Master Services Agreement (“MSA”)
This MSA forms a framework agreement under which we can enter into Statement of Works from time to time for us to provide Professional Services. Once you have agreed and signed a Statement of Work for Professional Services, we will have a binding contract in respect of those services.
We reserve the right to vary the terms of this MSA from time to time. The updated terms will be notified to you via an in-platform notification in your portal or by email. The updated terms will also be displayed on our website https://www.nazca-services.com/legal-stuff/ and by continuing to use the Subscribed Services you agree to be bound by any variation made by us.
Completing your registration and purchase of one or more of the Subscribed Services confirms your acceptance of this MSA.
The definitions set out in Schedule 1 shall apply to this MSA.
1. Statement of Works
1.1 This MSA operates as a binding contractual framework under which we may agree Statement of Works. Each agreed Statement of Work is a separate contract for the Professional Services.
1.2 An agreed Statement of Work incorporates all the terms of this MSA. The terms of a Statement of Work may be varied by us both in writing.
1.3 A Statement of Work is agreed and binding on the parties when it is signed by both of us.
1.4 In the event of conflict between a Statement of Work and this MSA, the Statement of Work shall prevail.
2. Professional Services
2.1 We shall provide the Professional Services using reasonable care and skill, in accordance with the terms of this MSA.
2.2 We shall both use reasonable efforts to perform our duties as identified in a Statement of Work and meet the timescales specified.
2.3 If the Professional Services (or any part of them) are to be provided in respect of any software, software as a service subscription, and / or services which are licensed or provided to you by us and/or one of our third party suppliers, then you shall maintain in place the agreement for such licensing or provision by us and/or our third party suppliers in order for us to provide the Professional Services.
2.4 Unless otherwise agreed by us in writing, we will invoice you (at our then standard rates) for any additional work performed by us due to:
(a) any breach by you of your obligations in this clause 2; and / or
(b) the provision by us of any services requested by you which are outside the scope of the Statement of Work.
2.5 If you ask us to provide or utilise any Third Party Solution as part of, or in relation to, the Professional Services, and the fees for such Third Party Solution are not specified in the applicable Statement of Work, then:
(a) we shall invoice you for the fees incurred by us for such Third-Party Solution;
(b) and we shall both, as soon as reasonably practicable, agree a change (in accordance with clause 15.2) to the applicable Statement of Work to reflect the fees to be paid by you for such Third-Party Solution.
3. Your Responsibilities
3.1 You shall provide to us all Materials required by us as specified in a Statement of Work or requested from time to time.
3.2 To the extent that we may reasonably require in order to provide the Professional Services, you shall:
(a) permit our staff to have access to your premises and systems;
(b) provide us with prompt co-operation, assistance, and / or information; and
(c) make available to us all office, information, and telecommunications facilities.
3.3 You shall provide us with up-to-date copies of all health & safety, fire, and security policies and procedures applicable to any of your premises on which we provide the Professional Services.
4. Out of Scope
4.1 This clause 4 applies in respect of any Integration Services which are provided by us in respect of your Subscribed Services (together “Your Subscription”).
4.2 We shall not be responsible for confirming and / or testing the suitability of Your Subscription for use with any Integration Services.
4.3 You shall be responsible for:
(a) satisfying yourself that the Integration Services are suitable for your purposes and for use with and / or on the Your Subscription;
(b) if applicable, implementing the necessary update configurations on your systems in order to receive or use the Integration Services with active subscription licences as specified in the applicable Statement of Work and (iii) if applicable, serving the relevant pieces of code or services in order to receive or use the Integration Services. We shall not be responsible for any adverse impact on the functionality and / or performance of Your Subscription, and / or loss of, or corruption to, your data, caused by the provision, receipt or use of the Integration Services.
4.4 We shall not be responsible for the functionality and / or performance of your system with which Integration Services connect to, or used with, your Subscribed Services.
5. Services Contacts
5.1 We shall both appoint an Integration Administrator (or other appropriate administrator) to each Statement of Work who shall, in respect of that Statement of Work:
(a) deal with requests for information;
(b) deal with change requests under clause 15.2;
(c) coordinate the activities of colleagues in respect of the Professional Services; and
(d) be responsible for agreeing and signing documentation relating to the Professional Services.
5.2 We shall both ensure that our Integration Administrator has the relevant skills and experience to enable them to fulfil their role. We shall both promptly notify the other of any changes to our appointed Integration Administrator or their contact details.
If we agree in a Statement of Work that we will provide specified Nazca Services Materials, our delivery of such materials to you will be in a form, and using the media, specified in that Statement of Work or as otherwise determined by us.
7. Materials, Deliverables and Licence
7.1 Risk in (and the responsibility to keep secure and insured) the Nazca Services Materials shall pass to you on delivery.
7.2 Nothing in this MSA and / or any Statement of Work shall have the effect of transferring to you ownership of: (a) the title in any physical media or subscription service on which the Nazca Services Materials are delivered by us; and / or (b) Intellectual Property Rights in the Nazca Services Materials or Deliverables.
7.3 We, and / or our licensors, own all Intellectual Property Rights in the Nazca Services Materials and the methods, configuration, software as a service, software, and tools used to provide the Professional Services.
7.4 You shall (and shall procure that your contractors, subcontractors, or agents shall) promptly enter into such documentation as is reasonably required by us to vest ownership of Intellectual Property Rights in accordance with clauses 7.2 and 7.3.
7.5 We grant to you a non-exclusive and perpetual (subject to termination of the applicable Statement of Work by us in accordance with clause 10) licence to use the Nazca Services Materials and the Deliverables with Your Subscriptions for your own internal business purposes. You shall not sell, transfer, sub-license, and / or disclose the Nazca Services Materials to any third party.
7.6 You grant to us (and our subcontractors) a non-exclusive licence to use any Materials you provide to us for the purposes of providing the Professional Services and / or complying with our obligations under this MSA and each Statement of Work.
8. Your Indemnity
You shall indemnify us against any and all Losses arising out of or in connection with any third party claim that the data and / or materials (including, Materials provided by you) provided by you (or on your behalf) to us infringes any Intellectual Property Rights of any third party.
9.1 The Fees and expenses shall be paid by you in accordance with this clause 9 and the applicable Statement of Work.
9.2 Unless otherwise expressly agreed in a Statement of Work, if the Fees under that Statement of Work are payable:
(a) on a ‘time and materials’ basis then such Fees shall become payable monthly in arrears; or
(b) on a ‘fixed’ fee basis then each fixed Fee shall become payable in advance of the period to which such fixed Fee relates.
9.3 Unless otherwise expressly agreed in a Statement of Work, you shall also pay any expenses reasonably incurred by us in performing our duties under that Statement of Work, including travel, accommodation, and subsistence expenses. Such expenses shall become payable monthly in arrears.
9.4 All Fees and expenses payable by you to us are payable in Pounds Sterling and are exclusive of any tax, levy or similar governmental charge (including value added or sales tax) which shall be paid by you at the rate and in the manner prescribed by law.
9.5 We shall be entitled to invoice you for the Fees and expenses as and when they become payable. Unless otherwise agreed by us, we shall be entitled to issue our invoices to you by email at the ‘Invoicing email address’ specified in the MSA Details Page.
9.6 You must pay each validly issued invoice no later than thirty (30) days after the date of such invoice.
9.7 If any sum payable under a Statement of Work is not paid by the due date for payment then (without prejudice to our other rights and remedies):
(a) we shall be entitled to suspend the provision of the Professional Services and / or delivery of the Nazca Services Materials until you have paid all outstanding invoices; and / or
(b) we can charge interest on that sum on a daily compounded basis at the rate of three per cent (3%) per annum above the base rate of Lloyds Bank PLC from time to time, from the due date until the date of actual payment, whether before or after judgment, plus all expenses of collection.
9.8 You shall not be entitled to set off any sums due from to us, against sums due to you under this MSA, any Statement of Work, or any other contract between us.
10. Term and Termination
Master Services Agreement
10.1 This MSA shall commence upon the registration and purchase of a Nazca Services Enterprise Subscription and shall continue until terminated by either party in accordance with this clause 10.
10.2 This MSA shall remain in force for the duration that you have an active Nazca Services Enterprise Subscription and shall terminate not less than twelve (12) months’ following the last Nazca Services Enterprise Subscription terminating.
10.3 Termination of this MSA pursuant to clause 10.2 shall not terminate any outstanding Statement of Work.
10.4 We may terminate this MSA and all Statements of Work for any reason and at any time by giving no less than 30 days’ prior written notice.
Statement of Works
10.5 A Statement of Work shall commence on the ‘SOW start date’ specified in that Statement of Work and shall continue until terminated in accordance with this clause 10.
10.6 A Statement of Work shall automatically terminate on expiry of that Statement of Work’s SOW Term.
10.7 We shall both be entitled to terminate a Statement of Work immediately if:
(a) the other commits a material breach of this MSA or the Statement of Work and such breach is not remediable;
(b) the other commits a material breach of this MSA or the Statement of Work which is not remedied within 30 days of receiving written notice of such breach; or
(b) the other has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency), or makes an arrangement with its creditors, or petitions for an administration order, or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine that the debtor is unable to pay its debts.
10.8 On termination of a Statement of Work howsoever caused:
(a) provision of the Professional Services pursuant to that Statement of Work shall cease;
(b) we shall both promptly return all property of the other that was provided under that Statement of Work;
(c) other Statements of Work and this MSA shall be unaffected;
(d) the rights and duties created by clauses 7.1 – 7.4, 9 (including your accrued payment obligations), shall survive; and
(e) any rights which arose on or before termination shall be unaffected.
10.9 If you terminate a Statement of Work in accordance with clauses 10.6 and such termination precedes completion of the Professional Services which are to be provided under that Statement of Work:
(a) we shall make such partial delivery to you of the corresponding Professional Services and Deliverables as is reasonably practicable, such Professional Services and Deliverables provided on an “AS IS” basis; and
(b) if we have agreed to a ‘fixed’ fee in that Statement of Work, we shall reduce the ‘fixed’ fee to an amount that reasonably reflects both the value of the Professional Services and Deliverables that have been provided under that Statement of Work and the cost to us of providing such Professional Services and Deliverables.
11. Confidential Information and Data Protection
11.1 We will both have access to Confidential Information belonging to the other.
11.2 For the purposes of this MSA, Confidential Information does not include that which:
(a) is already in the receiving party’s possession at the time of disclosure to the receiving party;
(b) is or becomes part of public knowledge other than as a result of any action or inaction of the receiving party;
(c) is obtained by the receiving party from an unrelated third party without a duty of confidentiality; or
(d) is independently developed by the receiving party.
11.3 The receiving party shall not use Confidential Information of the disclosing party for any purpose other than is necessary for the performance of its express rights and obligations under this MSA. The Receiving party shall not disclose Confidential Information of the disclosing party to any third parties except as otherwise permitted in this MSA or the Statement of Work.
11.4 The receiving party may disclose Confidential Information of the disclosing party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality of the Confidential Information under provisions no less restrictive than those required by the receiving party for its own Confidential Information. The receiving party shall maintain Confidential Information of the Disclosing party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each party shall advise the other party in writing of any misappropriation or misuse of Confidential Information of the other party of which the notifying party becomes aware.
11.5 Notwithstanding the foregoing, this MSA shall not prevent the receiving party from disclosing Confidential Information of the disclosing party to the extent required by a judicial order or other legal obligation, provided that, in such event, the receiving party shall promptly notify the disclosing party to allow intervention (and shall cooperate with the Disclosing party) to contest or minimize the scope of the disclosure (including application for a protective order).
11.6 Either of us may disclose the terms and conditions of this MSA:
(a) as required by Applicable Law;
(b) in confidence, to legal counsel;
(c) in confidence, to accountants, banks, and financing sources and their advisors; and
(d) in connection with the enforcement of this MSA or any rights in it.
11.7 We shall use and process any Customer Data in accordance with our Data Protection Policy.
12.1 Neither of us shall exclude or limit our liability for: (a) death or personal injury caused by our negligence; and / or (b) fraud or fraudulent misrepresentation.
12.2 We shall not be liable for any: (a) loss of profit, loss of revenue, loss of anticipated savings, loss of business opportunity, loss of goodwill, loss of reputation, and / or loss or corruption of data; and / or (b) indirect or consequential loss.
12.3 You agree that you will have no remedy in respect of any untrue statement or representation made to you (including those made negligently) upon which you relied in entering into this MSA and / or any a Statement of Work and that your only remedies can be for breach of contract (unless the statement was made fraudulently).
12.4 Our aggregate liability to you under each Statement of Work shall not exceed the Fees paid or payable by you under the applicable Statement of Work.
12.5 We exclude any implied term concerning the Professional Services and / or Deliverables (including, any condition or warranty as to merchantability, quality, conformance with description, or fitness for purpose) whether such term is implied by statute or common law.
13.1 During the term of this MSA, you shall not, without our prior written consent, solicit or entice away any of our employees who performed (or is performing) material obligations under any applicable Statement of Work (excluding administrative, secretarial, or other back-office functions), other than by means of a national advertising campaign open to all-comers and not specifically targeted at our employees. If the restriction set forth in this clause 13.1 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area for which it may be enforceable.
13.2 If you breach clause 13.1, you shall pay us an amount equal to the last twelve (12) months’ salary of the applicable individual in recognition of the value of the individual to us and cost of recruiting and training a replacement. We both agree that this sum is a genuine pre-estimate of the loss likely to be suffered by us in these circumstances and not a penalty. Payment of the above referenced amount shall be our only remedy for a breach of clause 13.1.
14. Assignment and Subcontracting
14.1 You shall not assign or otherwise transfer this MSA or any Statement of Work or any of your rights and duties without our prior written consent.
14.2 We can freely assign, subcontract or otherwise transfer any of our duties under this MSA or any Statement of Work without consent.
Statement of Works. If either of us wishes to request a change to a Statement of Work at any time, we shall provide the other with written details of the change and such further information as the other shall reasonably require. No changes to a Statement of Work shall be valid unless a new Statement of Work is executed to that effect (or the changes are made in writing and signed by our authorised representatives).
16.1 Master Service Agreement. Any dispute arising under this MSA shall be referred to the ‘MSA Contacts Page’ who shall attempt resolution through negotiations. If the dispute remains unresolved for at least twenty-eight (28) days, either one of us may refer the dispute to the English courts.
16.2 Statement of Works. Any dispute arising under a Statement of Work should first be escalated to the current services contact for that Statement of Work. If the dispute remains unresolved for at least fourteen (14) days, it shall be referred to the ‘MSA Contacts Page’ who shall attempt resolution through negotiations. If the dispute remains unresolved for a further twenty-eight (28) days, either one of us may refer the dispute to the English courts.
All notices (which include invoices and correspondence) under this MSA and each Statement of Work shall be in writing and shall be sent to the registered address of the recipient or to such other address as the recipient may have notified from time to time. Any notice may be delivered personally, by a reputable courier service, by first-class post, by fax, or by e-mail and shall be deemed to have been served if by hand when delivered, if by courier service or first class post forty-eight (48) hours after delivery to the courier or posting (as the case may be), if by fax when confirmation of transmission is received, or if by e-mail immediately.
18.1 Jurisdiction and Governing law: This MSA is governed by the law of England and Wales and any disputes, actions, claims or causes of action arising out of or in connection with it shall be subject to the exclusive jurisdiction of the English courts.
18.2 Severance: If any provision of this MSA is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
18.3 Relationship: No joint venture, partnership, employment, or agency relationship exists between us because of this MSA.
18.4 Waiver: The failure of either of us to enforce any right or provision in this MSA shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other in writing.
18.5 Entire Agreement: This MSA together with any documents referred to in it (including, without limitation, the MSA Details page and the MSA Contacts page) comprise the entire agreement between us regarding its subject matter and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between us regarding such subject matter.
18.6 Third Party Rights: A person who is not a party to this MSA shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
18.7 Publicity: You consent to us using your name in our sales and marketing literature (including our website).
18.8 Force Majeure: Neither of us shall be liable for any delay or failure in performing our duties under this MSA or any Statement of Work caused by any circumstances beyond our reasonable control.
In this MSA and each Statement of Work the following expressions have the following meanings:
“Confidential Information” means any information, however conveyed or presented, that relates to the business affairs, operations, processes, budgets, pricing, policies, product information, strategies, developments, trade secrets, know-how, personnel, customers and/or suppliers of the disclosing party together with all information derived by the receiving party from such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked “confidential”) or which ought reasonably to be considered to be confidential;
“Customer/You” means the ‘Customer’ entity specified in the MSA Details Page;
“Customer Data” means all data (in any form) that you disclose or submit to us under this MSA;
“Data Protection Policy” means our policy setting out how we use and process your Customer Data available at https://www.nazca-services.com/legal-stuff/;
“Deliverables” means any works, materials or other output in any form or format whatsoever produced by us or on our behalf as part of the Professional Services;
“Fees” means our fees as specified in a Statement of Work;
“Integration Administrator” means the person appointed by each of us to represent it in relation to day to day matters arising in relation to the Professional Services and this MSA;
“Integration Services” means the those services delivered by us to integrate the Enterprise Edition with another system and synchronise data between the systems;
“Intellectual Property Rights” means copyrights (including copyright in computer software and Software as a Service subscriptions), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals;
“Losses” means all losses, claims, liabilities, costs, awards, fines, penalties, expenses (including reasonable legal fees and other professional expenses) and damages of any nature whatsoever and whether or not reasonably foreseeable or avoidable;
“Materials” means all materials (including documentation, reports, and software) provided by either of us to the other as part of the provision of the Professional Services, excluding such materials which are marked or otherwise identified as owned or licensed by any third party;
“MSA Contact Page” which can be found on the MSA Details Page;
“MSA Details Page” means the details page within My Account located in the Customer’s Active Subscription ‘MSA Details’;
“Master Subscription Licence Agreement” the agreement under which you have purchased any Subscribed Services;
“Nazca Services/We/Our” means Nazca Services Limited, a company incorporated under the laws of England (company number: 6247483), having its registered office at Charter Court Midland Road Hemel Hempstead Hefts HP2 5G;
“Nazca Services Materials” any Materials provided by us under this MSA;
“Professional Services” means the consultancy, development, implementation, testing, training and / or other integration related services set out in a Statement of Work;
“SOW Start Date” the date set out in the Statement of Work on which the Professional Services will start;
“SOW Term” means, in respect of a Statement of Work, the duration specified in that Statement of Work;
“Statement of Work” means a contract between us for Professional Services that is made in accordance with clause 1;
“Subscribed Services” means each service to which you have subscribed and entered into a contract with us on the terms of the Master Subscription Licence Agreement; and
“Third Party Solution” means any third party software or service.This Agreement was last updated on 20th August. 2020