rights) and Clause 18 (Client Personal Data) shall be limited to 12 months' service fees in the aggregate.
13.4 Neither Party shall be liable to the other for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of reputation; (f) loss, damage or corruption of data; (g) loss of goodwill; or (h) any indirect or consequential loss.
13.5 The Parties' total liability, whether in contract, tort or otherwise: (a) in respect of Goods, shall be limited to the replacement value of the Goods and the manufacturer's warranty terms; and (b) in respect of Services, shall be limited to one hundred per cent (100%) of the total Fees paid for the related Service during the twelve (12) months preceding the date on which the claim arose.
14.1 The Client and the Supplier shall have regular meetings to monitor and review the performance of this Agreement.
15.1 Each Party agrees that it will treat all confidential information disclosed to it by the other Party as strictly confidential at all times during the Term and for two (2) years thereafter, and shall not disclose it to any third party without prior consent.
15.3 The obligations of confidentiality shall not apply to information which: (i) is in the public domain other than as a result of a breach of this Agreement; (ii) was already in the possession of the receiving Party; (iii) is required to be disclosed by law or competent authority; or (iv) was independently developed by the receiving Party.
16.1 Subject to Clause 16.2, upon the Supplier receiving payment in full, all Intellectual Property Rights in bespoke materials or code created exclusively under the Services for the Client shall vest automatically in the Client.
16.2 Notwithstanding Clause 16.1, the Supplier and/or its licensors shall retain exclusive ownership of all pre-existing intellectual property and any ideas, concepts, techniques and know-how discovered or developed by the Supplier during the performance of the Services that are not derived from the Client's confidential information. The Supplier grants to the Client a non-exclusive, revocable, worldwide, royalty-free and non-transferable licence to use the Supplier's Intellectual Property.
16.5 If any claim is made against the Client for infringement of Intellectual Property Rights arising directly from the use of the Deliverables, the Supplier shall, at its own expense, take control of and conduct any litigation and all negotiations for settlement in relation to such claim.
17.1 The Supplier shall (if requested) procure third-party licences and/or services as set out in the applicable Statement of Work. The Client shall remain liable for all payments owed to the Supplier throughout this Agreement from the point of acquisition of any licence until the end of the respective licence terms.
17.3 The Client shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses suffered or incurred by the Supplier in connection with any claim arising from actual or alleged breach of such Licence Agreements and/or Third Party Services terms.
17.4 The Supplier shall only be held liable to the extent permitted under the respective Licence Agreements for the actions or omissions of third parties and shall not be held liable for the actions of Microsoft (where the Client has a direct contract in place through the CSP Agreement).
18.1 "Applicable Data Protection Legislation" means all applicable data protection and privacy legislation in force in the UK, including the UK GDPR and the Data Protection Act 2018.
18.3 Both Parties will comply with all applicable requirements of the Applicable Data Protection Legislation.
18.4 The Supplier shall process the personal data set out in the Statement of Work as a processor on behalf of the Client.
18.7 The Supplier shall, in relation to Client Personal Data: (a) process that data only on the documented instructions of the Client; (b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing; (c) ensure that personnel authorised to process Client Personal Data have committed to confidentiality; (d) assist the Client in responding to data subject requests and in ensuring compliance with Applicable Data Protection Legislation; (e) notify the Client without undue delay of any personal data breach; (f) delete or return Client Personal Data on termination unless required by law to retain it; and (g) maintain records to demonstrate compliance and allow for reasonable audits.
19.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
20.1 The Supplier may assign or otherwise transfer the whole or any part of this Agreement, including any of its rights and obligations, without the prior written consent of the Client.
21.1 This Agreement and each Statement of Work constitute the entire agreement between the Parties and supersede all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted.
23.1 No one other than a Party to this Agreement and Microsoft (in respect of the CSP Agreement) shall have any right to enforce any of its terms.
24.1 Any notice required to be given to a Party under this Agreement shall be in writing and shall be delivered by hand, sent by pre-paid first class post to its registered office, or sent by electronic mail to the address set out on the Statement of Work.
24.2 Any notice shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt; (b) if sent by post, at 9.00am on the second Business Day after posting; or (c) if sent by electronic mail, on the next Business Day after sending.
25.1 The Supplier shall have no liability for failure to perform the Services if it is prevented, hindered or delayed as a result of any Relief Event.
25.2 "Relief Events" include: (a) any failure by the Client to comply with its obligations; (b) any error or malfunction in systems for which the Supplier is not responsible; (c) failure by the Client to provide necessary information or instructions; (d) incompetence, misuse or error of a user of the Services; (e) accident, virus or malware attacks, network downtime, excessive electrical supply fluctuations; (f) failure or downtime of any third party services; (g) failure to use the Services in accordance with this Agreement or the Supplier's instructions; (h) any change or repair not carried out by the Supplier; (i) any telecommunications network defect or failure; or (j) Force Majeure events.
26.1 Neither Party shall be deemed to be in breach of this Agreement or liable to the other for any failure or delay in performing its obligations due to a force majeure event, meaning any cause arising from acts, events, omissions or accidents beyond the reasonable control of the Party, including act of God, war, riot, compliance with any governmental order, flood or storm, or future pandemics and epidemics.
26.2 A Party may only claim relief under this Clause if it informs the other Party as soon as reasonably possible and uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure event. If the period of delay continues for six months or more, either Party may terminate by giving fourteen (14) days' written notice.
27.1 The Client shall not solicit the Supplier's staff or contractors who have been employed or engaged in the Services during the lifetime of this Agreement and for a period of twelve (12) months thereafter.
27.2 In the event of a breach of Clause 27.1, the Client shall pay to the Supplier as liquidated damages an amount equal to fifty per cent (50%) of the gross annual budgeted fee income of the person so employed or engaged.
28.1 The Parties agree to abide by all applicable laws, regulations and sanctions in respect of anti-bribery and anti-corruption, including the Bribery Act 2010.
29.1 The Supplier reserves the right to refer to the Client in its marketing communications, which may include a case study and a reference to the Client on the Supplier's website, without the Client's prior written consent. The Client hereby provides an irrevocable, worldwide, royalty-free licence to the Supplier to use the Client's trademarks for such marketing purposes.
30.1 This Agreement, and any dispute or claim arising out of or in connection with it, shall be governed by and construed in accordance with the law of England and Wales.
30.2 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.
1.1 The Supplier is a reseller of Microsoft New Commerce Experience Cloud Solution Provider ("NCE CSP") products ("NCE CSP Managed Services"). Where the Services include the provision of NCE CSP Managed Services, they shall be provided in accordance with the Statement of Work and this Schedule.
3.1 By placing an order with the Supplier, the Client: (a) represents that any subscription commitments and requirements disclosed are complete and accurate; (b) agrees to pay the Supplier for all orders submitted; (c) agrees to the terms of the Agreement and the Statement of Work; and (d) represents and warrants that the Client has accepted the CSP Agreement.
3.2 Once an order for a Subscription has been accepted: (a) Subscriptions shall continue for the duration of the Initial Term and any Renewal Term; and (b) adjustments may only be made to increase Minimum Users and not decrease below any current Minimum Users provisioned.
5.1 Fixed Term Subscriptions are sold for a term as specified in the Statement of Work, billed on a monthly or annual basis as specified. Any adjustments to annual subscriptions made mid-billing cycle will be invoiced at the time of placing the order. Monthly subscription adjustments will be post-billed at the subsequent invoice.
5.2 For Consumption Subscriptions, the Client acknowledges that: (a) Consumption Subscriptions do not expire unless cancelled; (b) billing will be based on usage from the prior month; (c) the Client is responsible for monitoring its consumption; and (d) the Supplier may establish a technical barrier (the "Barrier") to prevent usage in excess of the Cap.
8.1–8.3 The Client may cancel an order within five (5) days of placing the initial order, subject to Microsoft's cancellation requirements and approval. Any credits issued by Microsoft will be passed on to the Client less any handling fees.
9.1 The Client's licences will continue for the duration of the subscription period. The Client shall remain liable for all payments due in respect of licences until the end of the respective subscription period.
1.1 Any samples, drawings or descriptions produced by the Supplier are for the sole purpose of giving an approximate idea of the Goods and shall not form part of the Agreement.
1.2 The Supplier reserves the right to make changes in the specification of the Goods required to conform with applicable legislation, or which do not materially affect their quality or performance.
2.1–2.3 Prices for Goods shall be quoted upon receipt of an order and are not confirmed until the manufacturer has accepted the order, at which point the order shall be irrevocable. The Supplier reserves the right to increase prices after quoting to reflect increases from its third party supplier.
3.1 The Supplier shall endeavour to deliver Goods to the agreed location on the agreed date. Time for delivery shall not be of the essence. The Supplier shall have no liability for failure to deliver caused by a delay from the manufacturer, a Force Majeure event, or the Client's failure to provide adequate delivery instructions.
4.1 For Goods supplied, the Supplier shall pass on to the Client the benefit of any standard warranty provided by the manufacturer ("OEM Warranty"). The Supplier's only liability will be limited by the terms set out in such OEM Warranty.
5.1 Risk in Goods shall pass to the Client on delivery. Title to Goods shall only pass to the Client once the Supplier receives payment in full.
6.1 Once an order for Goods has been accepted, no order may be cancelled by the Client except with the written agreement of the Supplier, and on terms that the Client shall indemnify the Supplier in full against all reasonable losses, costs, damages, charges and expenses incurred as a result of such cancellation.
7.1–7.5 All returns of Goods can only be made if they comply with the Supplier or third party supplier's terms and conditions or returns policy. Prior authorisation must be obtained. The Supplier reserves the right to levy a reasonable administration charge in respect of returns.