Master Services Agreement

THIS Master Services AGREEMENT (this “MSA”) is entered into as of the Agreement Date by and between:

MHR INTERNATIONAL NORTH AMERICA INC., a Delaware corporation (the “Company”), with offices at 260 Peachtree St NW Suite 2200, Atlanta, GA 30303, United States; and
The “Customer” as identified in the relevant Order Document.

WHEREAS:

(a) the Company is a leading provider of human resources (“HR”), payroll, finance & analytics software and services; and

(b) the Customer desires to procure the Software and Services (as defined herein) from the Company as further detailed in the Order Document; and

DEFINITIONS AND INTERPRETATION

1.1 This Section 1 sets out the definitions and rules of interpretation for the Agreement.

1.2 Unless the context otherwise requires, the following terms shall have the following meanings:

“Activity Report” means a document provided by the Company to the Customer that outlines, inter alia, the tasks undertaken and/or completed as part of a scheduled work assignment.

“Agreement” means the entire integrated agreement between the parties, comprising of:

(a) an Order Document;

(b) this MSA;

(d) the Statement of Work; and

(e) any annexes, schedules or exhibits (collectively, “annexes”) to any of said documents as approved by the Company.

“Agreement Date” means the date specified as such on the relevant Order Document;

“Agreement Term” means the period of effectiveness of the Agreement as set out on the relevant Order Document;

“Affiliate” means any entity which directly or indirectly Controls, is directly or indirectly Controlled by or is under direct or indirect common Control with a subject entity; where “Control” means, the direct or indirect ownership of more than 50 per cent of the voting interest of that entity or the legal power to direct or cause the direction of the general management and policies of that entity, whether through the ownership of voting interest, by contract or otherwise, and “Controls” and “Controlled” shall be interpreted accordingly.

“Authorized Representative” means, in the case of the Company, the officer specified in the Order Document, or such other officer as may be duly authorized to act on behalf of the Authorized Representative. In the case of the Customer, Authorized Representative means the officer specified in the Order Document or such other officer who may hold themselves out as authorized to act on behalf of the Authorized Representative. For the avoidance of doubt, where any person employed by the Customer signs a Contract Document, the Company shall regard that person as authorized by the Authorized Representative to do so;

"Business," "controller," "contractor," “data subject,” "personal information," "processor," "processing," "service provider" and "third party" shall have the meanings given such terms in any applicable Data Protection Laws in the context for which the term applies;

“Cancellation Charges” mean seventy-five percent (75%) of the amount of the Charges attributable to Services contracted to be provided by the Company through the balance of the then-current Term that the Customer’s unauthorized withdrawal or cancellation of the Agreement precludes the Company from providing.

“Change Order Form” means the appropriate and relevant document as determined by the parties which is used to capture, inter alia, a change in the Statement of Work;

“Charges” means the fees, charges or other forms of compensation payable in respect of the Software and/or Services, as more particularly set out in the relevant Contract Document;

“Cloud Provider” means the organisation designated as such on the relevant Order Document(s) providing, inter alia, hosting services;

“Confidential Information” means all information shared by one party with the other including, but not limited to, its business, finances, customers, services, processes, Documentation and products communicated or received in any way whatsoever including, but not limited to, orally, in writing, electronically or obtained through observation. All such information which is designated as confidential or which, based on the nature of the disclosure, is clearly intended to be kept confidential constitutes "Confidential Information;”

“Contract Document” means any of the following: the MSA; a Service Level Agreement; a Statement of Work; a Change Order Form; an Order Document; or any mutually agreed annexes thereto which shall form part of this Agreement;

“Current Sub-Release” means the most recent mandatory Sub-Release, or a subsequent non- mandatory Sub-Release, which the Customer has in fact implemented;

“Customer Support Contact” means a member of the Customer's personnel who is designated as such;

“Data” means the payroll, personnel and associated data and personal information of the Customer and/or its Affiliates;

“Data Incident” means (i) the unlawful or unauthorized processing of personal information; or (ii) the disclosure of or access to personal information in breach of this Agreement (including accidental disclosure of or access to the personal information); or (iii) the temporary or permanent loss or theft of any personal information; or (iv) any other security incident affecting the personal information (including a personal information data breach as defined in the Data Protection Laws) by the Company;

“Data Protection Laws” means any applicable U.S. law or regulation relating to the processing and use of personal information as applicable to Customer, the Company and/or the Services, including, without limitation, (i) the California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA”); (ii) the Colorado Privacy Act (“CPA”); (iii) the Connecticut Data Privacy Act (“CDPA”); (iv) the Delaware Personal Data Privacy Act (“DPDPA”); (v) the Virginia Consumer Data Protection Act (the “VCDPA”); (vi) the Federal Trade Commission Act (“FTC Act”); (vii) the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH Act”); and (viii) any similar U.S. law or regulation applicable to the actions or omissions of the parties hereunder, each as amended from time to time. This term does not apply to the laws or regulations of any other country;

“Data Subject Request” means a request made by a Data Subject to exercise any rights granted under Data Protection Laws;

“Documentation” means any documentation or other materials relating to the Product or Services made available by the Company to the Customer under the Agreement;

“Employee” means:

for any Customer not using the Software for payroll processing: any person in respect of whom any personal or employment records are kept by the Customer (or an Associated Company or Permitted Agent) using the Software, including current or past employees (full or part time); or
for any Customer using the Software for payroll processing: any person in respect of whom any personal or employment records are kept by the Customer (or an Associated Company or Permitted Agent) using the Software, including current or past employees (full or part time) whether deferred or in receipt of payment, but shall not be deemed to include Non-employee Records;

“Expenses” means the Company’s reasonable travelling, accommodation (where necessary) and subsistence expenses, incurred in providing any Services at the Customer’s Site. Any and all Expenses shall be charged separately and in accordance with the Company’s prevailing rates from time to time;

“Fix" means an amendment to the Product that is not a Sub-Release;

“Implementation Project” has the meaning set out in Section 12.1;

“Implementation Services” means the services detailed as such in the relevant Order Document and or Statement of Work in connection with the installation and implementation of the Software;

“Initial Charges” means the charges so designated in an Order Document;

"Intellectual Property Rights" means copyrights, rights in databases, patents, trademarks, business or trade names, domain names, registered designs, utility models, design rights, inventions, trade secrets, Confidential Information, know-how and all other intellectual property and rights of a similar or corresponding character anywhere in the world (whether or not the same are registered or capable of registration) and all applications and rights to apply for or for the protection of any of the foregoing;

"Interfaces" means, in relation to the Product, the applications or interfaces (whether standard or custom) which operate between the Product and any other software application and which will be provided by the Company to the Customer if and as listed in the relevant Order Document;

“Losses” means costs, expenses, liabilities, injuries, losses, damages, claims, demands, legal fees and/or monetary judgments;

“Malfunction" means any failure of the Product to operate (in the Company's reasonable opinion) in accordance with the Product Documentation or, in the case of an Interface, with the Specification for that Interface;

“Non-employee Records” means for any Customer using the Software for payroll processing: any person in respect of whom any personal or employment records are kept by the Customer (or an Associated Company or Permitted Agent) who are not paid at all or paid infrequently (three times per year or less) and have limited or no access to the Software;

“Normal Working Hours” means between 09.00 and 17.30 Eastern Standard Time (EST) on a Working Day for all Services to be provided by the Company;

“Order Document” means the document titled as such and executed by the parties setting out the details of, and terms applicable to the provision and receipt of, particular Software and/or Services;

“Permitted Agent” means an organization or entity which is authorized by the Company, in its sole discretion, to use the Software and/or Services on the terms and subject to any Charges set forth in the relevant Order Document. For the avoidance of doubt, a Permitted Agent does not need to be an Affiliate of the Customer.

“Product” means the Company software, with the Sub-Release number and incorporated modules, all as specified in the Order Document as being licensed to Customer (and including any Interfaces listed in the Order Document and any Sub-Releases or Fixes which the Customer has elected to adopt from time to time in accordance with the terms of the Agreement);

“Product License” means the Customer’s rights to use the Product as defined in Section 10.1 hereof.

“Product Support” means the services detailed as such on an Order Document;

“Professional Services” means the services detailed as such in an Order Document, including the Implementation Services, consultancy services and/or training services;

“Professional Services Charges” means the Charges so designated in the relevant Order Document;

“Project Manager” means a Representative of a party designated to act as the project manager in respect of particular Professional Services;

“Representative” means an officer, director, employee, contractor or agent of the Company or the Customer or (in the case of the Company) any other person working under the direction of the Company;

"Service Desk" means the facility made available by the Company for the submission to it of Service Requests;

“Service Level Agreement” means the document titled as such and referred to in an Order Document which sets out additional detail regarding the respective obligations of the parties in relation to the Product and/or Services;

“Service Request" means any request by a Customer Support Contact for assistance in operating the Product, including the notification of a Malfunction;

“Services” means any services provided by the Company to the Customer under the Agreement;

“Services Suspension” means as defined in Section 8.5;

"Software" means the Product and any Third Party Product or other software made available by the Company to the Customer under the Agreement;

"Software-as-a-Service" or "SaaS" basis means electronic access to the Product by means of a comprehensive, integrated system of software, computing resources, power, data processing and connectivity on a subscription basis through a supported web browser;

“Software License” means a license granted pursuant to Sections 3.1(a) and 10.1 of this Agreement to use the Product, Documentation and any Software or Specification as detailed in an Order Document;

“Specification” means the specification published by the Company from time to time, or developed or agreed by the parties under a particular Agreement, for a particular Software component or functionality, including but not limited to any design documents or User Guides;

“Stage Gate Acceptance Forms” are the forms provided by the Company to the Customer for review and sign-off pursuant to the stage gate (i.e., development or implementation) process detailed in the Statement of Work;

“Statement of Work” means the document which contains, inter alia, the scope of works to be completed as part of the Implementation Project;

"Sub-Release" means, in relation to the Product, a partial re-issue of the Product by the Company from time to time in order to effect minor enhancements or corrections to that Product;

“Term” means the period commencing on the Agreement Date and ending on the date of termination of the Agreement, regardless of cause;

“Third Party Product" means the third party software (if any) specified in an Order Document;

“Third Party Product Maintenance Services" means any maintenance and support services in relation to the Third Party Product which are specified in an Order Document as being provided or procured by the Company;

“Third Party Provider” means the supplier of a particular Third Party Product or Third Party Product Maintenance Service;

“User Guides” means a summary of the features and functionality of the Product and/or particular releases of it, as such is made available and updated from time to time through the Company's customer service cloud or otherwise;

“Working Day” means any day other than Saturdays, Sundays and any public holidays;

“Working Hours” means the hours estimated to complete the Professional Services as set out in the Order Document, all of which shall be invoiced in accordance with the terms and conditions of the Agreement. All Working Hours (unless otherwise agreed between the parties) shall be performed during Normal Working Hours.

1.3 A reference to a statutory provision includes a reference to that provision as revised or amended (whether before or after the Agreement Date).

1.4 Words importing one gender include all genders, words importing the singular include the plural, and (in each case) vice versa.

1.5 References to a "person" will be construed so as to include all natural persons, legal entities, corporate organizations, unincorporated associations and partnerships.

1.6 Unless otherwise stated, references in a Contract Document to sections and paragraphs are to sections and paragraphs of that Contract Document.

1.7 If there is a conflict or inconsistency between any provisions in the Agreement, then (unless expressly stated to the contrary in such Contract Document) the following order of precedence shall apply: the MSA, the Order Document (including any annexes thereto), the Statement of Work and the Service Level Agreement.

1.8 Any headings are for ease of reference only and shall not affect the construction of any provisions of a Contract Document.

1.9 The words “include”, “includes”, “including” and “included” will be construed without limitation.

1.10 References to a "party" are to the Customer or Company (as applicable) and references to the "parties" are to both of them.

2. AGREEMENT OVERVIEW

2.1 Execution of an Order Document by both parties shall create a binding contract for the provision and use of the Software and/or Services outlined within such Order Document and in accordance with Sections 3.1 and 10 herein. Once executed by both parties, the Order Document shall form part of the Agreement and shall automatically incorporate all of the terms of this MSA.

2.2 In the absence of an Order Document, the MSA on its own creates no obligation or right on behalf of either party except where otherwise agreed in writing.

2.3 The parties are not and shall not be considered to be agents of each other, nor does either party have any authority to make any contract, whether expressly or by implication, in the name of or otherwise binding the other party, without that party’s prior written consent for express purposes connected with the performance of the Agreement.

2.4 The Customer acknowledges and accepts that the relevant Software and/or Services have not been developed to meet the Customer’s individual requirements and it is therefore the responsibility of the Customer to ensure that the Software as described in the Documentation and the Contract Documents (including, inter alia, any Product modules) meet its desires, needs and requirements. By entering into this Agreement, the Customer confirms that it has conducted sufficient due diligence to satisfy itself that the Software meets its requirements.

2.5 The Company shall supply the Software and/or Services based upon an assessment made in good faith of the Customer’s requirements as expressed in the information supplied by the Customer and which the Customer warrants is, as of the Agreement Date, true and accurate. The Company shall not be liable for any failure to provide or any defect in the relevant Software and/or Services to the extent that such failure or defect is caused by an omission, error, inaccuracy or ambiguity in the expression of the Customer’s requirements or in the information provided by the Customer.

2.6 All Professional Services will be provided by the Company within Normal Working Hours.

3. THE CUSTOMER'S OBLIGATIONS

3.1 In consideration of the payment by the Customer of all applicable Charges in accordance with the terms of the Agreement and as specified in the Order Document, the Company:

(a) grants to the Customer a Software License to access and use the Product, Documentation and any Software or Specification thereof in accordance with Section 10;

(b) shall provide the relevant Product Support throughout the Term;

(c) shall permit the Customer (or a third party authorized by it), to carry out audits and inspections of the Company on reasonable notice during Normal Working Hours. The Company may require a third party auditor to enter into a confidentiality agreement before permitting it to carry out an audit. The Company reserves the right to make a reasonable charge for the time of its personnel engaged in assisting with an audit or the completion of a Customer-provided audit questionnaire/report;

(d) shall, at the request of the Customer, provide the Customer with a summary of its data protection policies and practices; and

(e) shall perform the Services as set out in the Order Document in accordance with any relevant Service Level Agreement.

4. THE CUSTOMER'S OBLIGATIONS

4.1 The Customer shall not, and shall ensure that its Affiliates and Permitted Agents do not (whether by act or omission) violate any of the Software Restrictions set forth in Section 10.2. Notwithstanding the foregoing, this Section 4.1 and Section 10.2 shall not prevent the Customer from storing any restricted material for purposes of the Customer’s internal HR records or for any other purpose so long as Customer accepts full responsibility for such retention and storage.

4.2 The Customer acknowledges that the provision of the Services under the Agreement is dependent on the Customer’s co-operation, and timely provision of accurate information and assistance. Failure of the Customer to fulfil any such obligations in whole or in part or, where appropriate, by the date specified in the Agreement for such fulfilment, and where such Customer failure causes the Company not to fulfil its obligations under the Agreement:

(a) the Company shall not be liable for any such failure;

(b) any date or time period set out in the Agreement for the fulfilment by the Company of any of its obligations shall be extended by a period of time equal to any delay caused by such Customer failure; and

(c) where due to such failure additional resources are required in order to complete Services, further Charges may apply in accordance with Section 13 (Change Order).

4.3 The Customer shall ensure the administration of the Software is carried out by a trained and competent individual employed by the Customer or that such administration is outsourced to the Company.

5. WARRANTIES AND DISCLAIMERS

5.1 Subject to the other provisions of the Agreement, the Company warrants that the Product and the Services will be provided in accordance herewith and will comply with applicable laws. For the avoidance of doubt, the foregoing warranty does not apply to Third Party Products.

5.2 The Company further warrants that:

(a) its right, title and interest in and to the Product is complete, free and unencumbered and that it has the right, power and authority to license the same on the terms outlined in the Agreement;

(b) upon completion of the Implementation Project, when properly used (as indicated in the Product Documentation or other Contract Document), the Product will operate in accordance with the Specification and Product Documentation; and

5.3 Without prejudice to the Customer’s other rights and/or remedies, if the Company breaches the warranties given in Sections 5.1 and/or 5.2, it shall have the right, at its option, and subject to 5.4 and 12.6 at its cost, and as applicable:

(a) repeat performance of the part of the relevant Services, as appropriate, which are found not to conform to the warranty;

(b) refund an appropriate proportion of those Charges paid by the Customer which are attributable to the part of the Product and/or Services found not to conform to the warranty;

(d) replace the Product or any part thereof found not to conform to the warranty.

The Customer shall not unreasonably withhold or delay approval of any Change Order Form or variation to this Agreement which is required in order for the Company to provide the applicable remedy in accordance with this Section 5.3.

5.4 The remedies in Section 5.3 are conditional upon:

(a) the Customer giving written notice to the Company of any alleged breach of such warranty within thirty (30) days of the date when the Customer discovers or should reasonably have discovered the alleged breach;

(b) the Customer affording the Company reasonable opportunity to investigate the breach; and

(c) the Customer not having committed any breach of its obligations under the Agreement which has led or contributed to the breach of warranty concerned.

Where the Customer fails to adhere to Sections 5.4 (a) to (c), the Company may, at the request of the Customer, provide a remedy in accordance with Section 5.3. In such circumstances, where the Company provides a remedy, the Customer agrees to pay on demand any additional Charges, expenses and costs associated with providing such remedy to the extent that the Company has incurred such as a result of the Customer’s failure to adhere to Sections 5.4 (a) to (c).

5.5 Disclaimers. Other than any express warranties set out in this Section 5, and save to the extent prohibited by law, THE PRODUCT, THE SOFTWARE AND THE SERVICES PERFORMED BY THE COMPANY ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY (INCLUDING MERCHANTABILITY OF COMPUTER PROGRAMS), FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, INFORMATIONAL CONTENT AND SYSTEM INTEGRATION. THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, THAT THE PRODUCT, THE SOFTWARE OR ANY SERVICES WILL MEET THE CUSTOMER'S GOALS OR REQUIREMENTS OR THAT THE OPERATION OR USE OF THE PRODUCT, THE SOFTWARE OR ANY SERVICES WILL BE ERROR FREE OR UNINTERRUPTED.

5.6 THE COMPANY’S PRODUCT, SOFTWARE AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS, INCLUDING BY APPLICATION PROGRAMMING INTERFACES PROVIDED BY THIRD PARTIES NOT EXPRESSLY APPROVED BY THE COMPANY. The Customer shall be solely responsible for, and shall pay all costs and expenses associated with: (a) all communications hardware, software, facilities and systems needed to use the Product; (b) having access to appropriate internet connections to ensure effective access to and use of the Product; and (c) ensuring the suitability and compatibility of the Customer’s network, systems, software and applications for use with the Product.

6. LIMITATIONS OF LIABILITY AND INDEMNIFICATION

6.1 NEITHER THE COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (INCLUDING THE CLOUD PROVIDER), NOR ANY SUCCESSORS OR ASSIGNS OF ANY OF THE FOREGOING, SHALL BE LIABLE TO ANY PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST INCOME OR PUNITIVE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THE PRODUCT, THE SOFTWARE OR THE SERVICES OR ANY ACTION OR OMISSION OF THE COMPANY’S OTHER CUSTOMERS OR USERS.

6.2 NOTWITHSTANDING ANY OTHER PROVISION HEREOF, THE COMPANY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL LOSSES, DAMAGES, COSTS, CLAIMS OR EXPENSES SUFFERED BY CUSTOMER OR BY ANY USER FROM THE AGREEMENT OR ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, THE SOFTWARE OR THE SERVICES OF THE COMPANY OR THE CLOUD PROVIDER, SHALL NOT, IN THE AGGREGATE, EXCEED THE AMOUNTS PAID TO THE COMPANY DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE SUCH CLAIMS ACCRUED OR AROSE.

6.3 Subject to Section 6.2, the total liability of the Company under or in connection with the Agreement in relation to any Third Party Products or Third Party Product Maintenance Services licensed, provided or made available under such Agreement (whether arising in contract, tort including negligence or breaches of statutory duty by the Company or its Representatives, under any indemnity or otherwise) shall not exceed a sum equal to the total Charges paid by the Customer for such Third Party Products or Third Party Maintenance Services during the one (1) year period preceding the date such claims accrued or arose.

6.4 Indemnification. Customer agrees to defend, indemnify, and hold the Company and its Representatives harmless from and against any and all third party claims, liabilities, losses, damages, or actions against the Company or such Representatives, including, without limitation, reasonable legal fees, resulting from Customer’s breach of the Agreement; Customers’ or its users’ access to, use, misuse or illegal use of the Product, Software or Services; from Customer’s or users’ violation of applicable laws, including Data Protection Laws; and/or from any claim that Customer or users violated any rights or interests of such claimants. The Company will provide Customer prior written notice of any such claim, suit, or proceeding and reserves the right to assume the exclusive defense and control thereof and Customer agrees to cooperate with any reasonable request to assist the Company’s defense of such matter.

7. CHARGES

7.1 The Customer shall pay all applicable Charges in accordance with the terms of the Agreement. The Services as detailed in the Statement of Work shall, subject to the Customer meeting their obligations hereunder, be delivered by the Company at a fixed price; provided that, any additional Software and/or Services requested by the Customer or the performance of any Change Order Request shall be performed and delivered by the Company on a time and materials basis. The Company therefore gives no warranty, representation or guarantee that any additional Software and or Services can be installed, implemented and or maintained within any estimated number of Working Hours. Further, the Customer accepts and agrees that Services which fall outside of the scope of the Statement of Work will be chargeable at the Company’s then prevailing rates on a time and materials basis.

7.2 All Charges are separate. Where any element of the Charges is disputed, the Customer shall not be entitled to withhold payment of any other elements of the Charges which are not the subject of that dispute.

7.3 All sums set out in the Agreement are net and exclusive of any taxes, duties or other additional sums associated with Expenses, Value Added Tax, or any other taxes and/or levies imposed by law that relate to the provision of the Product and/or Services which shall in each case be payable by the Customer.

7.4 Following the first anniversary of the Agreement Date, the Company shall be entitled to increase any Charges payable under the Agreement (a "Charge Adjustment") by an amount reasonably determined by the Company. The Customer shall receive no less than ninety (90) days prior written notice of the Charge Adjustment to be imposed in accordance with this Section 7.4.

7.5 Save for the Initial Charges (which shall be payable within seven (7) days post full execution of the Order Document) all other Charges shall be due and payable by the Customer within thirty (30) days of receipt of the Company's invoice and by wire transfer or direct deposit (by ACH or otherwise) into a designated Company account. Where a payment is cancelled by the Customer or is declined by the Customer’s bank, the Customer acknowledges that an administrative charge may be applied to replace or reinstate the direct payment mandate.

7.6 If any sum due from the Customer to the Company is not paid by the Customer by the due date for it and is not subject to a bona fide dispute in accordance with Section 7.2 then the Company may choose (without prejudice to its other rights and remedies) to:

(a) charge interest on the outstanding sum at the rate of prime plus five percent (5%) per month or the highest rate permitted by applicable law, in which case the Customer shall pay such interest on demand; and

(b) recover from the Customer (as a debt) any reasonably incurred legal Charges associated with the Company seeking the Customer’s payment of the Charges.

7.7 Where the Customer procures additional training and/ or consultancy Services, and such Services are expressed on the Order Document as being provided onsite Customer premises , the Customer shall be charged for a minimum of six (6) Working Hours.

7.8 No Refund of Prepaid Charges. Except for any termination of the Agreement solely due to material breach of the Agreement by the Company, no refund of prepaid Charges shall be due to the Customer for the Company’s exercise of a Services Suspension or for either party exercising any right of termination hereof.

7.9 Cancellation Charges for Early Termination. Excluding any termination of the Agreement due to material breach thereof by the Company, any voluntary withdrawal or attempted cancellation of the Agreement by the Customer for its convenience shall obligate the Customer, automatically and without further action, to pay to the Company, in a single lump sum, Cancellation Charges equal to seventy-five percent (75%) of the Service Charges applicable to the unexpired balance of the Term. Such Cancellation Charges shall be late if not paid, in immediately available funds, within ten (10) days of the Company’s written notice of the assessment of such charges, notwithstanding any other payment terms set out in the Contract Document. Cancellation Charges are not a penalty, but rather, agreed upon liquidated damages representing the discounted amount of estimated damages incurred by the Company from the Customer’s failure to permit the Company to fully perform the Services ordered in the Contract Document. Cancellation Charges are compensatory for damages difficult or impossible to estimate accurately in advance, with the discount serving as recognition of each party’s interest in a prompt resolution of the Company’s resulting claim.

8. TERM, TERMINATION & SUSPENSION

8.1 The Agreement shall commence on the Agreement Date and shall terminate upon the earlier of:

(a) expiration of the Agreement Term; or

(b) early termination of the Agreement but only in accordance with the terms herein (i.e., Customer has no termination for convenience).

8.2 The Agreement may be terminated immediately:

(a) by either party if the other party commits a material breach of the Agreement which (in the case of a breach capable of being remedied) has not been remedied within fifteen (15) Working Days of a written notice from the party not in default of such breach;

(b) by the Company if an undisputed amount due under that or any other Agreement is overdue and is not paid within fifteen (15) Working Days of the Company giving written notice to the Customer of such non-payment and stating that it is overdue;

(c) by either party if any of the following events (or any event analogous thereto) occurs in respect of the other party:

(i) a proposal is made for a voluntary arrangement or for any other composition, scheme, or arrangement with, or assignment for the benefit of, its creditors;

(ii) a shareholders’ meeting is convened, or a resolution is passed for such party’s winding up (except for a bona fide reorganization or combination);

(iii) a petition is presented for its winding up (which is not dismissed within fourteen (14) days of its service) or an application is made for the appointment of a provisional liquidator or a creditor’s meeting;

(iv) a receiver, manager or administrative receiver is appointed over any or all of its operations or assets;

(v) an administrator is appointed, or an application is made for such an appointment or the making of an administration order; or

(vi) it becomes insolvent.

(d) by the Company if the Customer breaches Sections 4.1(b) to (d), 10.8 and/or 10.9.

8.3 Upon termination of the Agreement:

(a) any Software License granted under the Agreement shall terminate;

(b) the Company shall fulfil its obligations pursuant to Section 16.13; and

8.4 Sections 2 (Agreement Overview), 6 (Limitations of Liability and Indemnification), 7 (Charges), 8 (Term, Termination & Suspension), 9 (Intellectual Property Rights), 15 (Confidentiality), 16 (Data Protection), 17 (Compliance with Contract Documents), 19 (Waiver), 20 (Severability), 21 (Assignment and Third Party Rights), 23 (General, Notices and Communications) and 24 (Law and Dispute Resolution), shall all survive the termination of the Agreement and termination shall be without prejudice to the rights of the parties accrued up to such date.

8.5 Without exercising its right to terminate the Agreement under Section 8.2 above, the Company may suspend access to the Product and/or provision of the Services and/or Product Support (as applicable) at any time during the Term as follows (a “Services Suspension”):

(a) by giving seven (7) days' prior written notice to the Customer if any sum due from the Customer to the Company is not paid by the Customer by the due date for it and is not subject to a bona fide dispute in accordance with Section 7.2;

(b) if Customer’s use of the Product disrupts or poses a security risk to the Company’s or the Cloud Provider’s systems or operations;

(c) if Customer is using (or the Company has reasonable grounds to believe that the Customer is using) the Product for fraudulent or illegal activities; and/or

(d) if Customer’s use of the Product and/or the Company’s continued provision of the Services is prohibited by applicable law, or the Company has been instructed or advised by any governmental authority or law enforcement agency to suspend the providing of the Product or Services to the Customer.

8.6 Where the Company has issued a Services Suspension in accordance with Section 8.5, the Company reserves the right to, where access to and use of the Product, Service and/or Product Support (as applicable) is reinstated, apply a charge, the payment of which shall be a condition of such reinstatement (a “Reinstatement Charge”).

9. INTELLECTUAL PROPERTY RIGHTS

9.1 All Intellectual Property Rights in any Software, Services, Specification and Documentation belong and shall belong to the Company or its licensors, and the Customer shall have no rights in or to them other than the right to use them in accordance with the terms of the Agreement during the Term thereof.

9.2 The Customer hereby grants to the Company, during the Term, a non-exclusive, non-transferable, royalty-free license to access, use, operate, copy, modify and exercise the Customer’s Intellectual Property Rights in all information, Data and materials uploaded into the Software or shared or disclosed to the Company as necessary to operate the Software and carry out its obligations under the Agreement.

9.3 Subject to Sections 9.4 to 9.8, the Company will indemnify and hold the Customer harmless from and against all Losses sustained or incurred by the Customer as a result of any claim made by a third party that the use of the Product and/or Documentation provided by the Company under the Agreement, or the provision of any Services by the Company under the Agreement, infringes a third party's Intellectual Property Rights (an "IPR Claim").

9.4 The indemnity in Section 9.3 shall not apply in respect of an IPR Claim where the Customer’s acts or omissions as outlined in this Section 9.4 (a) through to (e) prevent the Company from being able to exercise any of its options outlined in Section 9.7:

(a) the IPR Claim is due to the Customer using the Product and/or Documentation other than in accordance with the terms of the Agreement;

(b) the Customer is in material breach of the Agreement;

(c) the Customer has failed to notify the Company in writing of the IPR Claim within fifteen (15) Working Days of first knowing or being aware of it;

(d) the Customer has made an admission of liability in respect of the IPR Claim without the prior written consent of the Company; or

(e) the Customer has prevented the Company (at the Company’s expense) from conducting any litigation and negotiations for settlement of the IPR Claim.

9.5 If the Customer's acts or omissions result in the Company being unable to exercise any of its rights pursuant to Section 9.7, then the Customer shall fully indemnify and hold the Company harmless from and against all Losses sustained or incurred by the Company which might have been avoided but for such act or omission.

9.6 The Company shall defend or make settlement of any IPR Claims at its own discretion and cost and the Customer shall give such assistance as the Company may reasonably require (such reasonable costs to be borne by the Company) to defend or settle any such IPR Claims.

9.7 In relation to any actual or threatened IPR Claim, the Company may at its sole option and expense:

(a) procure for the Customer the right to continue using the affected part of the Product and Documentation;

(b) modify or amend the Product and Documentation provided that any such modification or amendment does not (in the Company’s reasonable opinion) materially adversely affect the capability and functionality of the Product and/or the Documentation; or

(c) replace the Product and Documentation (in whole or part) with other software of substantially similar capacity, capability and functionality or equivalent documentation.

Save for any Losses which may be recoverable under the indemnity provide under Section 9.3, the remedies outlined in this Section 9.7 are the Customer’s sole and exclusive remedies in relation to an IPR Claim.

9.8 The Company will give the Customer advance notification of the option it intends to pursue under Section 9.7. Following performance by the Company of any of the above options, the Company shall not be liable in respect of any continuing use by the Customer of the infringing part of the Product and/or Documentation.

10. SOFTWARE LICENSE & RESTRICTIONS

10.1 Software License. The Company does hereby grant to the Customer during the Term hereof, for its own internal use and for the internal business use of its Affiliates and Permitted Agents (collectively, “users”), a limited, non-exclusive, royalty-free (subject to payment of all Charges due hereunder), non-transferable and non-sublicensable right and license to access, use, upload Data to and operate the Product and the Product Documentation in accordance with the Specifications and User Guides associated therewith (the “Product License”). Unless and to the extent otherwise described in an Order Document, and subject to other Charges and license terms required by the Third Party Provider, the terms of the Product License shall extend to and apply to any Third Party Product or other software made available by the Company to the Customer under the Agreement (together with the Product License, the “Software License”).

10.2 Software Restrictions. Notwithstanding the foregoing, the Customer shall not (and shall ensure that its Affiliates, Permitted Agents and other users do not) (a) permit the use, implementation, configuration or support of the Product, Product Documentation or Software by any third party, agent or subcontractor; (b) sell, resell, rent or lease the Software or distribute or permit access thereto on a service bureau or software-as-a-service basis to any third parties (including to Affiliates or Permitted Agents); (c) develop any Software modules, add-ons or other applications or features or functionalities based upon, that are derived from or otherwise utilize the Software in any manner or by any means; (d) use the Software to store or transmit infringing, defamatory, threatening, offensive, abusive, obscene, libellous, or otherwise unlawful or tortuous information or material or to store or transmit information or material in violation of third party privacy rights or IPRs; (e) export from or use the Software to execute, store or transmit malicious code; (f) interfere with or disrupt the integrity or performance of the Software or attempt to gain unauthorized access thereto; (g) reverse engineer, decompile, disassemble, or otherwise attempt to learn any source code, structure, designs, algorithms, or other functionality or features of the Software; (h) remove any copyright, trademark, patent, or other proprietary notice that appears on the Software or any print-outs or electronic files therefrom, or otherwise infringe upon or misappropriate any Intellectual Property Rights or other rights or interests of the Company or any of its licensors; (i) use the Software in any manner that makes excessive use of the Company’s or Cloud Provider’s network or facilities; (j) introduce into the Software or any system, network, device or data of the Company or Cloud Provider any time bomb, Trojan Horse, worm, drop dead device, virus, ransomware or other computer software routines designed to permit unauthorized access to, use of, deletion of or interference with the operations of the Software or any aspect thereof; (k) introduce any self-destruction mechanism, illicit code, automatic restraint, or other mechanism that may interfere with the Company’s abilities to operate the Software or exercise any of its rights under this Agreement; and/or (l) carry out any unauthorized penetration of or diminish or alter the data security of the Software. The Customer’s Representatives shall not share passwords which are assigned to individual users of the Software and each user shall maintain the privacy and security of their Software password and log in credentials. Breach of this Section 10.2 shall void the warranties (and remedies thereto) set out in Section 5.

10.3 Software License Period. The Software License referred to in Section 10.1 shall commence from the Agreement Date and shall terminate in accordance with the provisions of Section 8.

10.4 Affiliate Software Use. Notwithstanding the foregoing, the Customer may use the Product to provide payroll and HR services to an Affiliate and/or Permitted Agent for its own internal business purposes and may also permit use of the Product by an Affiliate and/or Permitted Agent in connection with those services (subject always to Section 10.6). Such use by an Affiliate and/or Permitted Agent shall at no time create a direct contractual relationship between the Company and the Customer’s Affiliate and/or Permitted Agent, and any requests or communications must in all cases come directly through the Customer.

10.5 Additional Modules. The Product may contain modules in addition to those indicated in the Order Document as being licensed to the Customer. These additional modules are not covered by the Software License granted under or pursuant to the Agreement. The Customer shall not access, copy, or otherwise use these additional modules.

10.6 Records Limitation.

(a) The Software License of the Product is limited to its use in storing and/or processing Data in relation to the number of Employees stated in the relevant Order Document (the “Employee Maximum”). The Customer shall promptly notify the Company in the event an increase in the Employee Maximum is sought. Such change shall be recorded in the relevant Contract Document. The Customer acknowledges that the commercial offering is based on, inter alia, the Employee Maximum. The Company may at its discretion conduct an annual audit of the Customer’s use of the system and carry out a true-up process.

(b) Where the Customer exceeds the Employee Maximum and fails to notify the Company of the increase in accordance with subsection (a) above, then (without prejudice to the Company’s other rights and/or remedies) the Company shall be entitled to charge the Customer for the period from the date the Employee Maximum was exceeded to the date of notification by the Customer or the date the Company discovers that the Employee Maximum has been exceeded (as applicable). The Company shall be entitled to charge the Customer in accordance with this Section 10.6 at the Company’s prevailing rate applicable at the time of notification or discovery.

10.7 Independent Contractors. The Customer shall be responsible for maintaining reasonable data security and control over all Data and all Customer hardware and software facilities, including its network, devices, facilities and systems to safeguard them from access or use by any unauthorized person.

10.8 This Section 10 shall not operate to preclude the use by the Customer of independent individual contractors, who are not direct employees of the Customer, to perform project management and business analysis roles as part of the project of implementing the Product, provided that those contractors:

(a) first sign a confidentiality agreement with the Company on the Company’s standard form; and

(b) only use the Product or the Product Documentation for the purposes of the Customer’s project management and/or business analysis.

10.9 Where the Customer intends to use an independent contractor, the Customer shall notify the Company in writing. Upon such notification, if the Company determines that the contractor is a competitor of the Company, the Company may reject the Customer’s use of the contractor and the Customer hereby agrees not to use the rejected contractor in any capacity which relates to the Company’s Product and/or Services.

10.10 Where the Customer engages an independent contractor in contravention Section 10.8 for the purposes of, inter alia, providing implementation services, consultancy services and/or training services in relation to the Product and/or Services, the Company reserves the right, without prejudice to the Company’s other rights and/or remedies, to apply a charge equal to that which would have been payable by the Customer had such services been provided by the Company, payable by the Customer on demand. The Customer accepts and agrees that such Charges are not a penalty, but rather, agreed upon liquidated damages representing the estimated revenue that would have been received by the Company had the Company performed the services as provided in the Agreement. They are compensatory for damages difficult or impossible to estimate accurately in advance.

11. PRODUCT MAINTENANCE; CLOUD PROVIDER SERVICES

11.1 The Company shall be responsible for installing Sub-Releases and Fixes in accordance with this MSA and the Service Level Agreement.

11.2 The Customer shall:

(a) notify the Company of each Malfunction that may arise from the Customer’s use thereof and supply the Company, upon its request, with a documented example of such Malfunction;

(b) co-operate fully with the Company in diagnosing any Software Fault; and

(c) not request, permit, or authorize anyone other than the Company or the Company’s Representatives to provide any support or maintenance services in respect of the Product.

11.3 The Company shall not be obliged to provide support for any part of the Product, or any tool or software connected thereto, which has been installed or implemented by a third party without the prior written consent of the Company, nor shall the Customer be entitled to rely on any of the warranties or remedies set forth herein with regard to such third party work.

11.4 Cloud Provider Services. The Customer acknowledges and agrees that operational hosting support for the Product is provided by the Cloud Provider(s) identified in the Order Document, and that, subject to compliance with all of its obligations to the Customer (including prior notice to and the written consent of the Customer if and as required by applicable laws), the Company has the right to change or add additional Cloud Providers to its Services. Unless otherwise agreed in an Order Document or required by applicable laws, this Agreement constitutes Customer’s consent to the Company’s use of other Cloud Providers upon ninety (90) days prior written notice to Customer. Aside from the Company’s use of other service providers or contractors, the Customer hereby acknowledges that the Cloud Provider has the right to make modifications and/or enhancements to its system at any time in its discretion and that the quality of the Customer’s use of the Product is partially dependent upon the Cloud Provider’s performance of its services. The Customer further acknowledges that the Company cannot protect or control the security of Data while in transit over the Internet or when processed or stored by the Cloud Provider.

11.5 Cloud Provider Terms & Conditions. The Product and certain of the Services are subject at all times to the following Cloud Provider terms and conditions, as amended from time to time by the Cloud Provider (and automatically incorporated herein as and when so amended), and any and all other Cloud Provider terms and conditions applicable to Cloud Provider’s services:

The Microsoft Azure Online Order Document found at:

https://azure.microsoft.com/en-us/support/legal/subscription-agreement/

Customer hereby acknowledges and agrees that the Cloud Provider terms and conditions scope, limit, restrict and disclaim certain rights, obligations, damages and liabilities that may otherwise be available to the Company as subscriber of the Cloud Provider services and indirectly to its Customers and users as third party users of such Cloud Provider services by and through the Company. Accordingly:

The Customer hereby acknowledges and agrees that the Agreement does not create any duty or obligation for the company, or expose it to any claim, liability, damages or remedies by the customer, for any failure or defect in the Cloud Provider’s services that are solely within the Cloud Provider’s control, are outside of the Company’s control and are excluded or disclaimed by the Cloud Provider so as to be unrecoverable by the Company against the cloud provider, SUCH TERMS BEING AN ASSUMED COST OF BUSINESS BY BOTH PaRTIES HERETO.

12. PROJECT IMPLEMENTATION & PROFESSIONAL SERVICES

12.1 The parties shall work together to ensure the successful installation and implementation of the Software for live use (the "Implementation Project") in accordance with the Agreement which includes, but is not limited to, the Statement of Work. Where Professional Services are procured by the Customer on an Order Document (and such Professional Services are described as being provided on a time and materials basis), the Customer agrees to co-operate with the Company to ensure that the Professional Services can be carried out within a reasonable time period. Where the Customer decides not to implement a particular module or modules after execution of an Order Document that includes them, it agrees to pay the Professional Services Charges listed for such modules no later than twelve (12) months after the Agreement Date.

12.2 The Company’s project manager and the Customer’s project manager will work together to manage the Implementation Project in accordance with the Statement of Work. This will include the scheduling of Professional Services for each party's Representatives to deliver the Implementation Project, which will be subject to approval by the Customer’s Project Manager (such approval not to be unreasonably withheld or delayed).

12.3 Charges for cancellation or postponements by the Customer of any Professional Services shall be subject to cancellation Charges determined as follows. If the Customer cancels or postpones;

(a) more than fifteen (15) Working Days, no charge

(b) fewer than fifteen (15) Working Days, 50% of the relevant Charges; or

In each case the calculation is made from the scheduled date of delivery of such Professional Services. The Customer accepts and agrees that the Charges outlined above represent a reasonable estimate of the losses which will be incurred by the Company in preparation for such work (including the opportunity cost of foregoing other revenue-producing work) and therefore shall be payable to the Company upon the Company’s demand as liquidated damages.

12.4 The Customer’s Project Manager will be responsible for managing the Customer’s contribution to the Implementation Project. The Customer shall at no cost to the Company:

(a) where applicable, provide all the Company’s Representatives when at the Customer’s Site or when working remotely with such facilities, equipment and media as may be reasonably necessary for the provision of the Professional Services;

(b) provide appropriately qualified and experienced staff in sufficient numbers to fulfil the Customer’s tasks as part of the Implementation Project;

(d) promptly provide the Company’s Project Manager and the Company’s Representatives with such information and documents as they may reasonably request, including making decisions on the Implementation Project without undue delay; and

(e) ensure that all applicable acceptance forms are signed off without undue delay.

12.5 Once the Company has completed its performance of any Professional Services the Customer shall (if it so requires) have a period of ten (10) Working Days (an "Acceptance Period") to review and sign-off any Activity Report provided by the Company.

12.6 If the Customer does not raise any objections, issues, or concerns in respect of the performance of the Professional Services during the Acceptance Period, the Customer shall:

(a) be deemed to be satisfied with and otherwise to have accepted such Professional Services; and

(b) not be entitled to raise any objections to such work them subsequently (or to claim any breach of warranty under Section 5 or otherwise). For the avoidance of doubt, this Section is not intended to prevent the Customer from accessing remedies available under Product Support.

Notwithstanding the foregoing, the Company may, at the request of the Customer, provide a remedy as detailed in Section 5.3 where the Customer has not raised the relevant objections, issues or concerns within the Acceptance Period. In such circumstances, where the Company provides a remedy, the Customer agrees to pay on demand any additional Charges, expenses and costs associated with providing such remedy to the extent that the Company has incurred such.

13. CHANGE ORDER

13.1 During the Implementation Project, either party shall be entitled to request a change to the Software or Services by notifying the other party of such change (a “Change Order Request”). Performance of any Change Order Request may be subject to additional Charges, including (where applicable), an administration charge.

13.2 The Change Order Request shall be duly considered in good faith. Where the parties agree to a particular change, they shall execute a Change Order Form to record the terms and details of the agreed change. Until such Change Order Form is validly executed by both parties, the parties' obligations shall remain as set out in the then current versions of the applicable Contract Document.

13.3 The details of Product Support and the provisions thereof may be amended at any time by the Company upon ninety (90) days' written notice by the Company to the Customer; provided that such amendment does not materially reduce the level of Product Support provided.

13.4 The Customer accepts and agrees that the Services associated with the Implementation Project shall be restricted to those contained within the Statement of Work, or other subsequently agreed Contract Document. Services which are out of scope will be managed in accordance with this Section 13 and may be chargeable.

14. THIRD PARTY PRODUCT TERMS

14.1 The Customer accepts that Third Party Products are licensed in accordance with the Agreement and the applicable third party terms and conditions as found online for the relevant Third Party Provider.

14.2 The license of the Third Party Product shall commence on delivery of the Third Party Product and shall continue until it terminates in accordance with the Agreement.

14.3 The Company licenses the Third Party Products to the Customer only for use in conjunction with the Product licensed by the Company. The Customer shall:

(a) only use the Third Party Products in conjunction with such Product; and

(b) in its use of the Third Party Products, comply with any obligations and restrictions applicable to such Product under the Agreement as if such obligations and restrictions also referred to such Third Party Products.

14.4 To the extent it is able to do so, the Company shall pass on to the Customer the benefit of any warranty given by the relevant Third Party Provider in relation to the Third Party Product and Third Party Product Maintenance Services.

14.5 The Company shall be entitled to pass on to the Customer by way of an increase in the Third Party Product license charge or Third Party Product maintenance charge any price or cost increases imposed on the Company by a Third Party Provider. The Company shall provide the Customer with notice in writing of any such increase.

14.6 The provision of maintenance and support services by the Company for any Third Party Product is limited to that described in the Order Document and in this Section 14.

14.7 Queries and requests for support and maintenance relating to a Third Party Product may where the Company is unable to resolve the issue, be referred to the relevant Third Party Provider. The Company shall keep the matter open until such time as a resolution has been found or the parties agree, acting reasonably and in good faith, that no resolution can be found.

15. CONFIDENTIALITY

15.1 Each party may receive from the other party Confidential Information of the other party and neither party shall use, copy, or disclose any Confidential Information to any third party without the other party’s prior written consent.

15.2 Nothing in Section 15.1 shall prevent either party from disclosing Confidential Information to such of its Representatives that require access to the Confidential Information in the performance of that party’s obligations, provided that such Representatives are contractually bound not to disclose the same. Notwithstanding the foregoing, where the Customer wishes to disclose any of the Company’s Confidential Information to a Customer sub-contractor or agent, the Customer shall first notify the Company in writing. Where the Company (acting reasonably) considers such sub-contractor or agent to be a competitor of the Company, the Company may reject the disclosure of such Confidential Information and the Customer hereby agrees not to disclose such Confidential Information to such unapproved third party.

15.3 Without prejudice to Section 15.1, the Software, Services, Documentation, Specification and any information, data, specifications, source or object codes which the Company may from time to time impart to the Customer or its Affiliates are proprietary and confidential to the Company (or its suppliers or licensors), and the Customer shall keep them confidential in accordance with Section 15.1.

15.4 Each party shall indemnify the other from and against any Losses suffered or incurred by the other as a result of a breach by the first party of its obligations under this Section 15.

15.5 The restrictions in Section 15.1 and 15.3 shall not apply to:

(a) items which were already in the possession of the party concerned before disclosure (except as a result of a breach of a Contract Document or any other agreement);

(b) items obtained from another source which is free to disclose the same;

(c) items which are in the public domain (except as a result of a breach of any Contract Document or any other agreement);

(d) the compiling and copying of elements of the Company Data (which do not, taken together, comprise personal information or allow for the Customer or its employees to be identified) by the Company for the purposes of collating aggregated data or statistics for research purposes; or

(e) information disclosed in accordance with Section 15.6.

15.6 Upon termination of the Agreement, both parties shall, at the request of the other, either return, destroy or delete the other party’s Confidential Information and supply written evidence of the same.

16. DATA PROTECTION

16.1 With respect to the parties’ rights and obligations under the Agreement, the parties acknowledge that, for the purposes of the Data Protection Laws, the Company is the “processor” or “service provider” or “contractor” under such laws and the Customer is the “controller” or “business” in respect of any and all personal information (including Data if applicable) used, collected or processed by the Company pursuant to the Agreement. The Order Document may further describe the scope and nature of personal information and the details of processing activities hereunder.

16.2 Each party shall comply with all applicable requirements of the Data Protection Laws in respect of personal information. This Section 16 is in addition to, and does not relieve, remove or replace a party’s obligations under the Data Protection Laws.

16.3 Without limiting the generality of the foregoing, the Company shall:

(a) Process the personal information received from the Customer only on behalf of the Customer, only for the purposes of performing the Agreement and only in accordance with the Customer’s instructions, unless required to do otherwise by applicable law as reasonably interpreted by the Company. In any such case, the Company will inform the Customer of the applicable legal requirement if and as permitted by law. The Customer’s documented instructions include any tasks attributed to the Company in a Service Level Agreement;

(b) not sell or share the personal information in violation of the Data Protection Laws or in excess of the authorization provided by the Customer and will properly process any and all affirmative consent, opt-in and/or opt-out requirements as required under such laws;

(c) Ensure that only personnel that are authorized by the Company to have access to personal information (and Data), have been properly trained and are subject to confidentiality obligations in respect thereof are provided access to personal information;

(d) Taking into account the nature of the processing implement such measures and take such actions in relation to the security, confidentiality, availability and integrity of the personal information as required of it by the Data Protection Laws and this Agreement;

(e) Observe and comply with the requirements of the Data Protection Laws with regard to the engagement of, and responsibility for, sub-processors, other service providers or subcontractors;

(f) Taking into account the nature of the processing, assist the Customer by appropriate means, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests by data subjects to exercise their rights under the Data Protection Laws. If any notification of the exercise of such rights is given to the Company directly by the data subject, the Company shall notify the Customer without undue delay, but in any case, within five (5) days of the request;

(g) Taking into account the nature of the processing and the information available to the Company, assist the Customer in carrying out its obligations under the Data Protection Laws with respect to security, breach notifications, data protection assessments and consultations with attorneys general or regulators. Any such assistance required from the Company on behalf of the Customer in relation to a breach of Data Protection Laws by the Customer, shall be chargeable by the Company at the then prevailing rates;

(h) Make available to the Customer information that demonstrates its compliance with appropriate Data Protection Laws and this Section 16, in relation to its obligations as a processor;

(i) Notify the Customer without undue delay, but in any event within 48 hours, after becoming aware of a Data Incident; and

(j) will notify the Customer if the Company determines that it can no longer meet its obligations under the Data Protection Laws or this Section 16.

16.4 If the Company notifies the Customer that, in its opinion, an instruction infringes any applicable Data Protection Laws or is not permitted under the Agreement, it will consult with the Customer as soon as reasonably possible. If the Company, after consultation is of the same opinion, it will not be obliged to follow that instruction.

16.5 The Company acknowledges that the personal information provided to it by the Customer belongs to the Customer.

16.6 The naming of any sub-processor, sub-service provider or subcontractor in the Order Document or other Contract Document for the purposes stated therein shall constitute Customer’s authorization for the Company to engage such entity for such purposes.

16.7 Where a sub-processor, sub-service provider or subcontractor ceases business, becomes insolvent or is in breach of the Data Protection Laws, the Company may change that entity in accordance with applicable laws without prior reference to the Customer provided that:

(a) it notifies the Customer as soon as practicable prior to or promptly after the replacement being undertaken;

(b) the replacement sub-processor, sub-service provider or subcontractor is reputable and of such size and standing as to be able to fulfil its obligations to the Company effectively; and

(c) where requested by the Customer, the Company shall provide a summary of the findings of due diligence undertaken in respect of the replacement sub-processor, sub-service provider or subcontractor and provides any other information reasonably requested by Customer.

16.8 Provided that the Company abides by all other provisions of this Section 16, it may use the personal information collected or processed hereunder, on an internal basis, to improve the quality of its Product or Services ; to prevent, detect or investigate data security incidents or to protect against malicious, deceptive or illegal activity; but may not use such data to perform services on behalf of any other person or entity.

16.9 Subject to Section 3.1(c), the Company shall permit the Customer (or a third party authorized by Customer), to carry out data protection audits and inspections of the Company.

16.10 Without limiting the generality of the foregoing, the Customer shall:

(a) ensure that it, and its Affiliates and Permitted Agents, comply with the Data Protection Laws and all applicable codes of practice in respect of the personal information covered hereby, including in its role as a controller and in supplying or making available to the Company any personal information for processing by the Company hereunder; and

(b) not instruct the Company to process personal information for purposes other than the performance of the Agreement.

16.11 The Customer warrants to the Company that:

(a) it has received all necessary authorizations, consents and notices necessary for the lawful transfer of personal information to the Company for the duration and purposes of the Agreement.

(b) all personal information provided to the Company pursuant to the Agreement will be, to the best of its knowledge, accurate and complete in all material respects, and the Customer is entitled to provide the same to the Company without recourse to any third party; and

16.12 The Customer acknowledges that the Company is reliant on the Customer for direction as to the extent that the Company is entitled to use and process personal information and that such direction will be set out in the Order Document or otherwise provided to the Company in writing.

16.13 Upon expiration or early termination of the Agreement, the Customer shall, within five (5) working days of receipt of a request from the Company, provide written instruction to the Company in respect of the return and/or deletion of the Data that has been processed under the Agreement. Upon receipt of such instruction the Company shall promptly comply and either:

(a) provide a copy of the Data as an Oracle export (unless otherwise agreed as part of the exit process and Charges) and then securely delete the Customer instance and the data within it; or

(b) securely delete the Customer instance and the data within it.

16.14 The Company shall upon completion of the deletion of the data provide a certificate of destruction to the Customer.

16.15 Where a Customer fails to return the instruction or collect the data extract after a period of thirty (30) days, the Company shall delete the Customer's instance and the Data therewithin. The Customer warrants that it shall not hold the Company liable for any breach of the Data Protection Laws or any losses incurred through its failure to provide the instruction at Section 16.14.

17. COMPLIANCE WITH CONTRACT DOCUMENTS

17.1 The Company shall be entitled to take reasonable steps to verify and confirm that the Customer's use of any Software and/or Services complies with the Customer's obligations under any Contract Documents in relation to such use (including that the Customer is only using any Software to the extent it is licensed to do so) and the Customer agrees to provide the Company with reasonable co-operation and assistance to do so.

17.2 Where such reasonable steps include an audit to take place at the Customer’s site, the Company shall provide the Customer with reasonable prior notice and the audit shall take place within Normal Working Hours on a Working Day. The Customer agrees (at its cost) to cause its Representatives to co-operate fully with the Company or its appointed third-party auditor(s).

18. FORCE MAJEURE

18.1 In this Section 19, the expression “Force Majeure” shall mean an event which is beyond the control of an affected party and which such party could not anticipate or mitigate by means of insurance, contingency planning or any other prudent business means. Any event will only be considered Force Majeure if it is not attributable to the wilful act, neglect, default, or other failure to take reasonable precautions of the affected party, its agents, employees, or contractors. Industrial dispute or action shall not give rise to an event of Force Majeure.

18.2 No party shall in any circumstances be liable to the other party for any Losses suffered by the other party by reason of any failure or delay in the performance of its obligations under a Contract Document which is due to Force Majeure. Notwithstanding the foregoing, each party shall use reasonable endeavours to continue to perform, or resume performance of, such obligations for the duration of such Force Majeure.

18.3 If either party is unable to perform its obligations under a Contract Document due to Force Majeure for a consecutive period of more than three months the other party may terminate such Contract Document by notice in writing and the provisions of Section 8.4 shall apply.

19. WAIVER

19.1 Failure or neglect by either party at any time to enforce any of the provisions of a Contract Document shall not be construed as, neither shall it be deemed to be, a waiver or abandonment of the respective rights of that party nor in any way affect the validity of the whole or any part of a Contract Document nor prejudice that party’s rights to take subsequent action.

20. SEVERABILITY

20.1 If any limitation or provision contained in a Contract Document shall be determined invalid, unlawful, or unenforceable it shall be severed from the remainder of a Contract Document which shall continue to be valid to the extent permitted by law.

21. ASSIGNMENT AND THIRD PARTY RIGHTS

21.1 The Company shall be entitled to assign the benefit (subject to the burden) of the Agreement, and may transfer a copy of the Data in such form as it then exists, to a company which succeeds to the business of the Company as a result of any internal reorganization or change of control of the Company or any of its Affiliates without Customer consent.

21.2 Where the Customer is a statutory authority or agency, it shall be entitled to assign the benefit (subject to the burden) of the Agreement to anybody which by law shall succeed to the functions of the Customer.

21.3 Save as provided for in Sections 23.1 or 23.2, neither party may assign, novate, sub license or otherwise transfer a Contract Document or any rights or obligations under it whether in whole or in part, without the written consent of the other party (such not to be unreasonably withheld or delayed).

21.4 Each Contract Document shall be enforceable by the original parties to it and by their successors in title and permitted assignees.

22. ENTIRE AGREEMENT

22.1 The Agreement, together with the documents referred to in it, constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in that Agreement and supersedes, cancels and nullifies any previous agreement between the parties relating to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination.

22.2 Each of the parties acknowledges and agrees that in entering into the Agreement, and the documents referred to in it, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in the Agreement as a warranty. The only remedy available to it for breach of the warranties will be as set out in the Agreement.

23. GENERAL, NOTICES AND COMMUNICATIONS

23.1 Any terms and conditions contained within the Customer’s form of order shall be superseded by the terms of the Agreement.

23.2 Any variation of the Agreement shall only be binding if it is in writing and signed by the Authorized Representative of each party.

23.3 The Customer will ensure and undertake that its Affiliates, Representatives and agents comply with any restrictions on the Customer under the Agreement as if they were a party to the Agreement. The Customer shall be liable for the acts and omissions of its Affiliates, Representatives and agents as if they were the acts and omissions of the Customer.

23.4 Any notice required or permitted under the terms of a Contract Document or required by law shall be in writing (in English) and shall either be delivered in person, sent by first class mail, or air mail, to the Authorized Representative of the party to whom the notice is being given at the address stated in this MSA. Such notice shall be deemed to have been given upon delivery (if delivered in person), or otherwise 48 hours after having been posted or by email (and in the case of notices sent to the Company, to the email address detailed in the Order Document for the attention of the Company Secretary). For the avoidance of doubt, this Section 23.4 shall not apply to the serving of any documents pertaining to legal proceedings.

23.5 Each party warrants that it has the right, power, and authority to enter into this Agreement, to become a party hereto and to perform its obligations hereunder. This Agreement is a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

23.6 If Customer is a U.S. Federal government end user, the parties agree that the Software is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” and as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Software is licensed to Customer with only those rights as provided under the terms and conditions of the Agreement.

24. LAW AND DISPUTE RESOLUTION

24.1 If any non-contractual dispute, or any dispute between the parties about either the interpretation of the provisions of the Agreement or the performance by either of the parties of its obligations under the Agreement cannot be resolved at an operational level, upon the written request of either party, each party will, within three (3) Working Days after the date of service of such written request, appoint a designated representative (being a senior member of staff of the party who does not devote a substantial part of his time to the operation or performance of the Agreement) who will meet with the equivalent representative of the other party to endeavour to resolve such dispute subject to the further provisions of this Section 24. Nothing in this Section 24 will prevent either party from seeking injunctive or interlocutory relief or interlocutory remedies from the Courts in relation to any dispute.

24.2 In any attempt to resolve a dispute in accordance with Section 24.1:

(a) designated representatives will meet as often as the parties reasonably deem necessary to gather and exchange all information regarding the matter in issue which the parties believe to be relevant to its resolution;

(b) such representatives will discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceedings;

(c) during the course of such negotiation, all reasonable requests made by one party to the other for information will be honoured so that each party may be fully advised of the relevant facts. The specific format for such discussions will be left to the discretion of the relevant representatives.

24.3 If at any time when the parties are endeavouring to resolve any dispute in accordance with Sections 24.1 and 24.2, the parties agree that the dispute should be resolved by mediation, or if a period of fifteen (15) Working Days has expired since the service of a written request in accordance with Section 24.1 and either party gives the other notice in writing requiring the dispute to be so referred, the parties shall refer the dispute to a mediator.

24.4 If within five (5) Working Days of the decision pursuant to Section 24.3 to appoint a mediator or the parties are unable to agree on the mediator to be appointed, then the mediator shall be determined by the American Arbitration Association (AAA) (www.adr.org/).

24.5 As of the date of the last signature hereto, the formation, existence, construction, performance, validity, and all aspects whatsoever of each Contract Document shall be governed by the laws of the state of the Company’s principal place of business in the U.S.. The state and Federal courts of the state of the Company’s principal place of business in the U.S. shall have exclusive jurisdiction and constitute the agreed venue to file any action or proceeding relating to the performance or breach of the Agreement and any and all disputes arising out of or in connection with any Contract Document.

Version 34.0US September 2022

Master Services Agreement

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