Master Service Agreement
This Master Services Agreement ("Agreement") sets out the terms and conditions governing the provision of the software, professional services and any other products or services supplied by Lineview Solutions Limited. This Agreement is incorporated into and forms part of each Order Form, Statement of Work ("SOW"), subscription agreement or other ordering document entered into between the Parties. This Agreement takes effect on the Effective Date specified in the applicable Order Form or, where no Effective Date is specified, on the date the Order Form or Statement of Work is executed by both Parties.
This Master Services Agreement is between:
Lineview Solutions Limited, a company incorporated in England and Wales (CRN 07023756) whose registered office is Innovation Campus 33 Greenhill, Blackwell, Bromsgrove, Worcestershire, United Kingdom, B60 1BL (“LVS”), and
The company or other entity which executes this MSA below and/or enters into a Statement of Work (SOW) or which otherwise purchases or accesses any Solutions or Services from LVS ("Customer"),
each a “Party”, and together, the “Parties”.
1. Application of this Master Services Agreement
1.1 This Master Services Agreement applies to all provision by LVS of its software solutions, whether via SaaS (software as a service) and/or on-premises, and all related services.
1.2 The Customer has selected LVS’s software solutions and has entered into a SOW under which LVS will supply or otherwise make available to the Customer, the LVS solutions and related services identified in that SOW (together, the “Services”, as defined below).
1.3 The SOW is governed by and incorporates the provisions of this Master Services Agreement. The SOW together with this Master Services Agreement (and any other documents issued by LVS expressly incorporated into them) comprise the entire agreement between LVS and the Customer relating to the Services, referred to below as “this Agreement” to the exclusion of any other terms or conditions, whether delivered with or contained or referred to in the Customer’s purchase conditions, confirmation of order or other document.
1.4 For the avoidance of doubt, if LVS and the Customer enter into multiple SOWs, each SOW together with this Master Services Agreement comprises a separate agreement.
1.5 If no SOW has been entered into, this Master Services Agreement shall in any event apply to all provision of any software and services by LVS to the Customer, except to the extent set out in a written agreement between and signed by both Parties.
2. Interpretation
2.1 Defined (capitalised) terms used in this Agreement have the meanings set out in Schedule 1.
2.2 This Agreement is subject to the rules of interpretation set out in Schedule 1.
3. The Services
3.1 During the Term of this Agreement, LVS will provide the Services in accordance with this Agreement. The specific manner of provision of the Services, including the technical architecture and means of deployment are set out in the SOW.
3.2 LVS will provide the Services with reasonable skill and care, in accordance with Good Industry Practice and all applicable laws.
3.3 Where the Parties have agreed upon any service levels, performance metrics, support metrics or any other measures of LVS’s performance of the Services (Service Levels), such Service Levels are targets only and while LVS will use reasonable commercial endeavours to achieve such Service Levels but shall have no liability for failure to do so unless otherwise expressly stated in the SOW.
3.4 Where the Parties agree on any project plan, schedule, timetable, date (including milestone dates) or other time for the performance of the Services (Plan), LVS will use reasonable commercial endeavours to provide the applicable Services in accordance with the Plan but time shall not be of the essence.
3.5 The Performance of the Services, including achievement of any Service Levels is subject to the express provisions of this Agreement including the Assumptions, the Customer’s compliance with Clause 10 and Permitted Downtime.
3.6 LVS will promptly advise the Customer on becoming aware that it is unable to perform the Services in accordance with this Agreement.
3.7 The Customer acknowledges and accepts that while LVS from time to time announces plans for future enhancements to the Services, including any underlying software, the Customer’s decision to enter into this Agreement is based on the Services and software described in the SOW.
4. Fees and Payment
4.1 The Customer shall pay LVS the Fees in the categories and amounts set out in the SOW and as set out in this clause.
4.2 Unless otherwise set out in the SOW, the Fees shall include a monthly Subscription Fee for Solutions are provided via SaaS and a licence fee for on-premises Solutions (Licence Fee) in addition to any other fees set out in the SOW.
4.3 Unless otherwise agreed in the SOW, LVS shall invoice the Customer:
4.3.1 yearly in advance for all Subscription Fees;
4.3.2 on Commencement Date for the Licence Fee;
4.3.3 yearly in advance for all Fees for Support Services and Performance Packs (as described in the SOW);
4.3.4 for all other Fees, including for Fees for Implementation Services as described in the SOW, in accordance with the Invoice Schedule in the SOW,
due under this Agreement, or at any time thereafter.
4.4 Unless otherwise set out in the SOW, the Fees are exclusive of all reasonable out of pocket expenses incurred by LVS in including, but not limited to, out of pocket travel and living expenses, incurred by LVS and its personnel in connection with its performance of the Services (Expenses) which shall be reimbursed by the Customer against LVS’s invoices therefor. References to Fees in this Agreement shall, except where the context otherwise requires, refer to reimbursement of Expenses.
4.5 To the extent that LVS provides the Customer with any Services for which the Fees are not expressly stated in the SOW, such services shall be at LVS standard price or time and material rate card as applicable for such Services.
4.6 The Customer shall pay all LVS’s invoices in full in cleared funds within thirty (30) days of the date on the invoice, unless otherwise set out in the SOW. The failure to issue an invoice for Fees that are due will not prevent LVS subsequently issuing an invoice for such Fees.
4.7 The Fees are stated exclusive of applicable VAT which shall be additionally payable by the Customer at the rate and in the manner prescribed by law.
4.8 Fees payable to LVS under this Agreement shall be paid into LVS’s nominated bank account by electronic funds transfer unless otherwise notified by LVS to the Customer in writing.
4.9 Time of payment is of the essence.
4.10 LVS shall have the right to charge interest on overdue invoices at the UK statutory rate whether before or after judgment.
4.11 LVS shall be entitled to increase the amount of the Fees for any and all Services by notice to the Customer on an annual basis, such increase being limited to the higher of: (a) ten (10) % of the previous Fee amount; and (b) a percentage equal to the increase in the previous 12 months of the Office for National Statistics (ONS) Consumer Prices Index (CPI).
4.12 Where the Customer requires a purchase order to be included on the invoice, this shall be provided to LVS before the first working day of the month or other period in which the invoice is to be raised. Where the Customer fails to so provide the purchase order and subsequently rejects and requests the reissuance of an invoice, for the purposes of clause 4.6, the date in question shall be the date on which the initial invoice was raised.
5. Rights of use
5.1 Upon Commencement Date, LVS grants the Customer a non-exclusive, non-transferable, revocable, personal right and licence to access and use the Solutions during the Term via SaaS or on-premises (as applicable) for the Permitted Purpose.
5.2 Access to the Services and use of the Software is subject to the Customer’s compliance with this Agreement and the requirements identified in it including the Acceptable Use Policy, and all minimum system requirements.
5.3 The Customer acknowledges that the Services:
5.3.1 do not include any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Services); or
5.3.2 include data back up and disaster recovery facilities only where the Solutions are provided via SaaS and not where provided on-premises and to the extent that they are hosted by the Customer or on-premises the Customer should ensure it at all times maintains backups of all Customer Data.
6. Authorised Users
6.1 The Customer shall ensure that only Authorised Users use the Services or the Software and that such use is always in accordance with this Agreement. The Customer shall ensure that Authorised Users are, at all times, while they have access to the Services, the employees or contractors of the Customer or the Authorised Affiliates.
6.2 The Customer shall keep a list of all Authorised Users and shall provide such list and other required details to LVS to enable it to establish access credentials.
6.3 The Customer shall notify LVS within two Business Days of any required updates to the list of Authorised Users, including, as a result of any applicable leavers or joiners.
6.4 The Customer shall:
6.4.1 be liable for the acts and omissions of the Authorised Users and the Authorised Affiliates as if they were its own;
6.4.2 only provide Authorised Users with access to the Services or Software via the access method provided by LVS and shall not provide access to (or permit access by) anyone other than an Authorised User; and
6.4.3 procure that each Authorised User (and each Authorised Affiliate) is aware of, and complies with, the obligations and restrictions imposed on the Customer under this Agreement relevant to them.
6.5 The Customer undertakes that it, and all Authorised Users shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer and its Authorised Affiliate’s organisation as necessary for use of the Service or Software) their password or access details for any Service.
6.6 The Customer shall (and shall ensure all Authorised Affiliates and Authorised Users shall) at all times comply with the Acceptable Use Policy, which is designed, inter alia, to ensure that all customers of LVS have equitable access to the Solutions and that the Solutions’ performance is optimised for all users. This includes restrictions on data throughput, query frequency, and other usage metrics that could impact system performance if exceeded. Non-compliance with such policy shall be deemed a material breach of this Agreement not capable of remedy.
6.7 If any password has been provided to an individual that is not an Authorised User, the Customer shall, without delay, disable any such password and notify LVS immediately.
7. Support
7.1 LVS shall provide Support Services during the Term as specified in the SOW and/or the Solution.
7.2 LVS shall use reasonable endeavours to notify the Customer in advance of Permitted Downtime, but the Customer acknowledges that it may receive no advance notification for Permitted Downtime caused by Force Majeure or for other emergency maintenance.
8. Changes to Terms and Services
8.1 LVS may at discretion amend this Master Services Agreement from time to time by notifying the Customer of such update by e-mail (together with a copy of the update or a link to a copy of the update) or by any other reasonable means (Update Notification).
8.2 The Master Services Agreement as so amended shall replace the then current version for the purposes of this Agreement thirty (30) days after the Update Notification.
8.3 If the Customer can demonstrate that that any Update materially impacts, it negatively in any manner it shall notify LVS within ten (10) Business Days of the negative impact and the Parties shall discuss and endeavour to resolve the issue. If not so resolved, the Customer may by notice elect to terminate this Agreement in respect of all impacted Services, provided it exercises such right within three months of Update Notification, on not less than thirty (30) Business Days’ notice. In the event of such termination the Customer shall receive a refund of any pre-paid Fees in respect of such terminated Services.
8.4 The Customer acknowledges that LVS shall be entitled to modify, update, upgrade, the features and functionality of the Services at any time. LVS shall use reasonable endeavours to ensure that any such modification does not materially adversely affect their use by LVS’s customers generally and where such modifications materially affect the Customer’s use of the Services, LVS will provide advance notice in accordance with its standard notification procedures. Updates and maintenance may occur at any time and may result in downtime, which shall, for the avoidance of doubt be Permitted Downtime.
8.5 If either party wishes to make any change (other than a change as described in clause 8.4) to the Services (a Change), such change shall be made under the Change Control Procedure.
9. Representation, Warranties and Limitations
9.1 Each Party represents and warrants to the other Party that it has full power and authority to enter into this Agreement and to perform its obligations hereunder.
9.2 Each Party represents and warrants to the other Party that this Agreement constitutes a valid and binding agreement enforceable against such Party in accordance with its terms.
9.3 Subject to the remainder of this clause 9, LVS warrants that:
9.3.1 each Solution shall operate materially in accordance with its Description when used in accordance with this Agreement under normal use and normal circumstances;
9.3.2 it shall provide each of the Services with reasonable care and skill; and
9.3.3 the use of the Services by the Customer in accordance with this Agreement will not of itself infringe the Intellectual Property Rights of any third party.
9.4 The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the Parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that LVS shall have no liability for any such delays, interruptions, errors or other problems.
9.5 If there is a breach of the warranty in clause 9.3.1 LVS shall at its option: use reasonable endeavours to repair or replace the impacted Solution within a reasonable time or, if it is unable to do so, proportionately reduce or refund the Fees for the impacted Solution for the period during which LVS was in breach of any such warranty (provided such period is at least thirty (30) consecutive days). This clause 9.5 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of such warranty.
9.6 The warranties in clause 9.3 shall not apply to the extent that any error or issue in connection with the Services or Solutions arises as a result of:
9.6.1 incorrect operation or use of the Services by the Customer (including any failure to follow the Documentation or to meet minimum specifications);
9.6.2 use of the Services other than for the Permitted Purpose;
9.6.3 use of any Services or Software with other software or services or on equipment with which it is incompatible (unless LVS recommended or required the use of that other software or service or equipment in the Documentation);
9.6.4 any act by any third party, including hacking or the introduction of any virus or malicious code;
9.6.5 any modification of Services or Software other than that undertaken by LVS or at its direction; or
9.6.6 any breach of this Agreement by the Customer, including for the avoidance of doubt any failure to comply with clause 10 or the non-satisfaction of any Assumption.
9.7 LVS may make Third Party Materials available for the Customer’s use in connection with the Services. The Customer agrees that:
9.7.1 the use of the Third-Party Materials shall be subject to any end-user licence agreement or other terms and conditions relating thereto as LVS or the third party concerned makes available to LVS (End User Terms);
9.7.2 neither LVS nor the third party concerned shall have any liability in relation to the Third-Party Materials, or the Services as affected thereby, to the extent caused by the Customer not complying with the End User Terms; and
9.7.3 the Customer is solely responsible for any materials provided by third parties which are not Third-Party Materials and LVS has no responsibility for any unavailability of or degradation in the Services to the extent resulting from the availability, incompatibility or performance of any such materials.
9.8 The Customer acknowledges that no liability or obligation is accepted by LVS (howsoever arising whether under contract, tort, in negligence or otherwise):
9.8.1 that the Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to LVS;
9.8.2 that the operation of the Services shall not be subject to minor errors or defects; or
9.8.3 that the Services shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the Documentation.
9.9 Other than as set out in this clause 9, and subject to clause 17.5, all warranties, conditions, terms, undertakings or obligations whether express or implied by statute, common law or otherwise and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the extent permitted by law.
10. Customer responsibilities
10.1 The Customer shall (and shall ensure all Authorised Affiliates and Authorised Users shall) at all times comply with all applicable laws relating to the use or receipt of the Services.
10.2 The Customer shall at all times and in all respects:
10.2.1 satisfy the Customer Prerequisites;
10.2.2 comply with and perform in a timely and competent manner the Customer Tasks and Responsibilities and its allocation of any Mutual Tasks and Responsibilities together with any ancillary and other tasks and responsibilities which are reasonably required to be provided by the Customer;
10.2.3 co-operate with LVS in all matters arising under this Agreement or otherwise relating to the performance of the Services;
10.2.4 where applicable, make the Location accessible to LVS and LVS Personnel as may be necessary for LVS to perform the Services and otherwise comply with its obligations under this Agreement;
10.2.5 provide all Materials, and all other information, documents, materials, data or other items in the power, possession or control of the Customer and necessary for the provision of the Services (Customer Materials), to LVS in a timely manner;
10.2.6 inform LVS in a timely manner of any matters (including any health, safety or security requirements) which may affect the provision of the Services or the performance of any SOW;
10.2.7 ensure that all Customer Materials are suitable for the performance of the Services, in good condition and in good working order;
10.2.8 operate in full compliance with all applicable laws, regulations and requirements applicable to its receipt and use of the Services and for LVS’s performance of the Services which relate specifically to the Customer and shall have and maintain any necessary licences, permits, insurance and approvals as may be necessary therefor; and
10.2.9 comply with all policies relevant to the Services made known to it by LVS (including the Acceptable Use Policy).
10.3 LVS obligations under this Agreement shall not apply to the extent that any non-conformance with them is caused by any act or omission of the Customer and LVS’s time for performance, where stipulated, shall be extended accordingly (without prejudice to any other remedy). LVS may levy additional charges, based on its time and materials rates, with respect to such noncompliance or breach.
10.4 LVS may monitor the Services and the use of the Services by the Customer and the Authorised Users by technical or other means in order to monitor compliance with the Customer responsibilities set out in this clause and in Clauses 5 and 6 and the Customer shall facilitate such monitoring technology.
11. Contract management and reporting
11.1 Each Party shall appoint a Project Manager and an Account Manager, initially as set out in the SOW, to act as the main point of contact for the other Party in respect of all day-to-day matters relating to the supply of the Services and this Agreement, the Project Manager having such role until implementation of the Services has been completed and the Account Manager assuming such role thereafter. Either Party may change its Project Manager or Account Manager on notice to the other.
11.2 The Parties shall ensure that the Project Managers and Account Managers meet at the intervals set out in the SOW to discuss the progress and provision of the Services and any issues which may arise under this Agreement.
12. Intellectual property
12.1 All Intellectual Property Rights in and to the Services (including in all Solutions, Documentation and LVS Materials) belong to and remain vested in LVS or (in the case of Third-Party Materials) the relevant third-party owner. To the extent that the Customer, any of its Affiliates or any person acting on its or their behalf acquires any Intellectual Property Rights in any of the above, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to LVS or such third party as LVS may elect. The Customer shall execute all such documents and do such things as LVS may consider necessary to give effect to this clause 12.1.
12.2 As set out in clause 5.1, LVS grants the Customer a non-exclusive, non-transferable, right and licence to receive the Services and to access (via SaaS or on-premises, as applicable) and use the Solutions during the Term for the Permitted Purpose. Such licence (the Customer Licence) sets out the extent of Customer’s rights in relation to LVS’s Intellectual Property Rights. For the avoidance of doubt, the Customer Licence shall expire automatically at the end of Term.
12.3 The Customer shall not sub-license any element of the Solutions. The Customer shall not make the Solutions available to third parties other than Users and shall not modify, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, save to the extent required to create an interoperable interface where LVS has refused to provide relevant source code. The Customer shall not copy, publish, distribute, transmit, modify, display to third parties, sell, or in any way commercially exploit any part of the Services or combine, merge or otherwise permit any Service (or any part of it or any Solution) to become incorporated in any other program or service, or arrange or create derivative works based on it (in whole or in part). A breach of this clause shall be deemed a material breach of this Agreement not capable of remedy.
12.4 The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for LVS (and its direct sub-contractors) to use, copy and other otherwise utilise the Customer Data and Customer Systems to the extent necessary to perform or provide the Services or to exercise or perform LVS’s rights, remedies and obligations under this Agreement.
12.5 To the extent Third Party Materials are made available to, or used by or on behalf of the Customer, any Authorised Affiliate or any Authorised User in connection with the use or provision of any Service, such use of Third-Party Materials (including all licence terms) shall additionally be governed by the End User Terms.
12.6 The Customer acknowledges that the Services involve LVS gathering and analysing data related to the performance of the Customer’s machinery and equipment. LVS may anonymize and aggregate such data with similar data from its other customers to deliver and improve its services and any related software or equipment. LVS agrees to share relevant insights and benchmarking results with the Customer.
12.7 LVS may use any feedback and suggestions for improvement relating to the Services provided by the Customer, the Authorised Affiliates or any Authorised User without charge or limitation.
13. Infringement
13.1 The Customer will promptly notify LVS if it becomes aware of any allegation that its use of the Services infringes the Intellectual Property Rights of any third party and will not make any admission in relation thereto.
13.2 Subject to the Customer’s compliance with clauses 13.1, 13.3 and 13.5, LVS shall:
13.2.1 defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of the Services infringes any Intellectual Property Rights (an IP Claim); and
13.2.2 pay, subject to clause 13.4, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
13.3 The provisions of clause 13.2 shall not apply unless the Customer in addition to clause 13.1:
13.3.1 provides all assistance reasonably required by LVS subject to LVS paying the Customer’s reasonable costs; and
13.3.2 gives LVS sole authority to defend or settle the IP Claim as LVS considers appropriate.
13.4 The provisions of clause 17 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under clause 13.2.
13.5 LVS shall have no liability or obligation under this clause 13 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
13.5.1 any modification of the Services (or any part) without LVS’s express written approval;
13.5.2 any Third-Party Materials or Customer Materials;
13.5.3 any Customer Data;
13.5.4 any open-source Software;
13.5.5 any breach of this Agreement by the Customer;
13.5.6 installation or use of the Services (or any part) otherwise than in accordance with this Agreement and the Documentation; or
13.5.7 installation or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by LVS.
13.6 Subject to clause 17.5, the provisions of this clause 13 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
13.7 If the Customer becomes aware of any unauthorised use, copying, or distribution of the Solutions or other LVS Intellectual Property Rights, it shall promptly notify LVS and provide reasonable assistance in preventing or resolving such activities.
14. Customer Systems and Customer Data
14.1 Customer Data shall at all times remain the property of the Customer or its licensors.
14.2 If LVS becomes aware of any allegation that any Customer Data may not comply with the Acceptable Use Policy or any other part of this Agreement LVS shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any of the foregoing from the Services and/or disclose Customer Data to law enforcement authorities (in each case without the need to consult the Customer). Where reasonably practicable and lawful LVS shall notify the Customer before taking such action.
14.3 Except as otherwise expressly agreed in this Agreement, LVS shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data whether during or after the Term. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s and Authorised Affiliates’ businesses, to the extent the Services are hosted by the Customer. The Customer shall, without limitation, ensure that it regularly backs up (or procures the back up of) all Customer Data which it hosts (in accordance with its, its Authorised Affiliates and its Authorised User’s needs) and extracts it from each Service prior to the termination or expiry of this Agreement or the cessation or suspension of any of the Services.
14.4 The Customer acknowledges that, to the extent LVS undertakes backups of Customer Data, such backups do not make LVS responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. LVS shall not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
14.5 LVS shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of the Customer or in accordance with this Agreement, disclose or copy the Customer Data other than as necessary for the performance of the Services or its express rights and obligations under this Agreement.
14.6 LVS:
14.6.1 undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement or as otherwise reasonably necessary for the provision or receipt of the Services, and
14.6.2 shall be responsible to the Customer for any acts or omissions of any of the persons referred to in clause 14.6.1 in respect of the confidentiality and security of the Customer Data as if they were LVS’s own.
14.7 The provisions of this clause 14 shall not apply to information which:
14.7.1 is or comes into the public domain through no fault of LVS, its officers, employees, agents or contractors;
14.7.2 is lawfully received by LVS from a third party free of any obligation of confidence at the time of its disclosure;
14.7.3 is independently developed by LVS (or any of its Affiliates or any person acting on its or their behalf), without access to or use of such Confidential Information; or
14.7.4 is required by law, by court or governmental or regulatory order to be disclosed,
provided that clauses 14.7.1 to 14.7.3 shall not apply to Personal Data.
15. Personal Data
15.1 Both Parties shall comply with Data Protection Law.
15.2 The Customer acknowledges and agrees that the Customer Data generated by the Services relates to the performance of the Customer’s machinery and equipment and will not comprise any personal data, save such identification details relating to Users as are necessary for the provision and use of the Services.
15.3 Without limiting clause 15.2, the Parties shall minimise their activities with regard to the sharing of any Personal Data with the other or processing any Personal Data in connection with this Agreement.
15.4 It is anticipated that the Parties shall be independent controllers of Personal Data, and neither Party shall be a processor of the other, as defined in Data Protection Law, nor shall the Parties be joint controllers of any Personal Data.
15.5 Each Party shall assist the other in responding to any request from a data subject and in ensuring compliance with their obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators.
15.6 Data Breaches: In the event of a personal data breach, each Party shall notify the other without undue delay. The Parties shall cooperate in investigating the breach and fulfilling their respective reporting obligations under Data Protection Law.
16. Confidential Information
16.1 The Customer shall maintain the confidentiality of LVS’s Confidential Information and shall not without the prior written consent of LVS, disclose, copy or modify LVS’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under this Agreement.
16.2 The Customer undertakes to:
16.2.1 disclose LVS’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement;
16.2.2 procure that such persons are made aware of and agree in writing to observe the obligations in this clause 16; and
16.2.3 be responsible for the acts and omissions of those third parties referred to in this clause 16.2 as if they were the Customer’s own acts or omissions.
16.3 The Customer shall give notice to LVS of any unauthorised use, disclosure, theft or loss of LVS’s Confidential Information immediately upon becoming aware of the same.
16.4 The provisions of this clause 16 shall not apply to information which:
16.4.1 is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;
16.4.2 is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
16.4.3 is independently developed by the Customer, without access to or use of LVS’s Confidential Information; or
16.4.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies LVS at the earliest opportunity before making any disclosure.
16.5 This clause 16 shall survive the termination or expiry of this Agreement unless and until the information enters the public domain through no fault of the Customer, its officers, employees, agents or contractors or Authorised Affiliates.
17. Limitation of liability
17.1 The extent of LVS’s liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 17.
17.2 Subject to clause 17.5, LVS’s aggregate liability in respect of the Agreement shall not exceed the greater of:
17.2.1 The total Fees paid by the Customer to LVS in the 12 months preceding the event giving rise to the liability; and
17.2.2 £25,000.
17.3 LVS shall not be liable to the Customer for any consequential, indirect or special losses.
17.4 Subject to clause 17.5, LVS shall not be liable for any of the following types of loss (whether direct or indirect):
17.4.1 loss of profit, business, revenue or bargain;
17.4.2 loss of use or corruption of data;
17.4.3 loss of use, production or contract
17.4.4 loss of opportunity;
17.4.5 loss of anticipated savings;
17.4.6 harm to reputation or loss of goodwill; or
17.4.7 wasted expenditure.
17.5 Notwithstanding any other provision of this Agreement, LVS’s liability shall not be limited in any way in respect of the following:
17.5.1 death or personal injury to the Customer caused negligence;
17.5.2 fraudulent misrepresentation; or
17.5.3 any other losses which cannot be excluded or limited by applicable law.
18. Suspension
18.1 LVS may suspend access to the Services (or any part) to all or some of the Authorised Users if:
18.1.1 LVS suspects that there has been any misuse of the Services or breach of this Agreement;
18.1.2 the Customer fails to pay any sums due to LVS by the due date for payment; or
18.1.3 required by law, by court or governmental or regulatory order.
18.2 Where the reason for the suspension is suspected misuse of the Services or breach of this Agreement, without prejudice to its rights under clause 19, LVS will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
18.3 In relation to suspensions under clause 18.1.2, access to the Services will be restored promptly after LVS receives payment in full and cleared funds.
18.4 Fees shall remain payable during any period of suspension notwithstanding that the Customer, Authorised Affiliates or some or all of the Authorised Users may not have access to the Services.
19. Term and termination
19.1 This Agreement shall come into force on Commencement Date and, unless terminated earlier in accordance with this clause 19, will (unless a different Initial Term is set out in the SOW) continue for a minimum period of thirty-six (36) months from the Commencement Date (the Initial Term).
19.2 At the end of the Initial Term, this Agreement shall continue for successive periods of twelve (12) months (each, a Renewal Term) provided that either Party may terminate this Agreement on at least ninety (90) days’ notice such notice not to expire before the end of the Initial Term or, once a Renewal Term has commenced, the end of the then current Renewal Term.
19.3 Either Party may terminate this Agreement immediately at any time by giving notice in writing to the other Party if:
19.3.1 the other Party commits a material breach of this Agreement and, where capable of remedy, such breach is not remedied within thirty (30) days of receiving written notice of such breach and requiring its remedy; or
19.3.2 that other Party:
(a) is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the other Party reasonably believes that to be the case;
(b) becomes subject to a moratorium or company voluntary arrangement under the Insolvency Act 1986, a restructuring plan or scheme of arrangement under Part 26 of the Companies Act 2006 or
(c) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its business;
(d) has a resolution passed for its winding up or a petition is presented to a court for its winding up or an application is made for an administration order;
(e) has a freezing order made against it; or
(f) is subject to any events or circumstances analogous to those described above in any jurisdiction; or
19.3.3 the other Party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within thirty (30) days after the other Party has received notification that the payment is overdue.
20. Consequences of termination
20.1 Immediately on termination or expiry of this Agreement (for any reason), the rights granted by LVS under this Agreement shall terminate and the Customer shall (and shall procure that each Authorised User and Authorised Affiliate shall):
20.1.1 stop using the Services and Software;
20.1.2 remove and return to LVS, without keeping any copies, any LVS Materials in the Customer’s power, possession and control, including all instances of the Solutions and Software on all equipment on which they are loaded, within thirty (30) days, having first removed all Customer Data.
20.1.3 destroy and delete or, if requested by LVS, return any copies of the Documentation in its possession or control (or in the possession or control of any person acting on behalf of any of them).
20.2 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either Party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.
21. Announcements
21.1 The Parties will issue an initial joint press release mutually agreed upon by the Parties and will not issue any other public announcement without the other party's prior written consent, which will not be unreasonably withheld or delayed.
21.2 LVS may refer to the Customer as an LVS customer in discussions with other customers and potential customers and the Customer shall, on request, provide references for LVS and the Services.
22. Non-solicitation
22.1 During the Term and for twelve (12) months afterwards the Customer shall not, either directly or indirectly, whether for its own benefit or for the benefit of any other person:
22.1.1 solicit, entice or induce, or endeavour to solicit, entice or induce, any senior or technically skilled employee or contractor of LVS that has interacted with Customer or has been involved, directly or indirectly, in the Services (a Restricted Person) with a view to employing or engaging the Restricted Person, or
22.1.2 employ or engage, or offer to employ or engage a Restricted Person
without the prior written consent of LVS.
22.2 Notwithstanding clause 22.1 the Customer may employ or engage a Restricted Person who has responded directly to a bona fide recruitment drive either through a recruitment agency engaged by or via an advertisement placed publicly by the Customer.
22.3 In the event of a breach of clause 22.1 which results in a Restricted Person leaving LVS and being employed or engaged by the Customer the Customer shall pay to LVS by way of liquidated damages an amount equivalent to thirty per cent of the annual remuneration of such Restricted Person payable by the Customer or its Affiliate.
22.4 The provisions in clause 22.3 shall be without prejudice to LVS’s ability to seek damages or claim injunctive relief.
23. Dispute resolution
23.1 Any dispute arising between the Parties out of or in connection with this Agreement (Dispute) shall be dealt with in accordance with the provisions of this clause 23 and, if not resolved hereunder, the provisions of clause 36.
23.2 The dispute resolution process may be initiated at any time by either Party serving a notice in writing on the other Party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
23.3 The Parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
23.3.1 within seven days of service of the notice, the Project Managers of the Parties or, after completion of implementation of the Services, the Account Managers of the Parties shall meet to discuss the dispute and attempt to resolve it; and
23.3.2 if the dispute has not been resolved within seven days of the first meeting of the above, then the matter shall be referred to a director or equivalent of the Parties who shall meet within seven days to discuss the dispute and attempt to resolve it.
23.4 If the dispute has not been resolved within thirty days of the meeting under clause 23.3.2 then the matter may be referred to mediation by either Party in accordance with Clause 36.2.
24. Force majeure
24.1 In this clause 24, Force Majeure means an event or sequence of events beyond a Party’s reasonable control preventing or delaying it from performing its obligations under this Agreement.
24.2 A Party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure.
24.3 Where clause 24.2 applies, the affected Party shall promptly notify the other of the Force Majeure event and, if known, its effect and expected duration and shall use reasonable endeavours to minimise the effects of that event.
24.4 If, due to Force Majeure, a Party has been unable to perform a substantial part of its obligations under this Agreement for a period exceeding ninety (90) consecutive days and remains so unable, the other Party may terminate this Agreement on not less than thirty (30) days’ notice.
25. Entire agreement
25.1 This Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
25.2 Each Party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.
25.3 Nothing in this Agreement shall limit or exclude any liability for fraudulent misrepresentation.
26. Notices
26.1 Any notice or other communication required or permitted to be given under this Agreement must be in writing and delivered to the other Party by hand, email, or first-class post to the address or email address set out above in the SOW or as otherwise notified in writing by one Party to the other.
26.2 Notices shall be deemed to have been received:
26.2.1 If delivered by hand, on the day of delivery;
26.2.2 If sent by first-class post, two (2) Business Days after posting; and
26.2.3 If sent by email, at the time of transmission, provided no delivery failure notification is received.
27. Variation
27.1 No variation of this Agreement shall be valid or effective unless it is:
27.1.1 an Update made in accordance with this Agreement; or
27.1.2 made in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each Party.
28. Assignment and subcontracting
28.1 LVS may at any time assign or sub-license its rights and/or sub-contract or transfer its obligations under this Agreement.
28.2 The Customer shall not assign or sub-license its rights or transfer its obligations under this Agreement or deal in any other manner with any or all of its rights or obligations under this Agreement without LVS’s prior written consent.
29. Set off
Each Party shall pay all sums that it owes to the other Party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
30. No partnership or agency
The Parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither Party shall have, nor shall represent that it has, any authority to make any commitments on the other Party’s behalf.
31. Severance
31.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
31.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable the Parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
32. Waiver
32.1 No failure, delay or omission by either Party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
32.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
32.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving Party, and then only in the instance and for the purpose for which it is given.
33. Costs and expenses
Each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
34. Third party rights
A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
35. Authority
Each Party represents and warrants to the other that it has the right, power and authority to enter into this Agreement and grant to the other the rights (if any) contemplated in this Agreement and to perform its obligations under this Agreement.
36. Governing law and Jurisdiction
36.1 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
36.2 With respect to any Dispute which is not resolved under Clause 23, including any question regarding the existence, validity or termination of this Agreement, the Parties shall first seek settlement of that Dispute by mediation in accordance with the LCIA Mediation Rules, which Rules are deemed to be incorporated by reference into this Clause. If the Dispute is not settled by mediation within sixty (60) days of the commencement of the mediation, or such further period as the Parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration in London before a single arbitrator under the LCIA Rules, which are deemed to be incorporated by reference into this Clause. The above shall not prevent either Party applying to the English courts for emergency relief.
SCHEDULE 1 — Definitions and interpretation
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
Acceptance
Affiliate — in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with that entity within the meaning set out in section 1124 of the Corporation Tax Act 2010;
Assumptions — the assumptions and dependencies as so identified and set out in the SOW
Authorised Affiliates — in respect of the relevant Service, the Affiliates of the Customer (if any) identified in the SOW as Authorised Affiliates in respect of that Service;
Authorised Users — the named users authorised by the Customer to use the Services in accordance with the terms of this Agreement;
Business Day — a day other than a Saturday, Sunday or bank or public holiday in England;
Change Control Procedure — means the procedure set out in Schedule 2;
Commencement Date — the commencement date of the Agreement set out in the SOW or, if earlier, the date of Customer’s first access to or use of the Services to which the SOW relates and if no such date is set out, the date of execution of the SOW;
Customer Data — all data that is provided to LVS by the Customer or by any Authorised User and any “raw” data readable by the Customer on its own machines as a direct output of the Services specifically in relation to the Customer, excluding any LVS Data Product in relation thereto;
Customer Prerequisites — those physical, process, technical and other items to be satisfied by the Customer identified as such and set out the SOW;
Customer Materials — the meaning given in clause 10.2.5
Customer Systems — all software and systems used by or on behalf of the Customer, the Customer’s Affiliates, any of its or their sub-contractors, or any Authorised User in connection with the provision or receipt any of the Services or with which the Services otherwise, link, inter-operate or interface or utilise (whether directly or indirectly);
Customer Tasks and Responsibilities — the tasks and responsibilities identified as such and set out in the SOW;
Data Protection Law — EU General Data Protection Regulation (EU) 2016/679 as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (UK GDPR) together with all applicable decisions, binding guidance and codes of practice including the Data Protection Act 2018;
Description — the latest description of the relevant Solution (or version thereof) which LVS has published to its customers;
Documentation — the Description and any other documentation relating to a Solution or the Services made available by LVS to the Customer at any time;
End User Terms — the meaning given in clause 9.7.1;
Expenses — the meaning given in clause 4.4;
Fees — the Subscription Fees and/or Licence Fee together with any other fees and amounts payable to LVS under this Agreement;
Force Majeure — an event or series of events beyond a Part’s reasonable control, including Acts of God and any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;
Good Industry Practice — the standard of skill, care and knowledge which would reasonably and ordinarily be expected from an experienced provider of services which are of the same nature as the Services;
Intellectual Property Rights — any and all copyright, rights in inventions, patents, trade marks, design rights, database rights, domain names and all similar rights wherever existing, in each case: whether registered or not; including any applications to register such rights; and including all renewals and extensions of such rights or applications;
Licence Fee — the meaning given in clause 4.2;
Location — the Customer’s factory, plant or other premises in relation to which the Services are provided and. in the case of On-Premises delivery, where the Software is installed and used, as set out in the SOW;
LVS Confidential Information — all information in any form and whether technical, financial, commercial, operational or of any other kind, relating to LVS which is not generally known to the public including information relating to the Solutions and the Services, and/or LVS’s assets, finance, strategy or customers;
LVS Data Product — any aggregation, enhancement, derivation, analysis or other value-added element, performed, based on or incorporating Customer Data which is created or performed by or for LVS (including that described in clause 12.6);
LVS Materials — all Materials provided or made available to the Customer by or on behalf of LVS, excluding Customer Data and Third-Party Materials;
LVS Tasks and Responsibilities — the tasks and responsibilities identified as such and set out in the SOW
Materials — all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided in connection with the Services, excluding Customer Data;
Mutual Tasks and Responsibilities — the tasks and responsibilities identified as such and set out in the SOW
Permitted Downtime — the unavailability or inaccessibility of the Services, owing to: scheduled maintenance which LVS shall use reasonable endeavours to undertake outside UK business hours; emergency maintenance; or Force Majeure.
Permitted Purpose — use solely for the Customer’s internal business operations (or those of Authorised Affiliates).
Personal Data — the meaning given in Data Protection Law
Renewal Term — the meaning given in clause 19.2;
Service Levels — the meaning given in clause 3.3;
Services — provision of access via SaaS or on-premises installation (as applicable) to the Solutions and associated implementation services, Support Services and any other services, all as described in the SOW;
Software — means the Software incorporated in the Solutions;
Solutions — LVS’s solutions, including all underlying software therein, as such solutions are set out in the SOW;
Subscription Fees — the subscription fees as described in the SOW, for the Customer’s subscription to the Solutions where delivered via SaaS;
Support Services — the support services to be provided by LVS to the Customer for the Solutions, as specified in the SOW and/or the applicable Solution;
Third Party Materials — Materials provided, controlled or owned by or on behalf of a third party provided by LVS to the Customer which form part of or relate to the Services;
Update — the meaning given in clause 8.2;
Update Notification — the meaning given in clause 8.1; and
VAT — United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax or duty imposed elsewhere.
In this Agreement, unless otherwise stated:
1.1 references to this Master Service Agreement include its Schedules and references to “this Agreement” include all Schedules and Appendices of and to the SOW;
1.2 the table of contents, background section and clause, paragraph, schedule or other headings in this Agreement are included for convenience only and have no effect on interpretation;
1.3 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.4 cognate versions of the expressions defined in this Agreement shall bear the corresponding meanings;
1.5 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
1.6 Any obligation of LVS under this Agreement to comply or ensure compliance by any person or the Services with any laws or applicable laws shall be limited to compliance only with laws within the country from which it performs the Services as generally applicable to businesses and to providers of software-based services solutions. Such obligations shall not be construed to create any obligation on LVS or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities or to a specific sector.
1.7 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation;
1.8 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction; and
1.9 In the event of a direct conflict between the provisions of this Master Services Agreement and the SOW, the terms of the SOW shall prevail unless otherwise stated in the SOW.
Schedule 2 — Change Control Procedure
1. Change Requests
Either party may request a Change by giving notice in writing to the other describing the Change and the reasons for requesting it in sufficient detail to enable the other party to understand the possible impact of the proposed Change (a Change Request).
2. Responding to Change Requests
2.1 If either party requires any clarification or further information to respond to a Change Request, it shall promptly notify the other party, and the relevant time period shall be extended by the time taken by the other party to provide that clarification or information.
2.2 On receiving a Change Request from the Customer, LVS shall acknowledge receipt and indicate whether or not it considers the Change to be feasible. Where LVS considers the Change to be reasonable, it shall within a reasonable period or at the time of making its own Change Request, provide the Customer with a written estimate (the Estimate) which sets out:
2.2.1 whether relief from LVS’ obligations under the Agreement is required during implementation or as a result of the Change;
2.2.2 any impact of the Change on the Services, including any Service Levels;
2.2.3 an indicative non-binding timetable for implementing the Change; and
2.2.4 any effect on the Fees as a result of the Change.
3. Agreeing Changes
3.1 The parties shall promptly discuss and seek to agree the Estimate, which shall be subject to contract.
3.2 If the parties, acting through their Project Managers or Account Managers, as applicable, have not agreed an Estimate within thirty (30) Business Days of receipt, the Change Request shall be deemed cancelled and of no effect.
3.3 If the parties agree to make a Change following the discussion of an Estimate, such Change shall be recorded in writing in the form of a Change Control Note substantially in the form set out in the SOW (CCN) to the SOW and setting out full details of the Change and its effect on the Agreement and shall be signed by duly authorised representatives of the parties, provided that the parties may by agreement dispense with a formal CCN where the Change is straightforward.
3.4 A CCN so signed shall constitute a binding and enforceable instrument evidencing the variation of this Agreement to reflect the agreed Change.
Execution
This Agreement may be executed in any number of counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. A signature delivered electronically (including by electronic signature platform) shall be deemed an original signature and shall have the same legal effect as a handwritten signature.
For and on behalf of Lineview Solutions Limited
Name:
Title:
Signature:
Date:
For and on behalf of [Customer Legal Name]
Name:
Title:
Signature:
Date:
