1.1 In this MSA:
“Additional Services” means those services set out in paragraph 5 of the Initial SOW;
“Charges” means the charges for the Services, as set out in, or determined in accordance with, a SOW;
“Commencement Date” has the meaning given to it in paragraph Error! Reference source not found. of the Initial SOW;
“Confidential Information” means all information which is marked as confidential or has otherwise been indicated as being confidential, or information which would be regarded as confidential by a reasonable business person, and disclosed (whether in writing, orally or by any other means) by a party to the other party whether before or after the Effective Date. The Customer acknowledges that Extech’s Confidential Information includes the Extech IPR;
“Control” means the acquisition of either (a) the voting rights attaching to 25% or more of the voting shares in the Customer; or (b) the power to direct or cause the direction and management of the policies of the Customer in accordance with the acquirer’s wishes, whether as a result of the ownership of shares, control of the board of directors, contract or any powers conferred by the articles of association or other constitutional documents of the Customer;
“Customer Personal Data” means any Personal Data comprised in information that is provided by or on behalf of the Customer to Extech as part of the Customer’s use or receipt of the Services;
“Customer Personnel” means all employees, officer, agents, consultants and subcontractors of the Customer and/or of any subcontractors of the Customer;
“Data Controller” has the meaning given to that term in applicable Data Protection Laws from time to time;;
“Data Processor” has the meaning given to that term in applicable Data Protection Laws from time to time;
“Data Protection Laws” means, as binding on either party or the Services: (a) the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 2018 or the GDPR; (b) any laws which implement any such laws; and (c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
“Data Subject” has the meaning given to that in applicable Data Protection Laws from time to time;
“Effective Date” means the date this MSA is signed by both parties (and, if signed by the parties on different dates, the later of these dates);
“Equipment” or “Software” means both the items of computer hardware and, in some circumstances, software supplied by Extech and installed on the Customer’s site to assist in the delivery of the Service (if any are used) as well as the items of computer hardware that Extech monitor. Any additional or alternative hardware purchased, leased or otherwise acquired by the Customer shall not form part of the Equipment without a Director of Extech’s prior written consent;
“Extech IPR” means all IPRs created, developed and/or supplied, by or on behalf of Extech or the Extech Personnel in connection with the Services, including Confidential Information, designs, plans, software, materials, documents and information;
“Extech Personnel” means all employees, officers, agents, consultants and subcontractors of Extech and/or of any subcontractors of Extech;
“Force Majeure Event” means an event beyond Extech’s reasonable control including strikes, lock-outs or other industrial disputes (whether involving the workforce of Extech or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors;
“GDPR” means the General Data Protection Regulation (EU) 2016/679;
“Initial Term” means the period set out in paragraph Error! Reference source not found.Error! Reference source not found. of the Initial SOW;
“Initial SOW” means the document set out at the start of these General T&Cs and which details the Services to be provided from the Effective Date;
“Insolvency Event” means where a person ceases or threatens to cease to carry on business, is found unable to pay its debts within the meaning of the Insolvency Act 1986 section 123, has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction) or undergoes any similar or equivalent process in any jurisdiction;
“International Organisation” has the meaning given in the GDPR;
“IPR” means patents, trade marks, logos, trade names, rights in designs, copyright (including rights in computer software) and moral rights, know-how, confidential information (including Confidential Information), and other intellectual property rights, in each case whether registered or unregistered and including applications and the right to apply for registration of any such rights;
“MSA” means this contract between the parties comprising these General T&Cs, the Initial SOW and all other documents which are to be made a part of this contract in accordance with Clauses 3.9 and 15.1 or are incorporated into this contract by express reference in this contract (such documents being part of this contract to the extent so referenced);
“Managed Services” means those managed services to be provided to the Customer under this MSA, as further set out in paragraph Error! Reference source not found. of the Initial SOW;
“Personal Data” has the meaning given to that term in applicable Data Protection Laws from time to time;
“Personal Data Breach” has the meaning given in the GDPR;
“Relevant Requirements” has the meaning given to it in Clause 14.1.1;
“Relevant Terms” has the meaning given to it in Clause 14.2;
“Renewal Term” means the period set out in paragraph Error! Reference source not found.Error! Reference source not found. of the Initial SOW;
“Services” means the Managed Services and any Additional Services;
“SLAs” means the service level arrangements set out in a SOW (if any);
“Statement of Work” or “SOW” means, as applicable, the Initial SOW and/or any further documents agreed by the parties in accordance with Clause 3 setting out Additional Services to be provided by Extech (or variations to existing Services being provided). Any further SOWs agreed by the parties shall follow the structure set out in Appendix 3 of the Initial SOW;
“Sub-Processor” means any agent, subcontractor or other third party (excluding its employees) engaged by Extech for carrying out any processing activities on behalf of the Customer in respect of the Customer Personal Data; and “Term” means the period beginning on the date set out in paragraph Error! Reference source not found. of the Initial SOW and ending on the termination (however arising) or expiry of this MSA.
