Master Services Agreement

This page contains the online version of the Blundens Master Services Agreement (MSA), rendered directly from the original Word document output to preserve clause and list formatting.

MASTER SERVICES AGREEMENT

Background

  1. The Supplier has developed and will provide the Services (each as defined below).
  2. The Client (as defined below) wishes to use the Supplier's Services in its business operations.
  3. 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.

Acceptable Use Policy: means any acceptable use policy set out in the Statement of Work or as otherwise notified by the Supplier to the Client or contained in the following link: Acceptable Use Policy | Blundens , and as updated and amended from time to time.

Additional Usage: means any additional use of the Third Party Services and/or Subscription Services in excess of the Minimum Commitment.

Agreement: means the terms and conditions in this Agreement (including the Managed Services Terms, the Professional Services Terms, and the NCE Subscription Terms) along with the Statement of Work(s), any quotes and any other documents agreed between the Parties in writing.

Applicable Data Protection Laws: means:

i) To the extent the UK data protection legislation 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.

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

Assumptions: has the meaning given in Clause 7.5.

Authorised Representative: means the person nominated by each Party in accordance with this Agreement.

Authorised User: means any individual who is entitled to use of the Third Party Services and/or Subscription Services named to the Supplier as a user by the Client.

Background Materials: means 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: means any request to alter the Services pursuant to this Agreement as set out in Clause ‎14.

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

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 Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Client.

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

Clients Operating Environment: the Clients 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 Suppliers 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.

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

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

Consumption: refers to the subscription licences that are billed based on actual usage.

Customer Agreement: the Microsoft 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 at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time (any such updates shall continue to form part of the Customer Agreement).

Deliverable: means 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: means, 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.

Dispute Resolution Procedure: the procedure described in Clause ‎28.

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

Fees: the fees payable to the Supplier, as described in the Statement of Work or as otherwise agreed in writing as may be varied from time to time pursuant to the terms of this Agreement.

Force Majeure: has the meaning given in Clause 19.

Good Industry Practice: the standards of a skilled and experienced provider of services similar or identical to the applicable Services, having regard to factors such as the nature and size of the parties, the type of service, the service levels, the term, the pricing structure and any other relevant factors.

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

Initial Term: means the period commencing on the Commencement Date or the Services Commencement Date (as the case may be) and ending on the date twelve (12) months thereafter unless otherwise specified in the 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 Clients, 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 now or in the future, in each case for their full term, together with any future rights and renewals or extensions.

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

Licence Agreement: means all agreements that may have to be entered into by the Supplier and/or the Client in respect of Third Party Services used.

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

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

Managed Services Terms: means the terms and conditions relating to the provision of the Managed Services in Schedule 1.

Minimum Commitment: means the minimum commitment of usage or number of Authorised Users (as the case may be) agreed between the Parties from time to time.

NCE: means the New Commerce Experience for Microsoft products or services

NCE Subscription Services: means the services and use related to NCE subscription services.

NCE Subscription Terms: means the terms and conditions relating to the provision of the NCE Subscription Services in Schedule 3.

Normal Business Hours: 9 am to 5:30 pm local UK time on Business Days.

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

Party: a party to this Agreement or parties.

Product(s): means the Microsoft or other third party services, tools, software, hardware, or professional support or consulting services provided under the terms of the Customer Agreement, applicable Licence Agreement, Third Party Terms or as otherwise agreed between the Parties.

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

Professional Services Terms: the terms and conditions relating to the provision of the Professional Services in Schedule 2.

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

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

Ready For Service Date: the date specified in the Statement of Work or as otherwise agreed between the Parties in writing that may be updated from time to time if the Supplier deems it necessary for the provision of the Services. For a Managed Services it shall be the earlier of (a) completion of specific activities identified by the Supplier; (b) completion of the applicable Professional Services; (c) commencement of the Subscription Services; or (d) such date as is notified by the Supplier. The exact date shall be confirmed by the Supplier in writing.

Relief Events: the following events:

  1. any failure by the Client to comply with its obligations under this Agreement;
  2. 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;
  3. 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;
  4. any telecommunications network defect, delay or failure or failure of the Client's hardware or other systems;
  5. any of the causes or events set out in Clause 10.7.

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.

Scheduled Downtime: means the total amount of time during which the Client is not able to access the 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.

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

Services: means the provision of Managed Services, the Professional Services, and NCE Subscription Services including consulting, advisory, integration or technical 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: means the date set out in the applicable Statement of Work or as otherwise agreed between the Parties for the commencement of the Services.

Software: the proprietary software which is owned by or the Supplier and which is licensed to the Client during the term of this Agreement as set out in the Statement of Work.

