Clause 1
Definitions
In this Contract the following words have the following meanings:
1.1"Affiliate" means any direct or indirect Holding Company or Subsidiary Company of the relevant entity. A Company is a "Subsidiary" of another Company, if the latter company ("Holding Company"): (a) holds a majority of the voting rights in it; or (b) is a member of it and has the right to appoint or remove a majority of its board of directors; or (c) is a member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it. "Company" includes any body corporate or any legal entity capable under law of making a contract.
1.2"Applicable Law" means, for all countries, all national, state, provincial and local (i) laws, ordinances, regulations, and codes, and (ii) orders, requirements, directives, decrees, decisions, judgments, interpretive letters, guidance and other official releases of any Regulator that are applicable to the Parties, the Affiliates, the Services or any other matters relating to the subject matter of this Agreement.
1.3"Client Infrastructure" means the Client's systems and technical infrastructure (whether owned or licensed by the Client), including those systems that directly or indirectly interface and/or are interoperable with, and/or impact on, the Services, and which are not under Supplier's management and control and explicitly identified as Client's responsibility under this Contract, but excluding the Connectivity Infrastructure.
1.4"Client" means the 'Client' specified in the Order and/or the SOW(s).
1.5"Connectivity Infrastructure" means the internet, telecommunications links, broadband and/or third party software and systems which are neither owned or supplied by the Supplier or the Client and which connect the Services and/or the Supplier Software to wide area networks.
1.6"Contract" means these MSA Terms & Conditions, the Order, and the Schedules.
1.7"Costs" means costs, liabilities, penalties, and charges.
1.8"Deliverables" means the output/deliverables in respect of any Services.
1.9"Effective Date" means the contract date specified in the Order.
1.10"Event of Force Majeure" any circumstances beyond a party's reasonable control, including, without limitation: (a) act of God, explosion, flood, tempest, fire or accident; (b) unusual atmospheric conditions and unusual conditions in outer space which may affect signals to and from and the workings of satellites; (c) war or threat of war, sabotage, insurrection, civil disturbance or requisition; (d) import or export regulations or embargoes; (e) any change in any Law(s) that has an impact on the parties' rights and/or responsibilities under this Contract; (f) any breach by a third party of the Computer Misuse Act 1990 or the Communications Act 2003 that has the object or effect of directly or indirectly interfering with or damaging the Client Infrastructure, and/or the Supplier's hardware, software and/or network infrastructure; (g) any government guidance or instruction(s) applicable to either party or its suppliers (and any difficulties in obtaining supplies), arising as a result of any epidemic, pandemic, or outbreak of disease.
1.11"Fees" means the fees and charges specified in the Order and the SOW(s).
1.12"First Payment Date" means the date identified in the Order as the 'First Payment Date' (or otherwise, the Target Go-Live Date).
1.13"Hosted Services" means 'Hosted Services' as described in the Order.
1.14"Intellectual Property Rights" means all copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals.
1.15"Law" means any applicable laws, regulations, regulatory constraints, obligations, proclamations, rules (including binding codes of practice and statement of principles incorporated and contained in such rules), or applicable judgment of a relevant court of law which is a binding precedent, in each case in force in any jurisdiction that is or may be applicable to this Contract.
1.16"Licensing Purpose" means in the ordinary course of the Client's business and for the use(s) envisaged in the Supplier's published marketing materials for the Hosted Services.
1.17"Minimum Term" means the period of years identified in the Order as the 'Minimum Term'.
1.18"Order" means the 'MSA Order' agreed between the parties.
1.19"Services" means Set-up and Implementation Services, Hosted Services and additional professional services from time to time performed pursuant to an SOW.
1.20"Set-up and Implementation Services" means 'Set-up and Implementation Services' as described in the Order.
1.21"SLA" means the 'Service Level Agreement' set out as a Schedule to this Contract.
1.22"Software" means the Supplier Software, and any software supplied pursuant to this Contract, including all new releases, new versions, updates, and modifications thereto.
1.23"SOW" means a contract for specified professional services that is made in accordance with Clause 4.3.
1.24"Supplier Software" means the 'Supplier Software' described in the Order, including all new releases, new versions (which the parties may have mutually agreed that the Supplier will provide, at additional cost, to the Client, whether under an SOW or as a change in accordance with Clause 13), updates, and modifications thereto, and as specified in the SLA.
1.25"Supplier" means the 'Supplier' specified in the Order.
1.26"System Access" the local and wide area access to the Client Infrastructure as required by the Supplier in order to provide the Services pursuant to this Contract.
1.27"Target Go-Live Date" means the target date (advised by the Supplier) on which the Client should put some or all of the Hosted Services and/or Supplier Software into live and/or operational use.
1.28"User Data" means any information, materials, or data: (a) uploaded, stored or created in or using the Supplier Software by: (i) the Client or its users; or (ii) by the Supplier or a third party on the Client's or its users' instructions; and/or (b) provided to the Supplier by (or on behalf of) the Client or its users.
1.29"Virus" means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Clause 2
Hosted Services and warranties
2.1 From the Target Go-Live Date the Supplier shall provide Hosted Services substantially in accordance with the SLA with reasonable skill and care in accordance with good industry practice. In the event of any failure of the Services to perform substantially in accordance with the SLA, the Supplier will either (i) repair the applicable Services or (ii) terminate the Contract and refund to Client a sum equal to the Fees paid in advance for the period following termination during which the Services were rendered unusable.
2.2 Subject to the Client complying at all times with the terms of this Contract, the Supplier grants to the Client a non-exclusive non-transferable licence for the duration of this Contract to: (a) permit its authorised users to use the Supplier Software via the Hosted Services for the Licensing Purpose and at all times in compliance with the Law, subject to the licensing parameters set out in the Order; and (b) use the Deliverables for the Licensing Purpose.
2.3 The Supplier shall not be responsible for any failure to provide Hosted Services as a result of a failure by the Client to comply with its responsibilities under this Contract and: (a) errors in or corruption of the Client Infrastructure, Connectivity Infrastructure, and/or the User Data; and/or (b) the occurrence of a Suspension Event (as defined below).
2.4 The Supplier reserves the right at its sole discretion to suspend or limit performance of the Hosted Services in the event of (each of which shall be a "Suspension Event"): (a) scheduled maintenance services (for which the Supplier shall give to the Client as much notice as is reasonably practicable in the circumstances); (b) a material breach by the Client of the terms of this Contract (including a failure to pay the Fees in accordance with Clause 5); (c) where ongoing use by the Client of Hosted Services, in the Supplier's reasonable opinion, has the prospect of damaging Hosted Services or degrading performance (or actually has damaged or degraded the same); (d) the occurrence of an Event of Force Majeure.
2.5 In the event of a failure by the Supplier to provide Hosted Services in accordance with this Contract, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such failure(s) promptly (which may include the provision of a temporary workaround) in accordance with the SLA.
Clause 3
Client's responsibilities
3.1 The Client shall: (a) undertake all reasonable enquiries to satisfy itself that the Services are suitable for its needs before entering into this Contract; (b) adopt such processes and make such changes to its working practices as are necessary to make effective use of the Services; (c) have in place appropriate Client Infrastructure and Connectivity Infrastructure necessary for the provision of Services; (d) maintain and upgrade the Client Infrastructure and Connectivity Infrastructure in accordance with good industry practice, the Supplier's reasonable instructions, and any minimum environment recommendations published as part of Software specifications/guidelines; (e) carry out all of its responsibilities set out in this Contract in a timely and efficient manner and, in particular, not act (or fail to act) in a manner that will delay or otherwise adversely impact on the Supplier's (or its subcontractors) performance of Services; (f) provide the Supplier with all reasonably necessary information, co-operation, and assistance as may be required by the Supplier in order to provide Services; (g) comply with the Law with respect to its activities under this Contract; (h) provide the Supplier with such technical support, information, and access to systems and/or data as the Supplier reasonably requires in order to maintain System Access for the duration of this Contract; (i) reasonably determine whether it is appropriate (as a matter of good industry practice) to implement any form of additional back-up of User Data (in addition to such back-ups maintained by the Supplier as part of the Hosted Services) and if so either commission directly (or via the Supplier, if available) such additional data back-up services; (j) use reasonable endeavours to ensure that any data (including User Data) migrated to the Supplier as part of any data migration project is appropriately cleansed and is free from corruption or material errors; (k) not reverse engineer or decompile the Software (or attempt to do the same), save to the extent permitted by Law.
3.2 The Client recognises that the availability of the Hosted Services is, in part, dependent on the stability of the Connectivity Infrastructure and Client Infrastructure, and that changes to the Connectivity Infrastructure and Client Infrastructure may result in the loss of availability of (or the material degradation of) the Hosted Services. The Client shall not make changes to those elements of the Connectivity Infrastructure and Client Infrastructure that are within its control, which may adversely impact on the Hosted Services, without the prior consultation with the Supplier. The parties agree that changes to Connectivity Infrastructure that are outside of both parties control (and the consequences of such changes) are not the responsibility of either party (with the exception of the Client's responsibility to pay Fees); save that both parties shall use their reasonable endeavours to mitigate the adverse impact of such changes on the Hosted Services.
3.3 The Supplier may, with the Client's prior written consent, test the Client Infrastructure. In the event that the Supplier reasonably considers that the Client Infrastructure is inadequate and/or is (or may be) responsible for performance or functionality failures or degradation in relation to the Services, provided that the Supplier can evidence such inadequacy and/or failures or degradation, the Client shall make such changes to Client Infrastructure (whether configuration or upgrades) as the Supplier may reasonably recommend.
3.4 The Client shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, the Services and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services; or
(iii) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation.
Clause 4
Services and warranties
4.1 The Supplier shall:
(i) warrant that it will perform the Services using reasonable skill and care in accordance with good industry practice;
(ii) meet the timescales identified in a SOW (except for any failure to meet such timescales that is covered by Clause 11.6);
(iii) not vary the Supplier's personnel without Client's prior written consent;
(iv) ensure that the Supplier's personnel: (a) are suitably qualified and experienced to provide the Services; (b) comply with all health and safety policies, fire precautions, and applicable security regulations and procedures relevant to the premises at which the Supplier performs Services (if such premises are made available by the Supplier or the Client); and (c) are removed from provision of the Services if the Client reasonably determines that such Supplier's personnel are not appropriate for the work being assigned and/or have acted in breach of this Clause 4;
(v) provide the Services at the offices specified in a SOW;
(vi) comply with any reasonable Client policies and procedures notified to the Supplier, and/or the Supplier's personnel;
(vii) ensure the continuity of Supplier's personnel allocated to the Services by: (a) ensuring that any and all Supplier's personnel who terminate their employment or their service contract with the Supplier are replaced immediately by the Supplier unless otherwise agreed with Client; and (b) providing appropriate cover at its own cost for any and all supplier's personnel who are unable through illness or other reasons to carry out the duties from time to time assigned to them or who are removed from provision of the Services in accordance with Clause 4.1(iv).
4.2 Services will be provided pursuant to this Contract if and to the extent that such Services are specified in the Order.
4.3 This Contract also operates as a framework under which additional Services may be provided if the parties agree any SOW(s) by completing an SOW pro forma. Any written communication is capable of constituting an SOW provided that it is clearly identified as an order for Services. An SOW is deemed completed and binding on the parties if it is signed or otherwise agreed by both parties. Each completed SOW is a separate contract for Services. The completed SOW incorporates all the terms of this Contract that directly or indirectly relate to the SOW.
4.4 The Supplier shall provide Services using reasonable care and skill and in accordance with good industry practice. Both parties shall use their reasonable endeavours to meet the timescales specified in the SOW(s). The Supplier shall not be responsible for any failure to achieve deadlines or milestones in the SOW(s) to the extent that the failure has been caused by any delay or default on the part of the Client.
4.5 The Parties:
(i) each represent and warrant, on the date of this Contract and at all times during the Term (as defined in Clause 7.1) that (a) it has the power to execute this Contract and perform its obligations hereunder and has taken all necessary action to authorise such execution and performance, (b) it has obtained all licences and/or registrations required to perform its obligations hereunder, (c) it, and its Affiliates, as applicable, will comply with Applicable Law in performing its obligations hereunder, and (d) the obligations expressed in this Contract to be binding on such Party shall be the legal, valid and binding obligations of such Party, enforceable in accordance with their terms.
4.6 The Supplier warrants and undertakes that:
(i) it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Contract;
(ii) it will comply with all applicable laws and regulations with respect to its obligations under this Contract;
(iii) it will co-operate with the Client in all matters relating to the Services and comply with the Client's instructions; and
(iv) it shall not introduce any Viruses into the Client's network and information systems via the Services or Software or otherwise.
Clause 5
Payment
5.1 The Client shall pay: (a) Fees as and when they fall due for payment, as specified in the Order; and (b) Fees for additional Services in respect of any SOW(s) in the manner specified in the SOW(s).
5.2 The Supplier shall be entitled to raise invoices in accordance with the Order and any SOWs.
5.3 The Client shall pay the Supplier's invoices either: (a) within thirty (30) days of the date of the invoice (or within such shorter period as specified in the Order); or (b) immediately by direct debit or standing order (if applicable; and if specified in the Order).
5.4 The Client may not withhold payment of any amount due to the Supplier because of any set-off, counter-claim, abatement, or other similar deduction.
5.5 All Fees payable by the Client to the Supplier under this Contract are payable in Pounds Sterling (unless another currency is specified in the Order) and are exclusive of any applicable tax, levy or similar governmental charges, including value added or sales tax, that may be assessed by any jurisdiction.
5.6 If any sum payable under this Contract is not paid within ten (10) days after the due date for payment then (without prejudice to the Supplier's other rights and remedies) the Supplier reserves the right to charge interest on that sum in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 Unless otherwise specified in the Order Form, after the expiry of the Minimum Term, the Supplier shall be entitled by giving the Client not less than one hundred and twenty (120) days' written notice prior to an anniversary of the First Payment Date ("Anniversary Date") to increase any or all Fees with effect from the Anniversary Date (as determined by the Supplier in its sole discretion) ("General Increase"), provided that if the Client objects to a General Increase it shall be entitled to terminate this Contract with effect from the Anniversary Date by giving to the Supplier not less than sixty (60) days' written notice prior to the Anniversary Date.
Clause 6
Property rights
6.1 Full and unencumbered title (with full title guarantee) in Deliverables shall vest in the Supplier absolutely upon creation and the Supplier and its licensors owns and shall continue to own all Intellectual Property Rights in the Supplier Software. The Client undertakes at the request of the Supplier at all times from the date of this Contract to, and to procure that any and all of its sub-contractors and any third party involved in any SOW(s) shall, do all acts and execute all documents, papers, forms and authorisations and to dispose or swear to all declarations or oaths reasonably necessary and/or desirable to give effect to the provisions of this Clause 6.1. For the avoidance of doubt, the Client owns and shall continue to own the Intellectual Property Rights in any User Data.
6.2 The Supplier grants to the Client a non-exclusive non-transferrable perpetual licence to use the Deliverables.
Clause 7
Term and termination
7.1This Contract. This Contract is formed (and becomes legally binding) when the parties complete and sign the Order. This Contract shall commence on the Effective Date and shall continue unless and until terminated by either party in accordance with this Clause 7, and the aforesaid shall constitute the Term.
(i) Supplier shall be entitled to terminate this Contract on expiry of the Minimum Term specified by giving to the Client not less than ninety (90) days' prior written notice.
(ii) Client shall be entitled to terminate this Contract on expiry of the Minimum Term specified by giving to the Supplier not less than thirty (30) days' prior written notice.
(iii) Either party shall be entitled to terminate this Contract immediately by giving written notice to the other party if the other party commits any material breach of this Contract and fails to remedy that breach within thirty (30) days of written notice of that breach, provided that: (a) the thirty (30) day period only applies where a breach is capable of remedy — if it is incapable of remedy, the Contract may be terminated by written notice immediately; and (b) the parties agree that any failure to pay sums due under this Contract within the agreed payment terms shall constitute a material breach of this Contract.
7.2SOW(s). The SOW(s) shall commence in accordance with Clause 4.3 and shall terminate on completion of the Services or in accordance with this Clause 7.2.
(i) Client shall be entitled to terminate any SOW(s) immediately by giving to the Supplier not less than thirty (30) days' prior written notice at any time. Supplier shall be entitled to terminate any SOW(s) immediately by giving to the Client not less than ninety (90) days' prior written notice, such notice not to be issued prior to the expiry of the Minimum Term for the relevant SOW.
(ii) Either party shall be entitled to terminate any SOW(s) immediately by giving written notice to the other party if the other party commits any material breach of the relevant SOW and fails to remedy that breach within thirty (30) days of written notice of that breach, provided that: (a) the thirty (30) day period only applies where a breach is capable of remedy — if it is incapable of remedy, the SOW may be terminated by written notice immediately; and (b) the parties agree that any failure to pay sums due under any SOW within the agreed payment terms shall constitute a material breach of the SOW.
7.3Insolvency. Save to the extent otherwise specified by Law, either party shall be entitled to terminate either this Contract and/or any SOW(s) immediately by giving written notice to the other party if that other party has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts.
Clause 8
Consequences of termination
8.1 On termination of this Contract or any SOW(s) howsoever caused: (a) the rights and obligations created by Clauses 5, 6, 9, 10, 11, 14, 15, and 16 shall survive; (b) the rights of either party which arose on or before termination shall be unaffected.
8.2 On termination of this Contract howsoever caused: (a) the SOW(s) shall be unaffected; (b) each party shall return, in good condition, the property of the other party (if any) that was made available under this Contract in accordance with that other party's reasonable instructions; (c) all licences granted shall terminate (aside from the Client's license under Clause 6.2 to use the Deliverables which shall be perpetual); (d) the Supplier shall make available User Data for migration to the Client; and (e) the Supplier shall be entitled to permanently erase all User Data after the period of 90 days has elapsed from the effective date of termination of this Contract.
8.3 On termination of any SOW(s) howsoever caused: (a) other SOW(s) and the Contract shall be unaffected; and (b) each party shall return, in good condition, the property of the other party (if any) that was made available under the SOW(s) in accordance with that other party's reasonable instructions. In the event that termination of the SOW(s) precedes completion of the Services: (i) the Supplier shall make such partial delivery to the Client of the Deliverables as is reasonably practicable (subject to full receipt of payment under the SOW), such Deliverables to be provided on an "AS IS" basis; and (ii) if the parties had agreed to a fixed price under the SOW(s), the Supplier may (at its sole discretion) reduce the fixed price by an amount that reasonably reflects both the value of the Services that have been provided under the SOW(s) and the cost to the Supplier of providing such Services.
