Software as a Service (SaaS)
This Agreement is made between Magenta Data Services Limited incorporated and registered in England and Wales with company number 08868480 whose registered office is at TML The Anchorage Gosport Hampshire PO12 1LY (the “Company”) and you, the customer (the “Customer”)
This Agreement incorporates the latest Terms and Conditions of the Company where the clauses in this Agreement and the Terms and Conditions are inconsistent the provisions in the main body of this
Agreement shall prevail
Interpretation.
1.1 This Agreement incorporates the Definitions set out in the Terms and Conditions of the Company and in addition the following definitions apply:
1.2 Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2.3
1.3 Customer Data: the data inputted by the Customer, Authorised Users, or the Company on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
1.4 Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
1.5 Software Programme Licence Term: the initial term of this agreement as set out in Order Form, Quotation or Pricing Illustration.
1.6 Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
1.7 PIA: Shall mean the Privacy Impact Assessment of the Company.
1.8 Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
A reference to writing or written includes faxes but not e-mail.
References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. The Licence
2.1 On the date of the Order Confirmation the Company grants in accordance with the Order Form, Quotation or Pricing Illustration to the Customer a non-exclusive, nontransferrable right, without the right to grant sub-licenses and to permit the Authorised Users to use the Services and the Software Programme during the Software Programme Licence Agreement solely for the Customer’s internal business operations subject to the restrictions set out in this Agreement and the Terms and Conditions.
2.2 In relation to the Authorised Users, the Customer undertakes that:
2.2.1 it shall permit the Company or the Company's designated auditor to audit the Services and Software Programme in order to establish the name and password of each Authorised User and the Company's data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at the Company's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business
2.2.2 if any of the audits referred to in clause 2.2.1 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Company's other rights, the Customer shall promptly disable such passwords and the Company shall not issue any new passwords to any such individual; and
2.2.3 if any of the audits referred to in clause 2.2.1 reveal that the Customer has underpaid any payment due to the Company, then without prejudice to the Company's other rights, the Customer shall pay to the Company an amount equal to such underpayment as calculated in accordance with the prices set out in the Price Illustration and Order Form, Quotation or Pricing Illustration within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 is otherwise illegal or causes damage or injury
to any person or property and the Company reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
2.4 The Customer shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
2.4.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Software and/or Documentation (as applicable) in any form or media or by any means; or
2.4.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Software; or
2.4.3 access all or any part of the Services and Software Programme order to build a product or service which competes with the Services and/or the Software Programme; or
2.4.4 use the Services and/or Software Programme to provide services to third parties; or
2.4.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Software Programme available to any third party except the Authorised Users, or
2.4.5.1 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Software Programme, other than as provided under this clause 2; and
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Software Programme and, in the event of any such unauthorised access or use, promptly notify the Company.
2.6 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Services
3.1 The Company shall, during the term as agreed in the Order Form, Quotation or Pricing Illustration provide the Services and make available the Software Programme to the Customer on and subject to the terms of this agreement and the Terms and Conditions.
3.2 The Company shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.2.1 planned maintenance and
3.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Company has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance except in a case of an emergency.
3.3 The Company will, as part of the Services, provide the Customer with the Company's standard customer support services during Normal Business Hours in accordance with the Company's Support Services Policy in effect at the time that the Services are provided. The Company may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Company's then current rates
4. Customer data
4.1 The Customer shall own all right, title and interest in and to all the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
4.2 The Company is not responsible or accepts no liability for any loss, destruction, alteration or disclosure of Customer Data caused as a result of the Customers acts or omission or by any third party (except those third party’s sub-contracted by the Company to perform services to the Software Programme).
4.3 The Company will hold a recovery back up system in accordance with the Data Legislation and the Company’s Privacy Policy. Data stored on the recovery back up system will only be held for 28 days and will thereafter be immediately destroyed.
4.4 The Company shall, in providing the Services and Software Programme, comply with its Privacy and Security Policy together with the PIA relating to the privacy and security of the Customer Data available at www.Magenta Data direct.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Company in its sole discretion.
4.5 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
4.6 The parties acknowledge that:
4.6.1 if the Company processes any personal data on the Customer's behalf when performing its obligations under this agreement, the Customer is the controller and the Company is the processor for the purposes of the Data Protection Legislation.
4.6.2 The Company Privacy Policy sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of personal data and categories of data subject.
4.6.3 the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Company's other obligations under this agreement.
4.7 Without prejudice to the generality of clause 4.5, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Company for the duration and purposes of this agreement so that the Company may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf.
4.8 Without prejudice to the generality of clause 4.5, the Company shall, in relation to any personal data processed in connection with the performance by the Company of its obligations under this agreement:
4.8.1 process that personal data only on the documented written instructions of the
Customer unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company and/or
Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the law of England and Wales) to process personal data (Applicable Laws). Where the Company is relying on Applicable Laws as the basis for processing personal data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Customer;
4.8.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
4.8.2.1 the Customer or the Company has provided appropriate safeguards in relation to the transfer;
4.8.2.2 the data subject has enforceable rights and effective legal remedies;
4.8.2.3 the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
4.8.2.4 the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
4.8.3 assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
4.8.4 notify the Customer without undue delay on becoming aware of a personal data breach;
4.8.5 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
4.8.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 4 and immediately inform the Company if, in the opinion of the VAR, an instruction infringes the Data Protection Legislation.
4.9 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
4.10 The Company does not have access to any of the Customers customers/client’s data or their confidential information and the Customer will be entirely responsible for holding all their customers/client’s data in accordance with Data Protection Legislation and the Company does not accept any liability for any of the Customers breaches of Data Protection legislation to their customers/client’s.
5. Company’s Obligations:
5.1 The Company undertakes that the Services will be performed substantially in accordance with the Order Form, Quotation or Pricing Illustration and with reasonable skill and care.
5.2 The undertaking at clause 5.1 hall not apply to the extent of any nonconformance which is caused by use of the Services contrary to the Company's instructions, or modification or alteration of the Services by any party other than the Company or the Company's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Company will, at its expense, use all reasonable commercial endeavours to correct any such nonconformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 5.1 Notwithstanding the foregoing, the Company:
5.2.1 does not warrant that the Customer's use of the Services will be uninterrupted or errorfree; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
5.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.3 This agreement shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
5.4 The Company warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6. Customer’s Obligations 6.1 The Customer shall:
6.1.1 provide the Company with:
6.1.1.1 all necessary co-operation in relation to this agreement; and
6.1.1.2 all necessary access to such information as may be required by the Company; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
6.2 without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
6.3 carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
6.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
6.6 ensure that its network and systems comply with the relevant specifications provided by the Company from time to time; and
6.7 be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Company's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
7. Proprietary rights:
7.1 The Customer acknowledges and agrees that the Company and/or its licensors own all intellectual property rights in the Services and Software Programme. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Software Programme.
7.2 The Company confirms that it has all the rights in relation to the Services and the Software Programme that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
8. Confidentiality and compliance with policies:
8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
8.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
8.1.2 was in the other party's lawful possession before the disclosure;
8.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
8.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
8.2 Subject to clause 8.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement or the Terms and Conditions.
8.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
8.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 8.3, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
8.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
8.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Company's Confidential Information.
8.7 The Company acknowledges that the Customer Data is the Confidential Information of the Customer.
8.8 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
8.9 The Company does not have access to any of the Customer’s customers/client’s confidential information and shall not be responsible or liable for any loss destruction, alteration or disclosure of confidential information of the Customer’s customers/clients caused by the Customer or any third party
8.10 The above provisions of this clause 8 shall survive termination of this agreement, however arising.
9. Indemnity:
9.1 The Customer shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, Software and/or Documentation, provided that:
9.1.1 the Customer is given prompt notice of any such claim;
9.1.2 the Company provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
9.1.3 the Customer is given sole authority to defend or settle the claim.
9.2 The Company shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
9.2.1 the Company is given prompt notice of any such claim;
9.2.2 the Customer provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company's expense; and
9.2.3 the Company is given sole authority to defend or settle the claim.
9.3 In the defence or settlement of any claim, the Company may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
9.4 In no event shall the Company, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:
9.4.1 a modification of the Services or Documentation by anyone other than the Company; or
9.4.2 the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Company; or
9.4.3 the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Company or any appropriate authority.
9.5 The foregoing and 5.3 of the Terms and Conditions states the Customer's sole and exclusive rights and remedies, and the Company's (including the
Company's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10. Conflict
10.1 If there is an inconsistency between any of the provisions in the main body of this agreement and the Terms and Conditions the provisions in the main body of this agreement shall prevail.
11. Waiver
11.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12. Rights and remedies
12.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
13. Severance
13.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
13.2 If any provision or part-provision of this agreement is deemed deleted under clause 13 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14. Entire agreement
14.1 This agreement together with the Terms & Conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
14.3 Nothing in this clause shall limit or exclude any liability for fraud.
15. Assignment
15.1 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
15.2 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
16. No partnership or agency
16.1 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17. Third party rights
17.1 This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
18. Notices
18.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
18.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
19. Governing law
19.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20. Jurisdiction
20.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or
formation (including noncontractual disputes or claims).
Effective: 1 May 2019