1. Definitions and interpretation
1.1 Definitions
In this Agreement:
Acceptance means acceptance of a Deliverable in accordance with Section 6.
Acceptance Criteria means the criteria expressly identified in the applicable Statement of Work for acceptance of a Deliverable.
Acceptance Period means the period stated in the applicable Statement of Work for testing a Deliverable against the Acceptance Criteria.
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
Agreement means this Master Services Agreement together with each Statement of Work entered into under it and any document expressly incorporated by reference.
Bespoke Deliverable means a Deliverable expressly identified in a Statement of Work as intellectual property that will be assigned to Customer.
Business Day means a day other than Saturday, Sunday, or a United States federal banking holiday.
Change means an agreed change to the Services, Deliverables, Charges, schedule, assumptions, dependencies, or other terms of a Statement of Work.
Charges means the fees and other charges payable by Customer under a Statement of Work or this Agreement.
Confidential Information means non-public information disclosed by or on behalf of one party to the other that is identified as confidential or that a reasonable person would understand to be confidential, including technical, operational, commercial, financial, product, security, and customer information.
Customer Dependency means any access, information, decision, approval, permission, license, personnel, maintenance window, Customer system, Customer supplier dependency, or other dependency for which Customer is responsible.
Customer Materials means data, content, documentation, code, credentials, specifications, systems access, and other materials provided by or on behalf of Customer for use in providing the Services.
Data Protection Laws means United States federal and state privacy, data protection, data security, and breach-notification laws applicable to Personal Information processed in connection with the Services.
Deliverables means work product expressly identified as a deliverable in a Statement of Work.
Intellectual Property Rights means all intellectual property and proprietary rights anywhere in the world, whether registered or unregistered, including copyrights, patents, trademarks, service marks, trade secrets, rights in software, domain names, database rights, and know-how, together with applications, renewals, and extensions of those rights.
Personal Information means information regulated as personal data, personal information, or an equivalent term under applicable Data Protection Laws.
Service Levels means service levels, support targets, or service commitments stated in a Statement of Work or SLA incorporated into it.
Services means managed services, platform services, cloud services, support, professional services, and related services described in a Statement of Work.
Statement of Work or SOW means a written statement of work signed by both parties setting out Services, Deliverables, Charges, and applicable service-specific terms.
Supplier Materials means all software, scripts, tools, templates, frameworks, modules, methodologies, processes, documentation, know-how, and other Intellectual Property Rights owned, developed, or controlled by Supplier other than a Bespoke Deliverable expressly assigned to Customer, including improvements, derivatives, and reusable developments.
Third Party Products means third-party software, services, infrastructure, or other products used in connection with the Services.
Unsupported Technology means technology that is end-of-life, end-of-support, no longer receiving appropriate security updates, outside a supported vendor upgrade path, or otherwise reasonably considered by Supplier to create material additional operational, security, or support risk.
1.2 Interpretation
Headings are for convenience only.
References to laws include amendments, replacements, and successor provisions.
"Including" and similar terms mean "including without limitation."
References to writing include email except where this Agreement expressly requires a formal Notice.
1.3 Contract hierarchy
If there is a conflict between this Agreement and a Statement of Work, SLA, or other service document, this Agreement controls unless that document:
(a) expressly identifies the Section of this Agreement being varied; and
(b) expressly states that it overrides that Section.
A Data Processing Addendum agreed between the parties controls solely to the extent of a conflict concerning processing of Personal Information.
2. Statements of Work
2.1 The parties may enter into one or more Statements of Work under this Agreement.
2.2 A Statement of Work is not binding until signed by both parties.
2.3 Each Statement of Work is incorporated into and governed by this Agreement.
2.4 Neither party is required to enter into any additional Statement of Work.
3. Services and Deliverables
3.1 Supplier will provide the Services and Deliverables described in each Statement of Work.
3.2 Unless expressly stated to be binding in the applicable Statement of Work, schedules, milestones, and delivery dates are estimates.
3.3 Supplier will perform the Services in a professional and workmanlike manner using personnel with appropriate skills and experience.
3.4 Supplier may use Affiliates, subcontractors, and service providers to perform the Services. Supplier remains responsible for performance of its contractual obligations.
3.5 Appointment and use of subprocessors for Personal Information will be governed by the applicable Data Processing Addendum and Data Protection Laws.
4. Support Services and Service Levels
4.1 Where support Services apply, the applicable support coverage, response targets, service windows, maintenance windows, escalation routes, and other Service Levels will be stated in the relevant Statement of Work or incorporated SLA.
4.2 Service Levels do not apply to the extent a Service Level failure is caused by:
(a) a Customer Dependency;
(b) an act or omission of Customer or a person acting on its behalf;
(c) an unauthorized change to a system or Service;
(d) a Third Party Product or third-party service outside Supplier's reasonable control;
(e) Unsupported Technology;
(f) Customer delaying, declining, or restricting a recommended maintenance activity, upgrade, patch, configuration change, or remediation; or
(g) scheduled or emergency maintenance carried out in accordance with the applicable Statement of Work or SLA,
unless the applicable Statement of Work expressly allocates responsibility for the relevant dependency or event to Supplier.
4.3 Any exclusion under Section 4.2 applies only to the extent the relevant event caused or contributed to the Service Level failure.
5. Customer responsibilities and dependencies
5.1 Customer will:
(a) reasonably cooperate with Supplier;
(b) provide timely decisions, approvals, instructions, and information;
(c) provide the access, credentials, permissions, personnel, and maintenance windows reasonably required to provide the Services;
(d) ensure Customer Materials are accurate, complete, and lawful;
(e) obtain and maintain all rights, licenses, and permissions necessary for Supplier to use Customer Materials and access Customer systems;
(f) keep credentials and access mechanisms under its control secure;
(g) comply with applicable law and applicable Documentation; and
(h) promptly consider reasonable recommendations made by Supplier concerning upgrades, patches, lifecycle changes, maintenance, security, resilience, or remediation.
5.2 Where a Customer Dependency is delayed, unavailable, or not satisfied:
(a) Supplier is not responsible for affected delay, failure, or non-performance to the extent caused by that Customer Dependency;
(b) affected dates and milestones will be extended to reflect the impact;
(c) affected Service Levels will not apply;
(d) Supplier may reasonably re-plan affected work; and
(e) additional work or cost reasonably caused by the Customer Dependency may be charged at the applicable rates.
5.3 Unless otherwise stated in a Statement of Work, a Customer Dependency does not suspend recurring Charges for Services that remain available or resources committed to providing them.
6. Acceptance
6.1 This Section applies only where a Statement of Work expressly states that a Deliverable is subject to Acceptance.
6.2 The applicable Statement of Work will state the Acceptance Criteria and Acceptance Period.
6.3 During the Acceptance Period, Customer will test the Deliverable against the Acceptance Criteria and notify Supplier of any material non-conformity with reasonable supporting detail.
6.4 Where a Deliverable is validly rejected, Supplier will use commercially reasonable efforts to correct the material non-conformity and resubmit the affected Deliverable.
6.5 A Deliverable will be deemed accepted on the earliest of:
(a) written acceptance by Customer;
(b) productive or live use of the Deliverable other than for agreed testing; or
(c) expiration of the Acceptance Period without a valid rejection.
6.6 Managed, subscription, and ongoing support Services are not subject to Acceptance unless the Statement of Work expressly states otherwise.
7. Unsupported Technology and Customer risk decisions
7.1 Supplier may notify Customer that technology used in connection with the Services has become Unsupported Technology.
7.2 Where Customer elects to continue using Unsupported Technology, Supplier may on reasonable notice:
(a) limit or modify the applicable support scope;
(b) modify or exclude affected Service Levels;
(c) require reasonable additional operational or security controls;
(d) apply an Unsupported Technology Surcharge reflecting additional cost, complexity, or risk; and
(e) require an appropriate remediation or upgrade plan.
7.3 The amount of any Unsupported Technology Surcharge will be stated in the applicable Statement of Work, agreed Change, or applicable rate card.
7.4 Where Supplier recommends an upgrade, patch, maintenance activity, configuration change, lifecycle change, or security or resilience remediation and Customer delays, declines, or restricts it, Supplier is not responsible for failure, degradation, vulnerability, incompatibility, delay, or interruption to the extent caused by that decision.
7.5 Supplier may cease supporting Unsupported Technology or an affected part of the Services where continued support creates a material security, legal, or operational risk that cannot reasonably be mitigated.
8. Charges and payment
8.1 Supplier will invoice Charges as stated in the applicable Statement of Work.
8.2 Unless otherwise stated in the Statement of Work, invoices are due within 30 days after the invoice date.
8.3 Charges exclude sales, use, gross receipts, withholding, excise, and similar taxes imposed in connection with the Services. Customer is responsible for applicable taxes other than taxes imposed on Supplier's net income.
8.4 If Customer disputes an invoice in good faith, it must promptly notify Supplier with reasonable details. Customer must pay all undisputed amounts when due.
8.5 Supplier may charge interest on overdue undisputed amounts at 1% per month or the maximum lawful rate, whichever is lower.
8.6 Neither party may set off amounts due under this Agreement against another claim except where required by law.
Price changes
8.7 Supplier may change recurring Charges with effect from a renewal or extension of a Statement of Work by giving at least 30 days' written notice.
8.8 Where a Statement of Work continues after a minimum term without a defined renewal date, Supplier may change recurring Charges on an anniversary following the minimum term by giving at least 30 days' written notice.
8.9 Supplier may adjust Charges during a Statement of Work to reflect increases in costs charged to Supplier by providers of Third Party Products or third-party services where those increases are reasonably attributable to the Services.
8.10 Supplier will give at least 30 days' notice of a change under Section 8.9 where reasonably practicable.
9. Suspension
9.1 Payment becoming overdue does not automatically result in suspension.
9.2 Subject to applicable law, where undisputed Charges remain overdue Supplier may, after giving reasonable notice, suspend all or part of the Services.
9.3 In deciding whether and to what extent to exercise its rights under Section 9.2, Supplier may reasonably take account of:
(a) the amount and duration of the arrears;
(b) Customer's payment history;
(c) whether Customer is communicating and engaging constructively;
(d) whether a credible payment plan has been agreed;
(e) the operational consequences of suspension; and
(f) whether partial suspension is proportionate.
9.4 Nothing in this Section requires Supplier to suspend Services merely because payment is overdue.
9.5 Supplier may separately suspend all or part of the Services where reasonably necessary to address:
(a) a material security risk;
(b) a material legal or regulatory risk;
(c) a serious operational risk; or
(d) emergency maintenance.
9.6 Supplier will use commercially reasonable efforts to give advance notice where practicable and to restore suspended Services once the circumstances giving rise to suspension have been resolved.
10. Change control
10.1 Either party may request a Change.
10.2 Supplier may assess the effect of a proposed Change on scope, timing, Charges, assumptions, dependencies, and Service Levels.
10.3 Where evaluating a Customer-requested Change requires material additional work, Supplier may charge for that evaluation where notified to Customer in advance.
10.4 No Change is effective until agreed in writing by authorized representatives of both parties.
10.5 An agreed Change forms part of the applicable Statement of Work.
11. Non-solicitation
11.1 During the period in which a Statement of Work is active and for 6 months afterward, neither party will knowingly solicit for employment or engagement an employee or individual contractor of the other party who was materially involved in the Services.
11.2 Section 11.1 does not prevent:
(a) general recruitment activity not specifically targeted at the relevant individual; or
(b) recruitment of a person who independently approaches the recruiting party without targeted solicitation.
12. Warranties and disclaimers
12.1 Each party represents and warrants that it has authority to enter into this Agreement.
12.2 Supplier warrants that:
(a) the Services will be performed in a professional and workmanlike manner;
(b) it will use personnel with appropriate skills and experience; and
(c) where Acceptance applies, Deliverables will materially conform to the applicable Acceptance Criteria at Acceptance.
12.3 Supplier does not warrant that:
(a) the Services, Third Party Products, or managed systems will operate uninterrupted or error-free;
(b) all vulnerabilities, faults, defects, or security incidents can be prevented; or
(c) a result dependent on Customer-controlled systems, Third Party Products, or Customer Dependencies will be achieved where those matters are outside Supplier's reasonable control.
12.4 Except for the express warranties stated in this Agreement, and to the maximum extent permitted by applicable law, the Services and Deliverables are provided without any other warranty, whether express, implied, statutory, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
13. Intellectual property
Customer Materials
13.1 Customer retains all right, title, and interest in Customer Materials.
13.2 Customer grants Supplier a non-exclusive license to use Customer Materials to the extent reasonably necessary to perform the Services and exercise its rights under this Agreement.
Supplier Materials and Deliverables
13.3 Supplier retains all right, title, and interest in Supplier Materials.
13.4 Unless a Statement of Work expressly identifies a Deliverable as a Bespoke Deliverable to be assigned to Customer, all Intellectual Property Rights in that Deliverable remain vested in Supplier.
13.5 Subject to payment of applicable Charges, Supplier grants Customer a non-exclusive license to use Supplier-owned Deliverables for the purposes contemplated by the applicable Statement of Work for the duration stated in that Statement of Work or, if no duration is stated, for the duration of the applicable Services.
Bespoke Deliverables
13.6 Where a Statement of Work expressly identifies a Deliverable as a Bespoke Deliverable to be Customer-owned, ownership of the Intellectual Property Rights in that Bespoke Deliverable will transfer to Customer upon full payment of all Charges attributable to it.
13.7 Upon that payment, Supplier assigns to Customer all of Supplier's right, title, and interest in the Intellectual Property Rights in the relevant Bespoke Deliverable to the extent capable of assignment and will execute reasonable further documentation necessary to confirm that assignment.
13.8 To the extent permitted by applicable law, Supplier waives and will procure the waiver of moral rights in a Bespoke Deliverable assigned under this Section to the extent reasonably necessary for Customer to exercise the assigned rights.
Embedded Supplier Materials
13.9 Supplier Materials do not transfer to Customer merely because they are incorporated into, used by, or required for a Bespoke Deliverable.
13.10 Supplier grants Customer a perpetual, worldwide, non-exclusive, royalty-free license to use, copy, and permit its service providers to use embedded Supplier Materials solely to the extent reasonably necessary to use and obtain the intended benefit of the Bespoke Deliverable for the purposes contemplated by the applicable Statement of Work.
14. Customer indemnity
14.1 Customer will defend, indemnify, and hold harmless Supplier and its Affiliates from third-party claims to the extent arising from:
(a) an allegation that Customer Materials supplied for use in the Services infringe that third party's Intellectual Property Rights;
(b) unlawful use of the Services by or on behalf of Customer; or
(c) a modification, combination, or instruction made or required by Customer that causes an infringement which would not otherwise have occurred.
14.2 The indemnity is conditional on Supplier:
(a) promptly notifying Customer of the claim;
(b) providing reasonable cooperation at Customer's expense; and
(c) allowing Customer reasonable control of the defense and settlement, provided no settlement imposes liability, admission, or non-monetary obligation on Supplier without its prior written consent.
14.3 The indemnity in this Section is subject to Section 19 unless expressly agreed otherwise.
15. Data protection
15.1 Each party will comply with Data Protection Laws applicable to it.
15.2 Where Supplier processes Personal Information on behalf of Customer, that processing will be governed by an applicable Data Processing Addendum.
15.3 The Data Processing Addendum will govern matters including processing instructions, security, subprocessors, assistance, assessments, retention, return or deletion, and any legally required data-transfer provisions.
16. Confidentiality
16.1 Each party will:
(a) keep the other party's Confidential Information confidential;
(b) use it only for exercising rights and performing obligations under this Agreement; and
(c) protect it using at least reasonable care.
16.2 A receiving party may disclose Confidential Information to its employees, officers, Affiliates, subcontractors, professional advisors, auditors, and insurers who need to know it and are subject to appropriate confidentiality obligations.
16.3 The obligations in this Section do not apply to information that the receiving party can demonstrate:
(a) is or becomes public other than through breach of this Agreement;
(b) was lawfully known without restriction before disclosure;
(c) is lawfully obtained from a third party without confidentiality restriction; or
(d) is independently developed without use of the disclosing party's Confidential Information.
16.4 A party may disclose Confidential Information where required by law, regulation, subpoena, court order, or competent governmental authority, provided it gives prior notice where legally permitted.
