MASTER SERVICES AGREEMENT
TERMS AND CONDITIONS
THIS MASTER SERVICES AGREEMENT sets out the terms and conditions governing the contract between Verostone Limited, incorporated and registered in England and Wales with company number 6800902 whose registered office is at 29 Gildredge Road, Eastbourne, East Sussex BN21 4RU (“Verostone”) and a Customer (as defined below) for the Customer’s access to and use of the Services (as defined below).
This Agreement is effective from the date that the Customer executes an Order Form (the “Effective Date”).
In this Agreement, the following definitions apply:
“Agreement” means this Master Services Agreement, together with all Order Forms and all amendments and addendums made in accordance with the terms hereof.
“Verostone Materials” means and shall include, without limitation, any and all products, data, plans, processes, specifications, reports, designs, technological “know how”, methodologies, documentation and other information or materials which Verostone, alone, or jointly with others, its agents or employees, conceives, makes, develops, acquires or obtains knowledge of at any time before, after or during the term of this Agreement without breach of Verostone’s duty of confidentiality to Customer.
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“Fees” means all fees payable by the Customer to Verostone under this Agreement, including (but limited to ) Professional Services fees.
“Intellectual Property Rights” means all worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications and disclosures, moral rights, rights in databases, contract rights, and other proprietary rights.
“Customer” an entity to whom Verostone has agreed to provide the Services and who has executed at least one Order Form.
“Master Agreement” means the Master Services Agreement between the Parties.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer and Verostone.
“Professional Services” means implementation, training and consulting services.
“Services” means, collectively, the services that are ordered by Customer under an Order Form, Professional Services.
“Services Period” means the period during which Services are to be provided by Verostone to the Customer, as set out in an Order Form, or if no such period is specified, the period from the Order Form’s effective date and the date the Order Form or this Agreement is terminated pursuant to this Agreement.
“Taxes” means all duties, sales, use, excise, value added and other taxes (including interest and penalties imposed thereon) assessed by any government or governmental unit or agency having taxing authority over Verostone or Customer relating to this Agreement, other than taxes imposed on or measured by Verostone’s net income.
2.1 This Master Agreement sets forth the terms and conditions whereby Verostone agrees to provide Customer with Professional Services set forth in one or more Order Forms that are separately executed by authorised representatives of both Parties, which are incorporated herein by this reference.
2.2 In the event of any conflict between this Master Agreement and an Order Form, the Order Form shall control with respect to the Services set forth in such Order Form and solely to the extent of the conflict, except this Master Agreement shall govern all terms relating to intellectual property rights, confidential information, warranty, indemnity, and liability.
2.3 The Parties are entering into an initial Order Form upon execution of this Agreement. Unless otherwise provided in the applicable Order Unless designated as replacing a specific Order Form, subsequent Order Forms will be considered to be additive to currently effective Order Forms.
3.1 Professional Services. The Customer may from time to time request Verostone to supply Professional Services. The Customer acknowledges that the provision of such Professional Services is at the reasonable discretion of Verostone and shall in part depend on the availability of appropriate resources at the time in question.
3.1.1 Where Verostone agrees to provide Professional Services, such agreement shall be embodied in a Statement of Work substantially in the form set out the appropriate Order Form which shall set out the Fees payable in respect of such service provision.
3.1.2 Professional Services will be provided at Verostone’s then current Professional Services rates, plus reasonable travel and subsistence costs or as specified in the relevant Order Form. Verostone’s Professional Services rates are subject to change without prior notice.
3.1.3 The Customer acknowledges and agrees that any rescheduling by the Customer of any Professional Services may cause Verostone to incur additional costs or fees and that the Customer will be responsible for any such additional costs or fees incurred.
3.1.4 Verostone shall use its reasonable endeavours to ensure that, while on the Customer’s premises, all its employees who enter such premises for the purpose of, or in connection with, this Agreement adhere to the Customer’s security procedures and health and safety regulations, as from time to time notified to Verostone. The Customer may remove or refuse admission to any person who is, or has been, in material breach of such procedures and regulations. However, Verostone shall incur no liability for any delay in performing or failure to perform its obligations under this Agreement as a result of compliance with the terms of this clause.
4.1 Fees. Customer shall pay all applicable fees in accordance with the applicable Order Form(s).
4.2 Expenses. Customer agrees that it will reimburse Verostone for reasonable costs and expenses incurred by Verostone under this Agreement, including travel costs and expenses when travel to Customer’s location is required.
4.3 Invoicing. Verostone will issue invoices in advance, either annually or in accordance with any different billing frequency stated in an applicable Order Customer is responsible for providing and maintaining current complete and accurate billing and contact information.
4.4 Payment Terms. All amounts due under this Agreement are due and payable upon receipt of invoice, in Pounds Sterling. Except as expressly allowed under Section 5 (Taxes), under no circumstances shall any amount due to Verostone under this Agreement be reduced, whether by set-off, counterclaim, adjustment or otherwise, by virtue of any claim of Customer or a third party. Verostone reserves the right to suspend the Services until all past due amounts are paid in full, subject to Section 5.2.1 (Termination by Verostone). Past due invoiced amounts are subject to a monthly interest fee of the lesser of either five percent (5%) or the maximum rate allowable by law. Interest charges will not accrue to the extent Customer is disputing such charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Customer must notify Verostone of any billing discrepancies within thirty (30) days from the date of the applicable invoice.
4.5 Taxes. All fees are exclusive of Taxes. Customer is responsible for, and will indemnify and hold Verostone harmless from, all applicable Taxes. If Customer claims it is exempt from payment of applicable Taxes, Customer must provide Verostone with a copy of Customer’s tax exemption certificate at the time the Order Form is signed.
5.1.1 This Master Agreement shall commence upon the Effective Date and continue until all Services Periods hereunder have expired or have been terminated (“Term”), unless earlier terminated in accordance with the provisions of Section 5.2 (Termination). Expiration or termination of one Order Form shall not affect any other Order Form, unless the Agreement as a whole is terminated under Section 5.2.
5.1.2 Term of Services. The period for which Services shall be provided by Verostone shall be as specified in the applicable Order Form.
Verostone may terminate this Agreement as follows: (i) effective immediately upon written notice to Customer, if Customer breaches any provision of 6 (Proprietary Rights) and 7 (Confidentiality); (ii) effective immediately upon written notice to Customer, if Licenses breaches any other provision of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice thereof; (iii) effective immediately, if Customer has a receiver appointed, or resolves to enter into or is the subject of any judicial management or liquidation or reorganisation proceedings, or attempts to make an assignment for the benefit of creditors, or in the event of any insolvency or inability to pay debts as they become due.
5.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Verostone under this Agreement before or as of such termination or expiration shall be immediately due and payable, all obligations to perform services under this Agreement shall immediately cease to. Each Party shall return or destroy all Confidential Information of the other Party and shall certify to the other in a writing signed by an authorised representative that it has fully complied with the requirements of this Section 3. To the extent any Confidential Information may still reside on a Party’s backup tapes, the Party shall limit further use of such Confidential Information only to those purposes that make the destruction or return of the Confidential Information infeasible. Notwithstanding the foregoing, recipient Party may retain the Confidential Information in accordance with any pre-existing document retention policy for archival purposes only. Upon Customer’s request made within 30 days from the effective date of termination or expiration of this Agreement, Verostone will make Customer Data available to Customer for export or download. After that 30-day period, Verostone will have no obligation to maintain or provide Customer Data.
5.4 Surviving Provisions. Sections 4 (Fees and Payment), 3 (Effects of Termination), 6 (Proprietary Rights), 7 (Confidentiality), 10 (Limitations of Liability), 11.2 (Choice of Law), 11.5 (Third-Party Beneficiaries), 11.6 (Severability) and 11.9 (Construction) shall survive any termination or expiration if this Agreement and shall continue to be binding upon the parties.
6.1 Software. Any software provided by Verostone (including source code and executable code formats), Services, and any inventions or other work product created in the performance of this Agreement, and all Intellectual Property Rights therein, are the exclusive property of Verostone and its suppliers.
6.2 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Verostone and Verostone suppliers reserve all of their respective rights, title and interests in and to all material provided to Customer hereunder, including all related Intellectual Property No rights are granted to Customer hereunder other than as expressly set forth herein. All uses of the Services or any such materials accrue solely to the benefit of Verostone. Customer shall not remove, alter, or obscure any Intellectual Property Rights notices of Verostone or its suppliers on Verostone Materials. Customer shall not use any trademark, service mark or trade name of Verostone’s or of any Verostone affiliated companies.
6.3 Customer Data. Verostone acquires no right, title or interest from Customer under this Agreement in or to Customer Data. Notwithstanding anything to the contrary in this Agreement, Verostone may use Customer Data in connection with the preparation and use of abstracts, compilations, statistical analyses or other similar uses that do not (i) identify Customer, or (ii) disclose Customer confidential information.
6.4 Loss of Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Verostone shall be for Verostone to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Verostone (if any). Verostone shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
6.5 Submissions. Customer acknowledges and agrees that any questions, comments, suggestions, enhancement request, recommendation, correction, ideas, feedback or other information relating to this Agreement or the Services (“Submissions“), provided by Customer to Verostone are non-confidential and shall become Verostone sole property. Verostone shall own exclusive rights, including all Intellectual Property Rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to Customer.
7.1 Confidential Information. Each party (the “Discloser”) may from time to time during the term of this Agreement disclose to the other party (the “Recipient”) certain information regarding the Discloser’s business, including financial, employee, strategic planning, and other confidential or proprietary information (“Confidential Information”). Confidential Information shall be designated as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure. Notwithstanding the foregoing, Customer Confidential Information includes Customer Data, and Confidential Information of Verostone includes the terms (such as pricing, discounts, payment terms, indemnification or warranty terms) but not the existence of this Agreement. Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party under this Agreement.
