Introduction. This Master Services Agreement (the “Agreement”) sets out the terms under which Netix Digital Ltd (the “Supplier”) provides managed IT services to its clients. By signing an order, statement of work, or other document that incorporates this Agreement (each a “Statement of Work” or SOW), the client entity accepting the Services (the “Client”) agrees to be bound by these terms. This Agreement, together with any SOWs, forms a single contract between the Supplier and the Client.
1. Definitions and Interpretation
1.1 Definitions. In this Agreement, the following terms have the meanings given below:
- Services – The IT managed services, support, and related deliverables to be provided by the Supplier to the Client under one or more SOWs. The specific scope of Services (including any software, hardware, or support commitments) will be detailed in the applicable SOW.
- Fees – All charges, costs, and expenses payable by the Client for the Services, as set out in the relevant SOW or the Supplier’s price list (as may be updated in accordance with this Agreement).
- Applicable Data Protection Laws – All data protection and privacy laws and regulations applicable to the processing of personal data under this Agreement, including (where applicable) the UK Data Protection Act 2018 and the UK GDPR (and any successor legislation), and any other applicable data protection law.
- Confidential Information – Any information (whether in written, electronic or other form) disclosed by one party to the other under this Agreement that is marked or otherwise identified as confidential, or that by its nature would reasonably be understood to be confidential (including business plans, technical information, trade secrets, network credentials, and client data). Confidential Information does not include information that is publicly available (other than through breach of this Agreement), was lawfully in the receiving party’s possession before disclosure, or is obtained from a third party not bound by confidentiality.
1.2 Interpretation. Clause headings are for convenience and do not affect interpretation. References to a statute or regulation include any amendments or replacements. “Including” means “including without limitation.” Unless the context requires otherwise, words in the singular include the plural and vice versa.
2. Services and Scope
2.1 Provision of Services. The Supplier shall provide the Services to the Client as described in each duly executed SOW. Each SOW shall form part of this Agreement and be subject to its terms. In the event of any conflict between this Agreement and a SOW, the SOW shall prevail only for that specific project or scope, except where the SOW explicitly states otherwise. The Supplier will perform the Services with reasonable skill and care, in a professional and workmanlike manner, and in accordance with all applicable laws and regulations.
2.2 Service Standards and Personnel. The Supplier shall use personnel who are suitably qualified and experienced to perform the Services. Any specific service levels or response times will be as set out in the SOW or a Service Level Agreement (SLA) if one is incorporated. The Supplier may subcontract or delegate performance of parts of the Services to third parties or subcontractors, provided that the Supplier remains responsible for the performance of the Services.
2.3 Third-Party Services or Software. If the Services include access to or procurement of any third-party services, software, or products (for example, third-party cloud services or licenses), the Client acknowledges that use of such third-party components may be subject to the third party’s standard terms and conditions. The Supplier will notify the Client of any material third-party terms applicable. The Supplier will act as a reseller or intermediary for such third-party services and passes through to the Client, to the extent permitted, any warranties or license rights provided by the third-party provider. The Supplier makes no additional warranty beyond those provided by the third party for such components.
3. Client Responsibilities
3.1 Cooperation and Access. The Client shall cooperate with the Supplier in all matters relating to the Services. The Client will provide, in a timely manner and at no charge to the Supplier, access to its premises, equipment, systems (including remote network access), and relevant personnel, and all information and materials reasonably required by the Supplier to deliver the Services. The Client is responsible for ensuring that all information it provides to the Supplier is accurate and complete. If the Supplier’s performance of the Services is prevented or delayed by any act or omission of the Client (or its agents, contractors, or employees), the Supplier shall not be liable for any costs, charges or losses sustained by the Client arising directly or indirectly from such prevention or delay, and the Supplier may adjust timetables or Fees to reflect the impact of the Client’s delay.
3.2 Appropriate Use and Conduct. The Client shall use the Services only for lawful purposes and in accordance with any acceptable use policies notified by the Supplier. The Client must not misuse the Services to send spam, launch attacks, or engage in illegal activities. The Client is responsible for obtaining any licenses or permissions needed for any software or materials that the Supplier is asked to install or use on the Client’s behalf (other than those the Supplier agrees in the SOW to provide). The Client shall also treat the Supplier’s personnel and representatives with professional courtesy and respect at all times, and shall not engage in offensive, abusive, or threatening behaviour towards the Supplier’s staff, contractors, or brand. (Any breach of this clause may be treated as a material breach of the Agreement, without prejudice to Clause 5.2.)
3.3 Client Equipment and Data. The Client is responsible for the performance, security, and maintenance of its own hardware, software, network, and data except to the extent the SOW expressly includes the Supplier’s management of those elements. Unless explicitly included in the Services, the Client should maintain appropriate data backups and disaster recovery plans. The Supplier is not liable for any failure in the Client’s systems that are outside the scope of the Services or for any loss of data to the extent the Client failed to maintain backups. The Client shall promptly notify the Supplier of any issues with the Services and allow the Supplier reasonable opportunity to remedy them under the support provisions of this Agreement or SOW.