1.2 In this MSA, unless the context otherwise requires:
1.2.1 references to:
(a) Clauses are references to the clauses in these General T&Cs;
(b) paragraphs are references to paragraphs in a SOW;
(c) any gender includes the other genders;
(d) an enactment (which term shall include any directly applicable EC legislation) includes that enactment as amended, extended, consolidated, re-enacted or applied by or under any other enactment before or after the Effective Date and any subordinate legislation made (before or after the Effective Date) under that or any other applicable enactment;
1.2.2 the singular includes the plural and vice versa;
1.2.3 a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having a separate legal personality);
1.2.4 the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions; and
1.2.5 headings are for convenience only and do not affect interpretation of this MSA.
1.3 If there is any conflict and/or inconsistency between a SOW and these General T&Cs, the SOW shall prevail but only to the extent of such conflict and/or inconsistency.
2.1 This MSA shall commence on the date set out in paragraph 2.1(a) of the Initial SOW and shall, unless terminated by either party in accordance with this MSA, continue in full force and effect for the period(s) specified in paragraphs Error! Reference source not found. and Error! Reference source not found. of the Initial SOW. If a SOW has a duration which is different to the duration set out in the Initial SOW, such SOW shall clearly state what its duration is (but such term cannot be longer than the duration of the Initial SOW, unless the duration of the Initial SOW is also amended accordingly).
2.2 If there are no uncompleted SOWs as at the date notice to terminate is served under Clause 2.1, such notice shall terminate this MSA with immediate effect. If there are, then Clause 12.4.1 shall apply.
2.3 The parties shall not enter into any further SOWs after the date on which notice to terminate is served under Clause 2.1.
2.4 The Customer may procure any Additional Services by agreeing a SOW with Extech pursuant to Clause 3.
2.5 Extech shall provide the Services from the date(s) specified in the SOW.
3. Statements of Work
3.1 If either party wishes to change the scope of the Managed Services, it shall submit details of the requested change to the other in writing.
3.2 If the Customer requests Additional Services, a new SOW would be required.
3.3 If either party requests a change to the scope or execution of the Services, Extech shall, within a reasonable time, provide a written estimate to the Customer of:
3.3.1 the likely time required to implement the change;
3.3.2 any variations to the Charges arising from the change;
3.3.3 the likely effect of the change on any project plans; and
3.3.4 any other impact of the change on the terms of this MSA, including a draft SOW.
3.4 If Extech requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
3.5 If the Customer requests Additional Services in accordance with Clause 3.2, Extech shall as soon as reasonable practicable either:
3.5.1 inform the Customer that it declines to provide the requested Services; or
3.5.2 provide the Customer with a draft SOW.
3.6 If Extech provides the Customer with a draft SOW pursuant to Clause 3.3.4 or 3.5.2, the parties shall discuss and agree that draft SOW, and both parties shall sign the draft SOW when it is agreed.
