This Master Services Agreement (“Agreement”) governs the supply of Services and licensing of Software by IPV Limited, registered in England and Wales with no. 05168019, with registered address at Compass House, Chivers Way, Histon, Cambridge, England, CB24 9AD (“IPV”) to the person/firm who buys such Services/Software (“Customer”).

 

1.           Basis of AGREEMENT

 

1.1.        Each Order Form shall be subject to this Agreement.  Should any purchase order (or any other correspondence from the Customer) contradict in any way the Order Form or this Agreement (“Contradictory Terms”), such Contradictory Terms shall not be incorporated unless and to the extent that a revised Order Form is issued incorporating any such Contradictory Terms.

 

1.2.        In consideration for the payment of Fees, as defined in an Order Form, IPV will provide the Services and/or grant access to software (“Software”) as described in the Order Form.

 

2.           CUSTOMER Obligations

 

2.1.        The Customer shall (i) provide all necessary cooperation reasonably required under an Order Form; (ii) comply with obligations which are set out or referred to in the Order Form; (iii) respond promptly to any request for a decision, guidance, information or instruction which IPV may submit in relation to an Order Form; (iv) not do or permit anything to be done that will or may damage the business, reputation, image and/or goodwill of IPV; (v) only use the Services for lawful purposes; (vi) not (and shall not attempt to) probe, scan, penetrate or test the vulnerability of any systems or networks of IPV or to breach any of IPV’s security or authentication measures, whether by passive or intrusive techniques, without IPV’s prior written consent; (vii) ensure that there are in place all necessary consents, licences and permissions required to permit IPV to access and use all the any data, documents, text, drawings, diagrams, images or sounds (together with any database made up of any of these), embodied in any medium, that are provided to IPV by or on behalf of the Customer, in order to perform its obligations pursuant to an Order Form (“Customer Content”) and any and all materials, other equipment (including cabling, network interfaces, power and power adapters) and software necessary for IPV to perform its obligations pursuant to an Order Form (“Customer Materials”) and any other items as may be appropriate in connection with each and every Order Form; and (viii) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to IPV’s data centres (or, where appropriate, the third-party portal through which IPV provides Services to the Customer).

 

3.           Services

 

3.1.        IPV shall have the right to make any changes to the Services which: (i) improve the nature or quality of the Services; (ii) are necessary to comply with any applicable laws, rules and/or regulations (“Applicable Law”); or (iii) do not materially negatively affect the nature or quality of the Services.

 

4.           Implementation AND PROFESSIONAL Services

 

4.1.        The terms of this clause apply where IPV has agreed under an Order Form to provide the configuration and deployment of the IPV Curator software package, as detailed in an Order Form (“Implementation Services”). The Customer shall in a timely manner (i) provide all the Customer Content; (ii) prepare its premises, equipment and existing systems (or those of its third-party contractors); and to the extent necessary, if at all, (iii) facilitate such access to the Customer's premises, equipment and existing systems (or those of its third-party contractors), as may be needed for IPV to perform the Implementation Services.

 

4.2.        IPV shall carry out any such Implementation Services at the location for performance of the applicable Services set out in the Order Form (if any), or any other location agreed between the parties in writing from time to time (“Location”) (or, at IPV’s option where applicable, via remote access), and subject the results of such services (“Configuration”) to its standard installation and acceptance tests, or such tests as the parties agree.

 

4.3.        The Customer shall be deemed to have accepted the Configuration if either: (i) the go-live criteria set out in the Order Form are satisfied in accordance with the same; (ii) the Customer fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Order Form (in respect of which, time shall be of the essence); or (iii) the Customer commences operational use of the Configuration.

 

4.4.        If performance of the Implementation and Professional Services is delayed at the request of the Customer, or because of any acts or omissions of the Customer, the parties may agree to revised dates for performance. At its discretion, IPV may apply a reasonable increase to the Fees as a result of such delay.

 

 

5.           IPV Software

 

5.1.        The software licences in clause 5 do not include licences to any third-party software including software which is not owned or validly licensed to IPV. The Customer shall independently procure, pay for and maintain all third-party software licences which are necessary for the use of IPV Curator by Customer.

 

5.2.        In consideration for the payment of all applicable Fees and as further described in an Order Form, IPV hereby grants to the Customer a non-exclusive license for the Term to use the Software.

 

5.3.        Use of the Software shall be restricted to: (i) the Licence Type restrictions set out in the Order Form; (ii) the Quantity restrictions set out in the Order Form; (iii) the Use Extent set out in the Order Form; (iv) object code form; (v) the purpose described in the Order Form; (vi) the normal business purposes of the Customer; and (vii) employees and third-party contractors using the same solely for the benefit of the Customer.

 

5.4.        IPV shall provide to the Customer, from time to time, copies of the any operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by IPV in respect of the Software, as set out in the Order Form (“Documentation”) containing information for the proper use and maintenance of the Software. Such Documentation may be supplied in electronic form and shall remain Confidential Information of IPV.  The Customer may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of Software and for training the Customer's personnel in use of Software. The Customer shall ensure that all of IPV's proprietary notices are reproduced in any such copy. The Customer may provide copies of the Documentation to any third party who needs to know the information contained in it, provided that such third party first enters into appropriate confidentiality obligations no less stringent than those contained in this Agreement.

 

5.5.        Any unauthorized modifications use or improper installation of Software by the Customer (or on behalf of the Customer, other than by IPV personnel) shall render all IPV's warranties and obligations under this Agreement null and void. The Customer may not use the Software other than as specified in this clause without the prior written consent of IPV, and the Customer acknowledges that additional fees may be payable on any change of use approved by IPV.

 

5.6.        Notwithstanding any other provision, IPV specifically denies any implied or express representation that the Software will be fit to operate in conjunction with any hardware items or software products other than with those that are identified in the Order Form (or in the relevant Documentation) as being compatible with the Software; or operate uninterrupted or error-free.

 

5.7.        Except as expressly licensed hereunder, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, access all or any part of the Software in order to develop software which competes with the same, decompile, disassemble, modify, adapt or make error corrections to the same in whole or in part.  The Customer shall not: (i) sub-license, transfer, assign or novate the benefit or burden of the license to the Software in whole or in part; (ii) allow the Software to become the subject of any charge, lien or encumbrance; or (iii) deal in any other manner with any or all of its rights and obligations under an Order Form, without the prior written consent of IPV.

 

5.8.        The Customer shall: (i) ensure that the number of persons using the Software does not exceed the number specified in the Order Form (ii) notify IPV as soon as it becomes aware of any unauthorized use of the Software by any person; (iii) pay for broadening the scope of the licenses granted under this license to cover the unauthorized use, an amount equal to the Fees which IPV would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorized use on the date when such use commenced together with interest at the rate provided for under this Agreement, from such date to the date of payment.  The Customer shall use reasonable endeavours to prevent any unauthorized access to, or use of, the Software and notify IPV promptly of any such unauthorized access or use.

 

5.9.        The Customer shall permit IPV to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used and have access to any records kept in connection with this license, for the purposes of ensuring that the Customer is complying with the terms of this license, provided that IPV provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times. This right shall continue beyond termination/expiration to enable IPV to verify that use has ceased.

 

5.10.      Upon request by IPV (but not more frequent than once per calendar year), the Customer shall certify in writing that it is compliance with the terms of this Agreement and the licenses granted hereunder.  This right shall continue for one calendar year beyond the termination or expiration of this Agreement.

 

6.           Support Services

 

6.1.        Support Services necessary as a result of any of the following causes (“Excluded Maintenance”) shall be subject to additional Fees calculated on a time and material basis: (i) IPV is not obliged to perform any Excluded Maintenance unless the Customer has agreed to pay the applicable Fees in respect of it; (ii) where IPV is performing or has performed the Support Services in circumstances where it is subsequently established that the defect in the Software was due to any of the misuse, incorrect use of or damage from whatever cause (other than any act or omission by IPV), including failure or fluctuation of electrical power; (iii) Customer’s failure to maintain the necessary conditions for use as identified in the Documentation; (iv) use in combination with any equipment or software not provided/approved in writing by IPV; (v) use in combination with equipment or software which suffers a fault; (vi) relocation or installation by the Customer or any third party; (vii) any breach of the Customer's obligations under the Order Form howsoever arising; or (viii) any modification not authorized by IPV; (ix) operator error; or (x) any other excluded causes set out in the Order Form (“Excluded Causes”).

 

7.           Training Services

 

7.1.        The Customer acknowledges and agrees that (i) any individual identified in the Order Form or otherwise may be replaced at any time with another qualified individual at IPV’s option; and (ii) any materials provided in respect of Training Services are licensed to the Customer solely for the purposes of the receipt of such Training Services by the Customer personnel, unless and to the extent that wider use by other Customer personnel is stated within the Order Form.

 

8.           Charges

 

8.1.        Except where expressly agreed in writing to the contrary, the Fees shall not include travel or accommodation expenses.  On no less than 3 months’ written notice to the Customer prior to each anniversary of the Start Date, IPV may adjust the Fees by a percentage equal to the percentage increase in the Consumer Price Index for All Items, U.S. City Average, All Consumers (base year 1984=100), published by the Bureau of Labor Statistics of the U.S. Department of Labor since the Fees were last set/revised, as appropriate.

 

8.2.        The Customer shall pay each invoice which is due and submitted to it by IPV within 30 days of invoice date, to a bank account identified in writing by IPV.

 

8.3.        All Fees stated or referred to in an Order Form are exclusive of (i) value added tax or other sales taxes, which shall be added to IPV’s invoice(s) at the appropriate rate; and (ii) all packing, insurance and transport costs, which shall be paid by the Customer (unless the same is expressly stated to be included within the price in the Order Form).

 

9.           Intellectual Property

 

9.1.        IPV warrants that it has, and will continue to have, all necessary rights in and to any and all utility models, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in trade dress, goodwill, rights in designs, database rights, rights to use and protect the confidentiality of Confidential Information (including know-how and trade secrets), 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 (“Intellectual Property Rights”) that it purports to grant to the Customer pursuant to an Order Form. The Customer warrants to IPV that IPV's possession and use in accordance with this Agreement of any materials (including third-party materials supplied by the Customer to IPV) shall not cause IPV to infringe the rights, including any Intellectual Property Rights, of any third party.

 

9.2.        The Customer acknowledges and agrees that IPV and/or its licensors own all Intellectual Property Rights in the Services, the Configuration and Software.  Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights or any other rights or licenses to, in or in respect of the Services or Software.  IPV acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer Content. Except as expressly stated herein or as is necessary to perform IPVs’ obligations under an Order Form, this Agreement does not grant IPV any Intellectual Property Rights or any other rights or licenses to or in respect of any Customer Content.  Nothing in this Agreement shall be construed so as to prevent IPV from using in the furtherance of its own business general know-how or expertise gained in its performance of an Order Form, provided that any such use does not constitute or result in an unauthorized disclosure of any Confidential Information or infringement of any Intellectual Property Rights.

 

10.         Confidentiality

 

10.1.      Each party may be given access to information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information relating to the business of either party, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information and/or circumstances of its disclosure (“Confidential Information”) from the other party. A party's Confidential Information shall not include information that (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the receiving party's lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, which independent development can be shown by written evidence.

 

10.2.      Each party shall hold the disclosing party’s Confidential Information (in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the performance of its obligations under an Order Form.  Each party shall take all reasonable steps designed to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Agreement.  A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

 

 

11.         Warranties, Indemnities & Limitation of Liability

 

11.1.      All representations or warranties (whether written or oral, express or implied by statute, common law or otherwise) apart from those expressly set out in this Agreement are hereby excluded. In particular, but without prejudice to the generality of the foregoing, IPV makes no representation or gives any warranty (whether express or implied, statutory and/or otherwise), and will have no liability, regarding the fitness of the Services or Software for any particular purpose, whether or not such purpose is disclosed to IPV.

 

11.2.      The Customer hereby indemnifies IPV from and against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by IPV in connection with: (i) any failure of the Customer to obtain appropriate licenses and/or consents in accordance with its obligations under this Agreement or any subsequent revocation or non-renewal of any such license and/or permit; (ii) any failure of the Customer to ensure its compliance with Applicable Law in accordance with its obligations under this Agreement; and (iii) any use of the Services or the Software by the Customer other than as permitted hereunder.

 

11.3.      IPV shall defend the Customer, its officers, directors and employees against any third-party claim that the IPV Software or Services infringe any patent, copyright, trademark, database right or right of confidentiality, and shall indemnify the Customer for any amounts finally awarded against Customer in judgment or settlement of such claims, provided that: (i) IPV is given prompt notice of any such claim; (ii) the claim does not result from the Customer’s failure to install an update or new version of any Software as soon as is practicable following its release by IPV; (iii) the Customer provides reasonable cooperation to IPV in the defence and settlement of such claim; and (iv) IPV is given sole authority to defend or settle the claim. In the defence or settlement of any claim, IPV may procure the right for the Customer to continue using the Software or Services, replace or modify the Software or Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Order Form on 2 business days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. In no event shall IPV, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Software or Services by anyone other than IPV; (b) the Customer's use of the Software or Services in a manner contrary to the instructions given to the Customer by IPV; or (c) the Customer's use of the Software or Services after notice of the alleged or actual infringement from IPV or any appropriate authority. The foregoing states the Customer's sole and exclusive rights and remedies, and IPV’s (including its employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.

 

11.4.      Nothing in this Agreement shall limit or exclude IPV’s or the Customer’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors; (ii) fraud or fraudulent misrepresentation; and (iii) any other liability which cannot be limited or excluded by Applicable Law.

 

11.5.      In the event of a Default by IPV, IPV’s liability in respect of loss or damage to tangible property of the Customer shall not exceed $10,000.  IPV’s liability in respect of loss or damage under an Order Form in any 12-month period shall not exceed the lower of: (i) a sum equal to the total Fees paid and payable to IPV by the Customer for the Services under such Order Form during the period of 12 months immediately prior to the event giving rise to the claim, or (ii) $100,000, however, that liability arises, including breach of contract, tort, misrepresentation or breach of statutory duty.

 

11.6.      In no event will IPV be liable to the Customer (whether in contract, tort, negligence or otherwise): (i) for any delay in performance of the Services or any failure to perform the Services that is caused or contributed to by a force majeure event; (iii) for any loss not flowing directly and naturally in the ordinary course of events from its own act or omission; (iv) for any loss of profit, revenue, use, anticipated savings, data, goodwill or opportunity or damage to reputation; (v) for any indirect, special or consequential loss or damage; (vi) to the extent that any delay in performing or failure to perform IPV’s obligations is due to a failure by the Customer to perform its own obligations under an Order Form or if delay results from a failure by the Customer to comply with reasonable requests by IPV for instructions, information or action required by it to perform its obligations within a reasonable time; or (vii) for the consequences of any acts or omissions of the Customer.

 

12.         Term and Termination

 

12.1.      Each Contract shall commence on the Start Date and continue for the duration stated in the relevant SoW/Order Form (or until performance of Services has been completed) and each Renewal Period (the “Term”) unless terminated at the end of the Initial Term or any Renewal Period by either party on no less than 60 days’ written notice to the other, or otherwise in accordance with its terms.

 

12.2.      Without prejudicing any other right or remedy available to it, either party may terminate this Agreement and any Order Forms with immediate effect by giving written notice to the other party if: (i) the other party fails to pay any amount due under an Order Form on the due date for payment and remains in default not less than 10 business days after being notified in writing to make such payment; (ii) an insolvency event occurs with respect to the other party; or (iii) the other party commits a material breach of any other term of an Order Form which breach is irremediable or (if remediable) fails to remedy it within a period of 10 business days after being notified in writing to do so.

 

 

13.         Consequences of Termination

 

On termination for any reason: (i) all rights granted to the Customer under this Agreement shall cease; (ii) the Customer shall cease all activities authorized by an Order Form; (iii) the Customer shall immediately pay any sums due to IPV (including sums on a time and materials basis for any work in progress) without set off or deduction; and (iv)  each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party.

 

14.         Assignment

 

The Customer may not freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under an Order Form without the consent of IPV, such consent not to be unreasonably withheld or delayed.  IPV may freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under an Order Form without the prior written consent of the Customer.  The Customer agrees that it shall cooperate and undertake all matters at IPV’s cost and expense that are necessary to novate or assign any Order Form or any parts thereof to any third party when requested to do so by the Customer.

 

15.         Dispute Resolution

 

If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of an Order Form (a “Dispute”) then the parties shall follow the procedure set out herein: (i) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute; and (ii) if the parties are for any reason unable to resolve the Dispute within 20 business days from service of the Dispute Notice, the parties will attempt to settle it by mediation in accordance. To initiate the mediation, a party must serve notice in writing (an “ADR Notice”) to the other party to the Dispute, requesting mediation. The mediation will start not later than 10 business days after the date of the ADR Notice.  If the Dispute is not resolved within 1 month of the mediator’s appointment, then either party may commence Court proceedings, but provided that nothing in this section shall prevent either party from either continuing with any means of alternative dispute resolution as may be agreed in writing from time to time, or seeking an injunction or other interim relief at any time if it reasonably believes such action is necessary to prevent irreparable damage.

 

16.         General

 

Any party who is not a party to this Agreement shall have any rights to enforce any of the terms contained herein.  A waiver of any right is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.  The construction, validity and performance of the Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.  In the event that any provision of the Agreement shall be void or unenforceable by reason of any provision of Applicable Law, it shall be deleted, and the remaining provisions hereof shall continue in full force and effect and, if necessary, be so amended as shall be necessary to give effect to the original intent of the Agreement so far as possible.  Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.  Each party undertakes to the other that it will not, and will procure that its employees will not, in the course of performing its obligations under this Agreement, knowingly engage in any activity which would constitute a breach of the Bribery Act 2010 and that it has in place a compliance program designed to ensure compliance with the terms of the Bribery Act 2010 and has and will maintain in place, adequate procedures designed to prevent any of its third party contractors or sub-contractors from undertaking any conduct that would give rise to an offence under the Bribery Act 2010.