3.4 Compliance. The Client shall (i) comply with all applicable laws and regulations in respect of its obligations under this Agreement and its use of the Services, and (ii) ensure that its own personnel and any end-users of the Services also comply. The Client warrants that it has the right to permit the Supplier to access and use any Client-provided software, data, and materials for the purpose of providing the Services, and that such access or use by the Supplier will not infringe any third-party rights. The Client shall indemnify and hold harmless the Supplier against any claims, losses, or damages arising from the Supplier’s use of any materials or instructions provided by the Client that infringe a third party’s intellectual property rights or violate law (except to the extent caused by the Supplier’s breach of this Agreement).
4. Fees and Payment
4.1 Fees and Invoicing. The Client shall pay the Fees for the Services as set out in the applicable SOW or as otherwise agreed in writing. Unless stated otherwise in a SOW, recurring Services (such as managed IT support subscriptions) will be billed in advance on a [monthly] basis, and any one-time or project Services will be billed in arrears or as milestones as specified in the SOW. The Supplier will issue invoices electronically (via email or a customer portal). All Fees are stated in GBP (Pounds Sterling) and exclude VAT or other applicable taxes, which will be added and charged to the Client in accordance with UK law. The Client is responsible for paying any such taxes on the Services.
4.2 Payment Terms. The Client shall pay each invoice in full, without set-off or deduction, within [14] days of the invoice date (unless a different payment period is specified in a SOW or invoice). Payments shall be made in the currency and to the bank account (or other payment platform) designated by the Supplier. Time of payment is of the essence. If the Client disputes any portion of an invoice, it shall notify the Supplier in writing before the payment due date, pay the undisputed portion, and the parties shall seek to resolve the dispute in good faith. The Supplier reserves the right to withhold or suspend delivery of Services (after giving at least 7 days’ prior notice of its intention to do so) if any invoices are overdue until all outstanding amounts are paid.
4.3 Automated Payment Method. The Client is required to maintain a valid automated payment method on file with the Supplier at all times for settlement of recurring charges. Acceptable payment methods include a direct debit mandate or a valid credit/debit card processed via the Supplier’s secure payment provider (e.g., Stripe). By entering into this Agreement, the Client authorizes the Supplier to charge such payment method for all recurring Fees and any other amounts that become due under this Agreement or any SOW. The Client shall ensure that the payment method provided remains current (for example, updating the card number and expiration date or bank details as necessary) and has sufficient funds or credit available to cover the Fees. If the Client fails to provide or maintain a valid payment method, or if any charge is declined or refused, the Supplier may suspend the Services and such failure will constitute a material breach of this Agreement (in addition to the Client’s obligation to promptly provide an alternative payment method).
4.4 Late Payment. If the Client fails to pay any undisputed amount by the due date, the Supplier may (without prejudice to any other rights and remedies) charge interest and late payment compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 on the overdue sum from the due date until the date of actual payment. Interest under this clause 4.4 shall accrue daily at the statutory rate (which is currently 8% per annum above the Bank of England’s base rate) or such other rate as permitted by applicable law. The Client shall reimburse the Supplier for any costs of collecting the late payment, including reasonable legal fees, to the extent allowed by law. The Supplier may additionally suspend any or all Services (with notice) until all overdue amounts (including any interest) are paid in full.
4.5 Invoice Discrepancies. The Client must raise any billing queries or disputes in writing within 14 days of the date of the invoice, providing details of the disputed amount and reason. The Supplier will investigate any timely raised dispute and, if the dispute is resolved in the Client’s favor, issue a credit or adjustment on the next invoice. If the Client does not dispute an invoice within this 14-day period, the invoice shall be deemed accepted.
4.6 No Set-off. All payments due under this Agreement shall be made by the Client in full without any set-off, counterclaim, deduction, or withholding (except for any deduction or withholding required by law). The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Supplier to the Client.
4.7 Quantities. Quantities may be adjusted as required, and the signed quote represents the minimum values. E.G. If your agreement states 10 users but you recruit a new starter, that would increase the invoiced quantity to 11.
5. Term and Termination
5.1 Term of Agreement. This Agreement commences on the Effective Date (either the date of last signature below or, if this Agreement is posted online, the date the Client first accepts an SOW incorporating these terms) and shall continue until terminated as provided herein. Each SOW will have the initial term or minimum commitment period stated in that SOW (e.g., a 12-month term for a managed services contract), and may auto-renew for successive renewal periods (of equal length to the initial term, unless otherwise specified) unless either party gives written notice of non-renewal at least [30] days before the end of the then-current term. If an SOW does not specify a fixed term, it shall continue until terminated in accordance with this Agreement. Termination of this Agreement shall automatically terminate all active SOWs, unless the parties agree otherwise in writing.
5.2 Termination for Cause. Either party may terminate this Agreement (and/or any individual SOW) immediately by giving written notice to the other party if any of the following events occurs:
- Material Breach: The other party commits a material breach of this Agreement or an SOW which is incapable of remedy, or (if capable of remedy) fails to remedy the breach within 30 days after receiving written notice requiring it to do so. For the avoidance of doubt, non-payment of Fees by the Client within the agreed payment terms is deemed a material breach of the Agreement
- Insolvency: The other party becomes insolvent or unable to pay its debts as they fall due, enters into liquidation or administration, has a receiver appointed, or undergoes any analogous event in any jurisdiction (such as bankruptcy or a voluntary arrangement with creditors).
- Ceasing Business: The other party suspends or ceases (or threatens to suspend or cease) carrying on a substantial part of its business.
In addition, the Supplier may (at the discretion of its Directors) terminate this Agreement (and/or any or all SOWs or Services) immediately upon written notice if the Client or any of its personnel engages in offensive, abusive, or threatening behaviour toward the Supplier’s brand, employees, or contractors. This right of termination is without prejudice to any other rights or remedies the Supplier may have and may be exercised at the sole discretion of the Supplier’s board of directors in order to protect the welfare of its staff and reputation of its business.
5.3 Termination for Convenience. After the expiry of any minimum term specified in a SOW, either party may terminate that SOW for convenience by providing the other party at least [30] days’ prior written notice (or such other notice period as may be stated in the SOW). For clarity, termination of one SOW will not automatically terminate other SOWs or this Agreement, unless the notice explicitly terminates the entire Agreement. (If no minimum term is specified, either party may terminate a month-to-month Services arrangement on 30 days’ notice.)
5.4 Effects of Termination. Upon termination or expiration of this Agreement or any SOW for any reason: (a) the Client shall immediately pay all outstanding unpaid invoices and any accrued interest, and, in respect of Services supplied for which no invoice has yet been submitted, the Supplier shall submit an invoice which shall be payable immediately upon receipt; (b) the Client shall return or destroy (at the Supplier’s direction) all Supplier Materials, including any loaned equipment or confidential information of the Supplier, and the Supplier shall return any Client materials on the same basis; (c) any licenses granted by the Supplier to the Client for software or other intellectual property as part of the Services shall cease immediately upon termination (unless otherwise agreed in writing or required by law); and (d) each party shall promptly cease use of and permanently delete any of the other party’s Confidential Information in its possession (subject to each party’s rights to retain archival copies for legal compliance or record-keeping purposes only).
5.5 Survival. Termination or expiration of this Agreement shall not affect any rights, remedies, obligations or liabilities of either party that have accrued up to the date of termination. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination (including but not limited to clauses on Fees, Confidentiality, Intellectual Property, Data Protection, Warranties, Liability, Non-Solicitation, Governing Law, and any indemnities) shall remain in full effect
5.6 Consequences of Supplier Termination for Cause. If the Supplier terminates this Agreement or any SOW under clause 5.2 (for the Client’s breach or misconduct), the Supplier shall be entitled to invoice the Client for any work performed or committed up to the termination date that has not yet been invoiced (including any applicable early termination charges or third-party cancellation fees). The Client acknowledges that in such circumstances any prepaid Fees are non-refundable, and any unpaid Fees for the remainder of a committed term (if applicable) shall become immediately due and payable as a genuine pre-estimate of the Supplier’s losses (and not as a penalty).
5.7 Suspension of Services. As an alternative to termination, where the Client is in breach of this Agreement (including for non-payment or misconduct), the Supplier may elect to suspend provision of Services (in whole or part) until the breach is remedied. Suspension of Services shall not be considered a waiver of the Supplier’s right to terminate later for the same breach. The Client shall remain liable for all Fees during any period of suspension where the Services were otherwise available for the Client’s use.
6. Intellectual Property Rights
6.1 Ownership of Deliverables and Materials. Unless otherwise expressly stated in a SOW, all software, configurations, scripts, documentation, reports, know-how, methodologies, and other materials developed, created, or provided by the Supplier in the course of delivering the Services (collectively, “Deliverables”) and all Intellectual Property Rights therein shall be and remain the sole property of the Supplier (or its licensors). The term “Intellectual Property Rights” includes patents, inventions, copyright, database rights, trade secrets, know-how, trademarks, and all other intellectual or industrial property rights anywhere in the world, whether registered or unregistered.