7.2 Use of Confidential Information. The Recipient will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorised by the Discloser in writing, to limit access to Confidential Information of Discloser to those of its employees who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations to Recipient at least as stringent than those contained
7.3 Exceptions. Confidential Information does not include any information that: (a) is received from a legitimate third party without breach of any obligation owed to the Discloser; (b) is, was, or through no fault of the Recipient has become, generally available to the public via legitimate sources; or (c) was independently developed by the Recipient without reliance on or use of the Confidential Information. In addition, the Recipient may disclose Confidential Information of the Discloser to the extent necessary for the Recipient to enforce its rights under this Agreement or required by law or by order of a court or similar judicial or administrative body; provided the Recipient promptly notifies the Discloser in writing (to the extent not otherwise prohibited by law) of such required disclosure and cooperates with the Discloser in any lawful action to contest or limit the scope of such required disclosure.
8.1 Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This section 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
9.2 The parties acknowledge that if Verostone processes any personal data on the Customer’s behalf when performing its obligations under this agreement:
9.2.1 the Customer is the controller and Verostone is the processor for the purposes of the Data Protection Legislation;
9.2.2 the personal data may be transferred or stored outside the UK or the country where the Customer and the Users are located in order to carry out Verostone’s obligations under this agreement.
9.3 Without prejudice to the generality of clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Verostone for the duration and purposes of this agreement so that Verostone may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
9.4 Without prejudice to the generality of clause 1, Verostone shall, in relation to any personal data processed in connection with the performance by Verostone of its obligations under this agreement:
9.4.1 process that personal data only on the documented written instructions of the Customer unless Verostone is required by the Data Protection Legislation and any other law that applies in the UK to process personal data (“Applicable Laws”). Where Verostone is relying on Applicable Laws as the basis for processing personal data, Verostone shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Verostone from so notifying the Customer;
9.4.2 not transfer any personal data outside of the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or Verostone has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Verostone complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
(iv) Verostone complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(v) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(vi) notify the Customer without undue delay on becoming aware of a personal data breach;
(vii) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
(viii) maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and immediately inform the Company if, in the opinion of the VAR, an instruction infringes the Data Protection Legislation.
9.5 Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
9.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when signed by both parties).
CUSTOMER AGREES THAT IN NO EVENT SHALL VEROSTONE, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ASSIGNS, BE LIABLE UNDER THIS AGREEMENT FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS, LOST REVENUES, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS, LOSS, CORRUPTION OR INACCURACY OF DATA, OR DELAY OR INTERRUPTION OF SERVICES). CUSTOMER AGREES THAT THE TOTAL AGGREGATE LIABILITY OF VEROSTONE, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ASSIGNS, FOR ALL CLAIMS ASSERTED UNDER OR WITH RESPECT TO THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO VEROSTONE UNDER THE ORDER FORM AT ISSUE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL VEROSTONE’S SUPPLIERS, PARENT, AFFILIATES, OR SUBSIDIARIES INCUR ANY LIABILITY ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, DAMAGE, OR CLAIM, WHETHER IN CONTRACT, STATUTE, TORT, OR OTHERWISE, EVEN IF VEROSTONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY THE PARTIES.
11.1 Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing or after sending by confirmed facsimile, or (iii) the third business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer in an Order Form. All other notices shall be addressed to the person for each party identified in the Order Form.
11.2 Choice of Law. 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. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). Any claim against Verostone must be brought within twelve (12) months of the first occurrence giving rise to such claims, or such claims will be forever barred.
11.3 Assignment. Customer may not assign this Agreement or any of Customer’s rights or obligations hereunder, whether by operation of law or otherwise, without Verostone’s prior written consent (not to be unreasonably withheld). Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.4 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
11.5 Third-Party Beneficiaries. The provisions of this Agreement are intended solely for the benefit of the Parties and shall create no rights or obligations enforceable by any third party, except for an affiliate of Verostone.
11.6 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and will be interpreted, to the extent possible, to achieve the purposes as originally expressed in the invalid, illegal or unenforceable provision.
11.7 Right to List As A Customer. Customer agrees that Verostone may utilize Customer’s entity name, and logos, and a brief, general description of the Parties’ engagement in Verostone’s marketing material or in listings of customers.
11.8 Force Majeure. Verostone shall not be liable for any default or delay in the performance of its obligations due to any causes beyond its reasonable control. In such event, Verostone shall be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and Verostone continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without undue delay.
11.9 Construction. The headings of sections of this Agreement are for reference purposes only and have no substantive effect. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation”.
11.10 Entire Agreement. This Agreement and the Order Form constitute the entire agreement between Customer and Verostone regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, whether written or oral. Except as otherwise provided in this Agreement, each Party shall be responsible for all expenses incurred by it in connection with the negotiation, execution, and performance of this Agreement. Except as otherwise specified in this Master Agreement or in an Order Form payment obligations are non-cancellable and fees paid are non-refundable. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. The Parties agree that any term or condition stated in a Customer purchase order or in any other of Customer order documentation (excluding Order Forms) is void. The rule of construction that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or of any amendments to this Agreement.