Version 2.0
This Master Service Agreement is applicable to all Services provided during engagement between Aztek, and the Client.
Table of Contents
Parties
a) The Supplier as defined in the Sales Order specific to the Services being supplied.
b) The Client as defined in the Sales Order specific to the Services being supplied.
1. Definitions and Interpretation
1.1 Definitions – The definitions below and rules of interpretation in this clause apply in this agreement.
Affiliate means any entity that directly or indirectly controls or is controlled by either party or is jointly controlled with either you or us.
Agreement means the agreement between you and Aztek that is made up of this Master Service Agreement, the Order, the Schedule, any Annexes, and if applicable to the Service, the Price List.
Annex means any annex to the Schedule that describes the Service or sets out specific terms that apply to it.
Aztek means any company operating within the Aztek Group.
Business Day means any day except any Saturday, any Sunday, or any day which is a legal holiday or any day on which banking institutions are authorised or required by law or other governmental action to close.
Client means the party we contract with to provide the Service to.
Commencement Date means, notwithstanding the date on the Sales Order, the first day of the Agreement.
Confidential Information means means confidential information either of us (or each of our officers, employees, agents, subcontractors, suppliers, advisers, or Affiliates) gives the other after the date of the Agreement, no matter how it is recorded, stored or disclosed and includes:
a) the Agreement;
b) information about technical or commercial knowhow, specifications, inventions, processes or initiatives; or
c) any information a reasonable businessperson would see as confidential about:
i. the business, affairs, customers, clients, subcontractors, suppliers, plans or strategy of either of us or our Affiliates; and
ii. the operations, processes, product information, know-how, designs, trade secrets or software of either of us or our Affiliates,
But it does not include:
a) information that is available to the public, or becomes available, unless it is because one of us breaches the Agreement;
b) information that was already available to the receiving party on a non-confidential basis;
c) information we both agree in writing is not confidential information; or
d) information that was developed by or for the receiving party independently of the confidential information.
Client Responsibilities means the Client obligations set out in Clause 3.
Equipment means the Equipment (or any part of it) as set out in the Sales Order.
Force Majeure Event means any event that neither party can control and that stops or delays either party from doing something, including:
a) natural event including a flood, a storm, lightning, a drought, an earthquake or seismic activity;
b) an epidemic or a pandemic;
c) a terrorist attack, civil war, civil commotion or riots, war, the threat of war, preparation for war, an armed conflict, an imposition of sanctions, an embargo or a breaking-off of diplomatic relations;
d) any law made or any action taken by a government or public authority, including not granting or revoking a licence or a consent;
e) collapsing buildings, a fire, explosion, or accident; or any labour or trade dispute, a strike, industrial action, or lockouts.
Good Industry Practice means performance relative to any Services, their performance to the standard of skill, care, prudence, and foresight, in each case with appropriate management and control of quality, that a leading professional supplier of services similar to the Services would use in the performance of those services.
Group means, in relation to a company, that company, any subsidiary or holding company from time to time of that company, including without limitation to Aztek, and each subsidiary of the Group from time to time of a holding company of that company or of the Group.
Intellectual Property Rights means means the patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Minimum Period of Service means the minimum period of service for the Service as set out in the Sales Order commencing on the relevant Commencement Date.
Mitigate means the taking of such reasonable steps that would be taken by a prudent supplier in accordance with Good Industry Practice to mitigate against the Virus or Vulnerability in question, which may include (in the case of a Vulnerability) coding changes, but could also include specification changes (for example, removal of affected protocols or functionality in their entirety), provided these are approved by the Client in writing in advance, and the terms Mitigated and Mitigation shall be construed accordingly.
Price List means the document containing a list of our charges that can be accessed at an online address that we may advise you of.
Sales Order means the commercial document confirming the details of the product or services involved in the transaction between the Supplier and the Client.
Schedule means the document that details the matters related to the Services, and where applicable, forms part of the Agreement.
Services means the Services and/or Products to be supplied by the Supplier as detailed in the Sales Order associated with this agreement.
Supplier means means any company operating within the Aztek Group.
Supplier Responsibilities means the Supplier obligations set out in Clause 2.
We, Us and Our means Aztek, as defined.
User means any person you allow to use the Service.
VAT means Value Added Tax chargeable under English law for the time being and any similar tax.
Virus means anything 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.
Vulnerability means a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
You and Your means the Client, as defined above.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as replaced, extended or re-enacted from time to time and includes primary and delegated legislation and any provision of EU law having direct effect or direct applicability in the UK.
1.8 A reference to writing or written includes letters and email.
1.9 References to clauses and schedules are to the clauses of and schedules to this agreement. The schedule or schedules mentioned form part of this agreement.
1.10 This agreement shall be deemed to have commenced on the date specified in the Sales Order specific to the product or service being supplied.
2. Supplier Responsibilities
2.1 The Supplier shall provide, manage, and complete the Services in accordance with the specifications of the schedules with reasonable care and skill. Without affecting the foregoing, the Supplier shall allocate enough resources to the Services to enable it to comply with this obligation.
2.2 The Supplier will observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Client’s premises and have been communicated clearly to the Supplier, provided that the Supplier shall not be liable under the Agreement if, as a result of such observation, it is in breach of any of its obligations under the Agreement; and
2.3 The Supplier acknowledges and agrees that the Client is entering into this agreement based on a proposal and that the proposal is accurate and complete in all material respects and is not misleading.
3. Client Responsibilities
3.1 The Client shall co-operate with the Supplier in all matters relating to the Services;
3.2 The Client shall provide such access to the Client premises and data, and such office accommodation and other facilities, as may reasonably be required by the Supplier and agreed by the Client in advance for the provision of the Services; and
3.3 The Client shall not offer to sell, or resell the Services to any third party, unless the Supplier has appointed the Client as a partner or reseller.
3.4 The Client shall provide, in a timely manner, such information as the Supplier may request, and the Client considers reasonably necessary, in order to carry out the Services and ensure that all information the Client provides is accurate in all material respects.
3.5 The Client shall not approach any personnel employed by the Supplier or its appointed partners with a view to offering them direct employment during the term of this agreement for a period of not less than one year after the expiry or earlier termination of this agreement.
4. Term
4.1 This agreement shall come into force on the Commencement Date and shall continue in full force and effect for the duration specified in the Sales Order and/or Schedule.
4.2 This agreement shall continue for additional twelve (12) month periods until terminated by either party providing at least ninety (90) days’ notice to the other party that they wish to terminate this agreement.
5. Change of Scope
5.1 If the Client requests a change to the scope of the Services:
a) the Supplier shall, within a reasonable time (and in any event not more than fourteen (14) working days after receipt of the Client’s request), but without further charge to the Client, provide a written estimate to the Client of:
- the likely time required to implement the change;
- any necessary variations to the Supplier’s charges as a result of the change;
- the likely effect of the change on the Services; and
- any other impact of the change on the terms of this agreement;
b) if the Client does not wish to proceed, there shall be no change to this agreement; and
c) if the Client wishes the Supplier to proceed with the change, the Supplier shall do so after the agreement on the necessary variations to its charges, the Services, and any other relevant terms of this agreement to take account of the change.
5.2 If the Supplier requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it. If the Client wishes the Supplier to proceed with the change, the Supplier shall do so where the changes requested are reasonably acceptable and in the power of the Supplier to do so.
6. Charges and Payment
6.1 The charges for the Services and/or Equipment shall be the amount set out in the Sales Order.
6.2 The Supplier charges exclude VAT, which the Supplier shall add to its invoices at the appropriate rate.
6.3 Unless otherwise stated, the Supplier charges shall be exclusive of all costs and charges of packaging, insurance, and delivery.
6.4 The Supplier reserves the right to:
a) increase the charges for Services and/or Equipment upon notice to the Client:
- in line with any price increase levied upon the Supplier by a third-party supplier;
- to reflect any increase in the cost of the Services, Products and/or Equipment to the Supplier that is due to;
i. any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other associated costs);
ii. any request by the Client to change the type, scope and/or specification of the Services, Products and/or Equipment.
6.5 The Client shall pay each invoice properly due in accordance with the due date specified on the invoice which has been issued and submitted by the Supplier.
6.6 The Client shall pay each invoice issued and submitted by the Supplier via Direct Debit, and in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Client.
6.7 If the Client fails to make payment due to the Supplier by the due date, then, without limiting the Supplier’s remedies under clause 12, the Client will pay interest on the overdue sum from the due date until payment of the overdue sum is received, whether before or after judgement. Interest under this clause will accrue daily, at 8.00% per annum on the amount still owing, plus an additional fixed sum to recover the debt, in line with the Late Payment of Commercial Debts (Interest) Act 1988 and the Late Payment of Commercial Debts Regulations 2002 (or any amendments to these statutory provisions).
6.8 Claims for payment in respect of materials purchased by or services provided to the Supplier, or for reimbursement of expenses, shall be payable by the Client only if agreed by the Client in writing in advance and accompanied by relevant receipts.
7. Quality of Services
7.1 The Supplier warrants to the Client that:
a) the Supplier will perform the Services in accordance with Good Industry Practice;
b) the Services will conform with all descriptions and specifications provided to the Client by the Supplier;
c) the Services will be provided in accordance with, and the Supplier will comply with, all applicable legislation from time to time in force;
d) it will take reasonable steps to not introduce any Vulnerabilities or Viruses to the network and information systems of the Client, whether via the provision of the Services or otherwise; and
e) all deliverables will be tested for Viruses and Known Vulnerabilities and Latent Vulnerabilities prior to their delivery to the Client, and the Supplier will promptly Mitigate against any Vulnerabilities or Viruses present in any deliverables which it detects, or should have detected, or which are notified to it.
7.2 The Client’s rights under this agreement are in addition to the statutory terms implied in favour of the Client by the Supply of Goods and Services Act 1982 and any other statute.
7.3 The provisions of this clause shall survive any performance, acceptance or payment pursuant to this agreement and shall extend to any substituted or remedial services provided by the Supplier.
8. Intellectual Property Rights
8.1 The Supplier and its licensors shall retain ownership of all Supplier Intellectual Property Rights.
8.2 The Supplier grants the Client or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy the Supplier Intellectual Property rights for the purpose only of receiving and using the Services in the Client’s business during the term of this agreement.
9. Confidentialty
9.1 Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by this clause. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
9.2 Each party may disclose the other party’s confidential information:
a) to its employees, officers, representatives, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other party’s confidential information comply with this clause; and
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority specifications provided to the Client by the Supplier;
9.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
9.4 This clause shall survive termination of this agreement for any reason.
10. Data Protection
10.1 The Supplier warrants that the Services shall be performed in compliance with the provisions of:
a) the Data Protection Act 1998 and the General Data Protection Regulation (EU) 2016/679 and applicable legislation that supersedes or replaces GDPR in the UK or which applies the operation of the GDPR as if the GDPR were a part of UK national law, which may include the Data Protection Act of 2018; (together, the “Data Protection Legislation”); and
b) the provisions of our Data Protection Policy.
10.2 As a data processor when providing the Services, and in relation to any personal data or sensitive personal data belonging to the Client that the Supplier has access to or processes, the Supplier shall:
a) Ensure the protection of such data;
b) Take all necessary precautions to preserve the confidentiality of the data and prevent it from being disclosed to unauthorised third parties; and
c) Implement the appropriate technical and organisational measures to protect the data from unauthorised access.
10.3 Each party shall always comply with its respective obligations under the provisions of the Data Protection Legislation and shall not perform its obligations under this agreement in a way that will cause the other party to be in breach of any of its applicable obligations under Data Protection Legislation.
10.4 In circumstances where the Supplier works with third party services in the provision of the Services, the Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business.
11. Limitation of Liability
11.1 The following provisions set out the entire financial liability of either party (including without limitation any liability for the acts or omissions of its employees, agents, and sub-contractors) to the other in respect of:
a) any breach of this agreement howsoever arising;
b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the agreement;
11.2 Nothing in this agreement excludes the either party’s liability:
a) for death or personal injury caused by that party’s negligence; or
b) for fraud or fraudulent misrepresentation.
11.3 Subject to Clause 11.2 and Clause 11.4, the Supplier’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the agreement shall be limited to one hundred percent of the price specified to be payable for the Services as specified in the Sales Order.
11.4 In no event shall the Supplier be liable for any loss of profits, revenues, or savings, or any special, incidental, or consequential damages or indirect loss suffered by the Client.
12. Termination
12.1 Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:
a) the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so;
b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
12.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement with immediate effect (and, at its sole discretion, completely or partially suspend provision of the Services) by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment and fails to remedy such breach within fourteen (14) days.
12.3 On termination of the Agreement for whatever reason:
a) the Client shall immediately pay to the Supplier all the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
b) any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect; and
c) termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
13. Force Majeure
13.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from a Force Majeure Event.
14. Waiver
14.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15. Right and Remedies
15.1 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.
16. Assignments
16.1 Neither party shall, without the prior written consent of the other (such consent not to be unreasonably withheld), assign, transfer, charge, sub-agreement, or deal in any other manner with all or any of its rights or obligations under this agreement.
17. Third Party Rights
17.1 A person who is not a party to the Agreement will not have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract, even if a term seems to give the party a particular benefit.
18. Notices
18.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
a) delivered by pre-paid first-class recorded post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
b) sent by email to it main email address.
18.2 Any notice shall be deemed to have been received:
a) if delivered by pre-paid first-class recorded post, or on signature of a delivery receipt;
b) if sent by email, at 9.00 am on the next Business Day after transmission.
18.3 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.
19. Governing Law
19.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-agreementual disputes or claims) are governed by, and construed in accordance with, the law of England and Wales.
20. Jurisdiction
20.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-agreementual disputes or claims.