Master Services Agreement (the “Agreement”)
This Agreement sets out the terms and conditions (the “Conditions”) on which the Supplier (either Edison 365 Inc a Delaware corporation having its principal place of business at 33410 SE Redmond Fall City Road, PO Box 336, Fall City WA 98024 or Edison 365 Limited incorporated and registered in England and Wales with company number 11278591 whose registered office is at Jubilee House, Third Avenue, Marlow, Buckinghamshire, SL7 1EY as more fully set out in the Statement of Work) will provide the Client (the entity as set out in the Statement of Work or Quotation) the services as set out in a Statement of Work or Quotation which shall be sent under separate cover (“Services”).
These Conditions apply to the Agreement and any agreed Statement of Work or quotation (the "Statement of Work”) to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, save for any executed Standard Contractual Clauses (SCCs) where relevant and the Client’s use of the software solution known as edison365 (the “Software”) which shall be governed by the End User Licence Agreement (such terms shall be sent separately).
|1||Order of Precedence|
|2||Supply of Services|
|5||Term and termination|
|6||Consequences of termination|
|7||Limitation of liability|
The parties agree, in consideration of the parties' respective obligations under this Agreement, as follows:
1. Order of Precedence
1.1 In the event of any conflict or inconsistency between the Clauses of this Agreement, and the Statement of Work (including any changes made to each document), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:
- Statement of Work;
- the Clauses in this Agreement.
2. Supply of Services
2.1 Commencing on the date specified above, the Supplier shall perform the Services in accordance with this Agreement. In supplying the Services, the Supplier agrees that:
- it shall supply the Services to the Client in accordance with the agreed Statement of Work in all material respects;
- it shall determine where the location of the Services shall be delivered unless agreed to in the relevant Statement of Work;
- it shall use commercially reasonable endeavours to meet any performance timelines specified under a Statement of Work but any such timelines shall be estimates only and time shall not be of the essence for the performance of the Services;
- it warrants to the Client that the Services will be provided using reasonable care and skill; and
- in the event the Client identifies any non-conformity with the Services, the Client shall promptly notify the Supplier of any such non-conformities and the Supplier shall rectify the non-conformity within a reasonable time frame from the date the Supplier received the complaint; and
2.2 it will comply with all applicable laws, statutes, regulations from time to time in force.
2.3 Either party may request changes to any Statement of Work (in each case, a “Change Request”). Any Change Request shall be made in writing (including email) and sent to the Client representative or Supplier representative, as appropriate and shall set out the change in sufficient detail so as to enable the other party to make a proper assessment of such change. Any agreed to changes shall continue to be subject to these Conditions.
2.4 Neither party shall be required to accept any Change Request made by the other party and shall not be bound by the Change Request unless it has been agreed in writing as set out above.
3. Client's obligations
3.1 The Client shall:
- co-operate with the Supplier in all matters relating to the Services;
- provide the Supplier with access to appropriate members of the Client's staff and equipment, as such access is reasonably requested by the Supplier, in order for the Supplier to perform the Services;
- provide such information, documentation and data as the Supplier may reasonably request in order for the Supplier to perform the Services in a timely manner;
- appoint a designated primary contact who manages any escalation and who shall be the key person for the Supplier to co-ordinate with;
- adhere to the dates scheduled for provision of Services by the Supplier to the Client as stated in the applicable Statement of Work or otherwise agreed between the parties in writing. In the event the Client wishes to reschedule or cancel the dates for the provision of Services, liquidated damages (“Liquidated Damages”) will become payable from the Client to the Supplier on the following basis:
- if dates are changed or cancelled at the Client’s request more than seven (7) days before the scheduled start date no Liquidated Damages are payable;
- if dates are changed or cancelled between seven (7) days and two (2) days before the scheduled start date Liquidated Damages equivalent to fifty percent (50%) of the Fees (as defined in Clause 4 below) for the Services to be provided at that time will be payable;
- if dates are changed or cancelled less than two (2) days before the scheduled start date Liquidated Damages equivalent to one hundred percent (100%) of the Fees (as defined in Clause 4 below) for the Services to be provided at that time will be payable.
3.2 If the Supplier considers that the Client is not, or may not, be complying with any of the Client's obligations, it shall be entitled to rely on this as relieving the Supplier's performance under the Agreement if the Supplier, promptly after the actual or potential non-compliance has come to its attention, has notified details of it to the Client in writing.
4.1 It is agreed that:
- the Client shall pay to the Supplier the fees, costs, expenses or other costs in accordance with any agreed Statement of Work (the Fees). Unless otherwise agreed, the Fees are exclusive of any value added tax and travel related expenses; and
- invoices will be raised as set out in the relevant Statement of Work. All invoices shall be payable thirty (30) days from date of invoice unless otherwise set out in the Statement of Work and time for payment shall be of the essence under this Agreement. In the event of any undisputed invoices not being paid by the Client after given 30 days after notice of any such delays, the Supplier reserves the right to suspend or terminate the Services; and
- the Supplier shall obtain the Client's approval before incurring any other costs in relation to the Services, other than costs that are stated in the applicable Statement of Work which are deemed to have been approved by the Client in advance. The Supplier shall provide the Client, at the Client’s request, with receipts for all expenses submitted for reimbursement.
4.2 The Supplier reserves the right, on giving the Client 30 days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date. If the Client does not agree with this increase, then they may terminate this Agreement upon 30 days written notice and before such price increase takes effect. If the Supplier does not receive written notice within thirty (30) days, the Client is deemed to have agreed to the amendment to the Fees.
4.3 If the Client fails to pay any amount properly due and payable within such period, the Supplier shall have the right to charge interest on the overdue amount at a rate of 4 per cent per annum above Revolut Bank Plc base rate, accruing on a daily basis from the due date up to the date of actual payment.
5. Term and Termination
5.1 The Agreement shall commence 24 hours prior to the commencement of work (“Commencement Date”) for a period of 12 months unless otherwise set out in the applicable Statement of Work (“Initial Term”) and shall continue in force unless and until terminated in accordance with the provisions of this Agreement or of any Statement of Work as applicable.
5.2 The Agreement shall, unless terminated earlier in accordance with the Conditions, automatically be extended for successive twelve (12) month periods (“Extended Term”) at the end of the Initial Term and at the end of each Extended 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 Extended Term, to terminate the Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
5.3 Without prejudice to any rights that the parties have accrued under the Agreement, or as set out elsewhere in these Conditions or any of their respective remedies, obligations or liabilities, either party may terminate the Agreement and applicable Statement of Work (which is subject to the event listed below) with immediate effect by giving written notice to the other party if:
- the other party commits a material breach (including payment obligations) of any material term of the 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 suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
6. Consequences of Termination
6.1 If this Agreement terminates in accordance with Clause 5 (and only in such circumstances), then subject to the total Fees incurred, the Client will pay the Supplier, any costs that have been actually and properly incurred by the Supplier prior to the date of termination and/or as otherwise specified by the Supplier to the Client as being payable, unless otherwise agreed:
6.2 The Supplier will, if requested by the Client, provide to the Client a copy of any materials created as part of the Services.
7. Limitation of Liability
7.1 Nothing in this Agreement shall limit or exclude either party’s liability for:
- death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
- fraud or fraudulent misrepresentation made by that party on which the other party can be shown to have relied.
7.2 Subject to Clause 7.1, the Supplier shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill; and
- any indirect or consequential loss.
7.3 Subject to Clause 7.1, the parties’ total liability to the other, whether in contract, tort (including negligence), breach of its statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to one hundred per cent (100%) of the total Fees incurred under this Agreement.
8. Data Protection
8.1 For the purposes of this Agreement,
Applicable Laws means (a) to the extent the UK Data Protection Legislation applies, the law of the United Kingdom or of a part of the United Kingdom; (b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject.
Applicable Data Protection Laws means (a) to the extent the UK Data Protection Legislation applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Commissioner means the Information Commissioner (see section 114, DPA 2018).
Client Personal Data means any personal data which the Supplier processes in connection with this agreement, in the capacity of a processor on behalf of the Client.
EU GDPR means the General Data Protection Regulation ((EU) 2016/679).
Purpose means the purposes for which the Client Personal Data is processed, as set out in Schedule 1.
Standard Contractual Clauses (SCCs) means the European Commission’s Standard Contractual Clauses for the transfer of personal data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2019/87/EU
UK Data Protection Legislation means 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; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
UK GDPR means the EU GDPR as it applies in the UK after the end of the transition period (as set out in Article 126 of the EU-UK Withdrawal Agreement) by virtue of section 3 of the European Union (Withdrawal) Act 2018.
The terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK Data Protection Legislation.
8.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This Clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
8.3 The parties have determined that, for the purposes of Applicable Data Protection Laws, the Supplier shall process the personal data set out in Schedule 1, as a processor on behalf of the Client.
8.4 Without prejudice to the generality of Clause 8.2, 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 the Supplier for the duration and purposes of this Agreement.
8.5 In relation to the Client Personal Data, Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
8.6 Without prejudice to the generality of Clause 8.2 the Supplier shall, in relation to Client Personal Data:
- process that Client Personal Data only on the documented instructions of the Client, unless the Supplier is required by Applicable Laws to otherwise process that Client Personal Data. Where the Supplier is relying on Applicable Laws as the basis for processing Client Personal Data, the Supplier shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Client on important grounds of public interest. The Supplier shall inform the Client if, in the opinion of the Supplier, the instructions of the Client infringe Applicable Data Protection Laws;
- implement appropriate the technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are 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;
- ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
- assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client's cost and written request, in responding to any request from a data subject and in ensuring the Client's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- 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 to the Client on termination of the Agreement unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this Clause 8.6(f) Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
- maintain records to demonstrate its compliance with this Clause 8 and allow for reasonable audits by the Client or the Client's designated auditor, for this purpose, on reasonable written notice.
8.7 The Client hereby provides its prior, general authorisation for the Supplier to:
- appoint processors to process the Client Personal Data, provided that the Supplier:
- shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this Clause 8;
- shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
- shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
- transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. To the extent that any personal data transferred between the Client and the Supplier requires execution of SCCs in order to comply with the UK Data Protection Legislation, the parties will complete all relevant details in, and execute the SCCs, and take all other actions required to legitimise the transfer. Such SCCs once executed shall form part of this Agreement.
- appoint processors to process the Client Personal Data, provided that the Supplier:
9.1 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 except for the purposes intended by the relevant Statement of Work.
9.2 To the extent necessary to implement the provisions of any Services, each party may disclose confidential information to its employees, agents, sub-contractors and professional advisers, in each case under the same conditions of confidentiality as set out in Clause 9.1.
9.3 The obligations of confidentiality set out in this Clause shall not apply to any information or matter which: (i) is in the public domain other than as a result of a breach of the Agreement; (ii) was in the possession of the receiving party prior to the date of receipt from the disclosing party or was rightfully acquired by the receiving party from sources other than the disclosing party; (iii) is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or (iv) was independently developed by the receiving party without use of or reference to the confidential information.
9.4 For purposes of this Agreement confidential information shall mean 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 the 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.
9.5 Subject to Clause 9.6 below, on creation by the Supplier and upon the Supplier receiving undisputed payment in full, all intellectual property rights in bespoke materials or code created under the Services (Bespoke IPR) for the Client shall vest automatically in the Client. The Supplier hereby assigns to the Client its present and future rights and full title and interest in such creations, including but not limited to workflows, widgets, business processes, and customised web coding which are used in order to provide the Services. The Client hereby provides an irrevocable, worldwide, royalty-free licence to the Supplier for the duration of this Agreement to use such Bespoke IPR strictly for the purposes of providing the Services.
9.6 Notwithstanding Clause 9.5 above, the Supplier shall retain exclusive ownership of (i) all of its pre-existing intellectual property (Background Materials); and (ii) ideas, concepts, techniques and know-how discovered, created or developed by the Supplier during the performance of the Services that are of general application and that are not based on or derived from the Client’s business or the Client’s confidential information (General IP) together with the Background Materials, (the Supplier’s Intellectual Property). The Supplier grants to the Client a non-exclusive, irrevocable, worldwide royalty free and non-transferable license to use the Supplier’s Intellectual Property.
9.7 For the purposes of this Agreement intellectual property rights shall mean, all patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information, 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.
9.8 Notwithstanding the above, the Client’s use of the Software shall be governed by the EULA (which shall be set out under separate cover).
Third Party Issues
9.9 The Supplier expressly excludes any liability to the Client in the event the Services fail to operate due to any actions and/or omissions of any third parties not within the Supplier’s control, including without limitation Microsoft products and services.
9.10 The relevant Statement of Work shall specify the Services that are to be subject to acceptance testing (“Acceptance Testing”) and provide a framework for the nature of the testing that will be required.
9.11 In relation to any Acceptance Testing:
- The Client shall have a reasonable period of time, up to five (5) business days unless otherwise specified in the Statement of Work, from the Supplier’s delivery of each deliverable under the relevant Statement of Work (the “Acceptance Period”) to confirm that such deliverable conforms to the acceptance criteria as agreed between the parties (collectively, the “Acceptance Criteria”). If the Client determines that a deliverable does not conform to the Acceptance Criteria, the Client shall by the last day of the Acceptance Period provide to the Supplier an issues list of the non-conformities to the Acceptance Criteria.
- The Client shall use best efforts to correctly and efficiently ensure appropriate Acceptance Testing in relation to any deliverable which is subject to Acceptance Tests and shall notify the Supplier within the Acceptance Period if any of the deliverables do not conform to the Acceptance Criteria. In the event that the Client:
- has undertaken the Acceptance Testing within the Acceptance Period and fails to reject any deliverable within the relevant Acceptance Period; or
- commences live running of the whole or part of such deliverable other than in the course of undertaking Acceptance Testing,
- for all purposes under this Agreement, such deliverable shall be deemed accepted as if the Client had issued a written acceptance thereof.
- If there are any non-conformities within any deliverable, which have been highlighted by Client or the Supplier during the Acceptance Period and whereby the deliverable has not been accepted by the Client for this reason and such non-conformity is directly attributable to any act or omission on the part of the Supplier, the Supplier shall (without prejudice to the Client’s other rights and remedies) carry out all necessary remedial work without additional charge as part of the next deliverable which shall accordingly be modified. In the event of any such remedial work, the Client shall have up to two (2) Business Days unless otherwise agreed by the Supplier (the “Retest Period”) to confirm that the deliverable meets the Acceptance Criteria. If the Client fails to notify the Supplier of any issues within the Retest Period, that deliverable shall be deemed accepted.
No partnership or agency
9.12 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any part of the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Entire agreement and counterparts
9.13 This Agreement, the EULA (if applicable) and any executed SCCs, constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
9.14 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
9.15 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this paragraph shall not affect the validity and enforceability of the rest of this Agreement.
Third party rights
9.16 No one other than a party to this Agreement shall have any right to enforce any of its terms.
9.17 Neither party to this Agreement shall be deemed to be in breach of this Agreement or any Statement of Work, or otherwise liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under this Agreement or any Statement of Work due to a force majeure event. For the purposes of this Agreement, force majeure means any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including, without limitation, act of God, war, pandemic, epidemic, riot, civil commotion, compliance with any law or governmental order, rule, regulation or direction, flood or storm, save that strike or lock out of the party’s own staff shall not entitle them to claim that to be a force majeure event (“Force Majeure”).
9.18 A party shall only be entitled to claim relief under this Clause if it:
- informs the other party as soon as reasonably possible that an event of Force Majeure has occurred; and
- uses all reasonable endeavours to recommence the performance of its obligations in accordance with these Conditions and any affected Statement of Work as soon as possible and keeps the other party informed as to progress and the estimated dates on which that party will be able to recommence full performance of its obligations.
9.19 In the event that the Supplier is unable to provide any Services in accordance with the requirements of these Conditions and any relevant Statement of Work due to an event of Force Majeure, the Fees payable under each affected Statement of Work shall be subject to a pro-rata reduction so that the Client is not required to pay for any Services which are not performed due to that event of Force Majeure.
9.20 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 sent by email, delivered by hand or sent by pre-paid first class post or other next working day delivery service, at its registered office (if a company) or (in any other case) its principal place of business.
9.21 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
9.22 This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this Clause, “writing” shall include e-mail.
9.23 The Client shall not solicit the Supplier’s staff or contractors who have been employed or engaged in the Services or the performance of the Agreement during the lifetime of the Agreement and for a period of twelve (12) months thereafter. For the purposes of this Clause ‘solicit’ means the soliciting of such person with a view to engaging such person as an employee, director, sub contractor or independent contractor.
9.24 In the event that the Client is in breach of Clause above then the Client shall pay to the Supplier by way of liquidated damages an amount equal to thirty percent (30%) per cent of the gross annual budgeted fee income (as at the time of the breach or when such person was last in the service of the relevant party) of the person so employed or engaged. This provision shall be without prejudice to the Supplier’s ability to seek injunctive relief
9.25 The parties hereby acknowledge and agree that the formula specified in Clause 9.24 above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.
Governing law and Jurisdiction
9.26 United States and Canada. If you acquired any Services in the United States or Canada, the laws of the state or province where you live (or, if a business, where your principal place of business is located) govern the interpretation of these terms, claims for breach of them, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles.
9.27 Outside the United States and Canada. If you acquired any Services in any other country, the laws of England and Wales apply and 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).
Schedule 1 – Particulars of Processing
Client third parties
Business contacts in general
Types of personal data
Date of birth
Place of birth
Any other personal data provided by Client to the Supplier
Special categories of personal data:
Purpose of processing
In the case of data subjects other than staff: for the purpose of providing IT services and support to Client’s business.
In the case of staff: for the purpose of providing IT services and support for Client’s employment and HR matters.
Nature of processing
As set out in the body of the Agreement.