3.7 If the Customer wishes Extech to proceed with the change, Extech has no obligation to do so unless and until the parties have agreed and signed a SOW.
3.8 Unless otherwise agreed, the Charges payable under a SOW shall be calculated in accordance with paragraph Error! Reference source not found. of the Initial SOW.
3.9 Each SOW shall be part of this MSA and shall not form a separate contract to it.
3.10 Once a SOW has been agreed and signed in accordance with Clause 3.6, no amendment shall be made to it except in accordance with Clauses 3.1 and 15.1.
4. Service Provision
4.1 In consideration of payment of the Charges by the Customer in accordance with this MSA, Extech shall:
4.1.1 provide the Services to the Customer on, and in accordance with, the terms set out in this MSA; and
4.1.2 use reasonable endeavours to meet any dates specified in a SOW, but any such dates shall be estimates only.
4.2 The Customer shall not store, distribute or transmit any material through the Services that:
4.2.1 is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
4.2.2 facilitates illegal activity;
4.2.3 depicts sexually explicit images; and/or
4.2.4 promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender reassignment, or any other illegal activities.
4.3 The Customer shall remain responsible for the use of the Services under its control, including any use by third parties (whether fraudulent or invited by the Customer).
4.4 The Customer must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Customer by Extech. This includes informing Extech promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, Extech will work with the Customer to alleviate the situation as soon as possible. The parties shall discuss and agree appropriate action (including suspending the Services).
4.5 The Customer shall not provide the Services directly or indirectly to any third parties.
4.6 Extech reserves the right to:
4.6.1 modify Extech’s systems, its network, system configurations or routing configuration; or
4.6.2 modify or replace any equipment or software in its network or in equipment used to deliver the Services over its network, provided that this has no adverse effect on Extech’s obligations under this MSA and its provision of the Services or the SLAs. If such changes will have an adverse effect, Extech shall notify the Customer and the parties shall agree any necessary changes to this MSA in accordance with Clauses 3 and 15.1.
4.7 To the extent that there has been a delay in the performance of the Services which has been caused by an act or omission of the Customer or any Customer Personnel, without limiting any other rights or remedies that it has Extech shall be entitled to:
4.7.1 an extension of time equivalent to the length of the delay in relation to the performance and/or delivery of the affected Services;
4.7.2 suspend the performance of any of its obligations to the extent that such act or omission prevents or delays Extech’s performance of any of its obligations; and
4.7.3 be reimbursed by the Customer for any costs or losses sustained or incurred by Extech arising directly or indirectly from such act or omission.
4.8 Extech shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Extech’s failure or delay to perform any of its obligations as set out in Clause 4.7.
4.9 This MSA does not prevent Extech from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided under this MSA.
5. Security and Data Protection
5.1 Extech shall ensure that appropriate safety and security systems and procedures are maintained and enforced to prevent unauthorised access or damage to any and all Services, Extech’s systems and related networks or resources, in accordance with good industry practice.
5.2 The Customer shall promptly inform Extech if it suspects or uncovers any breach of security. Where the breach of security is caused by the Customer or any Customer Personnel, the Customer shall promptly remedy such breach.
5.3 The parties agree that the Customer is the Data Controller and that Extech is the Data Processor for the purposes of processing Customer Personal Data pursuant to this MSA. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Customer Personal Data. The Customer shall ensure all instructions given by it to Extech in respect of Customer Personal Data (including the terms of this MSA) shall at all times be in accordance with Data Protection Laws.
5.4 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
5.5 Clauses 5.6.2, 5.10, 5.12 and 5.13 shall apply from when the GDPR applies on 25 May 2018, but not earlier.
5.6 Extech shall:
5.6.1 only process (and shall ensure Extech Personnel only process) the Customer Personal Data in accordance with this MSA (which incorporates the Annex to it), and not otherwise unless alternative processing instructions are agreed between the parties in writing, except where otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
5.6.2 without prejudice to Clause 5.3, if Extech believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
5.7 In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Customer Personal Data to be carried out under or in connection with this MSA as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Customer Personal Datatransmitted, stored or otherwise processed, Extech shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(a) to 32 (d) (inclusive) of the GDPR.
5.8 Extech shall:
5.8.1 not permit any processing of Customer Personal Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Customer Personal Data) without the prior written authorisation of the Customer;
5.8.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Customer Personal Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this Clause 5 that is enforceable by Extech and ensure each such Sub-Processor complies with all such obligations;
5.8.3 remain fully liable to the Customer under this MSA for all the acts and omissions of each Sub-Processor as if they were its own; and
5.8.4 ensure that all persons authorised by Extech or any Sub-Processor to process Customer Personal Data are subject to a binding written contractual obligation to keep the Customer Personal Data confidential.
5.9 Extech shall (at the Customer’s cost):
5.9.1 assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Extech; and
5.9.2 taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Customer Personal Data.
5.10 Extech shall not process and/or transfer, or otherwise directly or indirectly disclose, any Customer Personal Data in or to countries outside the European Economic Area (“EEA”) or, if the UK leaves the EEA, the EEA or the UK, or to any international organisation without the prior written consent of the Customer.
5.11 Extech shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Extech’s compliance with the obligations placed on it under this Clause 5 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this Clause 5.11).
5.12 Extech shall notify the Customer without undue delay and in writing (including email) on becoming aware of any Personal Data Breach in respect of any Customer Personal Data.
5.13 On the end of the provision of the Services relating to the processing of Customer Personal Data, at the Customer’s cost and the Customer’s option, Extech shall either return all of the Customer Personal Data to the Customer or securely dispose of the Customer Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable
law requires Extech to store such Customer Personal Data. This Clause 5 shall survive termination or expiry of this MSA.
6. Customer Obligations
6.1 The Customer shall:
6.1.1 provide Extech with all necessary:
(a) co-operation in relation to this MSA; and
(b) access to such information as may be required by Extech,
in order to provide the Services in accordance with this MSA;
6.1.2 carry out all Customer responsibilities set out in this MSA in a timely and efficient manner;
6.1.3 provide, for Extech and the Extech Personnel, in a timely manner and at no charge, access to the Customer Personnel (in particular those familiar with the Customer’s systems, programs and applications), and its premises, office accommodation, equipment, software (including the Equipment and Software), systems, data and other facilities as reasonably required by Extech including any such access as is specified in a SOW;
6.1.4 provide to Extech in a timely manner all documents, information and materials in any form (whether owned by the Customer or a third party) required under a SOW or otherwise reasonably required by Extech in connection with the Services and ensure that they are accurate and complete;
6.1.5 be solely responsible and liable for the Equipment and Software;
6.1.6 ensure that it has the authority to grant any rights to be granted to Extech under this MSA, including the right to provide the Equipment and Software to Extech as indicated in this MSA and for the same to be used in the provision of the Services and otherwise in connection with this MSA;
6.1.7 take all reasonable precautions to protect the health and safety of the Extech Personnel while at the Customer’s premises;
6.1.8 make the Equipment and Software available and supply all documentation, systems data relating to the Services and other information necessary for Extech to diagnose any fault in the Equipment and/or Software;
6.1.9 inform Extech immediately if the Customer’s premises, position, specification or quantity of the number of end users, Equipment and/or Software changes (as this may have an impact on the Charges, and if it does Extech shall inform the Customer accordingly);
6.1.10 (unless Extech is providing as part of the Services) provide an ADSL / SDSL / lease line at its own expense at each location and ensure that environmental and power supply conditions suitable for the provisions and use of the Services are maintained;