Statement of Work: means the statement of work or order form which sets out the Services and the Service Level Arrangements under separate cover and which incorporates the terms and conditions of this Agreement.

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

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

Supplier: Blundens Limited Ltd incorporated and registered in England and Wales with company number 14230311 whose registered office is at 483 Green Lanes, London N13 4BS.

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.

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

Third Party: 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.

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

Third Party Terms: any terms and conditions relating to Third Party Services.

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

Unscheduled Downtime: means any time when any or all of the applications and Services provided by the Supplier to the Client shall be unavailable to the Client due to unexpected system failures other than Scheduled Downtime or the downtime is attributable to events not under the control of the Supplier.

User Subscriptions: means the user subscriptions purchased by the Client pursuant to a Statement of Work which entitle Authorised Users to access and use the Subscription Services and/or Third Party Services (as the case may be) in accordance with this Agreement.

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 of this Agreement, the Schedules, the Statement of Work, and the Customer Agreement / Licence Agreement / Third Party Terms (including any changes or variations to each), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:

  1. the Statement of Work;
  2. the Customer Agreement / Licence Agreements/ Third Party Terms, to the extent applicable to the Services;
  3. the Schedules;
  4. the Clauses.

2. PROVISION OF SERVICES

2.1 This Agreement sets out the terms and conditions under which the Supplier shall provide to the Client the Services.

2.2 Where the Services include:

  1. the supply of Managed Services, the provisions of Schedule 1 shall apply in addition to the Clauses;
  2. the supply of Professional Services, the provisions of Schedule 2 shall apply in addition to the Clauses; and
  3. the supply of the NCE Subscription Services, the provisions of Schedule 3 shall apply in addition to the Clauses.

2.3 As long as there is no material adverse effect on the quality or performance of the Services, the Supplier can make any changes (without prior notice unless prohibited by applicable law) to the Agreement or Statements of Work which are required to conform with any applicable safety, regulatory or other statutory requirement, or any Third Party request that Supplier is required to flow down to the Client.

2.4 This Agreement shall (i) be 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 (ii) prevail over any of the Clients 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.

2.5 Except to the extent provided for in Clause 2.3, no addition to, variation of or other amendment or purported amendment to any Statement of Work or this Agreement shall be 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.

2.6 Any quote given by the Supplier is for budgetary purposes until financial and technical validation, shall not constitute an offer and is only valid for a period of 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:

  1. provide the Services in accordance with the terms of this Agreement and the Statement of Work;
  2. use its commercially reasonable endeavours to complete any Deliverables and/or meet any SLAs within any timescales set out under any Statement of Work but any such dates shall be estimates only;
  3. commit sufficient resources to the provision of the Services to enable their delivery in accordance with the Agreement and Statement of Work;
  4. provide the Services with due care, skill and ability in accordance with Good Industry Practice;
  5. take such reasonable steps as may be necessary to fulfil its obligations under this Agreement and any Statement of Work;
  6. utilising suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care;
  7. notify the Client promptly if the Supplier is unable to comply with any of the terms of this Agreement, any Statement of Work, and, to the extent each is applicable to the Services, the Licence Agreements, Customer Agreement, and/or Third Party Terms; and
  8. 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 and which have been communicated to it a week prior to the Services commencing, where the Supplier is required to be on such Client Sites for the provision of the Services.

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

3.3 Unless otherwise set out in the Statement of Work, 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. For the avoidance of doubt, the Supplier shall not be held liable for the actions and/or omissions of third parties who are not its subcontractors.

3.4 The Supplier may in the provision of the Services make recommendations in relation to the Clients system including (but not limited to) the Clients security configuration, hardware, software and/or general IT system configuration. In the event that the Client does not wish to follow the Suppliers recommendations and, in the Suppliers reasonable opinion, such refusal will have an adverse effect on the Suppliers ability to provide the Services in accordance with this Agreement and the applicable Statement of Work, and agreement is not reached in respect of (i) any necessary action; (ii) the Services; and/or (iii) applicable Fees, then the Supplier reserves the right to cease provision the affected Services in whole or in part and/or to terminate the Agreement and/or the applicable Statement of Work.

