Master Services Agreement
This Master Services Agreement (“MSA”) with MOVE Guides Limited (company number 07185976) sets forth the terms governing MG provision of services and the relevant MG Portal(s) (the “MG Portal”) provided. By signing a Work Order, you (“Customer”) confirm that you have read and accept this MSA. Notwithstanding any different or additional terms, you may reference or provide, MG’s offer or acceptance (as applicable) to enter into an agreement with you with respect to MG applications and services is expressly limited to this MSA and conditioned on your asset thereto.
The details of the Services and any Deliverables (as defined in clause 5) to be provided by MG in accordance with this MSA shall be as set out and agreed by the Customer in a document or set of documents which shall be known as work orders ("Work Orders") or Statement(s) of Work ("SOW(s)").
No Services will be provided to the Customer unless and until a Work Order or SOW has been executed by both MG and Customer. Once agreed and executed by both parties, the Work Order or SOW will be treated as forming part of this MSA. If there is a conflict between the terms in a Work Order or SOW and this MSA, then to the extent of the conflict the terms of the relevant Work Order or SOW shall take precedence.
MG will provide all resources and equipment necessary for provision of Services, unless otherwise specified in an Work Order or SOW.
All fees payable to MG by the Customer will be as specified in the relevant Work Order or SOW (“MG Fees”) and shall be payable within the time periods set out in the relevant Order. Unless specifically stated otherwise in a Work Order or SOW, all fees will be exclusive of any VAT which may be payable.
Unless otherwise stated in the applicable Work Order or SOW, MG will invoice initial first year fees upon execution of the Work Order or SOW and these fees shall be due within 30 days of its receipt of a correct and undisputed invoice. Subsequent recurring fees shall be invoiced 30 days prior to the start of the following annual period and shall be payable within 30 days of receipt of the invoice.
Draw Down Deposit Payment Terms
Direct Bill Terms
If the Customer fails to pay any undisputed MG Fees, Program Spend or other fees payable in accordance with this agreement or any SOW or Work Order by the date on which they are due, MG will charge a 2% late fee on all unpaid amounts.
Professional Services such as Change Request and other non-recurring fees shall be invoiced when such Services are requested.
This MSA takes effect on the Effective Date. Unless terminated sooner in accordance with it terms, this MSA shall continue in force until terminated for convenience by either party upon not less than 90 days’ written notice to the other party, except that it shall remain in effect past such termination for the remaining term of any Work Order or SOW already in effect at the time of the notice.
The term of a SOW shall start on the start date, as indicated in the SOW and end on the date set out in the SOW.
The initial term of a Work Order shall start on its the start date, as indicated in such Work Order , and ends on the last day of its subscription term as set out on the Work Order (“Term.”) A Work Order shall automatically renew for the same subsequent terms equal to the Term unless either party notifies the other in writing of its intent not to renew at least 90 days prior to the expiration of the then current Term.
Either party may terminate this MSA and all uncompleted Work Order or SOW in effect with immediate effect by written notice (without prejudice to its other rights and remedies) if:
Termination of any Work Order or SOW will not have the effect of terminating the whole MSA or any other Work Order or SOW.
Upon expiry or termination of this MSA or any Work Order or SOW for whatever reason, MG shall cease to make the Services and applicable MG Portal(s) available to Customer and its employees, and the licences granted to Customer under clause 5 and 6 shall immediately cease without notice. Each party shall (at the other's election) return or destroy the other's Confidential Information. Customer shall pay to MG all undisputed MG Fees, and where applicable Program Spend incurred up until and including the month of termination. MG shall repay to the Customer any Customer monies remaining on account where the Program Spend had been financed through the Draw Down Deposit.
Termination of this MSA and any Work Order or SOW for any reason will not affect any accrued rights or liabilities which either party may have by the time termination takes effect or the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after termination.
All software, products, inventions, writings, documents and other materials created, conceived, prepared, made, discovered or produced by MG that are provided to Customer pursuant to a SOW or Work Order ("Deliverables") are granted to Customer during the Term on a non-exclusive, non-sub-licensable, non-assignable, revocable, worldwide license to use, receive and make available solely to the extent anticipated under this agreement and a corresponding SOW or Work Order.
All intellectual property rights (“IPR”) in the Services and MG Portal, including all content, source code and any data which is not provided by Customer and its employees (and all related databases) (“Data”), processes and materials therein, belongs, and shall continue to belong to MG (“MG IPR”). MG grants to Customer and its employees for the duration of the MSA a non-exclusive, non-sub-licensable, non-assignable, revocable, worldwide license to use, receive and make available the MG IPR solely to the extent anticipated under this MSA and any Work Order or SOW. Customer grants to MG a non-exclusive, non-sub-licensable, non-assignable, revocable, worldwide licence for the duration of this MSA to incorporate and make available within the MG Portal and Services such Customer logos, content, processes, policies, and any and all other materials as it expressly authorizes, for the limited purposes of use in connection with the performance of this MSA and only in the manner it expressly specifies MG to incorporate therein ("Customer IPR"). Except to the extent expressly permitted under this agreement, Customer may not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the MG Portal (or part thereof) (as applicable) in any form or media or by any means.
MG shall indemnify the Customer against all loss or damage that the Customer incurs or suffers as a result of any claim by a third party that the receipt, possession and/or use of the MG IPR in accordance with this MSA infringes the IPR of any third party.
The Customer shall indemnify MG against all loss or damage that MG incurs or suffers as a result of any claim by a third party that the receipt, possession and/or use of the Customer IPR in accordance with this MSA infringes the IPR of any third party.
“Confidential Information” means any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, methodologies, developments, technologies, ideas, concepts, techniques, trade secrets, know-how, personnel or suppliers of the disclosing party. MG's Confidential Information includes, without limitation, all information relating to the operation of the MG Portal. The parties shall not use or disclose any Confidential Information except as strictly necessary to perform its obligations or exercise its rights under this Agreement provided that this obligation shall not apply to Confidential Information which: (i) the receiving party can prove was in its possession or in the public domain at the date it was received or obtained from the disclosing party; or (ii) the receiving party lawfully or properly obtains without breach of an obligation of confidentiality; or (iii) comes into the public domain otherwise than through the default or negligence of the receiving party; (iv) was independently developed by the receiving party without reference to the Confidential Information of the disclosing party; (v) is legally required to be disclosed to a court, regulator or a body having similar authority provided that the other party is given prompt notice of the requirement of such disclosure and, at the other party’s request and expense, the receiving party uses reasonable endeavours to obtain a protective order or otherwise to protect the disclosure of Confidential Information; or (vi) is required to be disclosed by either party or on its behalf to its auditors (whether internal or external), financial or legal advisers, who have the right to require that it supply the relevant information, or (vii) to any financial institution who may require such Confidential Information so that MG or any member of its group will be able to provide the Direct Bill Terms referred to in section 2 above and who are informed of the confidential nature of such information and have agreed to treat it with a level of care and confidentiality at least as protective as described in this Agreement. The parties shall be entitled to disclose Confidential Information to such of its employees and authorised sub-contractors who have a need to receive such information for the performance of their obligations under this Agreement, and each disclosing party shall ensure that its receiving employees or sub-contractors are informed of the confidential nature information and agree to be bound by confidentiality provisions at least as protective as outlined in this Clause 7. A receiving party shall be responsible to the disclosing party for any breach of these confidentiality obligations by its employees, sub-contractors, auditors, advisors or other agents.
MG will require its employees (“MG Personnel”) and sub-contractors who provide Services to comply with the applicable terms of the Agreement and all applicable SOWs and Work Orders. MG will retain full control over the manner in which all MG Personnel or sub-contractors perform Services to Customer and its employees, and shall be responsible for such performance.
MG shall use all reasonable endeavours to ensure the MG Portal will at all times be available and fault free with a minimum of 99% uptime. MG may in its discretion update or otherwise amend the MG Portal to the extent that it is not detrimental to the Services provided. MG may also suspend the MG Portal without notice at any time if MG reasonably considers this necessary (for example for maintenance or upgrades), but will use all reasonable endeavours to notify Customer of the same in advance. MG shall take all reasonable and industry standard precautions to prevent the existence of bugs, computer viruses and/or other malicious programs in the MG Portal.
MG shall provide access and login details to the HR section of the MG Portal (“Talent Mobility Cloud”) for certain persons designated by Customer (“Authorized Customer Users”), as requested in writing (including email) by Customer. Authorised Customer Users are responsible for maintaining the confidentiality of any password and/or username and are responsible for all activities that are carried out under them. MG will not be responsible for losses suffered by Customer where a password or username is used by someone else other than an Authorised Customer User, where such unauthorized access was due to the fault of the Customer or its employees.
In line with a given policy, Authorized Employee Users may source the provision of services from independent third party suppliers or engage with designated vendors as agreed by Customer and MG, and as facilitated by MG (“MG Vendors”). MG shall use all reasonable endeavours to ensure that all MG Vendors comply at all times with all applicable laws in respect of the provision of relevant services and that MG Vendors deliver services in a timely and professional manner. Customer acknowledges that MG has full and exclusive control over MG Personnel, but that it does not have full and exclusive control over any MG Vendors.
Each party warrants to the other that it:
MG warrants to Customer that the:
The Customer confirms that it has taken its own tax advice in connection with the performance of the Services and the relocation of each Authorized Employee User and acknowledges and agrees that MG is not a tax adviser and the provision of the Services does not amount to MG giving the Customer any tax advice.
MG will defend and indemnify the Customer, its officers, directors and employees from any claims, costs, damages and liabilities related to any third party claim that the Services infringe or misappropriate any third party IPR. In addition, each of MG and the Customer shall indemnify each other, and their respective officers, directors and employees from any claims, costs, damages and liabilities arising from such party’s gross negligence or wilful misconduct in relation to the performance of this Agreement.
15.1 Nothing in this MSA shall limit either party's liability for (i) death or personal injury caused by its negligence, or (ii) fraud or fraudulent misrepresentation, (iii) to pay any sums properly due and owing to the other in the normal course of performance of this MSA or (iv) for any other liability which may not lawfully be excluded or limited.
15.2 Except in connection with any breach of clause 7 and subject to clause 15.1 and 15.3, each party's total liability arising out of or relating to this MSA and/or any Work Order or SOW or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited to the MG Fees paid or payable by the Customer under any Work Order or SOW within the 12 month period preceding such claim or breach.
15.3 Subject to clause 15.1, neither party shall be liable in contract, tort (including negligence) or for breach of statutory duty or in any other way for: (i) any loss arising from or in connection with loss or revenues, profits, contracts or business or failure to realise anticipated savings; or (ii) any loss of goodwill or reputation; (iii) any indirect or consequential losses, suffered or incurred by either party arising out of or in connection with any matter under this agreement; or (iv) to the extent caused by a condition (for example a natural disaster, riot, governmental action or disturbance of the Internet) that was beyond the party’s reasonable control.
Prospective Customers often request information about MG’s existing Customers. MG does not publicize any information about its Customers in a way that would compromise a Customer’s Confidential Information or best interests. By signing this MSA, Customer grants MG the right to use Customer’s name and logo for the limited purpose of identification as a Customer. Subject to Customer’s prior approval, MG may issue a press release and case study about Customer’s selection and use of the Application(s) and Service(s).
Other than to its affiliates or to a purchaser of the majority of a party’s assets or voting securities or as may be required in connection with the receivables purchase facility provided to MG by Silicon Valley Bank, neither party will assign any part of this Agreement without the other party’s written consent.
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and each of the parties irrevocably submits for all purposes in connection with this agreement to the non-exclusive jurisdiction of the courts of England and Wales.
During the Term, MG shall, at its own expense, maintain at least the following types and amounts of insurance and ensure that any of its respective suppliers and sub-contractors do likewise:
(a) Commercial General Liability Insurance of GBP 10,000,000;
(b) Worker’s Compensation of GBP 1,000,000;
(c) Products Liability of GBP 5,000,0000; and
(d) Professional Indemnity of GBP 2,000,000
Upon the written request of Customer, MG shall provide Customer with copies of the certificates of insurance for all insurance coverage required by this Section 19, and shall not knowingly do anything to invalidate such insurance. Section 19 shall not be construed in any manner as waiving, restricting or limiting the liability of either party for any obligations imposed under this Agreement (including any provisions requiring a party to indemnify, defend and hold the other harmless under this Agreement) and any proceeds owed to the Customer based on MG’s insurance policy coverage shall be outside of the limitation of liability described in Section 15.
Neither party will be liable to the other for any failure or delay in performing its obligations under this MSA or any Work Order or SOW which arises because of any circumstances which it cannot reasonably be expected to control (which shall include Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving personnel of MG or a third party), difficulties in obtaining raw materials, labor, fuel, parts or machinery or breakdown in machinery, or interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing, but shall not include shortage or lack of available funds on the part of the Customer), provided that it:
(A) The parties agree that they are not partners, co-ventures, or have any relationship other than that MG is an independent contractor of the Company.
(B) This Agreement, including all SOWs and Work Orders, constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, letters of intent, term sheets, negotiations and discussions, whether oral or written. There are no conditions, warranties, representations or other agreements between the parties in connection with the subject matter of this Agreement (whether oral or written, express or implied, statutory or otherwise) except as specifically set out in this Agreement. No amendment of this Agreement will be effective unless made in writing and signed by the parties.
(C) If any provision of this Agreement is for any reason deemed illegal, unenforceable or invalid, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Agreement is not affected in a manner materially adverse to any party.
(D) If a Party waives any term, provision or another party’s breach of this Agreement, such waiver shall not be effective unless it is in writing. No waiver by a party of a breach of this Agreement by another party shall constitute a waiver of any other or subsequent breach by such other party.
(E) Notices provided for in this Agreement will be in writing and will be delivered by hand, e-mail, facsimile, overnight mail or certified mail, or recognized overnight delivery service to the parties at the addresses specified on the introductory paragraph at the first page of this Agreement, or such other addresses either party may provide in writing, in the case of the Customer with a copy to any Authorized Customer User.