Master Services Agreement
1. Parties.
(i) Shephard Press Ltd incorporated and registered in England and Wales with company number 01517026 whose registered office is at 78-79 Pall Mall, London, SW1Y 5ES (Shephard Group); and
(ii) the company shown on an Order Form (the Customer)
each a Party, and together the Parties.
2. Background.
2.1 Shephard Group provides various platforms and services to customers and their Authorised Users (as defined below).
2.2 The Customer would like to access Shephard Group’s platform and services.
2.2 Shephard Group has agreed to provide, and the Customer has agreed to purchase, access to the platform and services as set out on the terms of this Agreement.
3. Definitions.
Words and expressions used in this Agreement shall have the following meaning:
3.1 Affiliate means, with respect to any legally recognisable entity, any other entity Controlling, Controlled by, or under common Control with such entity. “Control” means direct or indirect (i) ownership of more than fifty percent (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity, or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity. An entity will be deemed an Affiliate only so long as Control exists.
3.2 Authorised User means an individual identified by the Customer as authorised to access the Platform and/or Services in accordance with this Agreement, and may include employees, contractors or customers of the Customer. The Order Form may specify a limit on the number of Authorised Users.
3.3 Commencement Date means, as appropriate, the date of signature of this Agreement, or the date payment has been received by Shephard Group for the Platform and Services set out in an Order Form.
3.4 Documentation means any training materials, specification and/or technical information regarding any Platform or Services provided by Shephard Group to the Customer, and all other information and instructions regarding the capabilities, operation, installation and access to the Platform and Services, as may be updated by Shephard Group from time to time.
3.5 Fees means the fees payable for access to the Platform and Services, as set out in an Order Form.
3.6 Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade 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 (including know-how) 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.
3.7 Order Form means any order form, in the form set out in Schedule One, entered into between the Parties which describes the Platform and/or Services to be provided by Shephard Group to the Customer.
3.8 Permitted Purpose means use solely for the Customer's business operations, which may include making access to the Platform or Services available to its Authorised Users, always in accordance with this Agreement.
3.9 Services means the services set out in an Order Form, or otherwise agreed in writing between the Parties, to be provided by Shephard Group to the Customer.
3.10 Platform means the platforms, including the Defence Insight platform, set out in an Order Form, or otherwise agreed in writing between the Parties, which Shephard Group allows the Customer to access in accordance with the terms of this Agreement.
Terms capitalised but not defined in these Terms shall have the meaning given to them in the relevant Order Form.
4. Application.
These terms and conditions (the Terms) apply to, and are deemed incorporated in, all Order Forms (the Terms and all such Order Forms together being, this Agreement). By executing an Order Form, the Customer agrees to be bound by this Agreement.
5. Commencement and Duration.
This Agreement is effective on and from the Commencement Date and shall continue for the initial term set out in an Order Form (the Initial Term). At any time during the first three months of the Initial Term, the Customer may terminate this Agreement on written notice to Shephard Group and, provided the Customer has accessed the Platform and Services reasonably, on termination, Shephard Group shall provide a prorated refund of prepaid Fees for the unused portion of the Initial Term. At the end of the Initial Term, this Agreement shall terminate, unless the Parties agree an extension to the Agreement in writing.
6. Services and Platform Licence.
6.1 In consideration for the Customer paying the Fees to Shephard Group, Shephard Group shall:
6.1.1 grant the Customer a non-exclusive, non-transferable licence, without the right to grant sublicences, to access and use the Platform during the Term solely for the Permitted Purpose; and
6.1.2 provide the Services to the Customer in accordance with this Agreement and in accordance with reasonable care and skill.
6.2 Shephard Group does not warrant that:
6.2.1 the Customer’s use of the Platform or the Services shall be uninterrupted or error free;
6.2.2 the Platform or the Services will meet the Customer’s requirements;
6.2.3 the Platform or the Services will be free from vulnerabilities or viruses; or
6.2.4 use of, or reliance on, the Platform or Services will produce any specific, pre-agreed results. Shephard Group is not liable for the consequences of the Customer or its End User’s relying on, or taking decisions based on, the output of the Platform or Services, which are designed for information purposes only.
6.3 This Agreement shall not prevent Shephard Group from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
6.4 Shephard Group warrants that it has, and will maintain, all necessary licenses, consents and permissions necessary for the performance of its obligations under this Agreement.
7. Authorised Users.
Shephard Group shall provide the Customer with a means to allow the Customer to make the Platform and Services available to its Authorised Users, subject always to those Authorised Users complying with (i) the terms of this Agreement, and/or (ii) any end user licence agreement required by Shephard Group from time to time. The Customer is responsible for the acts and omissions of its Authorised Users as if they were their own. Any amendment to the number of Authorised Users must be agreed in writing between the Parties.
8. Customer Obligations.
8.1 The Customer shall, and shall ensure that each Authorised User shall: provide Shephard Group with all co-operation, access and information as may be reasonably required by Shephard Group in order to provide the Platform and Services;
8.2. Obtain and maintain all necessary licenses, consents, permissions, authorisations, registrations and certifications required to enable the Customer and its Authorised Users to use the Platform and the Services in accordance with this Agreement; and
8.3 At all times and at its own expense comply with all laws and regulations that are applicable to its activities under this Agreement.
9. Restrictions.
9.1 The Customer shall not:
9.1.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
9.1.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or
9.1.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
9.1.1.3 access all or any part of the Platform or the Services in order to build a product or service which competes with the Platform or the Services; or
9.1.1.4 except as permitted under this Agreement, use the Platform, Services and/or Documentation to provide services to third parties; or
9.1.1.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform or the Services available to any third party except the Authorised Users, or
9.9.1.6 attempt to obtain, or assist third parties in obtaining, access to the Platform or the Services;
9.1.1.7 upload any sensitive personal data or confidential information to the Platform; or
9.1.1.8 introduce or permit the introduction of, any virus into the Platform of Shephard Group’s network or information systems.
9.2 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and the Services and, in the event of any such unauthorised access or use, promptly notify Shephard Group.
10. Payment.
10.1 Shephard Group shall invoice the Customer for the Fees in accordance with the schedule set out in the Order Form, or, annually in advance if the Order Form is silent as to invoicing. The Customer shall pay all invoices issued by Shephard Group within thirty (30) days of the invoice date (the Due Date) to a bank account nominated by Shephard Group from time to time. All Fees are exclusive of tax.
10.2 If the Customer has not paid the Fees by the due date then, without prejudice to any other rights and remedies of Shephard Group:
10.2.1 Shephard Group may, without liability to the Customer suspend access to the Platform and/or the Services for any period during which such amounts remain unpaid; and
10.2.2 interest shall accrue on a daily basis on any unpaid amounts an an annual rate equal to 4% over the current base lending rate of HSBC Bank Plc in the UK from time to time, commending on the due date and continuing until fully paid, whether before or after judgement.
10.3 Subject to clause 5, all amounts or Fees referred to in this Agreement are non-cancellable and non-returnable and are exclusive of value added tax, which will (if applicable) be added to the invoice at the applicable rate.
11. Intellectual Property.
11.1 The Customer acknowledges and agrees that Shephard Group and/or its licensors own all Intellectual Property Rights in the Platform, including all content made available via the Platform, and the Services and that each party shall retain ownership of all Intellectual Property Rights owned or used by it prior to the date of this Agreement (“Background IP”). Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Platform or the Services.
11.2 Any new Intellectual Property Rights that arise out of, or in connection with, this Agreement (“Foreground IP”) shall be owned by Shephard Group, and Shephard Group hereby grants the Customer a non-exclusive, non-sublicensable licence to use the Foreground IP for the Permitted Purpose during the Term.
11.3 Shephard Group confirms that it has all the rights in relation to the Platform and the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11.4 Shephard Group warrants that the Customer’s use of the Platform and receipt of the Services, in accordance with the terms of this Agreement will not infringe the rights, including the Intellectual Property Rights of any third parties.
11.5 The Customer hereby grants Shephard Group a limited, revocable, non-exclusive, non-transferable, worldwide and royalty-free licence to use the Customer's name and trade mark in order to reference the Customer as a customer of on Shephard Group's website and sales and promotion material, including case studies.
11.6 Shephard Group may use any Customer feedback and suggestions for improvement relating to the Platform or Services without charge or limitation ('Feedback'). The Customer hereby assigns (or shall or procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Shephard Group at the time such Feedback is first provided to Shephard Group.
12. Non-Solicit
12.1 The Customer shall not, without the prior written consent of Shephard Group, at any time from the date of this Agreement to the expiry of six months after the termination of this Agreement, solicit or entice away from Shephard Group, or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of Shephard Group in relation to the provision of the Platform or Services.
13. Confidentiality.
13.1 Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 13.2.
12.2 Each party may disclose the other party's confidential information:
13.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13;
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
14. Data Protection.
14.1 Each Party shall comply with all laws relating to privacy, data protection and data security which apply to such Party or the Platform or Services (“Data Protection Laws”).
14.2 The Parties acknowledge that Shephard Group may process personal data relating to employees or contractors of the Customer (the "Customer Personal Data”) on behalf of the Customer in connection with this Agreement in order to meet its obligations under the Agreement. In relation to the Customer Personal Data, Shephard Group agrees that it shall:
14.2.1 process the Customer Personal Data only on the instructions of the Customer;
14.2.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Customer Personal Data and against accidental loss or destruction of, or damage to, the Customer Personal Data;
14.2.3 not transfer any Personal Data outside of the UK or EEA unless appropriate protections have been put in place by Shephard Group;
14.2.4 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 Laws; and
14.2.5 notify the Customer without undue delay on becoming aware of any breach of the Customer Personal Data.
15. Warranties.
15.1 Subject to the remainder of this Clause 15, Shephard Group warrants that (i) the Platform will operate materially in accordance with the Documentation and (ii) it will provide each of the Services with reasonable care and skill.
15.2 The Platform may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in software and that Shephard Group shall have no liability for any such delays, interruptions, errors or other problems.
15.3 The warranties in Clause 15.1 are subject to the limitations set out in below and shall not apply to the extent that any error in the Platform or Services arises as a result of (in whole or in part):
15.3.1 Incorrect operation or use of the Platform or Services by the Customer, any Affiliate or any Authorised User (including any failure to follow the Documentation);
15.3.2 use of any of the Platform or Services other than for the Permitted Purpose;
15.3.3 use of any Platform or Services with third party software or services or on equipment with which it is incompatible;
15.3.4 reliance on contributions, commentary or other materials made available as part of the Platform or Services, which are provided for information only and should not be construed as professional advice;
15.3.5 any act by any third party (including hacking or the introduction of any virus or malicious code);
15.3.6 any modification of Platform or Services (other than that undertaken by Shephard Group or at its direction); or
15.3.7 any breach of this Agreement by the Customer (or by any Affiliate or Authorised User).
15.4 Other than as set out in this Agreement, and subject to Clause 16, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
16. Liability.
16.1 Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence, or for fraudulent misrepresentation.
16.2 Subject to Clause 16.1:
16.2.1 Shephard Group shall not be liable, whether in contract (including under any indemnity), in tort (including negligence), under statute or otherwise, under or in connection with this Agreement, for any loss of profit, loss of sales or business, loss of anticipated savings, loss of use, unavailability or corruption of software, loss of or damage to goodwill, pure economic loss or for any special, indirect or consequential loss howsoever arising; and
16.2.2 Shephard Group's total aggregate liability under or in connection with this Agreement shall be limited to the total value of the Fees paid or payable to Shephard Group by the Customer in the twelve (12) months prior to the first event that gave rise to the relevant cause of action.
16.3 The Customer shall indemnify and hold Shephard Group harmless for any losses, damages, costs and expenses incurred by Shephard Group in relation to any third party claim brought or threatened against Shephard Group as a result of the Customer’s use of the Platform or the Services, other than in accordance with this Agreement.
17. Termination.
17.1 Termination of an Order Form. Either Party may terminate an Order Form in accordance with its terms. Termination of an Order Form does not affect the validity of this Agreement.
17.2 Termination of entire Agreement
17.2.1 For convenience. Subject to any conflicting terms in an Order Form, either Party may terminate this Agreement, together with any associated Order Forms, for convenience, by giving the other Party not less than ninety days’ prior written notice, to expire at the end of the Initial Term or, if applicable, the then current Renewal Term.
17.2.2 For cause. Either Party may terminate this agreement or an Order Form (the Terminating Party) with immediate effect by giving written notice to the other Party (the Terminated Party) if: (i) the Terminated Party commits a material breach of this agreement (which includes non-payment of any amount by the due date for payment), which has not been remedied within ten (10) days of being notified in writing of the material breach; (ii) the Terminated Party repeatedly breaches any of the terms of this Agreement; or (iii) the Terminated Party is unable to pay its debts, or becomes insolvent, or goes into administration, or is subject to any analogous event or proceeding in any applicable jurisdiction.
18. Subcontracting.
Shephard Group shall be entitled to engage subcontractors to deliver the Services on its behalf, without the Customer’s prior consent and shall be responsible for the acts and omissions of any sub-contractors as if they were their own.
19. Assignment.
The Customer shall not assign, any of its rights and obligations under this Agreement without Shephard Group’s prior written consent. Shephard Group may at any time assign, any or all of its rights under this Agreement.
20. Variation.
No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
21. Severance.
If any court or administrative body 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. The Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties' original commercial intention.
22. Force Majeure.
Except for the obligation to pay amounts due under this Agreement, neither Party will be liable for any failure or delay in the performance of its obligations under this Agreement due to any cause outside its reasonable control, including (but not limited to) acts of God, war, labour shortage or dispute, governmental act, failure of the internet, hosting provider, manufacturer or equipment failures, computer or malicious attacks, provided that the affected party notifies the other party in writing and uses its reasonable efforts to correct the failure or delay in performance.
23. Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings, representations and agreements between them relating to its subject matter. Each Party acknowledges that in entering into this Agreement it does not rely on, and 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. Nothing in this Clause 23 shall limit or exclude any liability for fraud.
24. No Partnership or Agency.
Nothing contained in this Agreement shall be deemed to constitute the relationship of principal and agent nor partnership as between Shephard Group and the Customer or any of its agents or representatives. The Customer (including its employees, agents, representatives and contractors) shall not hold themselves out as agents of Shephard Group or do anything which might cause the Customer, its agents, representatives and contractors to be taken by third parties as acting as an agent or agents of Shephard Group.
25. Third-Party Rights.
This agreement is made for the benefit of the Parties and (where applicable) their successors and permitted assigns and is not enforceable by any person who is not a party to it, including Authorised Users.
26. Notices.
Any notice or other communication given to a Party under or in connection with this Agreement shall be in writing and shall be: (i) delivered by hand or by pre-paid first-class post or other next business day delivery service at its registered office or its principal place of business; or (ii) sent by email to the address specified by each Party to the other from time to time.
27. Governing Law and Jurisdiction.
27.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
27.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation
