Managed services agreement

THIS AGREEMENT is made BETWEEN: -

IG CLOUD OPS LIMITED company number 12362021 whose registered office is at Unit 9 Inward Way, Rossmore Business Village, Ellesmere Port, Cheshire, England, CH65 3EY (“the Supplier”);

and

(2) (“the Customer”)

Individually and collectively referred to as the ‘Party’ or ‘Parties’ respectively.

The Customer wishes to receive certain software related managed services from the Supplier and the Supplier is willing to provide such services to the Customer on the terms and conditions set out in this managed services agreement (“the Managed Services Agreement”).

DEFINITIONS

“Acceptance” shall where applicable mean acceptance of the Managed Services by the Customer following the completion of acceptance testing;

“Business Day” means 9:00 am – 5:00 pm (GMT) Monday to Friday, excluding the statutory bank holidays of the United Kingdom;

“CloudOps” the service offered by the Supplier to manage the Customer’s Cloud System as detailed in the relevant MS schedule;

“CloudOps Dashboard” (“Dashboard”) an online dashboard supplied to CloudOps Customers which reports real time on various aspects of the Customer’s Cloud System, enables the tracking of support tickets and indicates support hours available;

“Cloud System” shall mean the cloud based hosting service used by the customer, examples of which include but are not limited to Microsoft Azure^® and Amazon Web Services (AWS);

“Commencement Date” shall mean the date specified in the MS Schedule or the date upon which the Managed Services are made reasonably available to the Customer, whichever shall be the earlier;

“Completion Date” shall mean the agreed delivery date for any of the Managed Services;

“Confidential Information” means all information disclosed by one of the Parties to the other, whether before or after the effective date of the Managed Services Agreement, that the recipient should reasonably understand to be confidential, including: (i) for the Customer, all information transmitted to or from, or stored on, the Supplier Cloud System, (ii) for the Supplier, unpublished prices and other terms of service, audit and security reports, product development plans, data centre designs (including non-graphic information that may be observed on a tour of a data centre), server configuration designs, and other proprietary information or technology, and (iii) for both Parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of the Parties on their own, without reference to the other’s Confidential Information, or that becomes available to one of the Parties other than through breach of the Managed Services Agreement or applicable law, shall not be Confidential Information of the other Party;

“Current Software Release” shall mean the current release of the Software including but not limited to Third Party Software which includes fixes and/or enhancements to the Software and as from time to time stipulated by the Supplier and/or Third Party Software vendor as being the latest version of the Software;

“Customer Group” shall mean the Customer and a holding company or a subsidiary (as the case may be) of the Customer as defined in section 1159 of the Companies Act 2006;

“Data Protection Laws” means any applicable data protection laws relating to the protection of individuals with regards to the processing of personal data including (i) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) (ii) Directive 2002/58/EC (“ePrivacy Directive”) as implemented by EU member states; in the UK (as may be applicable), (iii) any legislation that, replaces or converts into domestic law the GDPR and/or the ePrivacy Directive (as may be updated replaced) or any other law relating to data protection, the processing of personal data and privacy as a consequence of the United Kingdom leaving the European Union; and/or (iv) any corresponding or equivalent national laws or regulations including any amendment, update, modification or re-enactment of such laws;

“Delivery” shall mean delivery of the Managed Services to the Customer;

“Fees” shall mean the fees payable by the Customer to the Supplier as due consideration for the supply of the Managed Services as defined within the MS Schedule;

“Force Majeure” shall mean any cause beyond a Party’s reasonable control including without limitation, acts of God, war, terrorism, fire, flood or other accident, strike, lockouts, delays in transport, material shortages, failures or fluctuations in electric power or telecommunications services or equipment, restrictions or prohibitions of any government or semi-government authority;

“Hosted Cloud System” shall mean a Cloud System purchased from the Provider through the Supplier;

“Insolvency Event” shall mean an event where a Party either ceases or threatens to cease conducting its business in the normal manner; or is treated as being insolvent, or threatens or is in jeopardy of becoming insolvent because it: (a) is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986); or (b) makes or offers to make any arrangement or composition with any one or more of its creditors; or (c) commits any act of bankruptcy or if any petition or receiving order in bankruptcy is presented or made against it; or (d) any resolution or petition to wind up it up (being a limited company) is issued or passed or presented otherwise than for reconstruction or amalgamation; or (e) has had a receiver, administrator or liquidator appointed to it;

“Intellectual Property Rights” (“IPR”) shall mean patents, design rights, trademarks, copyrights (including any such rights in typographical arrangements, websites or software), rights subsisting in trading, business or domain names and e-mail addresses, rights in inventions, rights in databases and all other intellectual property rights of a similar or corresponding character which subsist now or in the future in any part of the world whether registered or not and whether or not capable of registration, and any applications to register or rights to apply for registration of any of the foregoing in all parts of the world;

“Managed Service(s)” shall mean the managed services of CloudOps to be provided by the Supplier as individually described in each Managed Service Schedule;

“Managed Service Schedule (MS Schedule)” shall mean an individual schedule to this Managed Services Agreement which defines the scope, deliverables and key terms relating to that specific Managed Service;

“Minimum Term” shall mean the minimum term specified within each respective MS Schedule commencing on the Commencement Date;

“Operating System” (“OS”) the system software that manages the Cloud System, software resources and provides common services for computer programs. Examples of which include but are not limited to Microsoft Windows^® and Linux;

“Order” means either: (i) the online order that the Customer submits to the Supplier via the Supplier’s website, or (ii) any written order (either in electronic or paper form) provided by the Customer to the Supplier, or (iii) any written order (either in electronic or paper form) provided to the Customer by the Supplier for signature that describes the Managed Services the Customer is purchasing, and that is signed by the Customer, either manually or electronically;

“Out of Scope Fees” shall mean the fees applicable to the provision of out of scope services in accordance with the Supplier’s rates as published from time to time;

“Overage” the use by the Customer, under the terms of this agreement, of more Cloud System resource than the invoiced amount;

“Personally Identifiable Information” or “PII” means any personal data (including sensitive or special categories of personal data) that is processed under or in connection with the Services;

“Provider” shall mean the provider of the Cloud System;

“Service Desk System” the system provided by the Supplier to the Customer to enable the Customer to raise support or service requests;

“Service Levels” shall mean the service levels to be met by the Supplier as detailed within the relevant MS Schedule;

“Support Services” shall mean any of the support services that may be provided by the Supplier and as detailed within the relevant MS Schedule;

“Term” shall mean the Minimum Term plus subsequent continuation periods;

“True Up” the process at the end of each quarterly period whereby the Supplier may adjust future invoices upward to reflect the Customer’s actual usage where they have benefitted from free Overage;

“Your Customers” people or businesses who are buying or have bought your products and or services;

2 SCOPE OF MANAGED SERVICES

2.1 The Supplier will provide the Managed Services as more particularly described within the MS Schedule.

2.2 The Supplier will provide the Managed Services in accordance with this Managed Services Agreement for the Term except as otherwise provided within this Managed Services Agreement.

SUPPLIER OBLIGATIONS

3.1 The Supplier warrants that:

3.1.1 the Managed Services will be of satisfactory quality;

3.1.2 the performance of the Managed Services will not infringe the patent, trade mark, copyright, design right or other intellectual property right of any third party in any territory (this warranty does not apply if an infringement results from a design or specification expressly dictated by the Customer);

3.1.3 the Managed Services will be provided under proper supervision, with reasonable skill and care, in a professional manner by suitably trained, skilled and experienced professionals, and to such standard as can reasonably be expected from a supplier which is experienced and skilled in the provision of such Managed Services; and

3.1.4 the Supplier will use its commercially reasonable endeavours to meet the Service Levels as may be applicable and defined within the MS Schedule and to perform and complete the Managed Services in accordance with any agreed project timetables or milestones, subject to the Customer’s fulfilment of its obligations under the terms of this Managed Services Agreement.

Except as expressly provided herein, the supplier makes no warranty, express or implied, respecting the services, including but not limited to the implied warranties of title, merchantability and fitness for a particular purpose. Nothing in this Managed Services Agreement excludes liability for fraud.

3.3 If any part of the Services is performed negligently or in breach of the provisions of this Managed Services Agreement then, at the request of the Customer (if given within 7 days of the Completion Date) the Supplier shall re-perform the relevant part of the Services, (subject to clause 3.5 below). In the event that the Supplier reasonably considers that any fault of the Customer prevents the supply of the Services then the Supplier shall serve written notice of such upon the Customer, failing which any such occurrence shall not be considered to be the Customer’s fault.

3.4 The Supplier shall use all reasonable endeavours within the scope of the services it has contracted to provide to ensure that so far as is practicable the Services will be uninterrupted, error-free, or completely secure. The Customer acknowledges and accepts that there are risks inherent in internet connectivity that could result in the loss of its privacy, Confidential Information and property.

3.5 The Supplier will use its reasonable endeavours to provide to the Customer continuous access to the Managed Services. Notwithstanding this, the Supplier reserves the right to remove the Managed Services from time to time as it deems reasonably necessary in accordance with its knowledge, understanding and the Customer's requirements which shall include but not be limited to the requirement of conducting scheduled maintenance.

3.6 The Supplier shall provide Support Services to the Customer during the times specified under the relevant MS Schedule. The provision of the Support Services is subject to the Customer using a supported version of the OS. The Service Levels suspend and will be invalidated if the Customer remains on an unsupported OS, and any support issues arising from the unsupported OS will be chargeable.

CUSTOMER OBLIGATIONS

4.1 The Customer shall use all reasonable and appropriate security measures in connection with the Customer’s use of the Managed Services and shall accordingly be solely responsible for maintaining an appropriate level of both physical and network/IT based security of its working operating environment so as to ensure that the proper provision of the Managed Services by the Supplier shall not be unduly prejudiced or prevented and that the provision of the Managed Services does not unduly compromise the security of the Customer’s operating environment.

4.2 Pursuant to the terms of clause 4.1, the Customer shall be responsible for undertaking such testing as shall be deemed reasonably necessary in order to ensure that the Managed Services provided by the Supplier can be deployed safely and successfully within the Customer’s environment. Accordingly, the Supplier shall not be held responsible in any way for any breaches of security or for being prevented from providing the Managed Services to the extent that the same results from the Customer’s failure to act in accordance with the terms of this clause.

4.3 The Customer is responsible for keeping all usernames and passwords confidential.

4.4 The Customer shall immediately notify the Supplier of any unauthorised use of the Customer’s account or any other known breach of security. The Supplier has no obligation to provide security other than as may be detailed within this Managed Services Agreement.

4.5 The Customer shall use the Managed Services in a manner which is consistent with the terms of this Managed Services Agreement and with any recommendations as may be made by the Supplier from time to time. Accordingly, the Supplier shall not be responsible for the consequences of any changes made by the Customer to the Managed Services themselves or to anything which may affect the proper delivery or performance of the Managed Services.

4.6 The Customer agrees to do each of the following: (i) comply with applicable law, (ii) pay when due the Fees for the Managed Services, (iii) use reasonable security precautions in connection with the Customer’s use of the Managed Services, (iv) cooperate with the Supplier’s reasonable investigation of Service outages, security problems, and any suspected breach of the Managed Services Agreement, (v) keep the Customer’s billing contact and other account information up to date via the Online Control Panel, and (vi) immediately notify the Supplier of any unauthorised use of the Customer’s account or any other breach of security.

4.7 The Customer acknowledges and agrees that for the Supplier to be able to provide the Managed Services the Customer shall:

4.7.1 Co-operate with the Supplier as the Supplier reasonably requires.

4.7.2 Provide to the Supplier such information as the Supplier reasonably requires and accepts that delivery may be delayed by a time at least commensurate to any related delay in the provision of information by the Customer.

4.7.3 Provide to the Supplier any relevant access to their environment whereby this access is needed to enable investigation into any given support issue.

4.8 The Supplier may charge the Customer for any additional reasonable costs and expenses incurred by the Supplier to the extent that such costs and expenses result from either the supply by the Customer of inaccurate instructions, the Customer’s failure to provide such instructions or the Customer’s failure to comply with clause 4.7.

4.9 The Customer shall indemnify the Supplier from and against all claims and losses arising from loss, damage, liability, injury to the Supplier’s employees and third parties, infringement of third party intellectual property, or third-party losses by reason of or arising from any negligent act or omission on the part of the Customer, its employees or agents within or without the scope of this agreement. “Claims” shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal, civil, in contract, tort or otherwise) and “Losses” shall mean all losses without limitation, financial losses, damages, legal costs and other expenses of any nature whatsoever.

4.10 The Customer shall co-operate with the Supplier’s reasonable investigation of Service outages, security problems, and any suspected breach of the Managed Services Agreement.

4.11 Upon signing this Managed Services Agreement the Customer shall supply to the Supplier two named technical contacts with whom the Supplier is to liaise and who shall provide to the Supplier any documentation, source code and system access as required for the Supplier to provide the Managed Services.

4.12 Unless specifically agreed otherwise in writing, the Customer consents to the Supplier using their name and logo in their marketing materials, including but not limited to case studies, articles and blogs. Such usage will not be defamatory or derogatory and not include the usage of any Confidential Information.

5. UNAUTHORISED ACTIVITY

5.1 The Supplier shall not be liable (and shall accordingly be absolved of any responsibility for the achievement of the Service Levels defined in each MS Schedule) in the event that any faults or issues develop as a result of any of the following events (not by way of limitation):

5.1.1 a relocation or a modification of the OS or Managed Services (including but not limited to by the Customer or a third party adding to or interfacing the Software or Managed Services with other software) which is neither carried out nor approved by the Supplier;

5.1.2 improper use or abuse of the Cloud System or Managed Services by any person other than the Supplier;

5.1.3 any use of the Cloud System or Managed Services by a person other than the Supplier which contravenes an express written instruction or recommendation reasonably given by the Supplier to the Customer in relation to the Software or Managed Services;

5.1.4 an event of Force Majeure;

5.1.5 loss of or damage to any files or data where the Customer has failed to keep backups in line with either the Supplier’s recommendations (where applicable) or generally accepted industry standards in relation to the maintenance of back-ups;

5.1.6 any issues which cannot be diagnosed because of a lack of available and appropriate network connectivity.

5.2 If a fault or issue arises as a result of any of the events described in clause 5.1 then, if requested to do so, the Supplier may attend to such fault or issue and charge the Customer on a time and materials basis in accordance with its then Out of Scope Fees, even if such attendance is purely conducted with the objective of ascertaining the cause of the actual fault or issue to the extent that this is unknown or uncertain.

5.3 In the event that the Customer requires to make changes which are not recommended by the Supplier to either the Managed Services, Software or operating systems, and further requires the Supplier to implement such changes, then the Supplier may agree to undertake such work on the basis that the Supplier shall charge the Customer for such work and the Supplier shall be absolved of any responsibility for the achievement of the Service Levels defined within the MS Schedule.

AUDIT AND SERVICE REVIEWS

6.1 The Parties agree to hold a review meeting by telephone or video call to review the delivery and performance of the Managed Services on the frequency set out in the CloudOps MS Schedule, each review having a duration not exceeding one hour, unless otherwise agreed between the Parties.

6.2 In the event that the Customer requests a face to face meeting either in place of the review or in addition to it, then the Supplier reserves the right to charge for its attendance at the same.

FEES AND PAYMENT TERMS

7.1 The Fees shall be invoiced by the Supplier annually in advance unless otherwise specified within the MS Schedule. Any other associated fees shall be invoiced annually in arrears. Invoices shall be paid by the Customer in cleared funds no later than 30 calendar days from the date of the invoice (“Due Date”) by bank transfer. All Fees are stated and will be charged in pounds sterling. Payment in full of the Supplier’s invoices by their respective Due Date shall not in any way be contingent on payment due to the Customer by any third party.

7.2 If there is a dispute with respect to any portion of an invoice, the Customer shall pay the undisputed portion of the Fees promptly and provide written details specifying the basis of any dispute. Each of the Parties agree to work together to resolve promptly any disputes. Charges that are not disputed within five (5) days of the date of the invoice for the same are conclusively deemed to have been accepted.

7.3 In the event that the Customer fails to make payment on undisputed amounts as specified by the Due Date, then the Supplier shall be entitled to charge interest at a rate of 8% (eight percent) per annum above the Bank of England’s prevailing base rate at that particular time, accruing daily.

7.4 The Supplier will invoice on a separate basis for any extra usage over and above that defined within this Managed Services Agreement; this includes, but not limited to extra storage, data usage or additional users.

7.5 The Customer hereby acknowledges that the Supplier reserves the right to obtain a credit report of the Customer at any time during the term of the Managed Services Agreement.

7.6 The Customer shall keep its billing contact and other account information up to date via their account manager.

7.7 Any credit amount that the Supplier may owe to the Customer will be off-set against any Fees due from the Customer for Managed Services, and will not be paid to the Customer as a refund.

7.8 The Supplier reserves the right to recharge any out of pocket expenses incurred during the course of this agreement. These fees would include, but not limited to travel (mileage at approved HMRC rates, or rail fares) and overnight accommodation. These expenses may also be charged where incurred for a meeting that the Supplier subsequently cancels or postpones.

FEE INCREASES AND CHANGES TO SERVICE

8.1 The Supplier shall reserve the right to amend the Fees should there be a change in the Supplier’s costs in connection with its provision of the Managed Services including (not by way of limitation) wherethe Provider increase their list prices, in which case the Supplier may correspondingly increase the Fees accordingly.

8.2 In the event that the Supplier has specifically based its fees on a prescribed exchange rate, then the Supplier reserves the right to amend such fees to the extent that there is a fluctuation to such exchange rate (in either direction) of 5% or more.

8.3 The Fees applicable to any periods following the elapse of the Minimum Term shall be at our normal 12 month rate at that time unless a differing duration or rate is agreed in writing by the Supplier.

8.4 Subject to giving the Customer three months notice of the change, the Supplier may vary the details of the Services provided. For example the number of Support Fair Usage Hours or Cloud Asset Management Units.

SUSPENSION OF SERVICES

9.1 The Supplier may suspend the Customer’s Managed Services without liability in the event that:

9.1.1 the Supplier reasonably believe that the Managed Services are being used (or have been or will be used) in breach of the Managed Services Agreement e.g. (not by way of limitation) following the conduct of an audit by the Supplier;

9.1.2 the Customer fails to cooperate with the Supplier’s reasonable investigation of any suspected breach of the Managed Services Agreement;

9.1.3 the Supplier reasonably believes that the Customer’s Managed Services have been accessed or manipulated by a third party without the Customer’s consent;

9.1.4 the Supplier reasonably believes that suspension of the Managed Services is necessary to protect the Supplier’s network or its other customers;

9.1.5 a payment for the Managed Services is overdue by more than 15 days; or

9.1.6 suspension is required by law.

9.2 The Supplier will give the Customer reasonable advance notice of a suspension under this clause and a chance to remedy the grounds on which the suspension is based, unless the Supplier determines, in its reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect the Supplier or its other customers from imminent and significant operational, legal or security risk.

9.3 If the suspension was based on the Customer’s breach of its obligations under the Managed Services Agreement or by reason of the occurrence of any of the events set out in clause 9.1, then the Supplier may continue to charge the Customer the Fees for the Managed Services during the suspension, and may charge the Customer a reasonable reinstatement fee upon reinstatement of the Managed Services.

TERM AND TERMINATION

10.1 The Managed Services shall commence from the commencement date and shall remain in force for the Minimum Term and shall continue thereafter for subsequent periods of 12 months at the standard list price on the anniversary date unless and until terminated by either Party providing to the other written notice of its intention to terminate the Managed Services Agreement, such notice having been served not less than 90 days prior to the end of the Minimum Term or subsequent anniversaries thereof. For the avoidance of doubt, in the event of the termination of the Managed Services Agreement all current MS Schedules shall terminate at the same time as the Managed Services Agreement.

10.2. The term of each MS Schedule shall be separately defined in each MS Schedule and shall accordingly continue unaffected notwithstanding the earlier termination or expiry of any other MS Schedule.

10.3 The Managed Services Agreement may also be terminated as follows:

10.3.1 if a Party becomes subject to an Insolvency Event;

10.3.2 if a Party is in material breach of any of its obligations under this Managed Services Agreement (provided that where such breach is capable of remedy, the breaching Party is given 30 days to rectify such breach from the date that notice of any breach is received from the non-infringing Party);

10.3.3 the Supplier shall have the right to terminate this Managed Services Agreement in whole or in part by giving the Customer 90 days’ written notice of termination;

10.3.4 if the Customer has any invoices on account which are overdue by 30 days or more.

10.4 With the exception of clause 10.3.3, early termination fees will be applied and invoiced in full where a termination notice is issued or received, and the Minimum Term or a subsequent anniversary has not been completed. The fee is determined based on the remaining period of the Minimum Term or subsequent anniversary.

10.5 In the event of the termination of this Managed Services Agreement and/or the termination or expiry of the relevant MS Schedule, then the Customer shall thereupon also cease to have any continued rights of use in relation to the Supplier’s IPRs and thereby any continue use of the same shall be chargeable.

10.6 The Parties shall acknowledge, as soon as reasonably possible, the receipt of any notice of termination of this Managed Services Agreement (in whole or in part) received in writing from the other Party.

10.7 The termination notice for this agreement shall only be valid if it is served by a duly appointed director of the party seeking termination.

10.8 It is acknowledged that it may take up to fourteen (14) days following the elapse of the notice period of termination for the Supplier to process such termination. During such time, the Customer will not have access to the Managed Services.

10.9 Any discounts provided or included as part of the Managed Services Agreement shall be forfeit upon the customer serving a termination notice.

UNAUTHORISED ACCESS TO CUSTOMER’S DATA OR USE OF THE SERVICES

11.1 The Supplier shall not be responsible for unauthorised access to the Customer’s data or the unauthorised use of the Managed Services unless the unauthorised access or use results from the Supplier’s failure to meet its security obligations stated in the Managed Services Agreement.

11.2 The Customer is solely responsible for the use of the Managed Services by any of its employees, any person or third-party company to whom the Customer has given access to the Managed Services, and any person who gains access to the Customer’s data or the Managed Services as a result of the Customer’s failure to use reasonable security precautions, even if such use was not authorised by the Customer.

USE AND EXPORT RESTRICTIONS

The Customer shall not use or export the Managed Services in a manner that is contrary to the laws of England and Wales and international export laws and regulations. These laws include restrictions on destinations, customers and end use.

CONFIDENTIAL INFORMATION

13.1 Each contracting party (“Receiving Party”) shall keep the Confidential Information of the other party (” Supplying Party”) confidential and secret. The Receiving Party shall use the Confidential Information only for the purpose of performing the Receiving Party’s obligations under this Managed Services Agreement and shall inform its officer’s employees and agents of these obligations and ensure that they meet them.

13.2 The obligations above shall not apply to any information which:

13.2 1 Was known or in the possession of the Receiving Party before it was provided by the Providing Party;

13.2.2 Is, or becomes, publicly available through no fault of the Receiving party;

13.2.3 Is provided to the Receiving Party without restriction on disclosure by a third party, who did not breach any confidentiality obligations by such disclosure;

13.2.4 Was developed by the Receiving Party (or on its behalf) who had no direct access to or use of or knowledge of the Confidential Information supplied by the Supplying Party;

13.2.5 Is required to be disclosed by operation of law, including the Freedom of Information Act 2000, or by court order, the Receiving Party will consult with the Supplying Party in such circumstances.

13.3 This clause 13 shall survive termination of this Managed Services Agreement for a period of 12 months.

LIMITATION OF LIABILITY

14.1 Subject to clause 14.2 the following shall apply:

14.1.1 the maximum aggregate liability of the Supplier for direct loss or damages whether in tort (including, without limitation, negligence), contract or otherwise in connection with the Managed Services shall not exceed an amount equal to the Fees the Customer paid for the Managed Services for the six (6) months prior to the occurrence of the event giving rise to the claim.

14.1.2 neither of the Parties (nor any of our employees, agents, affiliates, or suppliers) shall be liable to the other for:

14.1.2.1 any indirect, special, incidental, or consequential loss or damages of any kind;

14.1.2.2 any loss of profit;

14.1.2.3 any loss of business;

14.1.2.4 any loss of data;

14.1.2.5 any anticipated savings or revenue; or

14.1.2.6 any loss that could have been avoided by the damaged Party’s use of reasonable diligence, even if the Party responsible for the damages has been advised or should be aware of the possibility of such damages.

14.2 Nothing in this Managed Services Agreement limits or excludes either Party’s liability for any loss or damages resulting from:14.2.1 death or personal injury caused by its negligence; and

14.2.2 any fraud or fraudulent misrepresentation.

INTELLECTUAL PROPERTY

15.1 Each of the Parties retain all right, title, and interest in and to their respective trade secrets, inventions, copyrights, and other Intellectual Property. Any Intellectual Property developed by the Supplier during the performance of the Managed Services shall belong to the Supplier unless the Supplier has agreed with the Customer in advance and in writing that the Customer shall have an interest in the Intellectual Property.

15.2 The Customer shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Contract:

15.2.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the CloudOps Dashboard in any form or media or by any means; or

15.2.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the CloudOps Dashboard; or

15.2.3 access all or any part of the CloudOps Dashboard in order to build a product or service which competes with the CloudOps service; or

use the CloudOps Dashboard to provide services to third parties; or license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the CloudOps Dashboard available to any third party, or
attempt to obtain, or assist third parties in obtaining, access to the CloudOps

15.3 Subject to the terms of clause 10.5 above, the Supplier grants to the Customer a non-transferrable, non-exclusive, royalty free licence to use the IPR which forms part of the Managed Services.

DATA PROTECTION

16.1 the terms “controller”, “processor”, “data subject”, “personal data”, “processing”, “special categories of data” and “personal data breach” shall all have the meanings given to those terms in under the GDPR (and related terms such as “process” shall have corresponding meanings).

16.2 Personal Data Scope shall be the particulars of the processing permitted under this clause including the details required by GDPR Article 28(3)

16.3 Each of the parties is and will remain a controller in respect of the Personal Data and shall independently determine the purposes and means of such processing. Each party warrants that it will observe all applicable requirements of Data Protection Laws and these terms in relation to its processing of the Personal Data whether as controller or processor.

16.4 Each Party shall have due regard to and shall comply with the Personal Data Scope which shall be binding on the parties. Each party warrants to the other party that it will implement and maintain appropriate technical and organisational measures in such a manner that processing of the Personal Data by it will meet the requirements of the Personal Data Scope.

16.5 In relation to any Personal Data that a party provides or makes available to the other, or that a party processes on behalf of the other pursuant to this subcontract, each party must:

16.5.1 use, access or otherwise process the Personal Data only in accordance with the Personal Data Scope as may be added to or varied from time to time the other party's lawful written instructions;

take appropriate technical and organisational measures which are sufficient to ensure that any processing meets the requirements of the Data Protection Laws and protects the rights of the data subject;

not transfer any Personal Data outside the European Economic Area without the other party's prior written consent;

take reasonable steps to ensure the reliability and integrity of any of its employees, consultants, contractors and agents who will have access to any Personal Data ("Personnel"), and ensure that each member of personnel shall have entered into an appropriate contractual agreement that requires them to keep the Personal Data confidential;

not sub-contract any processing of the Personal Data without the other party's prior written consent;

comply with the obligations imposed upon a processor under the Data Protection Laws, and upon written request use all reasonable endeavours to assist the other party to comply with the requirements of the Data Protection Laws (including the obligations pursuant to GDPR Articles 32 (Security of Processing); 33 (Notification of a Personal Data Breach to the Supervisory Authority); 34 (Communication of Personal Data Breach to the Data Subject), 35 (Data Protection Impact Assessment) and 36 (Prior Consultation);

upon becoming aware of a personal data breach immediately and in any event within forty-eight (48) hours notify the other party in writing with sufficient information to enable it to consider the duties and comply with the notification particulars under GDPR Articles 33 and 34;

upon request, allow the other party or any regulator to audit compliance with this clause;

on termination of this contract, return to the other party all copies of the Personal Data, except to the extent a party is required to retain copies by any applicable law;

if required by any applicable law to act other than in accordance with the other party's instructions given under paragraph 16.5.1 or this clause, immediately and in any event within forty-eight (48) hours notify the other party (to the extent not prohibited by law from doing so); or

notify the other party if, in the party's opinion (acting reasonably), any of the other party's instructions under paragraph 16.5.1 infringe the Data Protection Laws;

Not, when acting as a data processor disclose any Personal Data in response to any Data Subject Request or ICO Correspondence without the data controller’s prior written consent (acting reasonably and without undue delay);

16.6 Each of the parties will, on request, provide the other at its own expense with reasonable assistance, information, and cooperation to ensure compliance with the respective obligations under Data Protection Laws in relation to the Personal Data.

16.7 Each party shall indemnify and hold harmless the other party against any loss, cost, liability, fines, penalties, or proceedings to the extent caused or contributed to by its breach of this clause.

NOTICES

17.1 Any notice given by either Party to the other under this Managed Services Agreement must be in writing and delivered by hand or sent by pre-paid first-class post to the address shown for each Party at the head of this Managed Services Agreement or to such other address as either Party may notify to the other from time to time. Notices sent to the Customer must be clearly addressed to the Company Secretary or Managing Director.

17.2 Notices delivered by hand during normal business hours will be served on the day they are delivered and otherwise on the next working day. Notices sent by first class post will be served on the second working day after the date they are posted. Notice periods and service will be determined by reference to the local date and time of the recipient of the notice.

18. ASSIGNMENT AND SUBCONTRACTORS

The Customer may not assign the Managed Services Agreement without the Supplier’s prior written consent. The Supplier may assign the Managed Services Agreement in whole or in part as part of a corporate reorganisation or a sale of its business, and the Supplier may transfer the Customer’s Confidential Information as part of any such transaction. The Supplier may use third party service providers to perform all or any part of the Managed Services, but the Supplier remains responsible to the Customer under this Managed Services Agreement for work performed by its third-party service providers to the same extent as if the Supplier performed the Managed Services itself.

FORCE MAJEURE

Except for the payment obligations of the Customer, neither Party will be responsible or liable in any way for the failure or delay in the performance of its obligations due to Force Majeure. If a cause relied on by a Party hereunder ceases to exist, the Party will perform or resume performance of its obligations and the time for performance will be extended by a period equal to the duration of the Force Majeure. If Force Majeure persists for a period of more than 60 (sixty) days, the other Party will be entitled to terminate this Managed Services Agreement on written notice.

LAW AND JURISDICTION

The Managed Services Agreement is governed by English law and each of the Parties expressly and unconditionally submits to the exclusive jurisdiction of the courts in England and Wales.

GENERAL PROVISIONS

21.1 Variations

To be binding, any variation of this Managed Services Agreement or to any Order placed under it must be expressly accepted in writing and signed by a person authorised to sign on behalf of each Party.

21.2 Precedence

This Managed Services Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and in the event of there being any inconsistencies or contradictions as between the terms of this Managed Services Agreement and those contained within any other oral or written representations, terms and conditions contained in the Customer’s Order, understandings or agreements made between the Parties then the terms of this Managed Services Agreement shall prevail. The provisions of the Schedule(s) shall form part of this Managed Services Agreement.

21.3 Rights of Third Parties

A person who is not party to this Managed Services Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce the terms of this Managed Services Agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

21.4 Severability

Every provision in this Managed Services Agreement is independent from the others to the extent that, if a provision, or any part of it, is ruled to be illegal or unenforceable by the English Courts, that provision or the relevant part of it shall be treated as having been deleted from this Managed Services Agreement, without affecting the remainder of that provision or the other provisions of this Managed Services Agreement, which shall still have full effect.

21.5 Non-Waiver

The failure of either Party in any one or more instances to insist on strict performance of one or more of the terms of this Managed Services Agreement or to exercise any right or remedy under this Managed Services Agreement or at law will not be construed as a waiver of any subsequent breach of the same term, any breach of any other term nor of the right to enforce another such right or remedy or the same right or remedy arising on another occasion.

21.6 Interpretation

All headings in this Managed Services Agreement are there for convenience, and do not have any legal effect. Use of the singular includes the plural and vice versa. The use of the word “including” in the Managed Services Agreement shall be read to mean “including without limitation.” Sections and provisions that by their nature are intended to survive expiration or termination of the Managed Services Agreement shall survive expiration or termination of the Managed Services Agreement.

21.7 No Partnership

The relationship between the Parties is that of independent contractors and this Managed Services Agreement shall accordingly not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Managed Services Agreement. Neither Party is the agent for the other and neither Party has the right to bind the other to any agreement with a third party.

21.8 Counterparts and Acceptance of Terms

The Managed Services Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures. Written confirmation by a duly authorised person of the acceptance of this Managed Services Agreement whether transmitted by electronic mail or otherwise may also be deemed to constitute sign-off and acceptance of the same.

21.9 Deemed Acceptance

Notwithstanding any failure on the part of the Customer to sign and execute the same, it is acknowledged and agreed that the terms and conditions of this Managed Services Agreement shall be deemed to have been accepted by the Customer and contractually incorporated upon the commencement of the Customer’s use of the Managed Services.

21.10 Employee Solicitation

The Customer shall not directly approach or attempt to entice any employee or former employee of the Supplier within the twelve (12) months following the termination of his or her employment with the Supplier without the Supplier’s prior written consent.

21.11 Non-disclosure

The Customer shall not issue or make any public announcement or disclose any information regarding this Managed Services Agreement unless prior written consent has first been obtained from the Supplier.

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5. UNAUTHORISED ACTIVITY

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