Clause 9
Confidentiality
9.1 Each party that receives ("Receiving Party") non-public business or financial information (subject to Clause 10.3) ("Confidential Information") from the other (or the other's Affiliates) ("Disclosing Party"), whether before, on or after the date of this Contract shall: (a) keep the Confidential Information confidential; (b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 9.2, or 9.3; and (c) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Contract ("Permitted Purpose").
9.2 The Receiving Party may disclose Confidential Information to its own, or any of its Affiliates, officers, directors, employees agents and advisers who reasonably need to know for the Permitted Purpose (each a "Permitted Third Party"), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 9 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party's obligations of confidentiality under this Clause 9.
9.3 If required by Law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.
Clause 10
Data
10.1 The Supplier shall not own (or claim ownership rights in respect of) User Data.
10.2 The Client is responsible for the accuracy, reliability, lawfulness, and integrity of all User Data. The Client warrants that User Data shall not be defamatory or offensive and that it, and its users, have all consents, licenses and permissions (including the consent of any Data Subjects) in respect of User Data as are required for Client (and its users) to lawfully upload, store, distribute, publish, share and/or Process the User Data (as applicable): (a) in/through the Supplier Software; and/or (b) to/with other Client users or any third parties who are authorised by the Client or by Law to view/access the User Data. The Client shall indemnify and hold harmless the Supplier for Costs arising from a breach of this Clause 10.2, including all Costs associated with handling a complaint or allegation which, if substantiated, would constitute a breach by the Client of this Clause 10.2.
10.3 The parties shall comply with the Data Processing Agreement, set out in the legal folder https://adoptech.co.uk/legal/
Clause 11
Liability
11.1 Neither party shall exclude or limit its liability for: (a) death or personal injury caused by its negligence; and/or (b) fraud or fraudulent misrepresentation; and/or (c) any liability that cannot be excluded or limited by Law.
11.2 Subject to Clause 11.1, neither party shall be liable for any loss of profits, loss of revenue, wasted expenditure, loss of anticipated savings, depletion of goodwill and/or similar losses, loss or corruption of data or information, or any special, indirect or consequential loss, costs, damages, charges or expenses. The Client agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into this Contract and that its only remedies can be for breach of contract (unless the statement was made fraudulently).
11.3 Subject to Clause 11.7, a party's Contractual Liability (as defined below) to the other shall not exceed one hundred and fifty per cent (150%) of the Fees paid (plus any unpaid Fees that are payable) under the Contract in the 12 month period prior to the date on which the claim (or series of connected claims) arose. "Contractual Liability" means liability howsoever arising under or in relation to the subject matter of this Contract that is not:
(i) unlimited by virtue of Clause 11.1; or
(ii) excluded pursuant to Clauses 11.2.
11.4 The Supplier's SOW Liability (as defined below) to the Client shall not exceed the Fees paid (plus any unpaid Fees that are payable) under the SOW under which the claim (or series of connected claims) arose. "SOW Liability" means liability howsoever arising under or in relation to the subject matter of the SOW under which the claim (or series of connected claims) arose that is not: (a) unlimited by virtue of Clause 11.1; (b) excluded pursuant to Clauses 11.2.
11.5 Except as expressly provided in this Contract, the Supplier hereby excludes any implied condition or warranty concerning the quality or fitness for purpose of its services, whether such condition or warranty is implied by statute or common law.
11.6 Neither party shall be liable for any delay or failure in performing its duties under this Contract caused by an Event of Force Majeure. Each party agrees to give notice to the other on becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure and its expected duration. If an Event of Force Majeure causes the Supplier a delay in or failure to perform duties under this Contract for a continuous period of fourteen (14) days ("Force Majeure Period"), the Client shall be entitled to terminate this Contract by giving to the Supplier not less than thirty (30) days' prior written notice.
11.7 The Supplier shall indemnify the Client in full against all liabilities, costs, expenses, damages and losses suffered or incurred by the Client arising out of, or in connection with, any claim brought against the Client for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services and the Deliverables.
11.8 Except as expressly and specifically provided in this agreement the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any Client Data, information, instructions or scripts provided to the Supplier by the Client in connection with the Services, or any actions taken by the Supplier at the Client's direction.
Clause 12
Assignment and subcontracting
12.1 Neither party shall assign or otherwise transfer any of its rights and obligations under this Contract without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, provided that either party shall be entitled (and the other party hereby irrevocably consents) to assign in whole or in part, or novate the entirety of this Contract, to any Affiliate as part of a bona fide corporate restructuring by providing not less than seven (7) days' prior written notice to the other party.
12.2 The Supplier may sub-contract the performance of any of its obligations under this Contract subject to prior written Client consent. The Supplier shall procure that its subcontractors comply with the terms of this Contract, Applicable Laws and all relevant regulatory requirements. The Supplier shall remain solely responsible for the performance of the Services and be liable to the Client for all acts and omissions of its subcontractors. The Supplier undertakes to oversee the Services which it has subcontracted in order to ensure that all contractual obligations between the Supplier and the Client are met. The Supplier shall be entitled, at its sole discretion, to replace such subcontractors from time to time subject to prior written Client consent.
12.3 The rights and obligations of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.
Clause 13
Changes
13.1 Subject to Clause 13.4, no changes to this Contract or the SOW(s) shall be valid unless made in writing and signed by the authorised representatives of both parties.
13.2 Either party shall be entitled from time to time to request a change to the scope of the Services ("Change"). Neither party shall be entitled to charge for considering and/or negotiating a Change unless such consideration requires the Supplier to undertake detailed scoping in which case the Supplier shall be entitled to charge pursuant to an SOW.
13.3 A Change will be effective when it is documented in writing in a standard Supplier change control form and signed by the authorised representatives of both parties.
13.4 The Supplier reserves the right to make changes to Hosted Services from time to time provided that the Supplier has given the Client not less than sixty (60) days' prior written notice of such change (a "Change Notice") and provided further that in the event that such a change removes material Hosted Services functionality to the material detriment of the Client's use of Hosted Services the Client shall be entitled by giving the Supplier not less than thirty (30) days' prior written notice to terminate this Contract. In the event that the Client has prepaid Fees covering a period following termination by the Client in accordance with this Clause 13.4, the Supplier shall refund to the Client a proportion of the prepaid Fees for the period following termination where Services are not provided. This Clause 13.4 is without prejudice to the Supplier's rights under the SLA.
13.5 Neither party shall unreasonably withhold its consent to the other's request to re-schedule the date or time of performance of Services. However, given that it will not be practical for the Supplier to re-schedule resources on short notice, the parties agree that: (a) if the Client gives to the Supplier less than two (2) clear days' notice of such a request then the Client must pay to the Supplier the full value of such booked Services; (b) if the Client gives to the Supplier between two (2) and seven (7) clear days' notice of such a request then the Client must pay to the Supplier fifty per cent (50%) of the full value of such booked Services. For the purpose of this Clause 13.5, a "day" excludes Saturday, Sunday, and public holidays.
Clause 14
Non-solicitation
14.1 Subject to clause 14.2, for the duration of this Contract and a period of twelve (12) months thereafter, each party shall not, and shall ensure that any of its Affiliates shall not, without the prior written consent of the other party, solicit, entice away, and/or actively initiate recruitment of any employee of the other party who is involved in the provision or receipt, as applicable, of the Service.
14.2 Nothing in Clause 14.1 shall prevent the Supplier or the Client from undertaking recruitment advertising in the national, local or industry press and offering employment or engagement to any such person who responds to such advertising.
14.3 If a party breaches Clause 14.1, it shall pay the other party an amount equal to the last twelve (12) months' salary of the applicable individual in recognition of the value of the individual to the other party and cost of recruiting and training a replacement. The parties agree that this sum is a genuine pre-estimate of the loss likely to be suffered by the other party in these circumstances and not a penalty.
