Master Service Agreement - Direct Engagement
Master Service Agreement - Direct Engagement

Master Service Agreement - Direct Engagement

Last Updated: 22 November 2021

INTERPRETATION

The following definitions shall apply in this MSA.

Terms

TermDefinition
Additional Charges
the additional Fees calculated by the Supplier on a time and materials basis at the rates set out in the relevant Contract in respect of the provision of any Additional Services, including charges for consultation and the provision of expert advice;
Additional Services
any services additional to the Services set out in the relevant Contract and that are agreed pursuant to clause 6;
Associate
in relation to any Party, any person which, directly or indirectly: 1. is Controlled by that Party; or 2. Controls that Party; or 3. is under substantially common Control with that Party;
Business Day
a day (excluding Saturdays and Sundays) on which banks in the City of London are generally open for non-automated commercial business.
Change Request
a document containing: 1. a detailed summary of the Change (including any technical details of the required Change);  2. the reasons for making the Change;  and 3. the anticipated timetable for such Change;
Change Request Response
a document containing:  1. a description of the work to be carried out in order to fully implement the Change (including any technical details of the required Change);  2. the effect, if any, of the Change on the Fees and/or cost of the Change;
Commencement Date
the date of commencement of this MSA, being the date set forth in the signed Quote.
Commercially Reasonable Efforts
means taking such steps and performing in such a manner as a well-managed company would undertake where such company was acting in a professional, prudent and reasonable manner to achieve the particular result for its own benefit;
Confidential Information
means all financial, business and technical or other data and all other information (whether written, oral or in electronic form or on magnetic or other media) concerning the business and affairs of a Party that the other Party obtains, receives or has access to as a result of the discussions leading up to or the entering into or the performance of this MSA or any individual Contract, and shall include the existence and provisions of this MSA and any Contract;
Contract
in relation to each signed Quote, the discrete agreement comprising the terms set out in this MSA together with the relevant signed Quote.
Control
means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes and “Controlled” shall be construed accordingly;
Customer’s Representative
the person nominated by the Customer or such other contact nominated by the Customer from time to time;
Effective Date
the date of commencement of an individual contract, as set out in the relevant signed Quote;
Expiry Date
the date of expiry of an individual Contract, as set out in the relevant signed Quote;
Fault
a fault or error and/or bug in any Software and shall include anything that causes the Software or Services not to operate fully or in accordance with this MSA or any Contract;
Fees
the fees payable by the Customer to the Supplier in accordance with the signed Quote;
Force Majeure Event
means any event, circumstance or cause beyond a Party’s reasonable control, including but not limited to acts of God, fire, flood, war, acts of terrorism, riot, civil commotion, governmental actions, labour disputes (save where such disputes involve the personnel of the non-performing Party), epidemics, pandemics, any changes in law or regulations arising from any of the foregoing, and any similar events beyond the control of the non-performing Party;
Initial Term
The period of time outlined in the separate Quote.
Intellectual Property Rights
all copyright and other intellectual property rights, howsoever arising and in whatever media (whether registered or unregistered), including patent rights, domain names, copyright protected material, trade and service marks, trade names,  trade colour, trade dress, database rights, moral rights, trade secrets, distinctive marks, symbols, rights in trade names, logos and design rights, rights in software, database rights, designs, goodwill, know how, licenses, databases and all other intellectual property rights, and any applications for the protection or registration of these rights and all renewals and extensions of them throughout the world;
MSA
this Master Services Agreement, including the Schedules, together with any Contract in force from time to time;
Price
the price specified for the Services to be supplied as set out in the relevant Quote, as increased from time to time in accordance with clause 6 or as otherwise permitted in a Contract;
Services
any and all IT services specified in each Contract to be supplied by the Supplier under this MSA and any Contract, including any Additional Services;
Software
any software supplied by the Supplier to the Customer as part of delivering Services in accordance with a Contract;
Quote
the specific provisions of a particular Contract, as agreed between and signed by the Parties in relation to each Contract;
Supplier’s Representative
the person nominated by the Supplier or such other contact nominated by the Supplier from time to time; and
Term
the term of the MSA or any individual Contract, as the case may be, as set out in clause 3.1.
Work Product
the elements to be developed by the Supplier for the Customer as part of the supply of the Services, which may include, as applicable, any or all of the following: the Software, drafts, notes, materials, mock-ups, designs, inventions, patents, code, and anything else that the Supplier conceives, creates, designs, develops, invents or works on as part of the supply of the Services.
  1. Clause and Schedule headings shall not affect the interpretation of this MSA.
  2. References to clauses and Schedules are to the clauses of and Schedules to this MSA and references to paragraphs and Parts are to paragraphs and Parts of the relevant Schedule.
  3. The Schedules form part of this MSA and shall have effect as if set out in full in the body of this MSA. Any reference to this MSA includes the Schedules.
  4. A reference to "this MSA" or to any other agreement or document referred to in this MSA is a reference to this MSA or such other agreement or document as varied, superseded or novated (in each case, other than in breach of the provisions of this MSA or the provisions of the agreement or document in question, as appropriate) from time to time.
  5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
  6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
  7. A "person" includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
  8. A reference to a "party" means an original party to this MSA and “parties” shall be construed accordingly.
  9. A reference to a "company" shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  10. A reference to "writing" or "written" includes email.
  11. A reference to “good faith and fair dealing” means a standard of conduct of a party characterised by honesty, openness and consideration for the interests of the other party.
  12. Any words following the terms "including", " include"," in particular" or "for example" or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  13. Where the context permits, "other" and "otherwise" are illustrative and shall not limit the sense of the words preceding them.
  14. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time provided that, as between the parties, no such amendment, extension or re-enactment made after the date of this MSA shall apply for the purposes of this MSA to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party.
  15. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
  16. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
  17. Unless otherwise provided in this MSA, all covenants, undertakings, warranties and other obligations given or entered into by more than one party in this MSA are given or entered into severally.

  1. MSA AND QUOTE
    1. The Parties have entered into this MSA, in order to agree a framework of terms for the supply and acceptance of Services by the Supplier to the Customer on an agile, ad hoc and/or “as required” basis.
    2. In relation to each Contract, the Parties will enter into an agreement which when read with this MSA will constitute a discrete Contract.
    3. Each Contract shall be interpreted in accordance with the provisions of this MSA.
    4. If there is any conflict between the terms set out in this MSA and the terms set out or referred to in any Quote, the Quote shall prevail.
    5. This MSA does not on its own commit the Customer to procuring any Services and, likewise, does not commit the Supplier to supplying any Services. The Customer only becomes committed to procuring, and the Supplier only becomes committed to supplying Services, upon signature by the Customer of a Quote in respect of such Services.
  2. TERM OF THIS MSA AND EACH CONTRACT
    1. This MSA shall commence on the Commencement Date and shall remain in force and effect until terminated in accordance with clause 13.
    2. Each individual Contract shall commence on the Effective Date and shall remain in force and effect until the relevant Expiry Date unless terminated earlier in accordance with clause 13.
  3. SUPPLY OF SERVICES, REQUESTS AND PROPOSALS
    1. In consideration of the Fees, the Supplier shall supply the Services in accordance with each Contract.
    2. When the Customer wishes to procure Services, it shall provide the Supplier with a request setting out the details of the Services which it wishes to procure (each, a "Request").
    3. Within 2 weeks of receipt of a Request including all requisite information, the Supplier will either:
      1. provide a proposal to the Customer (each, a "Proposal"); or
      2. inform the Customer that the Supplier chooses not to quote in relation to the Request; or
      3. if the Proposal requires additional time to prepare, provide a timeframe for the issue of a Proposal to the Customer, and issue such Proposal within such extended timeframe.
    4. The Proposal will correspond to the Request and will set out in detail:
      1. the Services to be supplied;
      2. the timetable for such supply;
      3. dependencies and conditions for such supply;
      4. the sequence of actions which the Supplier shall need to perform in order to deliver the requested Services and/or Software;
      5. the Price, Additional Charges and any other Fees payable, and additional payment terms relating to the Services set out in the Request; and
      6. the expiry date for such Proposal.
    5. Neither a Request nor a Proposal shall constitute a binding obligation on either Party to procure or supply any Services, or to issue a Proposal.
    6. If the Customer wishes to proceed on the basis of the Proposal, the Supplier will complete a Quote, including any additional negotiated terms, for signature by both Parties. The Contract will only come into force and be legally binding once it has been signed by both parties.
    7. For the avoidance of doubt, the Supplier will not provide any ongoing support in respect of any deliverable Service once such deliverable has been accepted by the Customer, unless otherwise agreed in writing.
  4. THE SUPPLIER'S OBLIGATIONS
    1. The Supplier will:
      1. supply and operate the Services:
        1. according to the relevant Quote; and
        2. in accordance with good business practice in the digital design industry;
      2. obtain and maintain all necessary licenses, consents, registrations and approvals required for the supply of the Services;
      3. develop, maintain and operate the Services with sufficient and relevantly qualified staff;
      4. not make any misleading warranty or representation in respect of the Services or hold itself out as the Customer’s agent or legal partner;
      5. not conduct the Services in a way, or do anything or allow anything to be done, which does or might bring the Services, the Supplier or the Customer into disrepute or adversely affect it or them;
      6. have a general duty to act in accordance with good faith and fair dealing and to co-operate with the Customer in relation to this MSA and any Contract, to the extent that the Customer can reasonably expect it, to facilitate the proper performance of this MSA.
    2. Time of performance under this MSA shall not be of the essence. However, the Supplier shall use its Commercially Reasonable Efforts to provide the Services in accordance with the timeline set out in the Quote, or where no time is specified for the performance of the Services in the Quote, to perform the Services within a reasonable time having regard to:
      1. the nature of the Services; and
      2. the time and place at which the Services are required to be undertaken.
    3. The Supplier shall, and shall procure that any staff or contractors of the Supplier shall, when attending any premises of the Customer, comply with those policies of the Customer that are applicable to the performance of the Services, provided always that such policies are notified to the Supplier in advance.
    4. The Supplier warrants that it will possess all and any authorisations, consents and licences from all relevant third parties as are reasonably necessary to enable it fully and effectively to discharge its obligations under this MSA and it shall notify the Customer of any material alteration, termination or withdrawal of any of its authorisations, consents or licences.
    5. The Supplier warrants that it shall not do or omit to do anything that would cause the Customer to be in breach of any applicable regulations or the reasonable requirements of any third party which have been specifically set out in full and notified to the Supplier in writing by the Customer in advance of the relevant Contract being formed.
    6. The Supplier shall to the best of their knowledge and ability conform with accessibility guidelines, however cannot guarantee that all guidelines will be met.
  5. EXCLUSIONS FROM SUPPLIER SERVICES
    1. Except where they expressly form part of the Services as set out in a Quote, the Services do not include:

    2. the performance of the network, telecom or internet connection of the Customer, which shall be the responsibility of the Customer or of their telecom and/or internet service provider as appropriate;
    3. any problems or downtime in the use of any Software or access to the Services as a result of performance of the telecom or internet connection of the Customer; or
    4. any problems or downtime which result from the licensor of any third party software being unable to carry out the performance of their duties in relation to software releases, patches, required updates and similar.
    5. the production or provision of any images or copy/content. Any images or copy/content required will be provided by the Customer.
    6. Any additional changes or requests which lie outside the original Scope of Work agreed prior to the Commencement Date, or any changes requested after the Initial Term unless otherwise agreed in writing by both parties. Any additional requests will otherwise be charged on a time and materials basis.
  6. SUPPORT SERVICES
    1. The Supplier shall correct all Faults notified to it (or of which it otherwise becomes aware) within the Initial Term. Unless otherwise agreed between the Parties in writing in relation to a particular Fault, the following procedure shall apply:
      1. Within four (4) business hours of becoming aware of the Fault, the Supplier shall notify the Customer of the estimated time and/or date, as applicable, for correction of the Fault.
      2. If, having regard to the severity of the Fault, the Customer is not satisfied with the effort being applied by the Supplier to correct the Fault, then the Customer shall notify the Supplier of the period within which it expects the Fault to be corrected. If the Supplier agrees, then the Supplier shall correct the Fault within such period. If the Supplier disagrees or fails to respond, the Customer may escalate the matter to the Managing Director of the Supplier and the Managing Director of the Customer.
    2. The services outlined in clause 7.a shall be provided to the Customer by the Supplier at no additional cost, unless requested after the Initial Term. After the Initial Term, any Faults notified to the Supplier will be completed on a time and materials basis.
  7. SERVICE AND AGREEMENT MONITORING
    1. For the purposes of monitoring and managing performance under this MSA the Parties shall respectively appoint the Customer’s Representative and the Supplier’s Representative. It shall be the responsibility of such Representatives to ensure that the Services are provided in accordance with the terms and conditions of the relevant Contract.
    2. The Customer and the Supplier shall arrange meetings between the Customer’s Representative and the Supplier’s Representative at regular intervals in order to discuss the provision of the Services.
    3. Both Parties shall produce written reports from meetings held within a reasonable time following such meetings and shall use their Commercially Reasonable Efforts to comply with any and all agreed actions to be taken with respect to the provision of the Services and the performance by each Party of its respective obligations under this MSA.
    4. In addition to the matters set out in clause 7.a, the Customer’s Representative and the Supplier’s Representative shall from time to time, conduct agreement reviews during which the Parties may propose, discuss and agree upon any desired or necessary additions to this MSA or any Contract including, but not limited to, its terms and conditions, scope, Fees and duration. Any such agreed additions shall not be effective unless evidenced in writing and signed by the duly authorised representatives of the Parties.
    5. In the event that additions to this MSA are required due to circumstances including, but not limited to, legislative or regulatory change, either party shall have the right to call for an immediate Agreement Review to discuss the necessary additions and action to be taken. Any additions agreed upon during such Agreement Reviews shall not be effective unless evidenced in writing and signed by the duly authorised representatives of the Parties.
  8. INSURANCE
    1. The Supplier will maintain such insurance cover as is required to operate and supply the Services, which cover shall be limited to not less than the following amounts:
      1. Public & products liability insurance - £1,000,000 cover;
      2. Professional indemnity insurance - £250,000 cover; and
      3. The Supplier shall provide copies of such policies to the Customer on receipt of a request for the same from the Customer.

    2. The Supplier will:
      1. administer such insurance policies and its relationship with its insurers at all times to preserve the benefits for the Customer as set out in this MSA;
      2. take no action that may invalidate any of the insurance policies or to in any way prejudice the entitlement of the Customer under this MSA;
      3. procure that the terms of the insurance policies are not altered in such a way as to diminish the benefit to the Customer of those insurance policies as provided at the Commencement Date.
  9. WARRANTIES
    1. Each Party warrants and represents to the other that it has the full power and authority to enter into, and perform its obligations under, this MSA.
    2. The Supplier warrants that:
      1. it will comply with all applicable regulations, laws and requirements of any relevant authority in performing its obligations under this MSA; and
      2. it shall perform its obligations under this MSA with reasonable care and skill in accordance with generally established and recognised practices and standards prevailing in the cyber security industry.
    3. The Supplier shall not be liable for any failure of the Services or the deliverables to comply with the provisions of clause 9.b where the same arises directly and in whole as a result of:
      1. a material breach by the Customer or its sub-contractors of any of its obligations under this MSA; or
      2. an event of Force Majeure;
    4. The Supplier represents and warrants that all Software provided pursuant to any Contract is original and does not and will not infringe the intellectual property rights of any third party.
    5. Except as set out in this clause 9 the Supplier gives no warranty and makes no representations in relation to the Services and/or Software, and all other conditions, warranties or terms whether express or implied by statute are excluded to the fullest extent permitted by law.
  10. INDEMNITIES
    1. Each party (“Indemnifying party”) will indemnify the other party (“Indemnified party”) against any direct damages suffered by the Indemnified party on account of fraud, personal injury or death caused by the negligence of the Indemnifying party or the Indemnifying party’s employees.
    2. The Supplier will indemnify the Customer on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of any element of the Services infringes the Intellectual Property Rights of any third party subject to the following conditions:
      1. the Customer shall promptly notify the Supplier in writing of any allegations of infringement of which it is aware and shall not make any admissions without the Supplier’s prior written consent;
      2. the Customer, at the Supplier’s request and expense, shall allow the Supplier to conduct and/or settle all negotiations and litigation resulting from any such claim subject to the Supplier taking over such conduct within 30 Business Days after being notified of the claim and provided that the Supplier diligently pursues the settlement of any such claim; and
      3. the Customer shall, at the request of the Supplier, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed the Supplier on demand for all expenses incurred in doing so.
    3. If the Customer’s use or possession of any element of the Services, in accordance with this MSA, is held by a court of competent jurisdiction to constitute an infringement of a third party's Intellectual Property Rights, then the Supplier shall promptly and at its own expense:
      1. procure for the Customer the right to continue using and possessing the infringing part of the Services; or
      2. modify the Services (or part thereof) without detracting from the overall performance of the Services, so as to avoid the infringement.
  11. LIMITATION OF LIABILITY
    1. The total liability of either Party to the other under this MSA and under each individual Contract (separately construed) shall be limited to the greater of:
      1. the amount paid out by the Supplier’s insurance (retained by the Supplier in accordance with clause 9) in respect of this MSA or any individual Contract; or
      2. an amount equal to the aggregate of the Fees payable by the Customer to the Supplier in accordance with that individual Contract; in relation to any claim or any series of claims arising out of each individual Contract.
    2. Neither Party shall under any circumstances be liable in contract, tort (including negligence and breach of statutory duty) or otherwise:
      1. any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether such loss is direct or indirect, however arising;
      2. any indirect, consequential or special loss or damages, whether actual or reasonably foreseen, however arising; or
      3. to the extent that such liability arises as a result of the other Party’s breach of this MSA and/or any Contract.
    3. Each provision of this clause 11 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the expiry or termination of this MSA and/or any Contract.
    4. Nothing in this MSA and/or any Contract shall limit or exclude the liability of either Party for death or personal injury caused by that Party’s negligence or for fraudulent misrepresentation.
    5. Any liability of either Party which is not expressly assumed in this MSA is excluded.
    6. The Parties agree that the exclusions and limitations of liability in this MSA are reasonable.
  12. CONFIDENTIALITY
    1. Each Party will keep the Confidential Information of the other Party confidential and secret and will not:
      1. use any of the Confidential Information except as required to perform its obligations under this MSA; or
      2. disclose or make available any of the Confidential Information, directly or indirectly, to any person other than its officers, employees, professional advisers, consultants and other agents who reasonably need the Confidential Information to enable that Party to perform its obligations under this MSA, provided that the relevant Party first obtains their written undertaking to that they will comply with this clause 12 and further provided that such Party is responsible for their compliance with this clause 12.
    2. The foregoing obligations shall not apply:
      1. to any Confidential Information which:
        1. at the time it was acquired by the receiving Party was in the public domain; or
        2. at a later date comes into the public domain through no fault of the receiving Party; or
        3. is required to be disclosed by law or regulatory authority; or
      2. if and to the extent that a Party has given its express written consent to the other Party to:
        1. use particular Confidential Information in a way and for a purpose, all as detailed in that consent; or
        2. disclose or make available particular Confidential Information to a person or organization and for a purpose, all as detailed in that consent.
    3. Each Party hereby agrees and undertakes:
      1. that the other Party’s Confidential Information shall be and shall remain at all times the sole and exclusive property of the other Party;
      2. that its right to use the other Party’s Confidential Information shall wholly cease upon the termination or expiry of this MSA; and
      3. to return to the other Party on termination of this MSA all material embodying Confidential Information (including information stored on computer disks or other electronic media) or any part thereof and all copies thereof.
    4. This clause 12 shall remain in force after, and notwithstanding, any expiry or termination of this MSA or the Term for two years after, as the case may be, such termination or expiry.
  13. TERMINATION
    1. The Parties acknowledge that the termination of an individual Contract shall not affect the continuation of this MSA or any other Contract then in force.
    2. Either Party shall, without prejudice to any other rights and remedies which it may have, be entitled to terminate this MSA and/or any Contract by service on the other Party of notice in writing having effect forthwith if the other Party:
      1. commits a material breach of the terms of this MSA and/or any Contract and such breach is not remedied (if capable of remedy) within fourteen (14) days of receipt of a written notice specifying the breach and requiring it to be remedied;
      2. persistently breaches non-material terms of this MSA and/or any Contract, such that such persistent breaches amount to a material breach;
      3. fails or refuses to pay any amount due and payable under the provisions of this MSA within 10 days of notice to do so; or
      4. is prevented or delayed in the performance of its obligations by a Force Majeure Event for a continuous period in excess of sixty (60) days;
      5. makes any arrangement or compromise with its creditors;
      6. is the subject of a voluntary or compulsory liquidation (other than for the purpose of a bona fide reconstruction or amalgamation);
      7. ceases to carry on business or suffers any execution or distress over its assets; or
      8. is made the subject of any administration order or of any proposal under Part I of the Insolvency Act 1986 for composition in satisfaction of its debts or is otherwise unable to pay its debts in the ordinary course of business, provided that no right of termination shall arise under any of clauses 18.b.vi to 18.b.viii where the event that would otherwise give rise to such right to terminate takes place pursuant to a solvent reconstruction or reorganisation and the succeeding Party is an Associate and undertakes in writing with the Party who would otherwise be entitled to terminate to be bound by the provisions of this MSA and/or any Contract.
    3. The Supplier shall have the right to terminate this MSA and/or any Contract on 90 day’s written notice if the Customer (as Data Controller) demands, in accordance with either clause 16, any change in the way in which the Customer’s data is processed, and such change would result in additional cost or any other financial detriment to the Supplier.
    4. On termination of any Contract (howsoever caused) each Party shall return to the other all Confidential Information, documents, data and other material belonging to the other Party in its possession.
    5. Termination of this MSA and/or any Contract by either Party for whatever reason shall not affect any accrued rights or liabilities of either Party, nor shall it affect the coming into force or the continuation in force of any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after such termination.
  14. DATA PROTECTION
    1. All personal information that the Customer or the Supplier (the “First party”) may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and the rights under the GDPR of the other party being, as the case may be, either the Customer or the Supplier (the “Other party”) and the rights under the GDPR of any third party.
    2. For complete details of the First party’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Other party’s and any third party’s rights and how to exercise them, and personal data sharing (where applicable), the Other party should refer to the Privacy Notice of the First party. The respective Privacy Notices of the Supplier can be provided upon request (“Privacy Notices”).
  15. DATA PROCESSING
    1. The parties agree that they will both comply with all applicable data protection requirements set out in the Data Protection Legislation. This clause 15 shall not relieve either Party of any obligations set out in the Data Protection Legislation and does not remove or replace any of those obligations.
    2. For the purposes of the Data Protection Legislation and for this clause 15, the Supplier is the “Data Processor” and the Customer is the “Data Controller”.
    3. The type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing can be provided upon request (“Data Processing”).
    4. The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in this MSA.
    5. The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under this MSA:
      1. process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law;
      2. ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures (“Data Processing”);
      3. ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential;
      4. not transfer any personal data outside of the EEA without the prior written consent of the Data Controller and only if the following conditions are satisfied:
        1. The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
        2. Affected data subjects have enforceable rights and effective legal remedies;
        3. The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
        4. The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data;
      5. In the event that the Data Controller consents to a transfer of data outside the EEA, as set out in clause 15.e.iv above, only process (or permit the processing) of the Personal Data outside of the EEA if one or more of the following conditions are satisfied:
        1. the Data Processor is processing the Personal Data in a territory that is subject to a current finding by the European Commission under the Data Protection Legislation that said territory provides adequate protection for the privacy rights of individuals; or
        2. the Data Processor participates in a valid cross-border transfer mechanism under the Data Protection Legislation under which the Data Processor (and the Data Controller, where appropriate) can ensure that appropriate safeguards are in place to ensure an adequate level of data protection with respect to the privacy rights of individuals as required by Article 46 of the GDPR. The transfer mechanism enabling such transfers is identified in the Schedule to these Business Terms. The Data Processor shall immediately inform the Data Controller of any changes thereto; or
        3. the transfer of the Personal Data otherwise complies with the Data Protection Legislation (“Data Processing”);
      6. assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
      7. notify the Data Controller without undue delay of a personal data breach;
      8. on the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of this MSA unless it is required to retain any of the personal data by law; and
      9. maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this clause 15 and to allow for audits by the Data Controller and/or any party designated by the Data Controller.
      10. The Data Processor shall not sub-contract any of its obligations to a sub-processor with respect to the processing of personal data under this clause 15 without the prior written consent of the Data Controller (such consent not to be unreasonably withheld). In the event that the Data Processor appoints a sub-processor, the Data Processor shall:
        1. enter into a written agreement with the sub-processor, which shall impose upon the sub-processor the same obligations as are imposed upon the Data Processor by this clause 15 and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and
        2. ensure that the sub-processor complies fully with its obligations under that agreement and the Data Protection Legislation.
      11. Where the Data Controller instructs the Data Processor to collect and/or process personal data from a third party entity on the Data Controller’s behalf, the Data Controller shall ensure that it enters into an adequate and appropriate data processing agreement with such third party, which shall include protections for the Data Processor. In that case:
        1. the Data Processor shall be operating as a sub-processor; and
        2. this MSA shall comprise a sub-processing agreement.
      12. To the extent that the Data Controller may wish to share with any group or related entity any personal data obtained on its behalf by the Data Processor, the Data Controller shall ensure that it has all requisite consents to do so with any third party and/or the individuals concerned.
      13. The Data Controller hereby indemnifies the Data Processor for any losses incurred by the Data Processor as a result of a breach by the Data Controller of clause 16.xii or clause 15.xiii.
      14. Either Party may, at any time, and on at least 20 Business Days’ notice, alter this clause 15, replacing it with any applicable data processing clauses or similar terms that form part of an applicable certification scheme. Such terms shall apply when agreed in writing by both parties.
  16. ANTI-BRIBERY AND CORRUPTION
    1. Both Parties agree and undertake that they shall:
      1. comply with all applicable laws, regulations and financial sanctions relating to anti-bribery, terrorism and anti-corruption, including the Bribery Act 2010 (the “Relevant Requirements”);
      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 United Kingdom;
      3. have and maintain in place throughout the term of this MSA its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and enforce them where appropriate;
      4. promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by the first Party in connection with the performance of the Services; and
      5. warrant that no offer, payment, consideration, or benefit of any kind, which constitutes or could be construed as an illegal or corrupt practice, has been or shall be made, either directly or indirectly, as an inducement or reward for the award or execution of this MSA.
    2. Breach of this clause 16 shall be deemed a material breach under clause 13 (Termination).
  17. NON-SOLICITATION
    1. Each Party agrees for a period of two years following the termination or expiry of this MSA, not to solicit for employment either directly or indirectly (except for any bona fide public recruitment advertising campaign) any of the other Party’s employees, agents or consultants or persons who were former employees, agents or consultants of the other Party within a six month period prior to the proposed hiring date.
    2. The Supplier reserves the right to investigate any potential violation and terminate the Agreement for any breach of this clause 17.
    3. As Supplier's sole and exclusive remedy for breaches of this clause 17, Customer shall pay to Supplier 30% of the annual salary of any such solicited employee, agent, or consultant.
  18. ASSIGNMENT AND SUCCESSION
    1. Neither Party may assign its rights or obligations under this MSA without the prior written consent of the other Party.
    2. The Supplier may subcontract performance of any of its obligations under this MSA.
    3. Subject to clause 18.a, this MSA will bind and benefit each party’s permitted successors and assigns.
  19. FORCE MAJEURE
  20. Neither party shall be in breach of this MSA insofar as any event, circumstance or cause beyond its reasonable control (“Force Majeure”) prevents or delays it from performing any of its obligations under this MSA save that this clause shall not apply to any obligation to make a payment under any provision of this MSA.

