Master Services Agreement

Background

OBT has developed and will provide the Services (each as defined below).

The Client (as defined below) wishes to use OBT’s Services in its business operations.

OBT has agreed to provide, and the Client has agreed to take and pay for, the Services, subject to the terms and conditions of this Agreement (as defined below).

Agreed terms

1. Interpretation

The following definitions and rules of interpretation apply in this Agreement (unless the context requires otherwise).

• Acceptable Use Policy: any acceptable use policy set out in the Proposal or as otherwise notified by OBT to the Client and as amended from time to time.
• Additional Usage: any additional use of the Third Party Services and/or Subscription Services in excess of the Minimum Commitment.
• Agreement: the terms and conditions in this agreement (including the Managed Services Terms, the Professional Services Terms, along with the Proposal, any quotes and any other documents agreed between the Parties in writing.
• Applicable Data Protection Laws:
  • To the extent the UK data protection legislation applies, all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
  • To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which OBT is subject, which relates to the protection of personal data.
• Assumptions: has the meaning given in Clause 8.2.
• Authorised Representative: the person nominated by each Party in accordance with this Agreement.
• Authorised User: any individual who is entitled to use of the Third Party Services and/or Subscription Services named to OBT as a user by the Client.
• Background Materials: means all Intellectual Property Rights, know-how, information, methodologies, techniques, tools, schemata, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited, to software, documentation, and data of whatever nature and in whatever media) owned, developed or controlled by OBT which may have been created outside the scope, or independently of, the Services and/or this Agreement, and including all updates, modifications, derivatives or future developments thereof.
• Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
• Business System: the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Client or its agents or contractors.
• Client: the client as identified in the Proposal.
• Client Personal Data: any personal data which OBT processes in connection with this Agreement, in the capacity of a processor on behalf of the Client.
• Client Site: the locations where the Services are provided as identified in the Proposal.
• Client’s Operating Environment:the Client’s computing environment (consisting of hardware and software) that is to be used by the Client in connection with its use of the Managed Services and which interfaces with OBT’s System in order for the Client to receive the Managed Services, but excluding the Client-side Equipment.
• Client-side Equipment: any equipment located or to be located on a Client Site but controlled or to be controlled exclusively by OBT as part of the Services.
• Commencement Date: the date of the initial Proposal entered into pursuant to this Agreement.
• Commissioner: the Information Commissioner (see section 114, DPA 2018).
• Confidential Information:all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its “Representatives”) to the other Party and that Party’s Representatives in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
• Deemed Employment: an engagement to which section 61M(1)(d) of the Income Tax (Earnings and Pensions) Act 2003 applies.
• Customer Agreement: the Microsoft customer agreement, which is a direct agreement between the Client and Microsoft and is a condition of Cloud Solution Provider Program that the Client enters into this agreement, the terms of which are found at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time.
• Deliverable: means all Documents, products and materials developed by OBT or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
• Document: means, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
• Engagement: the engagement of OBT by the Client on the terms of this Agreement and the applicable Proposal.
• EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
• Fees: the fees payable to OBT, as described in the Proposal or as otherwise agreed in writing as may be varied from time to time pursuant to the terms of this Agreement.
• Force Majeure: has the meaning given in Clause 15.
• Good Industry Practice: the standards of a skilled and experienced provider of services similar or identical to the applicable services, having regard to factors such as the nature and size of the Parties, the type of service, the service levels, the term, the pricing structure and any other relevant factors.
• Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) used by OBT to deliver the Managed Services to the Client.
• Initial Term: the period commencing on the Commencement Date or Services Commencement Date and ending on the date twelve (12) months thereafter unless otherwise specified in the Proposal. For the avoidance of doubt, each Proposal will have their own Term, which will extend the Initial Term of the Agreement if the term of the Proposal is longer than the Initial Term of the Agreement.
• Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Licence Agreement: all agreements that may have to be entered into by OBT and/or the Client in respect of Third Party Services used.
• Local System Components: equipment supplied by the Client as routers, switches, access points, firewalls, PCs, thin client devices, smart phones, wireless controllers, workstations, printers, mobile devices, docking stations, headsets, peripherals, servers, network attached storage (NAS) and storage area network (SAN).
• Managed Services: the services described in the Proposal to be performed by OBT in accordance with this Agreement.
• Managed Services Terms: the terms and conditions relating to the provision of the Managed Services as set out in Schedule 1.
• Minimum Commitment: the minimum commitment of usage or number of Authorised Users (as the case may be) agreed between the Parties from time to time.
• Normal Business Hours: 9.00 am to 5.30 pm local UK time on Business Days unless otherwise set out in a Proposal.
• OBT: OBT Live Ltd incorporated and registered in England and Wales with company number 14849778 whose registered office is at Edward Pavilion, Albert Dock, Liverpool, England, L3 4AF.
• OBT’s System:the system to be used by OBT in performing the Managed Services, including the Hardware, any Third Party Services, the Client-side Equipment and communications links between the Hardware and the Client-side Equipment and the Client’s Operating Environment.
• Off-payroll Working rules: the rules in Chapter 10 of Part 2 of the Income Tax (Earnings and Pensions) Act 2003.
• Out of Scope: those out of scope services specified as such in the Proposal together with any other services which are not detailed in the Proposal.
• Party:the Client or OBT (as applicable) and collectively referred to as the “Parties”.
• Product(s): the Microsoft or other Third Party Services, tools, software, hardware, or professional support or consulting services provided under the terms of the Customer Agreement, applicable Licence Agreement, Third Party Terms or as otherwise agreed between the Parties.
• Professional Services: the services described in the Proposal to be performed by OBT in accordance with this Agreement.
• Professional Services Terms: the terms and conditions relating to the provision of the Professional Services as set out Schedule 2.
• Proposal: means the quote, Qwilr, proposal, statement of work or service specification which sets out the Services as set out under separate cover and which incorporates the terms and conditions of this Agreement.
• Purpose: the purposes for which the Client Personal Data is processed, as set out in the Proposal.
• Relief Events: the following events:
  • any failure by the Client to comply with its obligations under this Agreement;
  • any error or malfunction in the Business Systems or any other software, hardware or systems for which OBT is not responsible or any failure by the Client, or their agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which OBT is not responsible;
  • any failure by the Client, its agents or contractors (including any existing service provider) to provide any information, co-operation or instructions to OBT which is reasonably required by OBT for the proper performance of its obligations under this Agreement; or
  • any telecommunications network defect, delay or failure or failure of the Client’s hardware or other systems; or
  • any of the causes or events set out in Clause 11.7.
• Retail Prices Index: the Retail Prices Index (all items, excluding mortgages), or replacement index, as published by the Office for National Statistics from time to time, or failing such publication, such other index as the Parties may agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.
• Scheduled Downtime: the total amount of time during which the Client is not able to access the Services due to planned maintenance. OBT may schedule system downtime, with prior agreement of the Client. Scheduled Downtime periods do not count against the service level calculation detailed in such Proposal.
• Services Commencement Date: the date set out in the applicable Proposal or otherwise agreed between the Parties for the commencement of the Services.
• Service Level Arrangements or SLA: any service level arrangements set out in the Proposal.
• Services: the services as described in the Proposal or as otherwise agreed in writing as may be varied from time to time pursuant to the terms of this Agreement.
• Software: the proprietary software which is owned by OBT and which is licensed to the Client during the term of this Agreement as set out in the Proposal.
• Subscription Services: a right to use the Product(s) for a defined term.
• Subsequent Term: twelve (12) months commencing on the last day of the Initial Term or previous Subsequent Term.
• Term: the Initial Term and any Subsequent Term, as applicable.
• Third Party: any third party that supplies Third Party Services to OBT and/or the Client (as the case may be) during the provision of the Services.
• Third Party Services: any services, goods, code or software programs written or provided by a Third Party which are used by the Client during the provision of the Services.
• Third Party Terms: any terms and conditions relating to Third Party Services.
• UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
• Unscheduled Downtime: any time when any or all of the applications and Services provided by OBT to the Client shall be unavailable to the Client due to unexpected system failures other than Scheduled Downtime or the downtime is attributable to events not under the control of OBT.
• User Subscriptions: the user subscriptions purchased by the Client pursuant to a Proposal which entitle Authorised Users to access and use the Subscription Services and/or Third Party Services (as the case may be) in accordance with this Agreement.

The headings in this Agreement are inserted for convenience only and shall not affect its construction.

A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

In the event of any conflict or inconsistency between the Clauses of this Agreement, the Schedules, the Proposal, and the Customer Agreement / Licence Agreement / Third Party Terms (including any changes or variations to each), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:

• the Proposal;
• the Customer Agreement / Licence Agreements / Third Party Terms, to the extent applicable to the Services;
• the Schedules;
• the Clauses.

2. Provision of Services

The Client shall engage OBT to provide the Services on the terms of this Agreement.

Where the Services include:

• the supply of Managed Services, the provisions of the Managed Services Terms shall apply in addition to the Clauses; and
• the supply of Professional Services, the provisions of the Professional Services Terms shall apply in addition to the Clauses.

This Agreement shall (i) be in substitution for any prior oral or other prior arrangements between OBT and the Client in connection with the purchase of the relevant Services; and (ii) prevail over any of the Client’s inconsistent terms or conditions contained in, or referenced in, any order confirmation or other acknowledgement, quotation, purchase order(s), delivery note, invoice or similar document or implied by law, trade custom or practice.

As long as there is no material adverse effect on the quality or performance of the Services, OBT can make any changes (without prior notice unless prohibited by applicable law) to the Agreement or Proposals which are required to conform with any applicable safety, regulatory or other statutory requirement, or any Third Party request that OBT is required to flow down to the Client.

Any quote given by OBT is for budgetary purposes until financial and technical validation, shall not constitute an offer and is valid for a period of thirty (30) days from its date of issue unless otherwise agreed by OBT in writing and shall only become binding upon the signing of a Proposal.

3. OBT Duties and Obligations

During the Engagement OBT shall:

• provide the Services, including the Deliverables, with due care, skill and ability and in accordance with Good Industry Practice; and
• use its commercially reasonable endeavours to complete any Deliverables within any timescales set out in the Proposal but any such dates shall be estimates only.
• use its reasonable endeavours to ensure that they are available on reasonable notice to provide such assistance or information as the Client may reasonably require.

Unless they have been specifically authorised to do so by the Client in writing:

• OBT shall not have any authority to incur any expenditure in the name of or for the account of the Client; and
• OBT shall not hold itself out as having authority to bind the Client.

OBT shall comply with the Client’s health and safety procedures in force at any of the Client’s premises at which the Services are provided, subject to such procedures being notified to OBT no less than one (1) week prior to OBT’s attendance at the Client’s premises.

OBT may use a third party to perform any administrative, clerical or secretarial functions which are reasonably incidental to the provision of the Services.

OBT shall without undue delay give to the Client all such information and documentation as it may reasonably require from time to time in order for the Client to determine whether the Engagement is or will be within the Off-payroll Working rules and is or will be Deemed Employment.

4. Client Duties and Obligations

To the extent that OBT requires access to the Client Site to perform the Services, the Client shall provide such access during Normal Business Hours and to provide a suitable work environment to enable OBT to perform such Services subject to OBT complying with such internal policies and procedures of the Client (including those relating to security and health and safety) as may be notified to OBT from time to time in advance and in writing.

The Client shall co-operate with OBT in all matters relating to the Services and shall appoint a minimum of two (2) Authorised Representatives (“Client Representatives”), who shall have authority to commit the Client on all matters relating to the relevant Service.

The Client agrees and acknowledges the terms of the applicable Third Party Terms, Licence Agreements and the terms of the Customer Agreement shall form part of this Agreement.

The Client shall:

• adhere to any Acceptable Use Policy;
• make the Client’s Operating Environment and Client-side Equipment, required to provide the Services, accessible to OBT support staff, enable logons or passwords required for such support staff and provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;
• ensure it has suitable licences in place for any third party software required (which is not issued or procured by OBT) to allow OBT and its subcontractors (if applicable) full use in relation to the Services provided;
• not use the Services to receive, store or transmit material or data that is obscene, threatening, offensive, discriminatory, defamatory or in breach of confidence, infringes Intellectual Property Rights or other rights, gives rise to any cause of action against OBT in any jurisdiction or is otherwise unlawful;
• inform OBT in writing of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises;
• allow OBT or its designated subcontractors (if applicable) and third parties, continuous global admin access to the Client’s relevant servers and networking systems from a user account dedicated to OBT for the duration of the Agreement;
• provide all information and make available all resources as reasonably requested by OBT in the execution of its obligations under this Agreement;
• use all reasonable efforts to follow the reasonable instructions of OBT support personnel with respect to the resolution of defects;
• gather all relevant information prior to requesting assistance in respect of any defects including detailed defect description, and procedures required to replicate a problem if possible;
• use the Services only for lawful purposes and in accordance with this Agreement;
• keep secure from third parties any passwords issued to the Client by OBT;
• keep and maintain all materials, equipment, documents and other property of or provided by OBT which are for the time being at the Client’s Site in safe custody at the Client’s own risk and maintain them in good condition until returned to OBT;
• fully virus-check all data supplied to OBT pursuant to this Agreement;
• comply with all applicable laws and regulations with respect to its activities under this Agreement; and
• carry out all other Client responsibilities set out in this Agreement and the Proposal in a timely and efficient manner.

Cancellation of Services. The Client agrees to adhere to the dates scheduled for provision of Services by OBT as stated in the applicable Proposal. If the Client wishes to reschedule or cancel the dates for the provision of Services, OBT will use reasonable endeavours to re-assign allocated resources to other clients. If such re-assignment is not possible and the Client has not provided more than fourteen (14) days advance notice, then the Client shall be liable to pay the following cancellation charges:

• if dates are changed or cancelled at the Client’s request more than fourteen (14) days before the scheduled start date no Cancellation Charges are payable;
• if dates are changed or cancelled between seven (7) days and fourteen (14) days before the scheduled start date Cancellation Charges equivalent to fifty percent (50%) of the Fees for the Services to be provided at that time will be payable;
• if dates are changed or cancelled less than seven (7) days before the scheduled start date Cancellation Charges equivalent to one hundred percent (100%) of the Fees for the Services to be provided at that time will be payable.

OBT shall not be liable for any delays or claims of whatsoever nature, which result, directly or indirectly, from the failure by the Client to comply with the reasonable requests of OBT or the breach by the Client of any provision of this Agreement.

5. Warranties and Service Levels

OBT warrants that:

• it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of OBT;
• it owns or has obtained valid licences, consents, permissions and rights to enable OBT to comply with this Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this Agreement;
• it will comply with all Applicable Laws in performing its obligations under this Agreement; and
• the Client’s use of OBT materials shall not cause the Client to infringe the rights, including any Intellectual Property Rights, of any third party.

Except for any warranties and service levels expressly set forth in this Agreement, the Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. OBT does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice.

The Client warrants that:

• it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Client;
• it has not been induced to enter into this Agreement by any prior representations, nor has it relied on any oral representation made by OBT;
• it has the authority to grant any rights to be granted to OBT under this Agreement;
• it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to OBT and any of its subcontractors, any materials reasonably necessary for the fulfilment of all its obligations under this Agreement;
• it will comply with all Applicable Laws in performing its obligations under this Agreement; and
• OBT’s use in the provision of the Managed Services or otherwise in connection with this Agreement of any Third Party materials shall not cause OBT to infringe the rights, including any Intellectual Property Rights, of any third party.

In the event that a defect, fault or impairment in the provision of the Service(s) causes a service interruption and OBT becomes aware of this, then OBT shall use its commercially reasonable endeavours to resolve that defect, fault or impairment as more fully set out in the Proposal.

OBT may recover from the Client all reasonable costs incurred in connection with the remedy of such defect, fault or impairment where OBT determines in its reasonable opinion that such a defect results directly or indirectly from: (i) the negligence, act, omission, or default of the Client or Authorised User, (ii) the Client’s breach of this Agreement, (iii) the operation, failure or malfunction of any network, equipment, hardware or software owned or controlled by the Client, or (iv) any third party action in response to an act or omission of the Client.

OBT will request approval from the Client’s Representatives before making any significant changes to the Services. OBT is not responsible for Unscheduled Downtime that is due to anything outside OBT’s control and OBT and its subcontractors may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs.

The Service Level Arrangements (if applicable) are specific to directly provided Services of OBT and do not relate to Third Party Services.

Save only as may be provided for otherwise under any Proposal, OBT makes no warranty or representation of any data backup with the Services. The Client is responsible for all database and/or system back-ups.

OBT shall not in any circumstances be liable under its obligations in this Clause 5 if it can demonstrate that any failure of the Services was caused or contributed to by any Relief Event.

Notwithstanding the foregoing, OBT does not warrant that the Client’s use of the Services will be uninterrupted or error-free.

6. User Subscriptions

OBT or the relevant Third Party grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Third Party Services and/or Subscription Services (as applicable) during the Term of the applicable Proposal solely for the Client’s internal business operations pursuant to the terms of the applicable Licence Agreement and/or Third Party Terms.

In relation to the Authorised Users, the Client undertakes that:

• it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User;
• each Authorised User shall keep any passwords used confidential;
• it shall maintain a written, up to date list of current Authorised Users and provide such list to OBT within five (5) Business Days of OBT’s written request from time to time;
• it shall permit OBT to audit the Client’s use of the Third Party Services and Subscription Services for each Authorised User. Such audit may be conducted no more than once per quarter, at OBT’s expense, and this right shall be exercised with reasonable prior notice;
• if any of the audits reveal that any password has been provided to any individual who is not an Authorised User, then the Client shall promptly disable such passwords;
• if any of the audits reveal that the Client has underpaid Fees to OBT and/or individuals are using the Third Party Services who are not Authorised Users, the Client shall pay to OBT an amount equal to such underpayment within ten (10) Business Days of the date of the relevant audit.

Unless otherwise set out in the Proposal, OBT may adjust the Minimum Commitment on 1st January of each year to reflect any adjustments made to the User Subscriptions over the previous twelve (12) months.

7. Third Party Services

OBT shall procure any Third Party Services required by the Client for the provision of the Services and as more fully set out in the Proposal. OBT expressly excludes:

• any warranty to the Client that the Third Party Services supplied or licensed under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the marketing, sales or other associated documentation; and
• any and all liability in relation to such Third Party Services.

The Client shall remain liable for any and all payments owed to OBT throughout this Agreement and until the end of the respective licence terms for such Third Party Services.

It is a condition of this Agreement that the Client shall enter into such Licence Agreements and/or accept Third Party Terms issued by the Third Party where the Client must directly contract with that Third Party.

The Client shall indemnify OBT against all liabilities, costs, expenses, damages and losses suffered or incurred by OBT in connection with any claim made against OBT for actual or alleged breach of such Licence Agreements and/or Third Party Terms.

The Client acknowledges that it is responsible for ensuring that the Client’s Hardware and operating software is compatible with the Third Party Services.

The Client acknowledges that all back up shall be the sole responsibility of the Client unless otherwise expressly agreed to by OBT in writing and set out as a service within the relevant Proposal.

8. Fees

The Client shall pay OBT the Fees (including any for Third Party Services) as set out in the Proposal.

Where a Fee has been quoted, this is a best estimate based on the information given to OBT by the Client and/or which is available at that time and may be based on a number of assumptions set out in the Proposal (“Assumptions”). If it materialises that the information provided and/or Assumptions made are incorrect, inaccurate or have changed, OBT shall be entitled to charge the Client for any Out of Scope Services or other additional Services.

OBT shall invoice the Fees in accordance with the payment intervals stated in the Proposal.

The Client shall pay each undisputed invoice for the Fees and Expenses in full and cleared funds (without deduction or set-off) within fourteen (14) days of the date of such invoice unless otherwise agreed in writing by OBT.

The Fees exclude:

• actual, reasonable travel costs and expenses including airfares, hotels and meals incurred by OBT or its subcontractors in performance of the Services (“Expenses”). OBT shall obtain the Client’s prior written approval before incurring any such expense exceeding a total cost of fifteen hundred pounds (£1,500) in the aggregate per day;
• VAT or other relevant sales tax, which OBT shall add to its invoices at the appropriate rate.

All payments by the Client hereunder shall be in United Kingdom pound sterling unless otherwise agreed by OBT in writing.

Without prejudice to any other remedy that OBT may have, if payment of the Fees or any part thereof is overdue then OBT may charge the Client interest on the overdue amount at the rate of four percent (4%) per annum above the base lending rate of the Bank of England from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.

The Client shall not be able to dispute any amounts which have been paid by the Client after a period of three (3) months has elapsed from the date of invoice.

OBT shall not be obliged to provide any of the Services while any duly issued invoice(s) remain unpaid.

The Fees relating to the provision of Services shall increase on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.

OBT reserves the right, on giving the Client thirty (30) days’ notice to increase any costs in line with any third party costs and to increase the Fees on an annual basis. If the Client does not agree with the increase, then they may terminate this Agreement upon thirty (30) days written notice before such price increase takes effect.

9. Confidential Information

Each Party agrees and undertakes that it will treat all Confidential Information disclosed to it by the other Party in connection with the Services as strictly confidential and shall use it solely for the purpose intended by the Services and shall not, without the prior consent of the other Party, publish or otherwise disclose to any third party any such Confidential Information.

To the extent necessary to implement the provisions of any Services, each Party may disclose Confidential Information to its Representative, in each case under the same conditions of confidentiality.

The obligations of confidentiality shall not apply to any information or matter which: (i) is in the public domain other than as a result of a breach of this Agreement; (ii) was in the possession of the receiving Party prior to the date of receipt from the disclosing Party; (iii) is required to be disclosed by law; or (iv) was independently developed by the receiving Party without use of or reference to the Confidential Information.

10. Data Protection

Both Parties will comply with all applicable requirements of Applicable Data Protection Laws. This Clause is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Applicable Data Protection Laws.

The Parties have determined that, for the purposes of Applicable Data Protection Laws, OBT shall process the personal data set out in the Proposal, as a processor on behalf of the Client.

The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to OBT for the duration and purposes of this Agreement.

OBT shall, in relation to Client Personal Data:

• process that Client Personal Data only on the documented instructions of the Client;
• implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data;
• ensure that any personnel engaged and authorised by OBT to process Client Personal Data have committed themselves to confidentiality;
• assist the Client in responding to any request from a data subject and in ensuring compliance with obligations under Applicable Data Protection Laws;
• notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
• at the written direction of the Client, delete or return Client Personal Data and copies thereof on termination of the Agreement; and
• maintain records to demonstrate its compliance and allow for reasonable audits by the Client or the Client’s designated auditor.

11. Intellectual Property

The Client acknowledges and agrees that unless otherwise expressly set out in a Proposal, OBT and/or its licensors own all Intellectual Property Rights in its (i) Background Materials; (ii) the Services and Deliverables; and (iii) ideas, concepts, techniques and know-how discovered, created or developed by OBT during the performance of the Services (together the “OBT Intellectual Property”). OBT grants to the Client a non-exclusive, irrevocable, worldwide royalty free and non-transferable licence to use the OBT Intellectual Property insofar as is necessary for the provision of the Services.

OBT confirms that it has all the rights in relation to the OBT Intellectual Property that are necessary to grant all the rights it purports to grant under this Agreement.

The Client may not, at any time including after termination of this Agreement, share any OBT Intellectual Property with any third party without OBT’s prior written consent.

12. Licence of Software

If the Software is included within the Services set out in the applicable Proposal, the terms of this Clause shall apply.

In consideration of the Fee paid by the Client to OBT, OBT grants to the Client a non-exclusive, revocable, worldwide, non-transferable licence for the duration of the applicable Proposal until terminated to use the Software.

Use of the Software shall be restricted to use for the purpose of processing the Client’s data for the normal business purposes of the Client.

Except as expressly stated, the Client has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.

13. Liability

Nothing in this Agreement excludes or limits either Party’s liability for:

• death or personal injury caused by negligence;
• fraud or fraudulent misrepresentation;
• any other liability which cannot lawfully be excluded or limited.

OBT’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, any indemnity restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to one hundred and twenty five percent (125%) of the price paid for the Services during the twelve (12) months preceding the date on which the claim arose.

Neither Party shall have any liability for any losses or damages which may be suffered by the other Party, whether the same are suffered directly or indirectly, which fall within any of the following categories:

• special damage;
• loss of profits;
• loss of anticipated savings;
• loss of business opportunity;
• wasted expenditure;
• loss of goodwill;
• loss of reputation;
• loss or corruption of data.

14. Termination

This Agreement shall commence on the Commencement Date and each Proposal shall commence on the Services Commencement Date and shall remain in full force for the Initial Term. Thereafter, this Agreement shall continue to automatically renew for a Subsequent Term, unless a Party gives written notice to the other Party, not later than ninety (90) days before the end of the Initial Term or the relevant Subsequent Term.

A Party may terminate the Engagement with immediate effect by giving written notice to the other Party if at any time:

• the Client breaches its obligations in Clause 14;
• the other Party commits a material breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so;
• the other Party breaches any of the terms of Clauses 9, 10 or 19;
• the other Party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due;
• is determined by HM Revenue & Customs to have Deemed Employment through the Engagement.

Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination.

15. Obligations on Termination

On termination of this Agreement for any reason:

• OBT shall immediately cease provision of the Services;
• the Client shall pay any and all invoices and sums due and payable up to and including the date of termination;
• all licences granted under the Agreement will terminate immediately except for fully-paid, fixed term and perpetual licences;
• for metered Products billed periodically based on usage, the Client must immediately pay for unpaid usage as of the termination date; and
• each Party shall use reasonable endeavours to return and make no further use of any equipment, property, materials and other items belonging to the other Party.

16. Force Majeure

OBT shall have no liability to the Client under this Agreement if OBT is prevented from, or delayed in, performing its obligations under this Agreement by an event of Force Majeure including strikes, computer viruses and malware, pandemics, epidemics, lock-outs or other industrial disputes, act of God, war, riot, civil commotion, compliance with any law or regulation, fire, flood or storm, provided that:

• the Client is notified of such an event and its expected duration; and
• OBT uses all reasonable endeavours to mitigate, overcome or minimise the effects of the event of Force Majeure concerned.

If the period of delay or non-performance continues for twelve (12) weeks or more, the Party not affected may terminate this Agreement by giving fourteen (14) days’ written notice to the other Party.

17. Staff Transfer and Non-Solicitation

It is not intended that any staff be transferred from OBT to the Client or from the Client to OBT pursuant to this Agreement.

The Client shall not solicit OBT’s staff or contractors who have been employed or engaged in the Services during the lifetime of this Agreement and for a period of twelve (12) months thereafter.

In the event that the Client is in breach, the Client shall pay to OBT by way of liquidated damages an amount equal to one hundred percent (100%) of the gross annual budgeted fee income of the person so employed or engaged.

18. Change Requests

Either Party may request changes to any Services (a “Change Request”). Any Change Request shall be made in writing and shall set out the change in sufficient detail.

OBT shall provide a written estimate of the likely time required to implement the change, any necessary variations to the charges, and the likely effect on the Services. The Client shall notify OBT whether it accepts or rejects the Change Request within five (5) Business Days.

Until such time as a Change Request has been agreed, the Parties shall continue to perform their respective obligations without taking into account the Change Request.

19. Anti-Bribery and Modern Slavery

OBT shall:

• comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010;
• promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by OBT in connection with the performance of this Agreement.

In performing its obligations under this Agreement, OBT shall:

• comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force including the Modern Slavery Act 2015; and
• not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4 of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.

20. Waiver

No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.

21. Severance

If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

22. Assignment

The Client shall not without the prior written consent of OBT assign, transfer, charge or deal in any other manner with either the benefit or the burden of this Agreement or any of its rights or obligations under it.

OBT may assign, transfer, charge or deal in any other manner with either the benefit or the burden of this Agreement without the prior written consent of the Client.

23. Status

The relationship of OBT to the Client will be that of independent contractor and nothing in this Agreement shall render it an employee, worker, agent or partner of the Client and OBT shall not hold itself out as such.

24. Notices

Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or other next working day delivery service, or sent by email to the address for each Party set out in the Proposal.

25. Entire Agreement

This Agreement (and the Proposals, Third Party Terms, Licence Agreements and the Customer Agreement) constitutes the entire agreement between the Parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

26. Third Party Rights

Except as expressly provided elsewhere in this Agreement, 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 term of this Agreement.

27. Dispute Resolution

If a dispute arises under this Agreement, before bringing any suit, action or proceeding, a Party must first give written notice of the Dispute to the other Party describing the Dispute and requesting that it is resolved under this dispute resolution process.

If the Parties are unable to resolve the Dispute within thirty (30) calendar days of delivery of the Dispute Notice, then each Party will promptly appoint a designated representative who has sufficient authority to settle the Dispute.

If the Parties are unable to resolve the Dispute within thirty (30) calendar days after the appointment of both Designated Representatives, then either Party may proceed with any other available remedy.

28. Governing Law and Jurisdiction

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1 – Managed Services Terms

Interpretation

Except as defined in these Managed Services Terms, capitalised terms shall have the meanings given to them in the Agreement.

In the event of conflict with these Managed Services Terms and the Agreement, the provisions in these terms shall take precedence.

Managed Services

The Client shall remain responsible for the use of the Managed Services under its control including any use by third parties that Client has authorised to use the Managed Services.

The Client must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure.

The Client shall not provide the Managed Services to third parties unless otherwise indicated in the Proposal.

OBT reserves the right to:

• modify OBT’s System, its network, system configurations or routing configuration; or
• modify or replace any Hardware in its network or in equipment used to deliver any Managed Service,

provided that this has no adverse effect on OBT’s obligations or performance under the Agreement.

Responsibilities of OBT

Notwithstanding the foregoing, OBT does not warrant that the Client’s use of the Managed Services will be free from faults, interruptions or errors, or available one hundred percent (100%) of the time.

In relation to the Managed Services, OBT shall:

• staff OBT support desk with a team of skilled individuals;
• maintain a team skilled in the platform and with knowledge of the systems developed to deliver the solution;
• maintain a comprehensive IT service management solution, with integrated knowledge base and how-to guides;
• where agreed, undertake a regular account review to discuss the Client’s service needs;
• use commercially reasonable endeavours to follow the instructions of the Client; and
• provide the Client with reasonable co-operation in relation to the Agreement.

Responsibilities of the Client

The Client shall (unless otherwise specified in the Proposal):

• permit OBT to install the current version of software required to provide the Managed Services from time to time;
• in relation to software not supplied by OBT, promptly install current versions when upgrades or fixes occur;
• provide OBT at least seven (7) Business Days’ notice in advance of any intention to change Client-side Equipment or Client’s Operating Environment that will directly impact the Managed Services.

The Client shall not access, store, distribute or transmit any material through the Managed Services that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, or is discriminatory.

Security

OBT shall ensure that appropriate safety and security systems and procedures are maintained and enforced to prevent unauthorised access or damage to any and all Managed Services, OBT’s System and related networks or resources and the Client Data, in accordance with Good Industry Practice.

Each Party shall promptly inform the other if it suspects or uncovers any breach of security, and shall use all commercially reasonable endeavours to promptly remedy such breach.

Warranties

The Client warrants:

• that OBT’s use in the provision of the Managed Services of any Third Party materials shall not cause OBT to infringe the rights, including any Intellectual Property Rights, of any third party;
• it will comply with and use the Managed Services in accordance with the terms of the Agreement and all Applicable Laws.

OBT is not responsible or liable for the deletion of or failure to store any Client Data and other communications maintained or transmitted through the use of the Managed Services or Products.

Limitation of Liability

The Service Level Arrangements state the Client’s full and exclusive right and remedy, and OBT’s only obligation and liability, in respect of the performance and availability of the Managed Services.

The Client assumes sole responsibility for results obtained from the use of the Managed Services, and for conclusions drawn from such use. OBT shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to OBT by the Client in connection with the Managed Services, or any actions taken by OBT at the Client’s direction.

Schedule 2 – Professional Services Terms

Definitions

• Acceptance Criteria: the acceptance criteria as specified in paragraph 2.2 of these Professional Services Terms or referred to in a Proposal against which the Acceptance Tests are to be carried out.
• Acceptance Tests: the acceptance tests as specified or referred to in the Proposal, to be undertaken to determine whether the Deliverables meet the Acceptance Criteria.
• Issues List: a written list of the non-conformities to the Acceptance Criteria for a specific Deliverable.

Except as defined in these Professional Services Terms, capitalised terms shall have the meanings given to them in the Agreement.

Acceptance of the Professional Services

The relevant Proposal shall specify the Deliverables or Services that are to be subject to Acceptance Testing and provide a framework for the nature of the testing that will be required.

The Client shall have a reasonable period of time, up to five (5) Business Days unless otherwise specified in the Proposal, from OBT’s delivery of each Deliverable (the “Acceptance Period”) to confirm that such Deliverable conforms to the Acceptance Criteria. If the Client determines that a Deliverable does not conform, the Client shall provide to OBT an Issues List of the non-conformities.

In the event that Client has undertaken the Acceptance Testing within the Acceptance Period and fails to reject any Deliverable within the relevant Acceptance Period, such Deliverable shall be deemed accepted. Once the Deliverable has been accepted by the Client and payment has been settled, the Deliverable shall become the property of the Client.

If there are any non-conformities within any Deliverable which are directly attributable to OBT, OBT shall carry out all necessary remedial work without additional charge as part of the next Deliverable.

If any non-conformity cannot be remedied by OBT due to an error, defect or fault outside OBT’s control, then OBT reserves the right to terminate work on that specific Deliverable. OBT agrees not to charge Client any amounts specifically relating to the non-conforming Deliverable which cannot be remedied.