6.2 License to Use Deliverables. Upon the Client’s payment in full of all Fees due for the Services, the Supplier grants the Client a non-exclusive, non-transferable, royalty-free license to use any Deliverables provided to the Client solely for the Client’s internal business purposes and strictly in connection with its use of the Services. The Client shall not sell, sublicense, or distribute any Deliverables to any third party unless explicitly authorized by the Supplier in writing. Nothing in this Agreement transfers ownership of the Supplier’s pre-existing materials or generic methodologies to the Client; any Supplier Materials (including templates, tools, or software used by the Supplier) that are used in performing the Services remain the Supplier’s property. If a Deliverable incorporates any Supplier Materials or third-party materials, the Client’s use of those components may be subject to separate license terms, which the Supplier will either sublicense to Client or procure for Client as needed for the intended use of the Deliverable.
6.3 Client Materials. The Client retains ownership of all data, information, software, and materials it provides to the Supplier (“Client Materials”). The Client grants the Supplier a non-exclusive license to use, copy, modify, and store the Client Materials solely as necessary for the Supplier to perform the Services. The Supplier shall return or, at the Client’s instruction, delete or destroy Client Materials in its possession upon termination of the Services (subject to any retention rights under clause 5.4 or Data Protection obligations). The Client represents and warrants that it has all necessary rights in the Client Materials to permit the use contemplated by this Agreement.
6.4 Indemnity for IP Infringement. The Supplier shall defend and indemnify the Client against any claim that the Deliverables (as provided by the Supplier) infringe any third party’s UK intellectual property rights, provided that the Client: (i) promptly notifies the Supplier of the claim; (ii) allows the Supplier sole control of the defense and settlement of the claim; and (iii) provides the Supplier with reasonable cooperation. This indemnity shall not apply to the extent the alleged infringement arises from Client Materials or from any use of Deliverables in combination with other products or services not supplied or recommended by the Supplier, or any modification of the Deliverables by anyone other than the Supplier. If any Deliverable is found to infringe third-party rights, the Supplier may, at its option, (a) procure for the Client the right to continue using it, (b) replace or modify it so it becomes non-infringing (while providing substantially similar functionality), or (c) if options (a) and (b) are not commercially reasonable, terminate the affected Services or Deliverable and refund to the Client any pre-paid Fees for the terminated portion. This clause 6.4 states the Supplier’s entire liability for any intellectual property infringement by the Services or Deliverables.
7. Confidentiality
7.1 Confidentiality Obligations. Each party (the “Receiving Party”) shall keep strictly confidential all Confidential Information of the other party (the “Disclosing Party”) obtained under or in connection with this Agreement. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and shall not disclose such information to any third party, except to its own employees, officers, agents, contractors, or professional advisors who need to know the information for the purposes of this Agreement and who are bound by confidentiality obligations no less protective than those in this clause. The Receiving Party shall be responsible for any unauthorized use or disclosure of the Confidential Information by any person or entity to whom it discloses the information.
7.2 Permitted Disclosures. Notwithstanding clause 7.1, a Receiving Party may disclose Confidential Information of the Disclosing Party if and to the extent: (a) the Disclosing Party gives prior written consent to the disclosure; or (b) the Receiving Party is required by law, court order, or regulatory authority to disclose it, provided that (to the extent legally permitted) the Receiving Party gives prompt written notice to the Disclosing Party of the requirement so that the Disclosing Party may seek a protective order or other remedy to prevent or limit the disclosure. If the Receiving Party is still required to disclose, it will disclose only the minimum amount of information necessary to comply with the requirement.
7.3 Exclusions. The obligations in this section 7 do not apply to any information that: (i) is or becomes generally available to the public other than through a breach of this Agreement by the Receiving Party; (ii) was lawfully in the Receiving Party’s possession on a non-confidential basis before disclosure by the Disclosing Party; (iii) is lawfully obtained by the Receiving Party from a third party who, to the Receiving Party’s knowledge, is not bound by a similar duty of confidentiality; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
7.4 Duration. Each party’s obligations under this Section 7 shall commence on the Effective Date and continue throughout the term of this Agreement and for a period of 3 years after termination of the Agreement. For any trade secrets or highly sensitive information that is expressly identified by the Disclosing Party as subject to indefinite confidentiality, the Receiving Party shall protect such information for so long as it remains a trade secret under applicable law or until such information enters the public domain through no fault of the Receiving Party, whichever occurs first.
7.5 Return of Information. Upon the disclosing party’s written request at any time, the Receiving Party shall promptly return or destroy (at the Disclosing Party’s option) all materials embodying the Disclosing Party’s Confidential Information in its possession or control, and certify such destruction or return. However, the Receiving Party may retain one archival copy of the Confidential Information solely for the purpose of demonstrating its compliance with this Agreement or as required by legal or regulatory requirements, subject to an ongoing confidentiality obligation.