  21. WAIVER
  22. No delay, act or omission by either party in exercising any right or remedy shall be deemed to be a waiver of that or any other right or remedy.

  23. NON-EXCLUSIVITY OF RIGHTS
  24. No right, power or remedy conferred upon or reserved for either party in this MSA is exclusive of any other right, power or remedy available to that party.

  25. RELATIONSHIP
  26. The parties are independent businesses and neither party is, nor shall anything in this MSA deem them to be, a principal or agent or partner of the other.

  27. NOTICES
    1. Any notice given to a party under or in connection with this MSA shall be in writing and shall be: (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business (if a company) or (in the case of an individual) their last known address; or (ii) sent by email to any email address that the recipient regularly uses.
    2. Any notice shall be deemed to have been received:
      1. if delivered by hand, on signature of a delivery receipt; or
      2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
      3. if sent by email, at 9.00 am (local time) on the next Business Day after transmission.
    3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  28. SEVERANCE
  29. If any provision or part-provision of this MSA is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this MSA.

  30. THIRD PARTY RIGHTS
    1. A person who is not a party to this MSA shall not have any rights under the Contracts (Rights of Third parties) Act 1999 to enforce any term of this MSA.
    2. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this MSA are not subject to the consent of any other person.
  31. CASE STUDIES
  32. The Supplier reserves the right to publish and distribute, for its sales, marketing and advertising purposes, one or more case studies describing the services provided by the Supplier for the Customer. The Supplier may request information or materials from the Customer upon the Expiry Date.

  33. COUNTERPARTS
    1. This MSA may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
    2. Transmission of the executed signature page of a counterpart of this MSA by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this MSA and no delivery of hard copy or wet ink originals shall be required.
  34. ENTIRE AGREEMENT
    1. This MSA, together with any other documents specifically referred to herein, constitutes the entire agreement between the parties relating to its subject matter and supersedes any prior drafts, agreements, undertakings, representations, disclosures, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.
    2. Any variation of this MSA shall only be effective if made in writing and executed by each party in the same manner as this MSA is executed by them.
  35. EXPENSES
  36. Subject to any provisions to the contrary, each party to this MSA will pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this MSA.

  37. DISPUTE RESOLUTION
    1. The parties shall attempt to resolve any dispute arising out of or relating to this MSA through negotiations between their appointed representatives who have the authority to settle such disputes.
    2. If negotiations under clause 30.a do not resolve the matter within 30 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure, including mediation.
    3. If the ADR procedure under clause 30.c does not resolve the matter within 30 days of the initiation of that procedure, or if either party will not participate in the ADR procedure, the dispute may be referred to arbitration by either party.
    4. The seat of the arbitration under clause 30.c shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the parties. In the event that the parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either party may, upon giving written notice to the other party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.
    5. Nothing in this clause 30 shall prohibit either party or its affiliates from applying to a court for interim injunctive relief.
    6. The parties hereby agree that the decision and outcome of the final method of dispute resolution under this clause 30 shall be final and binding on both parties.
  38. GOVERNING LAW AND JURISDICTION
    1. This MSA shall be governed by, and construed in accordance with, the laws of England and Wales.
    2. Any dispute, controversy, proceedings or claim between The Customer and The Supplier relating to this MSA shall fall within the exclusive jurisdiction of the courts of England and Wales.
    3. In this clause 31, “this MSA” shall include any non-contractual matters and obligations arising from this MSA or associated therewith.