6.1.11 keep in good working condition and make available to Extech at least one copy of all necessary media of each type used on the Equipment and also make available such quantities of consumable items as Extech may reasonably request for the provision of the Services;
6.1.12 be responsible for any loss of data through equipment or software failures (including Equipment and Software failures) or through incorrect use of any part of the Services by the Customer and/or any Customer Personnel;
6.1.13 ensure that no alteration, adjustments, interference, repairs, alterations to system software or maintenance shall be carried out in relation to the Services other than by persons employed by Extech or authorised in writing by Extech’s Managing Director;
6.1.14 comply with, and use the Services in accordance with, the terms of this MSA and all applicable laws, and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to relevant laws;
6.1.15 ensure that it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to Extech and the Extech Personnel, any materials reasonably necessary for the fulfilment of all its obligations under this MSA, including any third-party licences and consents in respect of any Customer software and the Software;
6.1.16 ensure that Extech’s use in the provision of the Services or otherwise in connection with this MSA of any third-party materials (including any Equipment or Software supplied by the Customer to Extech for use in the provision of the Services or otherwise in connection with this MSA) shall not cause Extech or any Extech Personnel to infringe the rights, including any IPRs, of any third party; and
6.1.17 ensure that it does not do, or allow to be done, anything which would hinder or restrict Extech or any Extech Personnel from performing any of its obligations under this MSA, or from exercising any of its rights or remedies;
6.2 The Customer shall not, without the prior written consent of Extech’s Managing Director, at any time from the date of this MSA to the expiry of 12 months after the termination or expiry of this MSA, solicit or entice away from Extech’s or employ or attempt to employ any Extech Personnel who are, or have been, engaged in the provision of the Services. Any consent given by Extech shall be subject to the Customer paying to Extech a sum equivalent to 25% of the then current annual remuneration of the affected Extech Personnel or, if higher, 25% of the annual remuneration to be paid by the Customer to the affected Extech Personnel.
7. Charges and Payment
7.1 The Customer will pay all Charges within 30 days of the date of Extech’s invoice or as agreed otherwise in a SOW. Unless stated otherwise in a SOW, the Charges shall be exclusive of VAT and the Customer will pay Extech any VAT properly chargeable on the Services provided pursuant to this MSA.
7.2 The Charges are subject to annual review with a minimum automatic increase to reflect the annual rise in RPI evidenced from Government figures produced 2 months before each Renewal Term.
7.3 If the Customer fails to make any payment due to Extech by the due date for payment, then, without limiting Extech’s other rights and remedies:
7.3.1 the Customer shall pay interest on the overdue amount at the rate of 5% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and/or
7.3.2 in accordance with Clause 12.3.1, Extech may suspend performance of the Services until payment has been made in full.
7.4 All payments due to Extech under this MSA must be paid by direct debit and in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Extech may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Extech to the Customer.
8.1 The IPRs in Extech IPR shall be owned by Extech or its third party licensors and the Customer shall have no rights in or to the Extech IPR other than the right to use it in accordance with the terms of Clause 8.2.
8.2 In consideration of payment of the Charges by the Customer in accordance with this MSA and subject to Clause 8.3, Extech hereby grants to the Customer a limited, non-exclusive and non-transferable licence during the Term to use the Extech IPR only to the extent necessary and for the purpose of receiving the Services, and for no other purpose whatsoever.
8.3 In relation to third party IPR, the Customer agrees that its use of any such IPR is conditional on Extech obtaining a written licence from the relevant licensor on such terms as will entitle Extech to license such rights to the Customer.
9.1 Subject to Clauses 9.2 to 9.5 (inclusive), a party shall treat all Confidential Information belonging to the other party as strictly confidential and shall not disclose Confidential Information to any person.
9.2 A party may disclose Confidential Information belonging to the other party if and to the extent:
9.2.1 it is or becomes generally freely available to the public (other than as a result of its disclosure in breach of this Clause 9);
9.2.2 it was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
9.2.3 it was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
9.2.4 it was known to the receiving party before the information was disclosed to it by the disclosing party;
9.2.5 the parties agree in writing it is not confidential or may be disclosed; or
9.2.6 it is developed by or for the receiving party independently of the information disclosed by the disclosing party.