7.6 Injunctive Relief. The parties agree that a breach of this Section 7 (Confidentiality) may cause irreparable harm for which monetary damages would not be an adequate remedy. In the event of actual or threatened breach of the confidentiality obligations, the non-breaching party shall be entitled to seek immediate injunctive or equitable relief (in addition to any other rights and remedies available at law or in equity) without the necessity of posting a bond or proving actual damages.
8. Data Protection and Security
8.1 Compliance with Data Protection Laws. Each party shall comply with all Applicable Data Protection Laws in relation to any personal data processed in connection with this Agreement. In particular, the Client and the Supplier shall each perform their obligations under this Agreement in accordance with the UK General Data Protection Regulation (“UK GDPR”) and the Data Protection Act 2018, as well as any other relevant privacy legislation.
8.2 Data Processing Relationship. The parties acknowledge that, for the purposes of Applicable Data Protection Laws, the Client is the data controller (or “controller”) and the Supplier is the data processor (or “processor”) for any personal data that the Supplier processes on the Client’s behalf while providing the Services (for example, personal data contained in the Client’s systems that the Supplier may have access to for support, or contact details of the Client’s employees). The scope, nature, and purpose of the processing, the duration of processing, the types of personal data, and categories of data subjects involved are as necessary to perform the Services under the applicable SOW. Both parties shall fulfill their respective obligations under Article 28 of the UK GDPR and equivalent provisions of Applicable Data Protection Laws. In particular, the Supplier undertakes that it shall:
- Process Under Instructions: Process personal data only on documented instructions from the Client and for the purposes of delivering the Services, and not for any other purpose except as required by law. If the Supplier is required by law to process personal data beyond the Client’s instructions, it shall inform the Client of that legal requirement before processing (unless the law prohibits such notice).
- Confidentiality of Personnel: Ensure that all employees or subcontractors it authorizes to process personal data are subject to a duty of confidentiality (whether by contract or statutory obligation) with respect to that personal data.
- Security Measures: Implement appropriate technical and organizational measures to protect personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration, or disclosure, appropriate to the risk. This includes measures such as encryption, access controls, and regular security assessments in line with good industry practice.
- Sub-processors: Not engage any sub-processor to process the Client’s personal data without the Client’s general authorisation. The Client hereby provides consent for the Supplier to engage its affiliated companies and the third-party service providers necessary for the provision of the Services (e.g. data center operators, cloud hosting providers, helpdesk software providers), provided the Supplier enters into a written agreement with each sub-processor imposing data protection obligations equivalent to those in this Section 8. The Supplier shall remain liable for the acts and omissions of any such sub-processor. The Supplier will maintain an up-to-date list of sub-processors and shall give the Client at least 14 days’ notice of any intended addition or replacement of sub-processors, during which time the Client may object on reasonable grounds relating to data protection. If the Client objects and the parties cannot resolve the objection, the Client may terminate the affected Services by written notice without penalty.
- Assistance to Client: Assist the Client, at the Client’s cost, in responding to any request from a data subject to exercise their rights (such as access, correction, or deletion requests) and in ensuring compliance with the Client’s obligations under Applicable Data Protection Laws with respect to security, breach notifications, data protection impact assessments, and consultations with supervisory authorities or regulators, taking into account the nature of processing and information available to the Supplier.
- Data Breaches: Notify the Client without undue delay upon becoming aware of a personal data breach (security incident) affecting the Client’s personal data, providing sufficient information to allow the Client to meet any obligations to report or inform data subjects of the breach under Applicable Data Protection Laws. The Supplier will cooperate with the Client and take reasonable steps as directed by the Client to assist in the investigation, mitigation, and remediation of each such data breach.
- Data Transfers: Not transfer or permit the transfer of personal data outside of the UK (or outside of the UK and EEA, as applicable) unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Laws. Such measures may include (but are not limited to) transferring to a country with an adequacy determination, or implementing appropriate safeguards such as standard contractual clauses approved for use by the UK (and/or EU, if applicable).
- Return or Deletion: Upon termination or expiry of the Services that involved processing of personal data, at the Client’s choice, either return all the Client’s personal data to the Client and delete existing copies (unless storage is required by law), or securely delete/destroy all personal data in the Supplier’s possession. The Supplier may retain personal data to the extent required by applicable law and only to that extent and for such period as required by law.
- Information and Audit: Make available to the Client all information reasonably necessary to demonstrate the Supplier’s compliance with this Section 8, and allow for and contribute to audits (including inspections) conducted by the Client or an auditor mandated by the Client (provided such auditor is not a competitor of the Supplier, and agrees to appropriate confidentiality). The Client will give reasonable notice of any audit, conduct it during normal business hours, and not more than once per year (except for for-cause audits following a security breach or similar significant event). Both parties shall bear their own costs for an audit, unless such audit reveals a material breach by the Supplier, in which case the Supplier shall bear the Client’s reasonable costs of the audit.
8.3 Client’s Obligations (Data). The Client warrants that it has the legal right to disclose any personal data that it provides to the Supplier under this Agreement and to authorize the processing by the Supplier for the purposes of performing the Services. The Client is responsible for obtaining any necessary consents, and providing any required notices, to data subjects regarding the processing of their personal data by the Supplier. The Client shall not instruct the Supplier to process any sensitive or special category personal data or regulated data (such as health information, payment card data, or information subject to specific protection regimes) unless explicitly agreed in a SOW or data processing addendum. The Client shall indemnify the Supplier against any losses, fines or claims arising from the processing of personal data under this Agreement to the extent that such liabilities arise from the Client’s breach of this clause 8.3 or the Client’s instructions.
8.4 Data Processing Addendum. The parties acknowledge that the foregoing provisions of this Section 8 are intended to comply with the requirements of Applicable Data Protection Laws for a valid controller-processor agreement. The parties may, by mutual agreement, execute a separate detailed Data Processing Addendum (“DPA”) or incorporate additional data protection terms (for example, standard contractual clauses for international transfers) to supplement or vary the provisions of this Section 8, in order to address specific processing activities or legal requirements. In the event of any conflict between this Section 8 and any DPA signed by both parties, the terms of the DPA shall prevail.
8.5 Confidentiality of Personal Data. All personal data processed by the Supplier on behalf of the Client shall be treated as the Client’s Confidential Information and subject to the confidentiality obligations in Section 7 of this Agreement. In case of any conflict between the confidentiality obligations in Section 7 and this Section 8 (Data Protection), the stricter obligation or protection to the data subject shall apply.
8.6 Security Policy. The Supplier shall maintain a written information security policy and compliance program that is appropriate for the nature of the Services and the types of data involved. Upon reasonable request, the Supplier will summarize such policies to the Client and respond to any related questions. The Client acknowledges that it shares responsibility for security to the extent the Services involve configuration or use of the Client’s systems or networks; the Client agrees to follow any instructions or guidelines provided by the Supplier regarding security and to take reasonable measures to secure its own IT environment when accessing the Services.
9. Warranties
9.1 Supplier Warranties. The Supplier warrants that: (a) it has the full power and authority to enter into and perform this Agreement; (b) the Services will be performed with reasonable skill, care, and diligence by appropriately trained and qualified personnel, in accordance with the descriptions and standards set out in the applicable SOW; and (c) to the best of the Supplier’s knowledge, any Deliverables provided by the Supplier will not infringe the intellectual property rights of any third party. In the event of a breach of the warranty in (b), the Supplier’s sole obligation and the Client’s exclusive remedy shall be for the Supplier to re-perform the deficient Services at no additional charge, or if re-performance is not practicable, to refund the portion of Fees attributable to the deficient Services. The warranty in (b) will not apply if the issue with the Services was caused by any act or omission of the Client or anyone acting on the Client’s behalf, or by any circumstance described in the Force Majeure clause (Section 12), or by a suspension of Services as permitted under this Agreement.
9.2 Client Warranties. The Client warrants that: (a) it has the authority to enter into and perform its obligations under this Agreement; (b) it has obtained all necessary rights, licenses, consents and permissions to provide the materials, information, software and access that the Supplier needs to perform the Services; and (c) it will use the Services in accordance with this Agreement and applicable law.
9.3 Exclusion of Implied Warranties. Except as expressly provided in this Agreement, all conditions, warranties or other terms which might otherwise be implied or incorporated into this Agreement (whether by statute, common law or otherwise) are hereby excluded to the fullest extent permitted by law. The Services and any Deliverables are provided “as is” to the extent permitted by law. The Supplier does not warrant that the Services will be uninterrupted or error-free, nor that all issues or defects can be corrected, nor that the Services will meet the Client’s specific requirements unless expressly agreed. In particular, to the maximum extent allowed by law, the Supplier disclaims any implied warranties or conditions of satisfactory quality, fitness for a particular purpose, or non-infringement with respect to the Services and Deliverables.
9.4 Limitations. The warranties in this Section 9 are void to the extent that any failure of the Services to conform to those warranties is caused by: (i) use of the Services in combination with any hardware, software, or service not provided or recommended in writing by the Supplier; (ii) any modifications or alterations of the Services or Deliverables made by anyone other than the Supplier; (iii) any use of the Services not in accordance with the documentation or instructions provided by the Supplier; or (iv) any breach by the Client of its obligations under this Agreement.
9.5 High-Risk Use. The Services are not designed or intended for high-risk activities (such as operation of nuclear facilities, air traffic control, life support systems, or any other application where failure of the Services could lead to death or serious bodily injury). The Supplier expressly disclaims any warranty for any high-risk use, and the Client agrees that the Supplier will have no liability arising from any such use of the Services.
10. Limitation of Liability
10.1 Unlimited Liabilities. Nothing in this Agreement shall limit or exclude either party’s liability for: (a) death or personal injury caused by its negligence (or the negligence of its employees or agents); (b) fraud or fraudulent misrepresentation; (c) willful misconduct or gross negligence; or (d) any other liability which cannot lawfully be excluded or limited (such as liability under section 2 of the Misrepresentation Act 1967, or under Part I of the Consumer Protection Act 1987, if applicable).
10.2 Excluded Damage Types. Subject to clause 10.1, neither party shall be liable to the other (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for any:
- loss of profit, revenue, business, or anticipated savings;
- loss of or damage to goodwill or reputation;
- loss of contracts or business opportunities;
- loss of or corruption of data or systems;
- any indirect or consequential loss or damage, in each case arising out of or in connection with this Agreement or the Services, even if advised of the possibility of such losses.
Each of the foregoing exclusions of liability shall apply regardless of whether such losses are direct, indirect, consequential, or otherwise (to the extent permissible under law). The parties agree that the above categories of loss are distinct and severable for the purposes of this clause 10.2.
10.3 Liability Cap. Subject to clause 10.1, each party’s total aggregate liability to the other for all claims, losses, or damages arising under or in connection with this Agreement or any SOW (whether in contract, tort, negligence, breach of statutory duty or otherwise) shall be limited to the total Fees paid or payable by the Client to the Supplier under this Agreement in the 12 months immediately preceding the event giving rise to liability (or, if the duration of the Services under the applicable SOW is less than 12 months, the amount payable for such shorter period). If the event giving rise to the claim occurs before 12 months of Services have been provided, the liability cap shall be calculated based on the Fees paid or payable for the portion of the term that has elapsed. For clarity, the cap in this clause 10.3 applies in aggregate to all events or series of connected events and to all types of liability (except those unlimited under 10.1) arising in that period, and not separately to each claim or each type of claim.
10.4 Specific Cap for Data/IP Claims. Notwithstanding clause 10.3, and without prejudice to clause 10.1, the Supplier’s total aggregate liability arising from or in connection with any breach of Section 8 (Data Protection) or Section 6.4 (Intellectual Property Infringement Indemnity) shall not exceed £250,000 (two hundred fifty thousand pounds) in the aggregate. This specific cap applies in place of (and not in addition to) the cap in 10.3 for those specific categories of claims, to the extent a court of competent jurisdiction deems the cap in 10.3 unenforceable or insufficient for such claims.
10.5 Fair Allocation of Risk. The parties acknowledge and agree that the limitations of liability and exclusions of damages in this Section 10 have been negotiated and are reflected in the Fees and other terms of the Agreement. Each party further acknowledges that it has a duty to mitigate any losses it may incur. The Client is advised to consider obtaining insurance cover for risks outside the scope of the Supplier’s liability as set forth in this Agreement.
10.6 Applicability. The limitations and exclusions of liability in this Agreement shall apply to the fullest extent permitted by law. If any term of this Section 10 is held invalid under applicable law, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall continue in full force and effect. The parties agree that these limitations shall apply regardless of the success or effectiveness of any other remedies.
11. Non-Solicitation
11.1 Non-Solicitation of Personnel. The Client shall not, without the Supplier’s prior written consent, directly or indirectly solicit or entice away (or attempt to solicit or entice away) any employee of the Supplier who is involved in the performance of the Services, either during the term of this Agreement or within 12 months after its termination. This restriction applies only to those employees with whom the Client has had material contact in connection with the Services. Hiring through a general public recruitment process (without targeted solicitation) shall not be a breach of this clause. If the Client breaches this clause 11.1 and employs or engages an employee of the Supplier, the Client agrees that the Supplier shall be entitled to recover as liquidated damages an amount equal to 50% of the employee’s annual gross salary (as at the time of the breach) or £25,000, whichever is greater. The parties acknowledge that this provision is a fair and reasonable estimate of the costs the Supplier will incur in recruiting and training a replacement and the loss suffered by the Supplier, and not a penalty.
11.2 Non-Disparagement. The Client shall not (and shall ensure its personnel do not) at any time during the term or thereafter engage in any conduct or make any statements, whether orally, in writing, or via any online medium, that disparage or negatively portray the Supplier’s business, services, or reputation. This clause shall not restrict the Client from making truthful statements as required by law or in any legal proceedings, or from raising genuine concerns through appropriate channels. (Breach of this clause may be deemed a material breach of the Agreement, at the Supplier’s discretion.)
12. Force Majeure
12.1 Neither party shall be liable to the other for any failure to perform, or delay in performing, its obligations (except payment obligations) under this Agreement if and to the extent that the failure or delay is caused by any circumstances beyond that party’s reasonable control, including but not limited to: acts of God (e.g., fire, flood, earthquake), war, terrorism, civil unrest, strikes or labour disputes (excluding strikes of the affected party’s own staff), epidemic or pandemic, failures of suppliers or subcontractors (despite reasonable diligence), interruption or failure of utility service or telecommunications networks, or governmental actions (each a “Force Majeure Event”). The affected party shall as soon as reasonably practicable notify the other party in writing of the Force Majeure Event and its impact on performance. The time for performance of the affected obligation shall be extended by a period equivalent to the period during which performance is prevented by the Force Majeure Event. If a Force Majeure Event continues for a continuous period of more than 60 days, either party may terminate this Agreement or any affected SOW immediately upon written notice to the other, without liability (except that the Client shall pay for Services performed prior to termination). Each party shall use reasonable endeavours to mitigate the effect of any Force Majeure Event and resume full performance as soon as possible.
13. General Provisions
13.1 Assignment. The Supplier may at any time assign, transfer or subcontract any or all of its rights and obligations under this Agreement to an affiliate or as part of a merger or sale of its business, provided that such assignment does not reduce any guarantees of performance to the Client. The Client shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Supplier (such consent not to be unreasonably withheld). Any attempted assignment in breach of this clause shall be void.
13.2 Entire Agreement. This Agreement (together with all SOWs and any attachments, schedules or addenda hereto) constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior or contemporaneous agreements, proposals, negotiations, understandings and communications, whether written or oral, regarding that subject matter. Each party acknowledges that in entering into this Agreement it has not relied on any representation, warranty or undertaking not expressly set out in the Agreement. Neither party shall have any remedy in respect of any statement not set out in this Agreement (unless made fraudulently). Nothing in this clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.
13.3 Variations. No amendment or modification of this Agreement or any SOW shall be effective unless in writing and signed (or expressly agreed via electronic acceptance) by both parties. The requirement for written variation cannot be waived by oral agreement. However, the Supplier may update the terms of this Master Services Agreement from time to time on its website or upon renewal of Services; any material changes will be communicated to the Client, and if the Client objects to such change, the Client may terminate the Agreement by providing written notice within 30 days of notice of the change (failing which, the updated terms shall apply from the effective date specified). Changes made to comply with new laws or regulations may take effect immediately to the extent required.
13.4 No Waiver. A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by either party in exercising any right, power or privilege under this Agreement shall constitute a waiver of that right, nor shall any single or partial exercise preclude any further exercise of the same or some other right, power or privilege.
13.5 Severability. If any provision of this Agreement is or becomes invalid, illegal, or unenforceable under applicable law, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, that provision (or the offending part thereof) shall be deemed deleted. Any such modification or deletion shall not affect the validity and enforceability of the rest of this Agreement. The parties shall negotiate in good faith to agree a valid and enforceable provision that is as close as possible to the original intent of the invalid provision.
13.6 Third-Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 (or otherwise) to enforce any term of this Agreement, except that any affiliate of the Supplier expressly referenced in a SOW as providing Services may enforce the liability limitations and protections in this Agreement as if it were the Supplier. The rights of the parties to terminate, rescind or agree any variation, waiver, or settlement under this Agreement are not subject to the consent of any third party.
13.7 Independent Contractors. The relationship of the Supplier and the Client is that of independent contractors. Nothing in this Agreement is intended to, or shall be deemed to, create any partnership, joint venture, agency, or fiduciary relationship between the parties. Neither party is an agent of the other, and neither has any authority to make or enter into any commitments on behalf of the other. Each party remains responsible for its own employees, who shall not be deemed employees of the other party.
13.8 Notices. Any formal notice or other communication required to be given under this Agreement shall be in writing and shall be delivered by hand, or sent by pre-paid first-class post or recorded delivery (or internationally recognized courier service), or by email (with confirmation of delivery), to the address or email address specified for the receiving party in the SOW or the latest contact details provided. Notices delivered by hand or courier will be deemed received on the date of delivery (or if delivered outside of business hours, on the next business day). Notices sent by pre-paid post will be deemed received on the second business day after posting (or fifth business day if international). Notices sent by email will be deemed received on the day of transmission if no bounce-back or error message is received (or the next business day if sent after 5:00pm recipient local time). The parties may update their notice contact details from time to time by written notice to the other.
13.9 Counterparts and Signatures. If this Agreement (or any SOW) is to be signed, it may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original, and all the counterparts together shall constitute the same instrument. A signed copy of this Agreement delivered by email or other electronic means (including via an electronic signature platform) shall be deemed to have the same legal effect as delivery of an original signed copy.
14. Governing Law and Jurisdiction
This Agreement and any disputes or claims (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the laws of England and Wales. 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 or its subject matter or formation. Each party waives any objection to the exercise of jurisdiction by those courts on the basis of inconvenient forum or otherwise.