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 (2) Authorised 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 Third Party Terms, 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 Third Party Terms, 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:

  1. adhere to any Acceptable Use Policy;
  2. make the Clients Operating Environment and Client-side Equipment, required to provide the Services, accessible to the Suppliers support staff, enable logons or passwords required for such support staff and provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;
  3. ensure it has suitable licences in place for any third party software required (which is not issued or procured by the Supplier) to allow the Supplier and its subcontractors full use in relation to the Services provided;
  4. not use the Services to receive, store or transmit material or data that is obscene, threatening, offensive, discriminatory, defamatory or in breach of confidence, infringes Intellectual Property Rights or other rights, gives rise to any cause of action against the Supplier in any jurisdiction or is otherwise unlawful, and the Supplier reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this sub-clause;
  5. inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Clients premises;
  6. allow the Supplier or its designated subcontractors and third parties, global admin access to the Clients relevant servers and networking systems from a user account dedicated to the Supplier for the duration of the Agreement;
  7. 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 (CPOR) and/or Digital Partner of Record (DPOR) and/or Transacting Partner of Record (TPOR) and/or Partner Admin Link (PAL) and/or given Delegated Administration Privileges (DAP) and/or Granular Delegated Admin Privileges (GDAP) and Admin on Behalf of (AOBO) for a minimum of twelve (12) months from project completion date;
  8. 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;
  9. provide all information and make available all resources as reasonably requested by Supplier in the execution of its obligations under this Agreement;
  10. use all reasonable efforts to follow the reasonable instructions of Supplier support personnel with respect to the resolution of defects;
  11. 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
  12. agree that if, in the course of performing the Services, it is reasonably necessary for the Suppliers performance of its obligations under a Statement of Work for 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 the 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 agrees to adhere to the dates scheduled for provision of 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 Services, the Supplier will use reasonable endeavours to re-assign allocated resources to other clients.  If such re-assignment is not possible and the Client has not provided more than fourteen (14) days advance written notice, 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 Services work that has been performed:

  1. if dates are changed or cancelled at the Clients request more than fourteen (14) days before the scheduled start date no Cancellation Charges are payable;
  2. if dates are changed or cancelled between seven (7) days and fourteen (14) days 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;
  3. if dates are changed or cancelled less than seven (7) days 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.

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

  1. use the Services only for lawful purposes and in accordance with this Agreement;
  2. keep secure from third parties any passwords issued to the Client by the Supplier;
  3. fully virus-check all data supplied to the Supplier pursuant to this Agreement;
  4. comply with all applicable laws and regulations with respect to its activities under this Agreement; and
  5. 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.

4.7 The Supplier shall not be liable for any delays or claims of whatsoever nature, which result, directly or indirectly, from the failure by the Client to comply with the reasonable requests of the Supplier or the breach by the Client of any provision of this 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 ‎14 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. USER SUBSCRIPTIONS

6.1 The Supplier or relevant Third Party grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Third Party Services and/or Subscription Services (as applicable) during the Term solely for the Client's internal business operations pursuant to the terms of the applicable Licence Agreement and/or Third Party Terms.

6.2 In relation to the Authorised Users, the Client undertakes that:

  1. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Third Party Services and/or Subscription Services;
  2. each Authorised User shall keep any passwords used confidential;
  3. it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within five (5) Business Days of the Suppliers written request from time to time;
  4. it shall permit the Supplier to audit the Clients use of the Third Party Services and Subscription Services for each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client's normal conduct of business;
  5. if any of the audits referred to in Clause 6.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Client shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
  6. if any of the audits referred to in Clause 6.2(d) reveal that the Client has underpaid Fees to the Supplier and/or individuals are using the Third Party Services who are not Authorised Users, without prejudice to the Supplier's other rights, the Client shall pay to the Supplier an amount equal to such underpayment within ten (10) Business Days of the date of the relevant audit or upon request by the Supplier, promptly disable access to such individuals.

6.3 The Client may, from time to time during any Term:

  1. subject to the NCE Subscription Terms and the Statement of Work, request that the User Subscriptions are increased but the Client is not permitted to decrease below the Minimum Commitment provisioned; or
  2. request Additional Usage at any point in excess of the User Subscriptions, by giving the Supplier written notice subject to the following:
  3. The Supplier shall evaluate the Client's request for Additional Usage and grant or refuse the request (in its sole discretion).
  1. If the Supplier approves the Clients request to purchase Additional Usage, the Client shall, within thirty (30) days of the date of the Suppliers invoice, pay to the Supplier the relevant Fees for such Additional Usage at the relevant price at the time of the request and, if such Additional Usage is purchased by the Client part way through the Term, such fees shall be pro-rated for the remainder of the Term and the Minimum Commitment shall be increased in line with such Additional Usage for the remainder of the Term.
  2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
  3. 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;
  1. only 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 the Supplier, 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 Data Protection Legislation applies to the transfer).
  2. the Supplier 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;
  3. any changes in the Clients instructions that affect the pricing structure or commercial relationship between the Parties should go through an appropriate Change Request (as set out in Clause 14).