9.3 Extech may disclose the Customer’s Confidential Information to the Extech Personnel who need to know such information for the purposes of providing the Services and/or complying with this MSA provided that Extech ensures that such Extech Personnel to whom it discloses the Customer’s Confidential Information comply with this Clause 9.
9.4 The Customer may disclose Extech’s Confidential Information to its employees who need to know such information for the purposes of receiving the Services and/or complying with this MSA provided that the Customer ensures that such employees to whom it discloses Extech’s Confidential Information comply with this Clause 9.
9.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 9.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.6 The restrictions contained in this Clause 9 shall continue to apply after the termination (however arising) or expiry of this MSA without limit in time.
9.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this MSA are granted to the other party, or to be implied from this MSA.
10.1 Each party warrants that it has full power and authority to carry out the actions contemplated under this MSA.
10.2 Extech warrants to the Customer that the Services will be provided using reasonable care and skill. The foregoing warranty shall not apply to the extent of any non-conformance that is caused by use of the Services contrary to Extech’s instructions or in breach of this MSA.
10.3 If the Services do not conform with the warranty in Clause 10.2, Extech will, at its expense, use reasonable endeavours to correct any such non-conformance as soon as reasonably possible, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of Clause 10.2.
10.4 Extech does not warrant that the Customer’s use of the Services will be uninterrupted or error-free.
10.5 The Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. Extech shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Extech by the Customer in connection with the Services, or any actions taken by Extech at the Customer’s direction.
10.6 Except as expressly stated in this MSA, all warranties and conditions, whether express or implied by statute, common law or otherwise, are hereby excluded to the extent permitted by applicable law.
11.1 Extech shall not be responsible for loss, corruption or damage caused to the Customer’s systems or any of the Customer’s data due to the use of incompatible, damaged, faulty or uncertified accessories or media or the failure of the proper supply of electricity thereto howsoever occasioned.
11.2 Except as specifically identified in the SOW, the Services shall not include maintenance or repair or replacement of any electrical or telephonic or other communications work or equipment or accessories connected to or external to the provision of the Services.
11.3 Extech shall not be responsible for:
11.3.1 damage caused by the acts or omissions of the Customer, Customer Personnel or third parties who lawfully or unlawfully gain access to the Customer’s systems or part thereof that has any impact on the Services;
11.3.2 overloading, experiments and usage involving the imposing of abnormal conditions or in any respect not in accordance with Extech’s recommended usage.
11.3.3 the costs of replacement loan equipment or other expenses incurred as a result of the breakdown or failure of the systems and/or Services; or
11.3.4 the breach of any firewall howsoever occasioned.
11.4 Extech does not limit or exclude its liability in respect of:
11.4.1 death or personal injury caused by its negligence;
11.4.2 fraud or fraudulent misrepresentation; or
11.4.3 any other liability (including statutory liability) to the extent it is not lawfully permitted to limit or exclude it.
11.5 Subject to Clauses 11.4 and 11.6, Extech’s total liability for all claims arising under or in connection with this MSA whether in contract, tort (including negligence), for breach of statutory duty or otherwise, howsoever arising shall be limited to the average annual Charges (calculated by reference to the Charges in successive 12 month periods from the Commencement Date) paid by the Customer under this MSA.
11.6 Subject to Clause 11.4, Extech shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this MSA for:
11.6.1 loss of business, sales, revenue, profits, contracts or anticipated savings;
11.6.2 loss of or damage to reputation or goodwill;
11.6.3 loss or corruption of any software, data or information (including the Software and Customer Personal Data); or
11.6.4 indirect, special, exemplary, punitive or consequential loss or damage,
whether or not such losses were within the contemplation of the parties at the Effective Date.
11.7 The parties expressly agree that if any limitation or provision contained or expressly referred to in this Clause 11 is held to be invalid under any applicable statute or rule of law, it shall, to that extent, be deemed omitted in accordance with Clause 15.6. Furthermore, if any of the exclusions in Clause 11.6 are found to be invalid, illegal or unenforceable by a court of competent jurisdiction, Extech’s aggregate liability to the Customer for such shall be subject to the financial limit set out in Clause 11.5.
12. Termination and Consequences of Termination/Expiry
12.1 Without prejudice to any other termination rights set out in this MSA, a party may terminate (in whole or in part) this MSA with immediate effect by giving written notice to the other party if the other party:
12.1.1 is in material breach of this MSA, and such breach is irremediable;
12.1.2 commits any remediable material breach of this MSA and fails to remedy such breach within a period of 28 days from the service on it of a notice specifying the material breach and requiring it to be remedied (or, having so remedied, subsequently commits a similar breach within the next 28 days); or
12.1.3 undergoes an Insolvency Event.
12.2 If a party, acting in good faith, exercises a right of termination, its subsequent failure or refusal to perform all or any of its current or future obligations under this MSA shall not be a breach of this MSA (whether repudiatory or otherwise). The termination rights in this Clause 12 may be exercised notwithstanding that the parties are engaged in any dispute.
12.3 Without limiting Extech’s other rights or remedies, Extech may:
12.3.1 terminate this MSA or suspend provision of the Services (in each case, either in whole or in part) with immediate effect by giving the Customer written notice if the Customer fails to pay
any amount due under this MSA within 60 days of the due date for payment (however, this will not affect the Customer’s obligation to pay the amount in full and no discount will be given for the period of any suspension);
12.3.2 suspend provision of the Services if an Insolvency Event arises, or Extech reasonably believes that one will arise, in relation to the Customer; or
12.3.3 terminate this MSA with immediate effect by giving written notice to the Customer if there is a change of Control of the Customer.
12.4 On expiry or termination (however arising) of this MSA:
12.4.1 all existing SOWs shall terminate automatically;
12.4.2 the Customer shall immediately pay to Extech all outstanding unpaid invoices and any other sums due to Extech under this MSA;
12.4.3 in respect of Services supplied but for which no invoice has been submitted, Extech shall submit an invoice, which shall be payable by the Customer immediately on receipt;
12.4.4 all property (including any equipment and IPRs) that was providing by or on behalf of Extech in the course of providing the Services shall be promptly returned to Extech. If the Customer fails to do so, the Customer hereby consents to Extech entering its premises and/or premises where such property is held to take possession of Extech IPRs;
12.4.5 all accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination (however arising) shall be unaffected, including the right to claim damages in respect of any breach of this MSA which existed at or before the date of termination or expiry; and
12.4.6 clauses which expressly or by implication survive termination (however arising) or expiry shall continue in full force and effect.
13. Force Majeure
13.1 Extech shall not be in breach of this MSA nor liable for delay in performing, or failure to perform, any of its obligations under this MSA if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
13.2 If the period of delay or non-performance continues for 10 weeks, the Customer may terminate this MSA by giving 3 months’ written notice to Extech.
14.1 Each party shall in relation to this MSA:
14.1.1 comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including the Bribery Act 2010 (“Relevant Requirements”);
14.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
14.1.3 have and shall 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 Clause 14.1.2, and will enforce them where appropriate;
14.1.4 promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this MSA;
14.1.5 immediately notify the other party (in writing) if a foreign public official becomes an officer or employee of it or acquires a direct or indirect interest in it and warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the Effective Date; and
14.1.6 within 2 months of the Effective Date, and annually thereafter, certify to the other party in writing signed by one of its officers, compliance with this Clause 14 by it and all persons associated with it under Clause 14.2. Each party shall provide such supporting evidence of compliance as the other party may reasonably request.
