THIS MASTER SERVICE AGREEMENT is entered into on: [Insert Agreement Date] BETWEEN:
(1)
[Insert Customer Name], a company incorporated in [Insert Country] (registered no. [Insert Registered Number]),
whose registered office/principal place of business is at [Insert Customer Address] (the Customer); and
(2)
NTT Europe Ltd, a company incorporated in England and Wales (registered no. 02307625) whose registered office
is at 3rd Floor Devon House, 58-60 St. Katharine’s Way, London E1W 1LB (the Supplier).
(each a Party and together the Parties)
RECITALS
(A)
The Supplier is a worldwide provider of information and communication technology solutions.
(B)
The Supplier and the Customer desire to establish and agree upon a set of terms and conditions governing the
provision of information and communication technology solutions by the Supplier to the Customer.
(C)
The Supplier is willing to provide and the Customer hereby accepts the provision of the Services and Equipment
upon the terms and conditions set out in this Agreement.
IT IS AGREED as follows:
DEFINITION AND INTERPRETATION
1.1
In this Agreement, a reference to:
Agreement: means this Master Service Agreement together with its schedules and appendices and any Order
Form and any appendices to such Order Form;
Associated Company: means in relation to the Supplier, the ultimate parent company and any company, which is
from time to time a subsidiary of such holding company;
Bribery Act 2010: means the UK’s Bribery Act 2010 which came into force on 1 July 2011;
Charges: means the payments due in respect of the supply of Services and Equipment as set out in each Order
Form;
Confidential Information: means all information (whether marked as confidential or which may reasonably be
supposed to be confidential by its nature) that is disclosed (whether in writing, orally, on disc, by inspection of
documents or by any other means, including but not limited to via electronic communication and internet based
provision of information) by a Party (the Disclosing Party) to the other Party (the Receiving Party) whether before
or after the date of this Agreement including, without limitation the terms of this Agreement and information relating
to the Disclosing Party’s operations, processes, plans or intentions, product information, know-how, design rights,
trade secrets, technology, computer software and hardware, information, documentation, data and opinions of
whatever nature in whatever form (and copies of the same), market opportunities, customer details, details of
suppliers and distributors, business affairs and shall also include in respect of the confidential information of the
Supplier all information relating to or contained or embodied in the Services, the Equipment, any software supplied
by the Supplier under this Agreement whether or not the rights to such software vest in the Supplier or a third party
(including without limitation the source codes, operation manuals, specifications and other documentation) and any
access codes or passwords that may be allocated in order to allow the Customer or any End User to access the
Services.
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Control: means in relation to a body corporate, the ability to secure that the affairs of a body corporate are
conducted in a particular manner, whether (a) by means of the holding of shares, or the possession of voting power,
in or in relation to that or any other body corporate; or (b) by virtue of any powers conferred by the constitutional or
corporate documents, or any other document, regulating that or any other body corporate, and Controlled shall be
interpreted accordingly.
Data Controller: means the natural or legal person, public authority, agency or any other body which alone or jointly
with others determines the purposes and means of the Processing of Personal Data. Where the purposes and
means of Processing are determined by national laws or regulations, the controller or the specific criteria for his
nomination may be designated by national law;
Data Subject: means an identifiable person who can be identified directly or indirectly, in particular by reference to
an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural
or social identity;
End User: means the Customer or any person whom the Customer permits to use Services and Equipment
(including, without limitation, any Local Affiliate);
Equipment: means any apparatus, equipment, hardware, software, material or other items (including parts and
components) supplied by the Supplier as set out in the Schedules and any Order Form;
Good Environmental Practice means complying with all environmental standards imposed by any applicable laws,
including those:
(a) relating to protection against, or compensation for, asbestosis or diseases arising from contact with
waste or hazardous materials;
(b) that relate to emissions, migration, discharges, releases or escapes of waste or hazardous materials
into the environment; and/or
(c) the presence, production, processing, distribution, management, use, control, treatment.
Intellectual Property Rights: means any intellectual property rights anywhere in the world whether registrable or
not, including, without limitation, patent, trade marks, service marks, designs, copyright and related rights, database
rights, rights in computer software, topography rights, know-how, moral rights, business and domain names, rights
in trade dress or get-up, rights in goodwill or to sue for passing off, inventions, Confidential Information, in each case
whether registered or unregistered, as well as applications for registration of such rights and the right to apply for
registrations or extensions of such rights, and all equivalent or similar forms of protection howsoever arising and in
whatever media;
Local Affiliate: means, in relation to the Customer, any company which Controls, is Controlled by or is under
common Control with the Customer to whom the benefit of the Services and Equipment is to be provided as set out
in an Order Form;
Location: means the location(s) at which or to which Services and Equipment will be supplied as set out in an
Order Form;
Minimum Service Period: means the minimum service commitment period for the provision of Services and/or
Equipment which shall commence upon the Service Start Date and shall continue for the period specified in the
applicable Order Form.