16.5 The obligations in this Section continue for 3 years after termination of the relevant Statement of Work or this Agreement, whichever is later.
16.6 Confidential Information constituting a trade secret will remain protected for so long as it qualifies for protection as a trade secret under applicable law.
17. Security assurance
17.1 Supplier will maintain commercially reasonable administrative, technical, and physical safeguards appropriate to the nature of the Services and information processed.
17.2 On reasonable request, Supplier may provide available independent certifications, assessment reports, or other appropriate evidence of its security program, subject to confidentiality and security restrictions.
17.3 Supplier will provide reasonable cooperation with proportionate Customer security due-diligence requests.
17.4 Direct Customer audit or assessment rights apply only where required by applicable law, an applicable Data Processing Addendum, or another express written agreement.
17.5 Where legally permitted, a direct audit will be subject to reasonable notice, scope, confidentiality, non-disruption, and security requirements and must not expose information relating to other customers.
18. Insurance
18.1 Supplier will maintain commercially reasonable insurance appropriate to the nature of its business and the Services.
18.2 On reasonable request, Supplier will provide reasonable evidence of relevant coverage.
19. Limitation of liability
19.1 Nothing in this Agreement excludes or limits liability to the extent liability cannot lawfully be excluded or limited.
19.2 Subject to Section 19.1, neither party will be liable for:
(a) lost profits;
(b) lost revenue;
(c) lost business opportunity;
(d) lost anticipated savings;
(e) lost goodwill; or
(f) indirect, incidental, special, exemplary, punitive, or consequential damages,
whether in contract, tort, strict liability, or otherwise, even if advised of the possibility of those damages, to the extent permitted by applicable law.
19.3 Without limiting Section 19.2, Supplier is not liable for failure, degradation, vulnerability, incompatibility, delay, or interruption to the extent caused by:
(a) a Customer Dependency;
(b) Customer delaying, declining, or restricting a recommended upgrade, patch, maintenance activity, configuration change, or remediation;
(c) Unsupported Technology;
(d) a Third Party Product or third-party dependency outside Supplier's reasonable control, except to the extent responsibility for that dependency is expressly assumed in the applicable Statement of Work; or
(e) Supplier complying with Customer's written instruction or Customer-imposed change restriction.
19.4 Subject to Section 19.1, each party's total aggregate liability arising out of or relating to a Statement of Work will not exceed 100% of the Charges paid or payable under that Statement of Work during the 12 months immediately preceding the event giving rise to the claim.
19.5 If the Statement of Work has been in effect for less than 12 months when the relevant event occurs, Section 19.4 will apply to the Charges paid or payable from commencement of that Statement of Work to the date of the event.
19.6 Where the same claim arises from more than one Statement of Work, the cap will be calculated by aggregating the amounts determined under Sections 19.4 and 19.5 for the affected Statements of Work.
19.7 The liability cap does not limit Customer's obligation to pay Charges properly due.
19.8 Where Supplier fails to comply with an obligation capable of remedy, Customer will give Supplier a reasonable opportunity to correct the failure or re-perform the affected Services before pursuing damages, except where that would be unreasonable in the circumstances.
20. Term and termination
20.1 This Agreement begins on the Effective Date and continues until terminated in accordance with this Section.
Framework termination
20.2 Either party may terminate this Agreement on 30 days' written Notice.
20.3 Termination under Section 20.2:
(a) prevents the parties entering into further Statements of Work under it; but
(b) does not terminate a Statement of Work then in effect.
20.4 This Agreement continues to apply to each active Statement of Work until that Statement of Work expires or terminates.
SOW termination
20.5 A Statement of Work may be terminated for convenience only as expressly provided in that Statement of Work.
Termination for cause
20.6 Either party may terminate this Agreement or an affected Statement of Work by Notice if the other party materially breaches it and, where the breach is capable of cure, fails to cure the breach within 30 days after receiving Notice requiring it to do so.
20.7 Subject to applicable law, Supplier may terminate an affected Statement of Work where material undisputed Charges remain overdue after reasonable notice and Customer has failed to cure the position.
20.8 Supplier may terminate an affected Statement of Work where continued performance creates a material security, legal, or operational risk that cannot reasonably be cured or mitigated.
20.9 Any insolvency or bankruptcy-related termination right may be exercised only to the extent permitted by applicable law.
Effect of termination
20.10 Termination does not affect accrued rights, liabilities, or Charges.
20.11 Each party will return or destroy the other party's Confidential Information on reasonable request, subject to legal retention obligations, routine backups, and surviving rights.
20.12 Rights and licenses expressly stated to be perpetual survive termination.
20.13 Return or deletion of Personal Information is governed by the applicable Data Processing Addendum.
20.14 Transition, migration, engineering, data export, or other exit assistance is not included unless stated in the applicable Statement of Work or separately agreed in writing and will otherwise be charged at Supplier's then-current rates.
21. Force majeure
21.1 Neither party is liable for delay or failure to perform caused by an event beyond its reasonable control, except for an obligation to pay Charges already due.
21.2 The affected party will promptly notify the other and use commercially reasonable efforts to mitigate the effects.
21.3 If the event materially prevents performance of an affected Statement of Work for 45 consecutive days, either party may terminate the affected Services on 30 days' written Notice.
22. Dispute resolution
22.1 Before commencing litigation relating to a dispute, a party will give the other a written notice describing the dispute.
22.2 The parties will first attempt in good faith to resolve the dispute through personnel responsible for the relevant relationship.
22.3 If unresolved within 15 Business Days, each party will appoint a senior representative with authority to settle the dispute.
22.4 If the senior representatives cannot resolve the dispute within a further 15 Business Days, either party may pursue available remedies.
22.5 Nothing in this Section prevents either party from seeking urgent injunctive or other equitable relief.
23. Compliance with laws
23.1 Each party will comply with laws applicable to its performance under this Agreement.
23.2 Each party will comply with applicable anti-bribery, anti-corruption, economic sanctions, and export-control laws, including applicable United States laws.
24. General
Assignment
24.1 Neither party may assign this Agreement or a Statement of Work without the other party's prior written consent, not to be unreasonably withheld or delayed, except that either party may assign it to an Affiliate or in connection with a merger, reorganization, acquisition, or sale of all or substantially all of the relevant business or assets.
Relationship
24.2 The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, fiduciary, or employment relationship.
No third-party beneficiaries
24.3 This Agreement does not create rights in any third party except as expressly stated.
Entire agreement
24.4 This Agreement and the applicable Statements of Work constitute the complete and exclusive agreement between the parties concerning their subject matter and supersede prior agreements, proposals, and representations relating to that subject matter.
24.5 Nothing in Section 24.4 excludes liability for fraud or fraudulent misrepresentation.
Amendment
24.6 Except for a Change made under Section 10, an amendment to this Agreement must be in writing and signed by authorized representatives of both parties.
Severability
24.7 If a provision is invalid or unenforceable, it will be modified to the minimum extent necessary to make it enforceable or, if that is not possible, severed without affecting the remaining provisions.
Waiver
24.8 Delay or failure to exercise a right does not waive that right.
Notices
24.9 A formal notice under this Agreement ("Notice") must be in writing and sent to the postal or email address stated in the Contract Details or later designated for that purpose.
24.10 Operational communications, support tickets, chat messages, and routine service emails do not constitute a Notice unless they expressly state that they are a formal Notice under this Agreement.
24.11 A Notice sent by email before 5:00 p.m. on a Business Day at the recipient's location is deemed received that Business Day, provided no delivery failure notification is received. Otherwise, it is deemed received on the next Business Day.
24.12 A Notice sent by nationally recognized overnight courier is deemed received when delivery is recorded by the courier.
Counterparts and electronic signatures
24.13 This Agreement may be executed in counterparts and by electronic signature, each of which will be treated as an original.
Survival
24.14 Provisions which by their nature are intended to continue after termination will survive, including provisions concerning accrued payment obligations, Intellectual Property Rights, confidentiality, indemnities, liability, data protection, dispute resolution, and governing law.
Governing law and jurisdiction
24.15 This Agreement and all claims arising out of or relating to it are governed by the laws of the State of Delaware, without regard to its conflict-of-laws principles.
24.16 The state and federal courts located in Delaware have exclusive jurisdiction over disputes arising out of or relating to this Agreement, and each party consents to personal jurisdiction and venue in those courts.