Clause 15
Disputes
15.1 The parties shall attempt to resolve any dispute arising out of or relating to this Contract (including any non-contractual dispute arising out of or in connection with it) (the "Dispute") through discussions between senior representatives.
15.2 Where the Dispute is not resolved within forty (40) days of the start of discussions in accordance with Clause 15.1 above, the parties shall attempt to resolve the Dispute in good faith through an Alternative Dispute Resolution ("ADR") procedure as recommended by the Centre for Effective Dispute Resolution.
15.3 If the Dispute has not been resolved by an ADR procedure within forty (40) days of the initiation of that procedure, or if either of the Supplier or the Client will not participate in an ADR procedure, either of the parties shall be entitled to refer the Dispute to the High Court of England and Wales and the parties submit to its exclusive jurisdiction for that purpose.
15.4 Clauses 15.1 to 15.3 above shall not restrict either party's ability to commence court proceedings in respect of any: (a) matter relating to its Confidential Information or Intellectual Property Rights; and/or (b) unpaid invoice.
Clause 16
General provisions
16.1Force Majeure. Neither party shall be liable for any delay or failure in performing its duties under this Framework Contract and / or a Work Statement caused by any reason beyond the control of such party resulting from acts of God, governmental regulation, fire, war, terrorist activity or civil commotion (an "Event of Force Majeure"). Each party agrees to give notice to the other on becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
16.2Third Party Rights. The parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of this Contract.
16.3Relationship. Nothing in this Contract shall render either party a partner or an agent of the other party or authorise any party to make or enter into any commitments for or on behalf of any other party.
16.4Entire Agreement. This Contract supersedes any prior contracts, promises, assurances, warranties, representations and understandings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to the subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
16.5Severance. If any provision or part-provision of this Contract is held unlawful or unenforceable, that provision or part-provision shall be struck out and the remainder of this Contract shall remain in effect. If any provision or part-provision of this Contract is deemed deleted under this Clause 16.5, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.6No Waiver. No delay, neglect or forbearance by either party in enforcing its rights under this Contract shall be a waiver of or prejudice those rights.
16.7No Bribery. Each party warrants to the other that it: (a) has not and will not commit an offence under the Bribery Act 2010 in relation to this Contract or any other contract between the parties; and (b) has adequate procedures (as defined in section 7(2) of that Act) in place to prevent its associated persons from committing an offence under that Act.
16.8Injunctive Relief. Nothing in this Contract shall prevent or preclude either party from seeking injunctive relief.
16.9Notices. All notices (which include invoices and correspondence) under this Contract shall be in writing and shall be sent to the address of the recipient set out in this Contract or to such other address as the recipient may have notified from time to time. Any notice may be delivered personally, by a reputable courier service, by first-class post, or by email and shall be deemed to have been served if by hand when delivered, if by courier service or first class post 48 hours after delivery to the courier or posting (as the case may be), or if by email immediately.
16.10Interpretation. In this Contract: (a) any reference to a Clause means a reference to a Clause of this Contract unless the context requires otherwise; (b) unless the context otherwise requires, the words "including" and "include" and words of similar effect shall not be deemed to limit the general effect of the words which precede them; (c) the headings are for ease of reference only and shall not affect the construction or interpretation of the Contract; and (d) references to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order, regulation or instrument.
16.11Hierarchy. To the extent there is any inconsistency between the provisions of these terms and conditions, the Order, the Schedules, the SOW(s), any documents incorporated into this Contract, and any documents incorporated into the SOW(s) the following order of precedence shall apply: (a) first these terms and conditions; (b) second the Schedules; (c) third the Order; (d) fourth the SOW(s); (e) fifth documents incorporated into the SOW(s); and (f) sixth documents incorporated into this Contract.
16.12Law. This Contract is governed by the laws of England and Wales.
MSA Terms & Conditions — Version 7, June 2026