Master Services Agreement (England & Wales)

Interpretation

"Agreement" means this master services agreement and each Order. "Business Day" means Monday to Friday, excluding public holidays in England and any day on which banks in London are closed. "Charges" means the charges stated in an Order. "Customer Data" means data, including personal data, supplied by or for the Customer or generated from the Customer's use of the Services. "Customer Materials" means materials supplied by or for the Customer to the Supplier. "Deliverables" means the deliverables identified in an Order. "Order" means an order, statement of work or other document agreed by the parties that incorporates this Agreement and describes Services. "Services" means the services described in an Order. "Service Levels" means the service levels, if any, stated in an Order. "Supplier Materials" means materials, methods, software, tools, documentation and other items owned or developed by the Supplier independently of the Services. "VAT" means value added tax and any equivalent tax.

If there is a conflict between this Agreement and an Order, the Order prevails only to the extent that it expressly identifies the provision of this Agreement it changes and states that it prevails. A reference to writing includes email, except where this Agreement requires signature.

Orders

An Order is binding only when signed by authorised representatives of both parties. Each Order is a separate engagement under this Agreement; termination of one Order does not by itself terminate another Order or this Agreement.

The Customer's purchase order is administrative only. Any terms printed on or linked to a purchase order, portal or similar document do not apply unless the parties expressly agree otherwise in writing.

Services

The Supplier shall perform the Services with reasonable skill and care, using appropriately skilled personnel and in accordance with applicable law. The Supplier shall use reasonable endeavours to meet dates stated in an Order, but dates are estimates unless the Order expressly states they are binding.

The Customer shall provide the access, information, decisions, cooperation and Customer Materials reasonably required for the Supplier to perform the Services. The Supplier shall promptly notify the Customer of any material dependency or information it reasonably needs. To the extent a Customer delay materially affects performance, the parties shall agree a reasonable adjustment to the affected timetable and Charges.

Neither party is required to implement a change to an Order unless the parties agree in writing the change, its effect on the Services, Charges, timetable and any other affected terms. The Supplier may charge on a time-and-materials basis for assessing a requested change only if it tells the Customer in advance and the Customer approves that assessment work.

Project Governance

Each Order shall identify a project lead for each party with responsibility and authority to act as that party's key contact and decision-maker, and an escalation lead with more senior authority. The Supplier's project lead shall provide regular updates to the Customer's project lead on the status of the Services and Deliverables, including agreed delivery dates and other timeframes. If the project leads cannot resolve a performance, acceptance or change issue within 10 days, either party may refer it to the escalation leads, who shall use reasonable and good-faith efforts to resolve it within 10 days.

Acceptance

If an Order specifies acceptance tests, the Customer shall test the relevant Deliverables promptly against those tests and notify the Supplier of acceptance or material non-conformity. The Supplier shall remedy a notified material non-conformity within a reasonable time and resubmit the Deliverables. Deliverables are accepted when they pass the acceptance tests or the Customer uses them in production, other than solely to test them.

Charges and Payment

The Customer shall pay the Charges and properly incurred expenses expressly permitted by the applicable Order. Unless the Order states otherwise, the Supplier may invoice monthly in arrears for recurring Services and on completion of milestones for project Services. Each invoice must show sufficient detail for the Customer to verify it.

The Customer shall pay each undisputed invoice within the Payment Period. If the Customer disputes an invoice in good faith, it shall notify the Supplier promptly with reasons, pay the undisputed amount when due, and the parties shall work in good faith to resolve the dispute. The Supplier may charge interest on overdue undisputed sums at 4% a year above the Bank of England base rate, accruing daily.

Invoice Cutoff

The Customer has no obligation to pay Charges or expenses invoiced by the Supplier more than 120 days after the relevant Charges or expenses were incurred.

Charges and Payment

Charges and other sums under this Agreement are exclusive of VAT. The Customer shall pay VAT properly chargeable on receipt of a valid VAT invoice.

Service Levels

The Supplier shall meet the Service Levels. If it fails to do so, the Customer is entitled to the service credits stated in the applicable Order, subject to the Service Credit Cap. Service credits are the Customer's sole monetary remedy for that failure, except for repeated or material failure, fraud, death or personal injury, or claims that cannot lawfully be limited.

Personnel and Subcontracting

The Supplier is responsible for the acts and omissions of its personnel and subcontractors as if they were its own. The Supplier may subcontract part of the Services, but remains responsible for performance and shall ensure each subcontractor is bound by obligations consistent with the Confidentiality clause and, where applicable, the Data Protection clause.

Intellectual Property

The Customer retains ownership of the Customer Materials and Customer Data. The Customer grants the Supplier a non-exclusive, non-transferable, royalty-free licence for the Term to use them solely to perform the Services and exercise its rights under this Agreement.

Customer Systems and Facilities Access

The Supplier may access Customer systems or facilities only to the extent authorised in an Order or otherwise in writing, solely as necessary to provide the Services, and in accordance with the Customer's reasonable access controls, security policies and instructions notified to the Supplier. The Supplier is responsible for its acts and omissions, including those of its personnel and subcontractors, while at Customer facilities, including acts or omissions resulting in personal injury or property damage. On reasonable request, the Supplier shall provide documentation, third-party audit reports or other information reasonably necessary for the Customer to verify compliance with this clause.

Intellectual Property

The Customer may, but is not required to, give the Supplier suggestions, feedback or comments about the Services or related offerings (Feedback), in which case the Customer gives Feedback "AS IS". The Supplier may use all Feedback freely without restriction or obligation. The Supplier may collect and analyse data and information about the provision, use and performance of the Services based on the Customer's use of the Services (Usage Data), and may use Usage Data to maintain, improve and enhance its products and services. The Supplier may share Usage Data only if it is aggregated and does not identify the Customer.

The Supplier retains ownership of the Supplier Materials. To the extent Supplier Materials are incorporated in a Deliverable, the Supplier grants the Customer a non-exclusive, perpetual, worldwide, royalty-free licence to use those Supplier Materials only as necessary to use the Deliverable for the Customer's internal business purposes.

On payment of the Charges due for them, the Supplier assigns to the Customer all intellectual property rights in bespoke Deliverables created specifically for the Customer under an Order, excluding Supplier Materials. The Supplier shall procure that its personnel execute documents reasonably necessary to give effect to that assignment.

Third-Party and Open Source Materials

The Supplier shall not incorporate into or include with any Deliverable any third-party materials unless it identifies those materials in reasonable detail in the applicable Order and obtains, at its own expense, all third-party rights necessary to grant the Customer the rights in the Deliverable required by this Agreement. Where third-party materials include open-source software, the Supplier shall list each item and provide complete related licence and copyright attribution information. Unless the applicable Order expressly states otherwise, the Supplier shall not incorporate open-source software subject to a licence requiring disclosure of source code or licensing of combined or derivative code on the same terms.

Intellectual Property

The Supplier shall indemnify the Customer against losses finally awarded or agreed in settlement of a third-party claim that the Customer's authorised use of the Services or Deliverables infringes that third party's intellectual property rights in the United Kingdom, provided the Customer promptly notifies the Supplier, gives reasonable cooperation at the Supplier's cost, and allows the Supplier sole control of the defence and settlement. The Supplier has no liability to the extent the claim arises from Customer Materials, Customer instructions, unauthorised modification, or use contrary to this Agreement. The Supplier may procure continued use, modify or replace the affected item, or terminate the affected Order and refund prepaid Charges for the unused affected Services.

Customer Materials Indemnity

The Customer shall defend the Supplier against a third-party claim alleging that Customer Materials, when used by the Supplier as authorised under this Agreement, infringe or misappropriate that third party's intellectual property rights, and shall indemnify the Supplier against damages or costs finally awarded or agreed in settlement by the Customer resulting from that claim. The Supplier shall promptly notify the Customer, give reasonable cooperation at the Customer's cost, and allow the Customer sole control of the defence and settlement; however, the Customer may not settle the claim without the Supplier's prior written consent if settlement would require the Supplier to admit fault or take, or refrain from taking, any action.

Confidentiality

Each party shall keep the other party's Confidential Information confidential and use it only to perform or receive the Services and exercise its rights under this Agreement. "Confidential Information" means information disclosed by or for a party that is confidential by nature or identified as confidential, excluding information the recipient can show is public other than through breach, already lawfully known, independently developed, or lawfully obtained without restriction. A recipient may disclose Confidential Information to its personnel, professional advisers and subcontractors who need to know it and are bound by confidentiality obligations, or where required by law after giving notice where lawful. This clause continues for 3 years after disclosure, except for trade secrets while they remain trade secrets.

Neither party may make a public announcement about this Agreement or use the other party's name, trade marks or logos in publicity without the other party's prior written consent, except where required by law.

Data Protection

Each party shall comply with applicable data protection law. Where the Supplier processes personal data on the Customer's behalf, the Customer is controller and the Supplier is processor unless an Order states otherwise. The parties shall enter into a data processing schedule containing the information and terms required by Article 28 of the UK GDPR before that processing begins. The Supplier shall process personal data only on documented instructions from the Customer, except where law requires otherwise.

The Supplier shall maintain appropriate technical and organisational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access, taking account of the nature of the Services and the risks involved. The Supplier shall notify the Customer without undue delay after becoming aware of a confirmed personal data breach or material security incident affecting Customer Data.

Warranties

Each party warrants that it has authority to enter into and perform this Agreement. The Supplier warrants that the Services will materially conform to their description in the applicable Order for 30 days after performance. The Customer's remedy for breach of that warranty is re-performance or, if re-performance is not commercially reasonable, a refund of the Charges paid for the non-conforming Services. Except as expressly stated, all warranties, conditions and other terms implied by law are excluded to the fullest extent permitted by law.

Insurance

The Supplier shall maintain appropriate insurance with reputable insurers, including professional indemnity and public liability insurance where appropriate, with cover of at least the Minimum Insurance Amount. On reasonable written request, the Supplier shall provide evidence of that cover.

Liability

Neither party is liable to the other for loss of profit, loss of revenue, loss of anticipated savings, loss of goodwill, loss or corruption of data, or any indirect or consequential loss. This exclusion does not apply to amounts payable to a third party under an indemnity in this Agreement, charges properly due, or losses that cannot lawfully be excluded.

Subject to the Liability clause, each party's total aggregate liability arising out of or in connection with this Agreement in any Liability Cap Period is limited to the Liability Cap. The Liability Cap does not limit liability for fraud or fraudulent misrepresentation, death or personal injury caused by negligence, or any other liability that cannot lawfully be limited or excluded.

Suspension

The Supplier may suspend affected Services on reasonable notice where the Customer materially breaches this Agreement, including by failing to pay undisputed Charges, and does not remedy the breach within 10 Business Days after notice. The Supplier shall limit suspension to what is reasonably necessary and resume the Services promptly after the breach is remedied. The Supplier may suspend immediately where necessary to protect security, comply with law, or prevent material harm.

Term and Termination

This Agreement starts on the agreement date and continues for the Initial Term. It then renews automatically for successive Renewal Terms unless either party gives the other written notice not to renew at least the Non-renewal Notice Period before the end of the Initial Term or the then-current Renewal Term.

Either party may terminate this Agreement or an affected Order by written notice if the other party commits a material breach and, if the breach is capable of remedy, does not remedy it within the Termination Notice Period after receiving written notice requiring it to do so.

Either party may terminate this Agreement or an affected Order by written notice if the other party enters liquidation, has an administrator appointed, ceases or threatens to cease carrying on business, or is unable to pay its debts as they fall due, except where termination would be prohibited by applicable insolvency law.

Either party may terminate an Order for convenience by giving the other at least the Termination Notice Period written notice. The Customer shall pay Charges for Services properly performed and non-cancellable commitments reasonably incurred up to the termination date.

If this master services agreement expires or is not renewed, each Order then in force continues until it is completed or ends under its own terms, and the terms of this master services agreement continue to apply to that Order until then. If either party terminates this master services agreement, each Order then in force terminates at the same time, unless the terminating party's notice states that a specified Order continues, in which case the terms of this master services agreement continue to apply to that Order until it ends.

On termination or expiry of an Order, the Supplier shall stop providing the affected Services and each party shall return or securely destroy the other party's Confidential Information on request, subject to legal retention requirements. The Customer shall pay all undisputed Charges due for Services performed up to termination. Termination does not affect accrued rights or provisions intended to survive, including the Intellectual Property, Confidentiality, Data Protection, Liability, and General clauses.

Exit Assistance

During the Exit Assistance Period, the Supplier shall provide reasonable transition assistance requested by the Customer to transfer the affected Services to the Customer or a replacement supplier. The Supplier may charge its then-current time-and-materials rates for that assistance, except where the need for assistance results from the Supplier's breach.

General

Neither party is liable for delay or failure to perform caused by an event beyond its reasonable control, excluding payment obligations. The affected party shall notify the other promptly and use reasonable endeavours to mitigate the effect. If the event continues for more than 60 days, either party may terminate the affected Order by written notice.

Neither party may assign, transfer or deal with its rights or obligations under this Agreement without the other party's prior written consent, not to be unreasonably withheld or delayed, except that either party may assign this Agreement to an affiliate or in connection with a bona fide sale of all or substantially all of its business or assets, provided the assignee can perform the assigning party's obligations.

A notice under this Agreement must be in writing and delivered by hand, prepaid first-class post or recognised courier to the recipient's registered office or principal place of business, or to another address notified for notices. A notice is deemed received when delivered, or if posted, two Business Days after posting. Email is not valid for notices of termination or legal proceedings.

Before starting court proceedings, either party may refer a dispute to senior representatives of both parties, who shall attempt in good faith to resolve it within 20 Business Days. This does not prevent either party seeking urgent interim relief or taking steps necessary to protect a limitation period.

This Agreement and the Orders are the entire agreement between the parties about their subject matter and replace prior discussions and agreements about it. Each party acknowledges that it does not rely on a statement not set out in this Agreement, without limiting liability for fraud. A variation is effective only if in writing and signed by authorised representatives of both parties. A person who is not a party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce this Agreement. If a provision is unenforceable, it shall be modified to the minimum extent necessary and the remaining provisions continue in force. A waiver is effective only if in writing and applies only to the circumstances for which it is given. Nothing creates a partnership, joint venture, agency or employment relationship between the parties.

This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy is deemed an original and all copies, when taken together, are the same agreement.

Neither party shall take any action that would violate applicable law prohibiting the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist the Supplier or Customer in retaining or obtaining business.

The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorised to bind the other to any liability or obligation.

Governing Law and Jurisdiction

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by the law of England and Wales. The courts of England and Wales have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement.

General

A breach of the Confidentiality clause or violation of a party's intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. On an actual or threatened breach or violation, the non-breaching party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction, without limiting its other rights or remedies.