Order Form: means a request for the supply of Services and Equipment submitted by the Customer pursuant to
Clause 2.1;
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Requested Start Date: means the proposed commencement date for the Services as set out on an Order Form;
Personal Data: means any personally identifiable information about an individual, including their name, age, job
description, e-mail address, mailing address, racial or ethnic origin, political opinions, religious or philosophical
beliefs, trade-union membership, physical or mental health, sexual life, civil and criminal offences, alleged offences,
related proceedings and sentences (or as otherwise defined by applicable law);
Process or Processing: means any operation or set of operations which is performed upon Personal Data, whether
or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration retrieval,
consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction;
Relevant Requirements: has the meaning given to it in clause 13.1.1;
Service(s): means any services as set out in an Order Form to be supplied to the Customer or its Local Affiliate
under the terms of this Master Service Agreement and the Schedules;
Service Start Date: means, in respect of Services and Equipment ordered under any particular Order Form, the
earlier of (i) the date on which the Customer or its Local Affiliate first makes use of the Services or Equipment, or (ii)
signature or deemed signature of the relevant acceptance notice following satisfaction of applicable acceptance
tests (if any);
Set-Up Period: means the period between execution of the Order Form and the Service Start Date;
1.2
A person includes a reference to a body corporate, association or partnership; and includes a reference to that
person’s legal personal representatives, successors and lawful assigns.
1.3
A Clause or Schedule, unless the context otherwise requires, is a reference to a clause of or schedule to this
Agreement.
1.4
The headings in this Agreement do not affect its interpretation.
1.5
Any reference to a provision of a statute includes references to:
1.6
1.5.1
that provision as amended, extended or applied by any other provision regardless of whether the other
provision became law before or after this Agreement;
1.5.2
any re-enactment of that provision (with or without change); and
1.5.3
any regulation, order, code of practice or similar thing having the force of law made (before or after this
Agreement) under that provision or any provision falling within Clauses 1.5.1 or 1.5.2.
Unless otherwise agreed by the Parties to the contrary, in the event of any conflict between this Master Service
Agreement, its Schedules and any Order Form, the conflict will be resolved in the following order of precedence: the Order Form; the Schedules; and this Master Service Agreement.
TERMS OF BUSINESS
1.7
The Customer may request that the Supplier supplies Services and Equipment to it or its Local Affiliate under this
Agreement. Unless otherwise notified by the Supplier, any such request shall be made by submitting an Order
Form in the format provided by the Supplier. Where the Supplier accepts any such Order Form in writing, the
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relevant Services and Equipment shall (subject to payment of the Charges by the Customer) be supplied by the
Supplier to the Customer (or, as the case may be, to the Local Affiliate) on and subject to the terms of this
Agreement and any other standard terms and conditions of the Parties and Local Affiliates shall not apply. Where
Services and Equipment are provided to a Local Affiliate, the Customer shall remain liable for the performance of
this Agreement and shall procure that the relevant Local Affiliate abides by the provisions of this Agreement.
1.8
The Supplier reserves the right to subcontract the provision of Equipment and Services under this Agreement. The
Supplier shall remain liable for the performance of this Agreement by any subcontractor.
1.9
The Customer acknowledges that the terms of this Agreement and the provision of Services and Equipment under
any Order Form are subject to applicable law and regulation in the country in which the Services and Equipment are
provided and may be varied by the Supplier in order to comply with local law and regulations.
TERM
1.10
This Master Service Agreement will come into force on the date set out above and continue in force until termination
or expiration of the last Order Form governed by this Master Service Agreement or until terminated in accordance
with the provisions herein.
1.11
An Order Form shall come into force on the date of execution of the Order Form and shall continue in force for the
full duration of the Set-Up Period and the Minimum Service Period which shall renew automatically for further
periods of equal duration to the Minimum Service Period (each a “Renewal Period”) unless terminated in
accordance with the provisions of this Agreement.
1.12
The Services and Equipment provided under an Order Form will be supplied for the relevant Minimum Service
Period and any Renewal Period until termination of the Order Form in accordance with the provisions of this
Agreement.
TERMINATION
1.13
A Party may terminate an Order Form upon expiry of the Minimum Service Period or upon expiry of any Renewal
Period by giving at least ninety (90) days’ prior written notice to the other Party.
1.14
If at any time there are no Order Forms in effect, a Party may terminate this Agreement upon ninety (90) days’ prior
written notice to the other Party.
1.15
If the Customer wishes to terminate (other than for material breach by the Supplier) any Services or Equipment
under a particular Order Form within the Set-Up Period, the Customer shall pay to the Supplier all costs and
expenses incurred by the Supplier and its subcontractors in relation to such Services and Equipment to the date of
termination (including but not limited to any amounts which the Supplier or its subcontractors are contractually
bound to pay after the date of termination).
1.16
If the Customer wishes to terminate (other than for material breach by the Supplier) any of the Services or
Equipment under a particular Order Form during the Minimum Service Period or during any Renewal Period, the
Customer shall pay the Charges for the remainder of the Minimum Service Period or the Renewal Period in which
the termination occurs (as applicable), plus an amount equivalent to local access line carriers’ charges (if any) for
access line relocation, cancellation or speed change resulting from termination. The Supplier shall in each case
notify the Customer in writing of that amount and the date that the payment is due.
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1.17
A Party may terminate this Master Service Agreement, and/or the supply of any Services and Equipment under any
particular Order Form, at any time on written notice to the other Party with immediate effect, in the event that:
1.17.1
the other Party is in breach of any of its material obligations (except for any payment obligations to which
clause 4.6 shall apply) under this Agreement which is not remediable or, if remediable, which it has failed
to remedy within fourteen (14) days’ written notice requiring it to do so;
1.17.2
the other Party ceases to do business, becomes unable to pay its debts as they fall due, becomes or is
deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer
appointed in respect of the whole or any part of its assets or business, makes any composition or
arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or
resolution is made for its dissolution or liquidation (other than for the purpose of bona fide solvent
amalgamation or reconstruction), or any equivalent or similar action or proceeding is taken or suffered in
any jurisdiction; or
1.17.3
the other Party does not hold the necessary licences or authorisations required by law to provide or use
the Services or Equipment, as the case may be.
1.18
The Supplier may terminate this Master Service Agreement, and/or the supply of any Services and Equipment
under an Order Form, at any time on written notice to the Customer with immediate effect in the event that the
Customer fails to pay when due any of the Charges or any other payments under this Agreement.
1.19
For the avoidance of doubt, termination of this Master Service Agreement for material breach by a Party shall
automatically terminate the supply of Services and Equipment under any Order Forms outstanding at the date of
termination.
1.20
Without prejudice to Clauses 4.5 and 4.6, the Supplier may, in its sole discretion, suspend with immediate effect all
or any part of the provision of Services and Equipment under any Order Form in the event that:
1.20.1
the Customer is in material breach of this Agreement, including but not limited to any failure to pay any
Charges when due;
1.20.2
the Supplier needs to carry out any emergency maintenance or repairs to any part of the Equipment or
any networks or other infrastructure used to provide the Services (in which case the Supplier will use its
reasonable endeavours to give as much notice of the suspension as is reasonably possible); or
1.20.3
the Supplier is required to do so in compliance with any applicable law, regulation, order, licence,
instruction or request of Government or any regulatory body, administrative authority, or emergency
service.
1.21
In the event of a suspension pursuant to Clauses 4.8.2 or 4.8.3, the Charges for the Services and Equipment being
suspended shall be temporarily suspended for the duration of the suspension of the Services and Equipment. For
the avoidance of doubt, the Charges shall not be suspended in the event of a suspension under Clause 4.8.1.
1.22
In the event of suspension or disconnection pursuant to Clause 4.8.1 for non-payment, the Supplier may place
restrictions on credit available to the Customer and, as the Supplier deems necessary, may require the Customer to
post a letter of credit, deposit or such other security in order for the Customer to resume receiving the Services.
Failure to satisfy the Supplier's request for such action within timelines set by the Supplier may result in immediate
termination of this Agreement by Supplier without further notice and without the Supplier incurring liability for such
termination.
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1.23
Except to the extent required by applicable law, the Supplier shall not be liable for any loss or damage caused by its
suspension or disconnection of any and all Services and Equipment in accordance with Clause 4.8.
1.24
Following suspension pursuant to Clause 4.8.1, the Supplier will be under no obligation to restore the Services, but
if it does restore the Services it will be entitled to charge the Customer a reasonable reconnection fee.
1.25
The Supplier may terminate this Master Service Agreement and/or the applicable Order Form with immediate effect
if provision of the Services or Equipment is suspended pursuant to Clause 4.8.1 or 4.8.3 for a period exceeding
fourteen (14) days.
1.26
On termination of this Agreement for any reason, the Customer will (and will procure that each Local Affiliate will)
immediately:
1.26.1
cease all use of the Services, Equipment and Confidential Information of the Supplier and its
subcontractors;
1.26.2
return all copies of any Confidential Information of the Supplier (including but not limited to any software
and related documentation) in its possession as directed by the Supplier (or at the Supplier’s option
destroy all such copies and certify such destruction in writing); and
1.26.3
return the Equipment or, at the Supplier's discretion, permit the Supplier to come onto the Customer’s
premises at any time in order to remove all the Equipment at the Customer's cost.
1.27
The Supplier will not be liable to return any Charges paid in advance, or portion thereof, to the Customer in the
event of termination of this Agreement for whatever reason.
1.28
Termination will be without prejudice to the accrued rights and liabilities of the Parties.
1.29
Provisions of this Agreement which are either expressed to survive its expiry or termination, or which it is
contemplated from their nature or context that they are to survive, will remain in full force and effect not withstanding
such expiry or termination, such provisions shall include but not be limited to Clauses 3 to 8, 10, 11, 12, 14 and 15
of this Agreement.
BILLING AND PAYMENT
1.30
In consideration of the supply of the Services and Equipment the Customer will pay the Charges to the Supplier,
unless otherwise directed in an Order Form.
1.31
Unless otherwise provided in an Order Form:
1.32
1.31.1
one-time charges are payable on signature of this Agreement or on subsequent invoice at the option of
the Supplier; and
1.31.2
all other charges are payable monthly in advance.
The Charges do not include value added tax, sales tax, excise tax, tax on receipts, withholding tax or any other
similar tax or duty which must be paid by the Customer or, as the case may be, Local Affiliate in the amount
prescribed by any authority, government or government agency in connection with or as a result of the Services or
Equipment provided to the Customer, or Local Affiliate, where such tax or duty is chargeable to or payable by the
Supplier or by the Customer or, as the case may be, Local Affiliate.
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1.33
Unless agreed otherwise by the Supplier in writing, the Charges exclude the following, which the Customer will pay
to the Supplier, unless otherwise directed in an Order Form:
1.33.1
any additional costs which are incurred as a result of the failure or delay of the Customer or a Local
Affiliate to comply with its obligations under this Agreement, including but not limited to the failure or
delay of the Customer or a Local Affiliate or any third party under the contractual control of the Customer
or Local Affiliate in allowing the Supplier to perform the Services and/or install the Equipment at the
Location or giving the Supplier adequate information or instructions;
1.33.2
any additional costs incurred in the event that provision of the Services or installation of the Equipment is
rendered more expensive as a result of the presence of asbestos or other harmful substances at the
Location; and
1.33.3
any value added tax, sales tax, excise tax, tax on receipts, withholding tax or any other similar tax or duty
payable by the Customer or, as the case may be, Local Affiliate in connection with or as a result of the
costs set out under Clauses 5.4.1 and 5.4.2 above.
1.34
The Supplier may alter the Charges on thirty (30) days’ notice if the rates payable by the Supplier for obtaining any
goods or services required to provide the Services or Equipment are materially altered as a result of a
Governmental or regulatory intervention. If the rates charged to the Supplier are altered retrospectively such altered
rates may also be applied retrospectively. If, following such alteration, the revised Charges are not acceptable to the
Customer, the Customer may terminate the applicable Order Form by giving one (1) month’s written notice to the
Supplier, such notice to be given within one (1) month of receipt of the notification of the revised Charges by the
Customer. If the Customer fails to notify the Supplier of its wish to terminate within the applicable time period, the
Customer shall be deemed to have accepted the revised Charges. If the Customer terminates an Order Form under
this Clause during the Minimum Service Period, the Customer shall pay the Charges and expenses incurred by the
Supplier to the date of termination but shall not be required to pay the Charges for the full Minimum Service Period.
1.35
The Supplier reserves the right to increase the Charges under an Order Form on notice with effect upon expiry of
the Minimum Service Period and upon expiry of each subsequent Renewal Period. The Customer will have the
right to terminate the provision of the relevant Services and Equipment on written notice to the Supplier if it does not
accept the increase, such termination to take effect upon commencement of Renewal Period to which the increase
in Charges relates. If the Customer fails to notify the Supplier of its wish to terminate prior to commencement of the
Renewal Period to which the increase in Charges relates, the Customer shall be deemed to have accepted the
revised Charges for such Renewal Period.
1.36
The Customer will pay or procure the payment of the Charges within thirty (30) days of receipt of an invoice or as
otherwise set out in the invoice. Receipts for payment will be issued only upon request. Payment of all sums due
under this Agreement are subject to the provisions of Clause 15.12.
1.37
If any of the Charges or any other payments due under this Agreement are not paid by the Customer when due, the
Supplier reserves the right to charge interest in accordance with Clause 15.9.
LIMITED WARRANTY AND DISCLAIMER OF WARRANTY
1.38
The Supplier hereby represents and warrants that it and its subcontractors will exercise the reasonable care and
skill of a competent provider of information and communication technology solutions in performing its obligations
under this Agreement.
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1.39
The Customer acknowledges and agrees that the Supplier exercises no control over, and accepts no responsibility
for, the content of the information passing through the Supplier’s host computers, network hubs and points of
presence or the Internet.
1.40
Each Party warrants and represents to the other that it will perform its obligations under this Agreement in
compliance with all applicable laws (including health and safety laws and in accordance with Good Environmental
Practice), enactments, orders, regulations, industry-specific regulations, guidance and all changes in law.
INDEMNIFICATION
The Customer agrees to indemnify and hold the Supplier and its subcontractors harmless from and against all
claims, demands, losses, damages, liabilities and expenses (including reasonable legal expenses) which the
Supplier and its subcontractors may suffer or incur as a result of any breach of any term of this Agreement by the
Customer or any Local Affiliates, as a result of the negligence, fraud, wilful default or breach of statutory duty of the
Customer or any Local Affiliate or as a result of the carrying out of any work required to be done in relation to the
Services in accordance with the requirements or specifications of the Customer.
LIMITATION OF LIABILITY
1.41
The express warranties, undertakings and obligations of the Supplier stated in this Agreement are in lieu of all other
conditions, warranties or other terms, whether express or implied, including, without limitation, any implied
warranties or conditions as to quality or fitness for a particular purpose which are expressly excluded.
1.42
Without limiting the generality of Clause 8.1:
1.43
1.42.1
the Supplier does not warrant that the Services or Equipment will be suitable for the Customer’s
requirements (whether made known to the Supplier or not), nor that the Services or Equipment will
operate in the particular circumstances in which they are used by the Customer, nor that the provision of
Services will be uninterrupted or free from error; and
1.42.2
the Supplier does not warrant the results that may be obtained from the use of the Services and
Equipment or the accuracy, reliability or content of any information services or merchandise contained in
or provided through the Services and Equipment; and
1.42.3
the Supplier excludes any warranty as to the quality, content or accuracy of any third party software, third
party services or information available or received through or as a result of the use of the Services (other
than services or information owned and provided by the Supplier).
The Supplier will be under no liability in respect of:
1.43.1
any defect in the Services or Equipment arising from any drawing, design or specification supplied by the
Customer; or
1.43.2
any defect in the Services or Equipment arising from fair wear and tear, wilful damage, negligence,
abnormal working conditions, failure to follow the Supplier’s or the manufacturer’s instructions (whether
oral or in writing), misuse or alteration or repair of the Services or Equipment without the Supplier’s or the
manufacturer’s approval; or
1.43.3
any parts, materials or equipment in respect of which the Customer is entitled to the benefit of any
warranty or guarantee given by the manufacturer; or
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1.44
1.43.4
any third party software, third party services or information; or
1.43.5
any problems resulting from any modifications or customisation of the Equipment or any software
provided by the Supplier not authorised in writing by the Supplier; or
1.43.6
incorrect or unauthorised use of the Equipment or any software provided by the Supplier or operator
error where these are defined as use or operation not in accordance with the corresponding operating
manuals; or
1.43.7
content or use of any data transferred either to or from the Customer or stored by the Customer or any
End Users via the Services or Equipment.
Nothing in this Agreement will operate to exclude or restrict the Supplier’s or its subcontractors’ liability for:
1.44.1
death or personal injury resulting from negligence of the Supplier or its subcontractors;
1.44.2
breach of the obligations arising from section 12 of the Sale of Goods Act 1979; or
1.44.3
fraud or fraudulent misrepresentation of the Supplier or its subcontractors.
1.45
In no circumstances will Supplier or its subcontractors be liable in contract, tort (including, without limitation,
negligence or breach of statutory duty), or otherwise arising out of or in relation to this Agreement, the Services or
Equipment in respect of indirect or consequential loss; loss of revenue; loss of profits or anticipated savings; loss of
business or goodwill; loss or corruption of data; or for any other indirect, special or consequential loss or damage,
howsoever caused. The liability of the Supplier and its subcontractors for failure to meet the service levels is subject
to the limitations set out in the applicable Schedules and Order Form (including any appendix to the Order Form).
1.46
The aggregate liability of the Supplier in contract, tort (including, without limitation, negligence and breach of
statutory duty), or otherwise arising out of or in relation to the provision of Services and Equipment under an Order
Form, is limited in aggregate to the lesser of the Charges received by the Supplier under the relevant Order Form
during the twelve (12) month period immediately preceding the claim and one million pounds sterling (£1,000,000).
1.47
Where applicable law does not allow the exclusion or limitation of warranties, liability generally, incidental or
consequential damages, or the limitation of liability with respect to death or personal injury due to negligence, so
that the above limitations or exclusions may not apply to the innocent Party, in such cases, the breaching Party’s
liability shall be limited to the greatest extent permitted by applicable law.
FORCE MAJEURE
1.48
If a Party is prevented, hindered or delayed from or in performing any of its obligations under this Agreement (other
than a payment obligation) by a Force Majeure Event, that Party’s obligations under this Agreement are suspended
while the Force Majeure Event continues to the extent that it is prevented, hindered or delayed.
1.49
If the Force Majeure Event continues for more than two (2) months either Party may terminate this Agreement by
giving no less than fourteen (14) days notice to the other Party.
1.50
In this Clause 9 “Force Majeure Event” means an event beyond the reasonable control of the affected Party
including, without limitation, third party strike; lock-out; labour dispute; act of god; war; riot; civil commotion;
malicious damage; compliance with a law or governmental or regulatory order; rule; regulation; licence or direction;
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accident; software failure; breakdown of plant or machinery (including, but not limited to, telecommunications
systems and utility services); fire; flood and storm.
INTELLECTUAL PROPERTY
1.51
The Supplier acknowledges that all right, title and interest in any Intellectual Property Rights of the Customer is
vested in the Customer and/or in the Customer’s licensors. The Customer acknowledges that all right, title and
interest in any Intellectual Property Rights of the Supplier is vested in the Supplier and/or in the Supplier’s licensors.
1.52
Each Party hereby agrees not to infringe the Intellectual Property Rights of the other Party. Unless otherwise
specifically provided in this Agreement, no Party hereto shall have any right, title, claims or interest in or to the
Intellectual Property Rights of the other Party. Except to the minimum extent permitted under applicable law and
except as expressly authorized under this Agreement, no Party may copy, modify or translate the Intellectual
Property Rights of the other Party or related documentation, or decompile, disassemble or reverse engineer it, or
use it other than in connection with the Services, or grant any other person or entity the right to do any of the
foregoing. Unless otherwise specifically provided in this Agreement. No Party is authorized to distribute or to
authorize others to distribute the Intellectual Property Rights of the other Party in any manner without the prior
written consent of the other Party provided, however, that nothing in this sentence would preclude (i) the Customer
from using the Supplier’s Intellectual Property to the extent incorporated into the Services and strictly necessary for
the Customer to utilize the full functionality of the Services purchased and (ii) the Supplier from providing caching to
the Customer to the extent caching is part of the Services and subject to the Customer complying with any
restrictions attached thereto.
CONFIDENTIAL INFORMATION
1.53
The Receiving Party will:
1.53.1
not use Confidential Information of the Disclosing Party for a purpose other than the performance of its
obligations under this Agreement; and
1.53.2
not disclose Confidential Information of the Disclosing Party to a person except with the prior written
consent of the Disclosing Party or in accordance with Clauses 11.2 and 11.3.
1.54
The Receiving Party may disclose Confidential Information to any of its directors, other officers, employees,
professional advisors and contractors (a “Recipient”) solely to the extent that disclosure is strictly necessary for the
purposes of this Agreement.
1.55
The Receiving Party will ensure that each Recipient is made aware of and complies with the Receiving Party’s
obligations of confidentiality under this Agreement as if the Recipient was a party to this Agreement and shall
indemnify the Disclosing Party for all loss and damage incurred as a result of the Recipient’s breach of
confidentiality.
1.56
Clauses 11.1 and 11.2 do not apply to Confidential Information:
1.56.1
which is at the date of this Agreement, or at any time after that date becomes general public knowledge
other than by the Receiving Party’s or a Recipient’s breach of this Agreement;
1.56.2
which can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have
been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party; or
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1.56.3
1.57
the disclosure of which is required by law or regulation, order of court or the rules of any stock exchange
provided that the Receiving Party has taken all reasonable steps to minimise such disclosure and (a)
gives the Disclosing Party written notice of any application for any such order or such order as soon as
practicable; (b) provides the Disclosing Party with a reasonable opportunity to make representations to
the relevant court, authority or exchange to oppose the disclosure; and (c) co-operates with the
Disclosing Party in order to oppose such disclosure or (where disclosure cannot be prevented) in order
to secure the maximum possible continuing protection for the Confidential Information so disclosed.
Obligations of confidentiality under this Clause shall continue and survive, notwithstanding termination of this
Agreement.
DATA PROTECTION
1.58
The Parties agree and acknowledge that, where Personal Data relating to the Customer and its employees,
directors and other officers and those of Local Affiliates, End Users and third parties is provided to the Supplier by
the Customer, is accessed by the Supplier on the authority of the Customer or is otherwise received by the Supplier
on the Customer’s behalf for the purpose of enabling the Supplier to perform its obligations under this Agreement,
the Supplier shall Process such Personal Data as a Data Processor on behalf of the Customer who remains the
Data Controller and shall comply with its obligations as a Data Processor under Clause 12.2.
1.59
The Supplier when acting as Data Processor warrants to the Customer as Data Controller that it shall:
1.60
1.59.1
act only on instructions from the Customer and, specifically, shall only Process Personal Data (which
shall include the disclosure of Personal Data to third parties) for the purposes notified by the Customer to
the Supplier; and
1.59.2
prior to Processing the Personal Data, implement appropriate technical and organisational measures to
enable it to process Personal Data in compliance with obligations equivalent to those imposed on the
Customer as Data Controller by applicable data protection law; and
1.59.3
not transfer personal data outside the European Economic Area without the written approval of the
Customer (save that the Customer acknowledges that some of the Supplier’s servers may be located in
Japan and the United States of America and accordingly the Customer hereby consents to the transfer of
Personal Data to and access of Personal Data from Japan and the United States of America) unless the
Data Processor is able to demonstrate to the Data Controller’s reasonable satisfaction that the country or
territory of destination provides adequate security in accordance with applicable data protection law.
Where Personal Data relating to the Customer and its employees, directors and other officers and those of Local
Affiliates, End Users and third parties is received by the Supplier from the Customer under or in connection with this
Agreement, the Customer warrants and undertakes that such Personal Data has been collected, processed and
transferred in accordance with applicable data privacy laws and that the Customer has provided all notices and
obtained all consents required by applicable law to enable:
1.60.1
the legal transfer of such Personal Data to and Processing by the Supplier and its subcontractors for the
purposes of enabling the Supplier to perform its obligations under this Agreement (including but not
limited to the transfer of such Personal Data outside the European Economic Area); and
1.60.2
the legal transfer to and further Processing by the Supplier of such Personal Data as a Data Controller
for the purposes of research, statistical analysis and sales and marketing of the Supplier’s own products
and services.
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and the Customer will fully indemnify the Supplier in respect of any loss or damages to the Supplier and its
subcontractors arising from any breach of this Clause by the Customer.
1.61
The Supplier and the Customer shall each, and the Customer shall ensure that each Local Affiliate shall, abide by
all laws and regulations in relation to data protection or privacy or the interception, recording or monitoring of
communications to the extent that such laws apply to it in connection with this Agreement. Subject to the foregoing,
to the extent that the Customer requires the Supplier to intercept, record or otherwise monitor communications, the
Customer shall defend and indemnify the Supplier and its subcontractors from any loss, claim, liability, cost or
expense arising from such activity.
2.
COMPLIANCE WITH ANTI-BRIBERY LEGISLATION
2.1
The Supplier shall:
2.1.1
comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anticorruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
2.1.2
not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6
of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and
2.1.3
have and shall maintain in place throughout the term of this agreement their own policies and
procedures, to seek to ensure compliance with the Relevant Requirements.
2.2
Breach of this clause 1Error! Reference source not found.3 shall be deemed a material breach under clause
4.5.1.
3.
INSURANCE
The Supplier shall maintain in effect during the continuance of this Agreement: (i) adequate public liability insurance
cover with a reputable insurance company to a minimum indemnity limit of £2,000,000; (ii) adequate professional
indemnity insurance cover with a reputable insurance company to a minimum indemnity limit of no less than
£2,000,000 (with an excess of no more than £ 75,000; and (iii) adequate employers’ liability indemnity insurance
cover with a reputable insurance company to a minimum indemnity limit of no less than £2,000,000. The Supplier
hereby agrees that it will not do or omit to do anything to substantially vitiate the above insurance cover.
4.
MISCELLANEOUS
4.1
This Agreement is governed by, and will be construed in accordance with, English law. Save as otherwise provided
in this Agreement, any dispute arising out of or in connection with this Agreement (“Dispute”), shall be referred by
either Party first to the nominated representatives of each of the Parties for resolution. If the Dispute cannot be
resolved by the nominated representatives of the Parties within 14 days after the Dispute has been referred to them,
either Party may give notice to the other Party in writing (“Notice”) of escalation of the Dispute. Within seven days
after the date of the Notice, the Dispute shall be referred to a senior executive of each of the Supplier and the
Customer for resolution within thirty (30) days.
4.2
If the Parties fail to resolve a dispute in accordance with the procedure set out above, the Parties shall irrevocably
submit to the exclusive jurisdiction of the courts of England for the purposes of hearing and deciding any suit, action
or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement
(respectively, “Proceedings” and “Disputes”).
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4.3
For avoidance of doubt, the place of performance of this Agreement is agreed by the Parties to be England. Each
Party irrevocably waives any objection which it might at any time have to the courts of England being nominated as
the forum to hear and decide any Proceedings and to settle any Disputes and agrees not to claim that the courts of
England are not a convenient or appropriate forum, provided nothing in this Clause shall prevent a Party from
seeking injunctive relief in respect of protection of its Intellectual Property Rights pursuant to this Agreement in the
English Courts.
4.4
Amendment or Waiver
Except as otherwise provided herein, this Agreement may not be released, discharged, supplemented, interpreted,
amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or
representative of each of the Parties. No failure to exercise and no delay in exercising any right, remedy, or power
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power
hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power
provided herein or by law or in equity. The waiver by any Party of the time for performance of any act or condition
hereunder shall not constitute a waiver of the act or condition itself.
4.5
Assignment and Severability
This Agreement shall be binding upon and inure to the benefit of the Customer, the Supplier and the Supplier’s
respective successors, and assigns. No Party may assign or transfer this Agreement without the prior written
consent of the other Party, which consent will not be unreasonably withheld or delayed, however the Supplier shall
be entitled to sub-contract the provision of the Services and Equipment to a third party provider without requiring the
Customer’s consent. In particular without limitation the consent will not be unreasonably withheld in the event this
Agreement is transferred together with all or a major portion of the business of the assignor provided that the
creditworthiness of the assignee is not lower than that of the assignor. The Supplier does not require any consent
from the Customer if this Agreement is being assigned or transferred to an Associate Company of the Supplier. If
any provision (including any part of any provision) of this Agreement shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
4.6
Notices
Any notice required to be given by either Party to the other will be deemed validly given if sent by hand, by
facsimile, by e-mail or by prepaid registered letter sent through the post (by airmail if sent overseas), to the other
Party at its address or facsimile number or e-mail address set out on the Order Form or such other address or
facsimile number as may be notified from time to time for this purpose. Any notice sent by hand will be deemed to
have been served on delivery. Any notice sent by facsimile will be deemed to have been served when sent provided
a successful transmission report is produced. Any notice sent by prepaid registered letter will be deemed to have
been served 48 hours after the time at which it was posted (or seven days if sent by airmail). Any notice sent by email will be deemed to have been served when sent provided receipt is acknowledged or confirmation is sent by
prepaid registered letter sent by post within 24 hours.
4.7
Announcements
4.7.1
Subject to clause 15.7.2, neither Party shall make, or permit any person to make, any public
announcement, communication or circular (announcement) concerning this Agreement without the prior
written consent of the other Party (such consent not to be unreasonably withheld or delayed). The
Parties shall consult together on the timing, contents and manner of release of any announcement.
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4.7.2
4.8
Where an announcement is required by law or any governmental or regulatory authority (including,
without limitation, any relevant securities exchange), or by any court or other authority of competent
jurisdiction, the Party required to make the announcement shall promptly notify the other Party. The
Party making the announcement shall make all reasonable attempts to agree the contents of the
announcement with the other Party before making it.
Further assurance
Each Party shall, and shall use all reasonable endeavours to procure that any relevant third party shall, at the
request of the other Party promptly execute and deliver such documents and perform such acts as may reasonably
be required for the purpose of giving full effect to this Agreement.
4.9
Interest
If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment,
then, without the Supplier’s remedies under clause 4, the Supplier may charge the Customer interest on the
overdue sum at the rate of 4% per annum above LIBOR's lending rate from time to time. Such interest shall accrue
on a daily basis from the due date until the date of actual payment of the overdue sum, whether before or after
judgment. The Customer shall pay the interest immediately on demand by the Supplier.
4.10
Costs
Each Party shall bear its own legal costs and other costs and expenses arising in connection with the drafting,
negotiation, execution and registration (if applicable) of this Agreement.
4.11
Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in
addition to, and not exclusive of, any rights or remedies provided by law.
4.12
Set-off
All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any deduction or
withholding (other than any deduction or withholding of tax as required by law), and the Customer shall not be
entitled to claim set-off or to counterclaim against the Supplier in relation to the payment of the whole or part of any
such amount.
4.13
Counterparts
This agreement may be executed in any number of counterparts, all of which taken together shall constitute one
and the same instrument. Either Party to this Agreement may enter into it by signing any such counterpart.
4.14
Language
4.14.1
This agreement is drafted in the English language. If this Agreement is translated into any other
language, the English language text shall prevail.
4.14.2
Any notice given under or in connection with this Agreement shall be in the English language. All other
documents provided under or in connection with this agreement shall be in the English language, or
accompanied by a certified English translation. If such document is translated into any other language,
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the English language text shall prevail unless the document is a constitutional, statutory or other official
document.
4.15
Variation
Except as set out in this Agreement, any variation, including the introduction of any additional terms and conditions,
to the Agreement, shall only be binding when agreed in writing and signed by the Supplier.
4.16
Entire Agreement
This Agreement and its schedules constitutes the entire agreement and understanding between the Parties with
respect to its subject matter and supersedes any prior agreement, understanding or arrangement between the
Parties whether oral or in writing (including, but not limited to, any terms and conditions set out in any purchase
order or other documentation issued by the Customer). No representation, undertaking or promise will be taken to
have been given or to be implied from anything said or written in communications between the Parties prior to the
date that this Agreement was executed except as set out in this Agreement.
4.17
Rights of Third Parties
Other than the Supplier’s subcontractors who shall have the benefit of this Agreement, a person who is not a Party
to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this Agreement.
4.18
Acceptance
Acceptance of this Agreement by the Supplier may be subject, in the Supplier’s absolute discretion, to satisfactory
completion of a credit check and continued credit worthiness of the Customer. Use of the Supplier network
constitutes acceptance of this Agreement. Each Party represents and warrants that it and the person(s) signing on
its behalf have full authority and right to enter into this Agreement and into the Order Form(s) governed by this
Agreement.
5.
NON-SOLICITATION
5.1
The Customer undertakes during the term of this Agreement and for three (3) months after its termination not to
induce or entice away (whether directly or indirectly) any person who during the previous twelve (12) months has
been employed or engaged by the Supplier or its subcontractors to perform the Services.
5.2
In the event that the Customer breaches Clause 16.1, it will pay the Supplier by way of liquidated damages twenty
five (25) percent of the first year's salary of such person within thirty (30) days of that person's commencement of
employment with the Customer.
Signed by
)
Signed by
)
For and on behalf of
)
For and on behalf of
)
CUSTOMER
)
SUPPLIER
)
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