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Subject to Clause ‎10.2 below, on creation by the Supplier and upon the Supplier receiving payment in full of the applicable Fees, 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.

10.2 Notwithstanding Clause ‎‎10.1 above, the Supplier and its respective licensors shall retain exclusive ownership of (i) all of its 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 Clients 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. The Client may not, at any time including after termination of this Agreement, share any Supplier Intellectual Property with any third party without the Suppliers prior written consent. The Supplier may treat the Client's breach of this Clause ‎10.2 as a breach of the Agreement.

10.3 The Client shall pay and indemnify the Supplier, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by the Supplier, arising by reason of claims that (1) the Suppliers possession of or use of the Clients 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 clients, modify, alter, replace combine with any other data, code, documents or other software, which alters the Suppliers 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.

10.4 The Supplier shall pay and indemnify the Client, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by the Client, arising by reason of claims that (1) the Clients possession of or use of the Suppliers 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 Clients 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.

10.5 If either Party (Indemnifying Party) is required to indemnify the other Party (Indemnified Party) under this Clause ‎10, the Indemnified Party shall:

  1. 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 ‎‎10.3 or Clause ‎10.4 (as applicable);
  2. 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;
  3. 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
  4. 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.

10.6 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:

  1. 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
  2. procuring a licence or permission to use the Deliverables on terms which are acceptable to the Client, such acceptance not to be unreasonably withheld.

10.7 Except to the extent that the Supplier should reasonably have known or advised the Client the foregoing provisions of Clause ‎10.6, the Supplier shall have no obligation or liability for any IPR Claim to the extent such IPR Claim arises from:

  1. 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
  2. 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.

11. LICENCE OF SOFTWARE

11.1 In consideration of the Fee paid by the Client to the Supplier, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Client a non-exclusive, revocable, worldwide, non transferable licence for the duration of the applicable Statement of Work until terminated to use of the Software.

11.2 In relation to scope of use:

  1. for the purposes of Clause ‎11.1, use of the Software:
  2. shall be restricted to use of the Software in object code form for the purpose of processing the Clients data for the normal business purposes of the Client (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Client); and
  1. means loading the Software into temporary memory or permanent storage on the relevant computer, provided that installation on a network server for distribution to other computers is not use if the Software is licensed under this licence for use on each computer to which the Software is distributed;
  2. commences live running of the whole or part of such deliverable other than in the course of undertaking Acceptance Testing; or
  3. if Deliverables or Services are found to conform with the Statement of Work;

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

  1. 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 (attributable to the Clients acts or omissions including inadequate Acceptance Testing) the Supplier shall (without prejudice to the Clients other rights and remedies) carry out all necessary remedial work without additional charge as part of the next Deliverable which shall accordingly be modified.
  2. 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 Suppliers control and which has disabled the Suppliers 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 Client to Supplier which specifically relate to the non-conforming Deliverable which cannot be remedied.

SCHEDULE 3 NCE SUBSCRIPTION TERMS

1. NCE CSP Subscription

1.1 Where the Services referred to in the Suppliers Statement of Work include the provision of NCE (NCE Subscription Services), the NCE Subscription Services shall be provided in accordance with and governed by the Statement of Work and these terms (which are hereinafter referred to as the NCE Subscription Terms).

2. Interpretation

2.1 The following definitions in this paragraph 2.1.apply in these NCE Subscription 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 Client.

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

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

2.2 Except as defined in these NCE Subscription Terms, capitalised terms shall have the meanings given to them in the Master Services Agreement.

2.3 To the extent applicable to the NCE Subscription Services, in the event of conflict with the terms of these NCE Subscription Terms and the Master Services Agreement, the provisions in these NCE Subscription Terms shall take precedence and in the event of a conflict with the terms of these NCE Subscription Terms and a Statement of Work, the provisions of the Statement of Work shall take precedence over these NCE Subscription Terms.

3. Service Provision

3.1 By submitting an order for NCE Subscription Services, the Client (i) represents that any subscription commitments and requirements disclosed are complete and accurate in all respects; (ii) agrees to pay the Supplier for all orders it submits for Products and the Subscription Services; (iii) agrees to the terms of the Master Services Agreement and the Statement of Work.

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

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

  1. Subscriptions shall continue for the duration of the Term unless terminated in compliance with the Statement of Work or Clause 16 of the Master Services Agreement; and/or
  2. adjustments may only be made to increase the Minimum Commitment and not decrease below any current Minimum Commitment provisioned as more fully set out in the Master Services Agreement, these NCE Subscription Terms and the Statement of Work (as applicable to the NCE Subscription Services).

4. Clients obligations

4.1 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.

5. Fees

5.1 Fixed Term Subscriptions.

  1. 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.
  2. 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.
  3. Any subsequent adjustments to monthly Subscriptions (e.g. adding users) made mid-billing cycle will be calculated and post-billed at the subsequent invoice.

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

  1. Consumption Subscriptions do not expire unless cancelled. Consumption Subscriptions can be cancelled in accordance with the Customer Agreement and any usage before a transfer to another provider is in effect will be billed in the next scheduled invoice date;
  2. 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 an Online Service sold on a consumption basis may change during the subscription period;
  3. it shall pay all such usage and is responsible for monitoring its consumption needs;
  4. the Client further acknowledges and accepts that the Supplier may establish or install a technical lock or barrier (the "Barrier"), which prevents the Client from utilization of a Product in excess of the Cap;
  5. for the avoidance of doubt, if, in spite of paragraph (d), the Client utilizes a Product in excess of the Cap, the Client shall pay to the Supplier fees and other expenses in accordance with its actual use. Any dysfunction or non-use of the Barrier shall not release the Client from paying fees and costs in accordance with its actual utilization of a Product. The Supplier has no responsibilities with regards to preventing the Client from utilisation in excess of the Cap.

5.3 Subject to paragraph ‎5.4 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 twelve (12) month period.

5.4 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 Third Party Distributor upon thirty (30) days notice and/or in line with the terms of the Customer Agreement. Notwithstanding the foregoing: (i) the prices for Products may change without notice; and (ii) the Supplier will not be required to provide any prior notice before the effectiveness of a decrease or increase in Product Fees that relates to a currency fluctuation event.

5.5 The Supplier may change credit or payment terms for unfilled orders if, in the Suppliers reasonable opinion, the Clients financial condition, previous payment record, or relationship with the Supplier merits such change.

6. Intellectual Property

6.1 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.

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

6.3 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.

7. Cancellation

7.1 Subject to paragraph 6.2, where the Client has procured Products or Online Services from the Supplier, the Client may cancel the applicable order in line with the terms set out by Microsoft if the Client notifies the Supplier within seventy two (72)hours of placing the initial order for the applicable Microsoft Products or Online Services. For such notice to cancel to be effective, it must be received by the Supplier within the hours of 9am 4pm (GMT) on a Business Day.

7.2 The Client acknowledges and accepts that any cancellation pursuant to paragraph 7.1 will only be accepted if submitted by the Supplier within Microsofts designated cancellation period for the applicable Online Service or Product and is approved by Microsoft and/or the Third Party Distributor (if applicable) and is in accordance with any other requirements of Microsoft and/or Third Party Distributor (if applicable) at the time of cancellation. If cancellation is approved by Microsoft and/or Third Party Distributor, then the order will be cancelled.

7.3 Depending on the service or product being cancelled, if and to the extent any credit of the purchase price (in full or pro-rata) is issued by Microsoft or the Third Party Distributor (if applicable) to the Supplier, on receipt of the same, the Supplier will pass on any such credit to the Client less any Microsoft and/or Third Party Distributor handling fee as a proportion of the value of any order submitted and approved after the designated period for the relevant Product or Online Service. The Supplier is not liable to the Client if Microsoft and/or Third Party Distributor do not issue a credit.

8. Limitation of liability

8.1 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. All other services which falls outside the Subscription Services and Online Services are governed by the terms of the Agreement and shall take precedence over the terms of the Customer Agreement should any conflict arise over the use of such services.

8.2 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 Clients use of the Subscription Services or reporting under the Agreement.

9. Term & Termination

9.1 The Clients perpetual licences and licences granted on a subscription basis will continue for the duration of the subscription period(s) notwithstanding termination of the Master Services Agreement, subject to the terms of these NCE Subscription Terms and the Master Service Agreement (as applicable). Unless otherwise specified in the applicable the Statement of Work (as applicable to the NCE Subscription Services), the Client shall remain liable for any and all payments due in respect of the licences until the end of the respective subscription period.

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

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

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

  1. payment of any amount due from the Client under these NCE Subscription 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;
  2. upon termination by Microsoft or the Third Party Distributor of the licence(s); and/or
  3. in accordance with the Customer Agreement.

9.5 On termination of the Agreement for any reason:

  1. subject to paragraph 9.1, all licences granted under the Agreement will terminate immediately except for fully-paid, perpetual licences;
  2. for metered Products billed periodically based on usage, the Client must immediately pay for unpaid usage as of the termination date; and
  3. if Microsoft is in breach, and the Client is entitled, the Client will receive a credit for any Subscription Services fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

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