14.2 Each party shall ensure that any person associated with it who is performing obligations in connection with this MSA does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on that party in this Clause 14 (“Relevant Terms”). Such party shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the other party for any breach by such persons of any of the Relevant Terms.
14.3 For the purpose of this Clause 14:
14.3.1 the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively; and
14.3.2 a person associated with a party includes any subcontractor of that party.
15.1 No modification, amendment or variation of this MSA shall be effective or binding on the parties unless made in writing and signed by authorised signatories of each party. Any changes to the scope of the Services shall be carried out in accordance with Clause 3.1. No terms and conditions of the Customer shall form part of, or take precedence over, this MSA. No employee, agent or subcontractor of Extech is authorised to modify, amend, vary or waive any part of this MSA, other than an Extech individual who has a job title of “Director” (and then only in writing).
15.2 This MSA is binding on the parties and on their respective successors and permitted assigns. The Customer shall not assign, transfer, declare a trust over or deal in any other manner with any or all of its rights or obligations under this MSA without the prior written consent of Extech’s Managing Director. Extech may at any time assign or transfer any or all of its rights under this MSA.
15.3 Nothing in this MSA shall render a party (or, as applicable, any Customer Personnel or Extech Personnel) an employee, worker, agent or partner of the other party and accordingly they shall not hold themselves out as such. Neither party shall have authority to make representations, act in the name of, or on behalf of, or to otherwise bind the other party.
15.4 Any notice given under this MSA shall be in writing and signed by or on behalf of the party giving it, and shall be served by delivering it personally or sending it by pre-paid first class recorded delivery to the relevant party at the address as set out in paragraph Error! Reference source not found. of the Initial SOW. Notices shall be deemed to have been received if delivered and received personally, at the time of delivery and in the case of pre-paid first class recorded delivery, at the time recorded by the delivery service.
15.5 Except as expressly provided in this MSA, the rights and remedies provided under this MSA are in addition to, and not exclusive of, any rights or remedies provided by law.
15.6 If any term in 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 term shall be deemed deleted. Any modification to or deletion of a term shall not affect the validity and enforceability of the rest of this MSA. If any term in this MSA is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is valid, legal and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.7 The failure to exercise or delay in exercising a right or remedy provided to a party under this MSA shall not constitute a waiver of that right or remedy, and no waiver by a party of any breach of this MSA shall constitute a waiver of any subsequent breach of the same or any other provision.
15.8 A person who is not a party to this MSA has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce or enjoy the benefit of any term of this MSA.
15.9 This MSA sets out the entire agreement between the parties in relation to its subject matter and overrides any prior correspondence, arrangements, understandings, agreements or representations relating to its subject matter. Each party acknowledges that, in entering into this MSA, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this MSA. Each party agrees that its only liability in respect of those representations and warranties that are set out in this MSA (whether made innocently or negligently) shall be for breach of contract. Nothing in this Clause 15.9 shall limit or exclude any liability for fraud.
15.10 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. No counterpart shall be effective until each party has executed and delivered at least one counterpart.
15.11 This MSA and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. The parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this MSA or its subject matter or formation (including non-contractual disputes or claims). Nothing in this MSA shall prevent, restrict or hinder Extech from taking proceedings to protect its IPRs in any jurisdiction.
Data processing details
Processing of the Customer Personal Data by Extech under this MSA shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out in this Annex as follows.
1.SUBJECT-MATTER OF PROCESSING:
Organisational IT Systems
2.DURATION OF THE PROCESSING:
Length of the contract as specified in, and commencing from the start date of this agreement.
3.NATURE AND PURPOSE OF THE PROCESSING:
To Provide IT Support Services to the Organisation
4.TYPE OF PERSONAL DATA:
Email address, IP Address, Location of Work, Full Name Details. Categories of Data Subjects:
5.SPECIFIC PROCESSING INSTRUCTIONS: