Master Services Agreement UK v4e

Thrive Operations Limited

MASTER SERVICES AGREEMENT v4e

 General Terms and Conditions Applicable

to

Service Orders

THIS MASTER SERVICE AGREEMENT (“MASTER SERVICES AGREEMENT”) IS BETWEEN THRIVE OPERATIONS LIMITED (“THRIVE”) AND THE CLIENT (“CLIENT”) IDENTIFIED IN THE THRIVE SERVICE ORDER(S) REFERENCING THIS MASTER SERVICES AGREEMENT AND BY WHICH THE GENERAL TERMS AND CONDITIONS SET FORTH BELOW ARE INCORPORATED. THRIVE’S PROVISION OF SERVICES AND PRODUCTS TO CLIENT AS CONTEMPLATED BY SUCH SERVICE ORDER(S) SHALL BE GOVERNED BY THE TERMS AND CONDITIONS SET FORTH IN SUCH SERVICE ORDER(S) AND THE GENERAL TERMS AND CONDITIONS SET FORTH BELOW.
GENERAL TERMS AND CONDITIONS

Definitions: The following capitalized terms are used with the meaning set forth below:

Personal Data: means personal data supplied by Client to Thrive pursuant to a Service.

Privacy and Data Protection Requirements: means (i) the General Data Protection Regulation 2016/679 (“GDPR”) or any equivalent provision that may replace the GDPR following the formal political separation of the United Kingdom of Great Britain and Northern Ireland from the European Union, the Regulation of Investigatory Powers Act 2000, (ii) the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations2000 (SI 2000/2699), (iii) the Electronic Communications Data Directive (2002/58/EC), (iv) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and (v) all applicable laws and regulations which may be in force from time to time relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction.

Products: means products and other goods, including hardware, software and other tangible and intangible items, and other deliverables provided to Client by Thrive as contemplated by this Agreement.

Security Breach: means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed by Thrive in accordance with one or more Service Orders.

Service(s): means, services (including maintenance, support, security, hosting, procurement, development, integration, administrative and other services), including those to be provided on a one-time basis and those to be provided on a recurring basis.

Service Order: means a “Service Order” signed by the Parties referencing this Agreement and describing the Products and Services to be provided to Client by Thrive and setting forth the price and other terms and conditions on which Thrive is to provide such Products and Services.

“Service Provisioning Date” means for each recurring Service to be provided under a Service Order the date as of which Thrive makes such Service available for use by Client.

“Service Provisioning Completion Date” means for each Service Order the Service Provisioning Date for the last of the recurring Services to be provisioned and made available for use by Client under such Service Order.

VAT: means Value Added Tax chargeable under English law for the time being and any similar additional tax.

“Data subject”, “personal data”, “processing” and “appropriate technical and organisational measures” shall bear the meanings given to those terms respectively in the GDPR.

1. SERVICES.

(a) General. This Agreement governs Products and Services Thrive or its affiliates may provide or sell to Client. Products and Services will only be delivered to Client pursuant to one or more Service Orders. Once executed by both Parties, a Service Order becomes part of this Agreement, although the terms of a Service Order will govern only the Services described in that Service Order. The terms and conditions set forth in a Service Order will control any discrepancy between that Service Order and these General Terms and Conditions.

(b) Procurement of Products.
(i) All purchases of Products by Client from Thrive under a Service Order will be final at the time the order therefor is placed by Thrive with a third-party supplier. Each purchase of Products from Thrive will be considered an independent and separate transaction from the purchase of Services from Thrive, even if both Products and Services are included in the same Service Order.

(ii) Thrive shall not be liable for any damages, costs, or delays in the provision of Services by Thrive under any Service Order arising in connection with Client’s procurement of Products from a party other than Thrive (such procurement by Client referred to as a “Client Third Party Procurement”). Client will reimburse Thrive for the out-of-pocket expenses Thrive incurs and will pay Thrive (at the hourly rates specified in the applicable Service Order, and if no such rates are set forth in such Service Order, then at Thrive’s standard hourly rates ) for the additional time Thrive devotes to the provision of Services as a result of or arising in connection with any Client Third Party Procurement.

(c) Price Changes. Pricing for Services are subject to change as follows:
(i) Following the first anniversary of a Service Order, Thrive may increase prices for Services under any Service Order on 30 days’ notice to Client, provided that such prices may not be increased more than once in any 12 month period and such increases shall not exceed the percentage increase (if any) of the United Kingdom rate of the retail prices index as published by the Office for National Statistics from time to time. . In addition, Thrive may pass on to Client the actual price increases imposed on Thrive by Third-Party Providers (as referenced in Section 4 below) for goods and services included in or among the Products and Services provided to Client pursuant to one or more Service Orders. Thrive will notify Client at least 30 days in advance of any such increases and provide Client supporting documentation of all Third-Party Provider price increases.

(ii) All prices for Services in effect as of the end of the Term of the Service Order providing for such Services will increase by three percent (3%) upon each renewal of the Term of such Service Order in accordance with the terms thereof.

(iii) If Client requests Thrive to provide only U.K.-based support (i.e. U.K. personnel only) in provisioning of Services, Thrive will identify the Client as “U.K. Support Only” in the Client’s Service Order(s) and charge a monthly premium for such Services as follows: For Term lengths of less than 24 months, a price increase of 20%; for Term lengths of 24 months or more, but less than 36 months, a price increase of 15%; and for Term lengths of 36 months or longer, a price increase of 10%.

(iv) Client also acknowledges that billing may increase or change upon Client’s requests or actions, including, but not limited to Client’s submission or requests via the portal on Thrive’s website (“Client Portal”), direct requests to Third Party Providers (i.e. Microsoft), or for Service overages, where applicable.

(d) Minimum Hardware, Operating System and Software Standards.
Client agrees to maintain the minimum hardware, operating system and software standards (and licenses therefor) set forth in each Service Order or otherwise necessary to receive the Services, which may include, among other matters, versions of operating systems and hardware, security, data protection and environmental (HVAC, and electrical power) controls and network bandwidth requirements (such minimum standards, as the same may be changed or supplemented by Thrive from time-to-time being referred to as “Minimum Standards”). Unless otherwise contemplated by a Service Order, Thrive has no duty to assure or assess whether or not Client’s network meets Minimum Standards and is not responsible for any loss, damages, costs or delays Client incurs or realises as a result of or in connection with the failure or malfunction of any part of Client’s network or systems that do not meet Minimum Standards. Client will reimburse Thrive for the out-of-pocket expenses Thrive incurs and will pay Thrive (at the hourly rates specified in the applicable Service Order, and if no such rates are set forth in such Service Order, then at Thrive’s standard hourly rates) for the additional time Thrive devotes to the provision of Services as a result of or arising in connection with Client’s network components managed by Thrive not adhering to the Minimum Standards. Client will also adhere to any Acceptable Use Policies that may be in effect from time to time and applicable to all Thrive customers, which will be communicated or made available by Thrive on its website (https://thrivenextgen.com/acceptable-use-policy/), and which will be deemed incorporated by reference herein.

(e) Access to Client Facilities. Client will provide Thrive access to and right to use all Client’s facilities, including all hardware and software owned, leased or licensed by Client, to the extent reasonably necessary to enable Thrive to provide Services to Client in accordance with these General Terms and Conditions and any Service Order.

(f) Thrive Equipment. Client will maintain and protect the equipment and other hardware and tangible goods placed by Thrive in the Client’s possession or control (and that is not Client’s property) in connection with the provision of Services (collectively, “Thrive Hardware”) in good working condition, reasonable wear and tear excepted, and will not modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or copy such Thrive Hardware (including any software or firmware that is part of, incorporated into or running on the same). Client assumes all risk of compliance with any government regulation relating to the operation of Thrive Hardware, as well as the loss, damage, theft, or destruction thereof, while it is in the Client’s possession or control or that of its agents, including any carrier (except any carrier transporting Thrive Hardware from Thrive to Client), and Client will reimburse Thrive for any costs of necessary repair or replacement (including shipping costs). Client will keep Thrive Hardware free of all security interests, liens, and other encumbrances.

2. TERM. This Agreement is effective as of the date hereof and, unless earlier terminated as permitted herein, will continue in effect during the Term or continuation of any Service Order (as defined therein) entered in connection herewith and thereafter in accordance with Section 9(e) below.

3. PAYMENTS.
(a) Fees and Charges. Client agrees to pay Thrive the fees, charges, expenses and other amounts for the Products and each Service specified in a Service Order during the Term of and as provided in such Service Order and in these General Terms and Conditions. All such amounts for Product and Services are exclusive of VAT, which shall be added to Thrive’s invoices at the then applicable rate. In addition, Client will be responsible for payment of all applicable sales and other taxes, and all surcharges and handling fees levied by third party suppliers, on Products and Services provided by Thrive.

(b) Commencement of Billing. Thrive will, subject to Section 3(f) below, bill Client for Products included in a Service Order five (5) business days after Thrive notifies Client that the same is ready for shipment to Client’s site (without regard to delays in Client’s acceptance thereof). Thrive will begin billing for one-time Services included in a Service Order upon commencement of such one-time Services. Thrive will begin billing for each recurring Service included in a Service Order beginning (60) sixty days from the date of Client’s execution of such Service Order or, if earlier, beginning on the Service Provisioning Date of such Service, and continuing through the end of the Term of such Service Order as set forth therein.

(c) Payment of Invoices. Invoices for fees, charges and other amounts charged hereunder, whether for Products, Services or otherwise, will be due and payable in full within thirty (30) days of the date of invoice therefor. Thrive may charge Client a finance charge of one and one-half percent (1.50%) per month on balances (other than those disputed pursuant to Section 3(d) below) for which payment has not been received within thirty (30) days of the date of such invoice.

(d) Disputes. If Client in good faith disputes any portion of an invoice, Client will promptly pay the undisputed portion of the invoice and submit to Thrive a written claim within thirty (30) days of the due date thereof as provided in Section 3(c) above describing in reasonable detail the basis of the dispute, including claims of any breaches or failure of service by Thrive, and including any relevant supporting documentation. After receipt of such claim, Thrive will undertake an investigation of the disputed matters, and, subject to Thrive’s rights under Section 9 below, both Parties agree to make a good faith attempt to resolve the dispute promptly. Any failure by Client to submit a written dispute with the information specified above within such thirty-day period will be deemed final agreement by Client without defense or counterclaim with all charges on the invoice for all purposes. Client will be liable to Thrive for all reasonable fees and expenses, including reasonable legal fees and litigation costs, that Thrive incurs to collect amounts due to Thrive from Client under or in connection with this Agreement or any Service Order.

(e) Expenses. Client agrees to reimburse Thrive for all reasonable and ordinary out-of-pocket expenses incurred by Thrive in delivering Products and Services to Client, such as parking, out-of-area travel expenses, international phone calls, and pay-per-incident third party support calls. Thrive will itemise such expenses on Client’s invoices and will not incur more than £250 of such expenses in any twelve (12) month period without Client’s prior written approval.

(f) Timing of Products Orders. Thrive reserves the right to delay procuring Products from third party suppliers pending Thrive’s receipt from Client of payment of all or any portion (as determined by Thrive in its discretion) of the price therefor set forth in the Service Order providing for such Products. Thrive will notify Client of any requirement that Thrive receive payment for Products in advance of Thrive’s ordering the same from third party suppliers and Thrive will not be responsible thereafter for any damages, costs or delays Client experiences as a result of the timing of the delivery of such Products to Client under any Service Order.

4. THIRD PARTY GOODS & SERVICES.
(a) Third Party Providers. Client acknowledges that Services may include or incorporate goods or services manufactured, produced and/or delivered by third parties (“Third-Party Providers”). Thrive hereby assigns to Client any warranties provided by Third Party Providers of goods and services that are resold by Thrive (to the extent permitted to be so assigned or passed through to Client) and Client agrees to pursue all defective product, quality, breach of warranty and other claims directly against such Third-Party Providers and not against Thrive. Thrive will not be responsible for any such claims; however, Thrive will reasonably assist Client in resolving any performance, quality, breach of warranty or other claims of Client with the applicable Third-Party Providers of such goods or services. Client acknowledges that some Products cannot be returned or cancelled once ordered. At the request of Client, Thrive will make a reasonable attempt to return Products to the Third-Party Provider and Client agrees to reimburse Thrive for any restocking fees and other out-of-pocket expenses Thrive may incur in connection therewith. However, Client agrees that Thrive is under no obligation to take back from Client any Products ordered from Thrive if Thrive is unable to return those same Products to the Third-Party Provider. Risk of loss or damage for Products purchased from Third-Party Providers will pass to Client when such Products are delivered to Client, unless otherwise agreed in advance in writing by Client and Thrive.

(b) Software Licensing. Thrive may use its own third-party software licenses in provisioning Services under a Service Order, including among others, antivirus, antispyware and monitoring software (the “Software”). Thrive’s licenses to use such Software are and will remain Thrive’s property exclusively, and except as provided herein, Client will obtain no right to such licenses or the source code of the Software licensed thereby. Thrive hereby grants to Client a non-exclusive, worldwide, royalty-free, non-assignable and non-sublicensable license to use the Software solely in connection with Services for which such Software is utilised (a “License”), which License will terminate immediately upon termination of such Services. Thrive may terminate such License and any Services for which such License is utilised if it determines that Client has breached the terms of the License. Upon termination of the License, Client will immediately cease to use the Software and related documentation and certify to Thrive within ten (10) days after termination that Client has, at Thrive’s option, either destroyed or returned to Thrive the Software and all documentation and related information, and all copies thereof, whether or not modified or merged into other materials.

(c) Client Licensing Responsibility. If Client deploys any third-party software products (“Client Provided Licensing”) within any Service, and where such products are not Software (as defined above), then Client represents and warrants that it owns and will own a sufficient kind and quantity of licenses to allow for Client’s deployment and usage of such Client Provided Licensing within that Service, for as long as such Client Provided Licensing remains deployed within that Service. In addition, Thrive may, if requested by the licensor of any Software, provide that licensor with (i) the identities and configurations of any virtual or physical computers provided by Thrive on which such Software may be installed, (ii) the identity of any such Software installed on such computers, and (iii) copies of any other, relevant documentation (such as Client’s relevant agreements with Thrive or any evidence of Client’s third-party licensing). Client’s use of any Software or Client Provided Licensing in excess of or outside the scope of the rights conveyed by Thrive pursuant to the parties’ agreements (or, with respect to any Client Provided Licensing, in excess of or outside the scope of the rights conveyed pursuant to the agreement under which that Client Provided Licensing was acquired) may result in additional fees or penalties charged by the licensors of the Software or Client Provided Licensing. Client shall reimburse Thrive upon written demand for any such fees or penalties incurred by Thrive resulting from any such excess or otherwise improper usage of any Software or Client Provided Licensing. If Client fails to so reimburse Thrive and/or fails to cooperate in curing Client’s non-compliant use of the Software or Client Provided Licensing, Thrive may suspend Client’s access to the Services relating to such Software or Client Provided Licensing.

5. DISCLAIMER, LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) System Limitations. Client acknowledges that no network, system, device, hardware, software, or component can be made fully secure and, accordingly, agrees that Thrive shall not be liable for damages arising from or in connection with loss of data or breach of privacy of information technology systems except to the extent that Thrive’s gross negligence or fraud (and not, e.g., equipment failure, software failure, “phishing” attacks or other fraudulent acts of third parties, or Client’s failure to follow Thrive’s advice) is the direct and primary cause of such loss or breach.

(b) Warranty Disclaimer.
OTHER THAN WARRANTIES EXPRESSLY SET FORTH IN SERVICE ORDERS, THRIVE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING PRODUCTS OR SERVICES AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

(c) Limitation of Liability.
(i) NOTHING IN THIS AGREMENT EXCLUDES THRIVE’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THRIVE’S NEGLIGENCE OR FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED AS A MATTER OF LAW.

(ii)IN NO EVENT SHALL THRIVE BE LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ANY BREACH HEREOF, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THRIVE HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

(iii) EXCEPT IN THE CASE OF THRIVE’S GROSS NEGLIGENCE OR FRAUD THRIVE SHALL IN NO EVENT BE LIABLE FOR DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES HEREUNDER IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES FOR SERVICES PAID BY CLIENT TO THRIVE IN RESPECT OF THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURED, AND SUCH LIABILITY WILL TERMINATE ONE YEAR FROM THE DATE OF THE EVENT WHICH GAVE RISE TO THE CLAIM..
(iv) EACH PARTY, AS A MUTUAL INDUCEMENT TO THE OTHER PARTY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, EXPRESSLY WAIVES ITS RIGHT TO ASSERT ANY CLAIM FOR THE DAMAGES PRECLUDED IN THIS SECTION 5(C) AND AGREES NOT TO SEEK TO RECOVER ANY SUCH DAMAGES IN CONNECTION WITH ANY CLAIM, ACTION, SUIT, OR PROCEEDING ARISING UNDER OR IN RELATION TO THIS AGREEMENT.
(d) Mutual Indemnification. Subject to the terms and conditions hereof, each Party (an “Indemnifying Party”) shall defend at its own expense the other Party, including the other Party’s directors, officers, employees, agents and affiliates (collectively, the “Indemnified Party”), from and against any and all third-party claims, demands, suits or actions to the extent resulting from or arising out of the Indemnifying Party’s (i) grossly negligent acts or omissions or fraud in connection with this Agreement, (ii) violation of any statute, law, ordinance or regulation, or (iii) infringement of any patent, copyright, trademark, trade secret or other intellectual property or other rights of a third party (each, an “Indemnifiable Claim”). Without limitation of the foregoing, the Indemnifying Party shall indemnify and hold harmless the Indemnified Party from and against any and all damages, judgments, awards, expenses, and costs (including without limitation those of the type described in Section 5(c)(i) above) that are awarded and payable to the third party by a court of competent jurisdiction with respect to an Indemnifiable Claim or that are payable pursuant to a settlement thereof made or approved by the Indemnifying Party. The Indemnifying Party shall have right to defend any Indemnifiable Claim with counsel of its choosing.

6. INTELLECTUAL PROPERTY RIGHTS.
(a) Thrive Intellectual Property. Thrive retains right, title and interest in and to the Services, all intellectual property rights contained therein, and all modifications, alterations, derivative works and enhancements made thereto (collectively, “Thrive IP”). Client may not modify or create derivative works from or copy any ideas, Features, functions or graphics of the Services or Thrive IP or modify or make derivative works based thereon, or offer the Services on a timeshare or service bureau (including software-as-a-service) basis. Client may use Thrive IP in accordance herewith and any Service Order solely as necessary to utilise Services for its own account and otherwise will not disclose or use Thrive IP for any purpose.

(b) Client Intellectual Property. Client retains all right, title and interest in and to all of Client’s intellectual property rights transmitted by or on behalf of Client to Thrive in connection with the Services (collectively, “Client IP”). Thrive may not modify or create derivative works from or copy any ideas, features, functions or graphics of the Client IP or modify or make derivative works based thereon. Thrive may use Client IP in accordance herewith and any Service Order in connection with providing Services to Client and otherwise will not disclose or use Client IP for any purpose.

7. CONFIDENTIALITY.
(a) “Confidential Information” means any and all information, including third party information, disclosed by one Party (“Disclosing Party”) to the other Party (“Recipient”) during the term of this Agreement. The Parties acknowledge that in connection with this Agreement each may receive from the other certain non-public information regarding the other Party’s financial condition, suppliers, clients, business plans and other information not generally known to the public, including, without limitation, the terms and conditions of this Agreement. Recipient agrees that it will (a) hold in confidence and not disclose to any third party any Confidential Information of Disclosing Party, except in accordance with this Agreement; (b) protect such Confidential Information with at least the same degree of care that Recipient uses to protect its own Confidential Information of a similar nature, but in no case, less than reasonable care; (c) use the Disclosing Party’s Confidential Information for no purpose other than for the purpose of this Agreement (the “Permitted Use”); (d) limit access to Disclosing Party’s Confidential Information to those of Recipient’s employees or individual contractors having a need to know as part of the Permitted Use and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein; and (e) notify Disclosing Party promptly upon discovery of any loss or unauthorized disclosure of Disclosing Party’s Confidential Information. Recipient shall promptly return to the Disclosing Party or destroy such Confidential Information upon the Disclosing Party’s request; provided that the Recipient is not obligated to delete, purge or expunge Confidential Information maintained on its backup servers and similar devices in the ordinary course of its business or in compliance with the law (but nevertheless remains obligated under this Section 7 with respect to any such retained Confidential Information). The obligation to maintain the confidentiality of Confidential Information shall continue for so long as this Agreement shall remain in effect and for a period of two (2) years after the termination hereof, except that the obligation to maintain the confidentiality of trade secrets shall continue in perpetuity. If the Parties have entered into a separate non-disclosure or other agreement regulating the use or disclosure of the Parties’ respective information, then the terms of such separate agreement will control in the event of a conflict between such separate agreement and this Section 7.

8. HIRING OF REPRESENTATIVES. For so long as this Agreement remains in effect and for a period of one (1) year thereafter, neither Party will employ, hire, contract with, or otherwise engage, or seek to employ, hire, contract with, or otherwise engage, any individual who at any time in the preceding twelve (12) months was an employee of the other Party involved in the provisioning or receiving of Services under any Service Order; provided, however, that the foregoing will not apply to any such employee who (a) responds to a general media advertisement or non-directed search inquiry; (b) makes an unsolicited contact for employment; or (c) was in discussions with such Party regarding possible engagement or employment prior to providing or receiving Services under such Service Order; or (d) is referred to such Party by search firms, employment agencies, referral services or other similar entities, provided that such entities have not been instructed by such party to solicit the employees of the other party. The Parties agree that any breach of this Section 8 will result in irreparable injury to the other Party for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the event of a breach or threatened breach of this Section 8 by the other Party, the non-breaching Party will be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach or threatened breach without the necessity proving the inadequacy of money damages or of posting a bond or other security.

9. TERMINATION.
(a) Termination of Agreement and Service Orders for Breach of Terms.
(i) Breach of terms of General Terms & Conditions. Each Party may notify the other Party if the other Party breaches the terms of these General Terms and Conditions, which notice will describe in reasonable detail the nature of such breach and including relevant supporting documentation. Unless the breaching Party within thirty (30) days of its receipt of such notice either cures or remedies the breach described in such notice in all material respects or provides the other Party with a reasonable written plan for doing so, the other Party may, without limitation of its other rights and remedies under applicable law, terminate this Agreement by providing written notice of termination to the breaching Party.

(ii) Breach of terms of a Service Order. Each Party may notify the other Party if the other Party breaches the terms of any Service Order, which notice will describe in reasonable detail the nature of such breach and including relevant supporting documentation. Unless the breaching Party within thirty (30) days of its receipt of such notice either cures or remedies the breach described in such notice in all material respects or provides the other Party with a reasonable written plan for doing so, the other Party may, without limitation of its other rights and remedies under applicable law, terminate those Services under such Service Order as to which such breach relates (and not this Agreement, other Services provided under such Service Order or any other Service Order as may then be in effect) by providing written notice of termination to the breaching Party.

(b) Suspension or Termination of Services by Thrive for Failure to Pay. Notwithstanding the provisions of Section 9(a) above, in the event Client does not timely make payments under this Agreement (other than amounts timely disputed in accordance with Section 3(d) above, pending the resolution of such disputes) and such payment(s) is (are) not made by Client within ten (10) days of receiving written notice thereof from Thrive (which notice may be delivered to Client in the same manner as Thrive sends invoices to Client in the ordinary course), Thrive may, without limitation of its other rights and remedies under applicable law, suspend or terminate providing Services to Client under any or all Service Orders as may then be in effect, and Thrive will have no liability for any damages incurred or realised by Client as a result of such suspension or termination of any such Services. No such suspension or termination of Service under a Service Order due to Client’s non-payment will relieve Client of its obligations to pay all charges and other amounts and otherwise comply with and fulfill its obligations under this Agreement, including under that or any other Service Order as may be in effect. If Services are suspended for non-payment, lapse in service will not count towards completion of the Term of such Services.

(c) Suspension. Notwithstanding the provisions of Section 9(a) above, Thrive may suspend the Services immediately upon notice to Client if: (i) Client materially violates (or Thrive believes in good faith that Client has materially violated) any provision of this Agreement or any provision of the applicable Thrive Acceptable Use Policy (https://thrivenextgen.com/acceptable-use-policy/); (ii) there is an unusual and material spike or increase in Client’s use of the Services and Thrive believes, in good faith, that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; or (iii) Thrive determines in good faith that its provision of the Services is prohibited by applicable Law; or (iv) Thrive determines in good faith that Client is using the Products or Services in violation of applicable law or for an otherwise unlawful purpose. Notwithstanding the foregoing, Thrive will use commercially reasonable efforts to (x) provide Client as much prior notice as possible of any situation that it is aware of that could lead to a right to suspend described in this subsection, and (y) work with Client to remedy any situation that could lead to a right to suspend described in this subsection if such situation can be remedied.

(d) Duties Upon Termination or Expiration.
(i) Payment of Obligations/Return of Property. Upon the expiration or termination of this Agreement or any Service Order, Client will pay the full amount of all unpaid invoices issued under any outstanding Service Order and any other payment obligations specified in each outstanding Service Order (other than amounts timely disputed in accordance with Section 3(d) above, pending the resolution of such disputes). In addition, excluding any software and hardware that is the Client’s property, Client will return all software and hardware provided to Client by Thrive in good working condition (ordinary wear and tear excepted) and free from all liens, charges and encumbrances within thirty (30) days of expiration or termination of this Agreement or the applicable Service Order(s).

(ii) Termination Status Reporting; Further Services. Upon expiration or termination of any Service under any Service Order and following Thrive’s receipt of all amounts then due and payable to Thrive under this Agreement as relates to such expired or terminated Service (other than amounts timely disputed in accordance with Section 3(d) above, pending the resolution of such disputes) Thrive will (A) report to Client on the status of the Service as reasonably requested by Client and, if requested by Client, (B) assist Client in winding down or transferring the terminated or expired Service to Client or its designee (such assistance being referred to as “Migration Services”) in accordance with a mutually agreed separate Service Order signed by the Parties setting forth the terms and conditions thereof, which will include, among other terms to which Parties may agree, Client agreeing to pay Thrive for such Migration Services, if applicable, at the hourly rates set forth in the Service Order under which such Service was provided (and if no such rates are set forth in such Service Order, then at hourly rates agreed to by the Parties). Except as set forth above in this Section 9(d)(ii) and, if applicable, any Service Order providing for the provision of Migration Services, Thrive will have no duty or obligation to provide any Products or Service or any other service or assistance to Client following the expiration or termination of a Service in accordance herewith.

(e) Survival. The following provisions will survive any expiration or termination of this Agreement: Section 3 (Payments), Section 4 (Third Party Products & Services), Section 5 (Warranties, Disclaimer and Limitation of Liability), Section 6 (Intellectual Property Rights), Section 7 (Confidentiality), Section 8 (Hiring of Representatives), this Section 9 (Termination), Section 10 (Force Majeure), and Section 11 (General Terms).

10. FORCE MAJEURE. Except for payment obligations, neither Party will be liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances or causes beyond its reasonable control , including, without limitation, fire, pandemics or other casualty, acts of God, fiber cuts or Internet delays, delay or failure of Third-Party Providers, war, terrorism, or other violence or criminal acts, any law, order, requirement or act of any government or governmental agency or authority or other causes beyond the reasonable control of such Party. A Party affected by such a force majeure event shall inform the other Party promptly upon the occurrence thereof (including a reasonable estimate of the additional time required for resumed performance to the extent determinable) and such Party shall use reasonable commercial efforts to resume performance hereunder as soon as reasonably practicable.

11. GENERAL TERMS.
(a) Governing Law; Jurisdiction; Venue. This Agreement will be governed by and construed in accordance with the law of England and Wales, without regard to the conflicts or choice of law provisions thereof that would give rise to the application of the domestic substantive laws of any other jurisdiction. The Parties agree that any proceeding arising out of or relating to this Agreement will be brought only in, and hereby submit irrevocably to the courts of England and Wales and hereby waive any objections to the jurisdiction, venue or convenience of any such courts. EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

(b) Assignment. Neither Party may assign its rights or delegate its duties hereunder without the prior written consent of the other Party; provided that either Party may assign its rights hereunder to, and cause its obligations hereunder to be assumed by, a successor to substantially all of the assets or business of such Party. If there is any assignment or delegation in violation of any of the foregoing restrictions, the non-breaching Party may terminate this Agreement and all Service Orders as may then be in effect upon written notice within ninety (90) days after notice or discovery of such assignment.

(c) Headings. The section headings herein are for ease of reference and convenience only and are not to be considered in the interpretation of this Agreement.

(d) Interpretation. Neither Party shall be considered the drafter of this Agreement or any schedule, addendum or exhibit as may be made part thereof so as to give rise to any presumption or convention regarding construction hereof or any such other writing.

(e) Integration; Severability. Except as provided in Section 7 above with respect to separate nondisclosure or confidentiality agreements between the Parties, this Agreement, including any Service Orders, sets forth the entire agreement and understandings between the Parties hereto with respect to the subject matter hereof, and merges all previous and contemporaneous discussions and negotiations between the Parties and supersedes and replaces any other agreement that may be in effect as of the date hereof between the Parties or their respective subsidiaries or other affiliates with respect to the subject matter hereof. Without limitation of the foregoing, this Agreement supersedes and replaces in its entirety any “Master Services Agreement” or similar document as may be in effect as of the date hereof between the Parties or their respective subsidiaries, predecessors-in-interest, or other affiliates (any such agreement being referred to as the “Original Agreement”). The parties agree that any “statements of work”, “service orders” and similar writings as may be outstanding and in effect under the Original Agreement (the “Outstanding SOs”) are, from and after the date hereof, Service Orders for all purposes of these General Terms and Conditions and the “Master Service Agreement” or similar agreement referenced in the Outstanding SOs shall from and after the date hereof be a reference instead to these General Terms and Conditions. Notwithstanding the foregoing, all amounts due to Thrive under the terms of the Original Agreement or Outstanding SOs remain due in accordance with the terms of the Original Agreement or Outstanding SOs, and unless otherwise specified herein, no such amounts are settled, released or compromised hereby. This Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof will be prohibited or invalid under any such law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating or nullifying the remainder of such provision or any other provisions of this Agreement. If any one or more of the provisions of this Agreement is for any reason held to be excessively broad as to duration, geographical scope, activity or subject, such provisions will be construed by limiting and reducing it so as to be enforceable to the maximum extent permitted by applicable law.

(f) No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement or any schedule, addendum or exhibit as may be made part hereof. This Agreement does not give rise to any rights under the Contracts (Rights of Third parties) Act 1999 to enforce any terms of this Agreement,

(g) Residual Knowledge. Nothing herein shall be construed to prevent or in any way limit Thrive from using general knowledge, skill and expertise acquired in the performance of this Agreement in any current or subsequent engagement or business. Client shall have no interest in such engagements or business.

(h) Signatures, Amendments and Waivers and Exercise of Rights.
(i) Signatures. This Agreement and amendments or modifications hereof and consents and waivers relating hereto may be executed, issued and accepted electronically (via authenticated digital or similar electronic means) and will be effective when transmitted bearing a copy of a manual, digital or electronic signature.

(ii) Amendments and Waivers. Amendments to and waivers of the provisions of this Agreement must be in writing (including in a digital format) and signed as provided in Section 11(h)(i) above.

(iii) Exercise of Rights. Except as otherwise provided herein, no failure to exercise or delay in exercising any right, power or remedy will operate as a waiver thereof; nor will any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy.

(i) Notices. Notices required or permitted to be provided hereunder will be in writing and, except as otherwise provided herein, will be valid and sufficient if delivered in person or sent by Royal Mail Signed For® 1st Class post or other signed-for next working day delivery service or by email addressed to the Parties at the addresses listed on the cover page of this Agreement. Notices will be deemed received by the Party to whom notice is addressed on the date delivered, if delivered in person or by email, or on the next business day after being sent by Royal Mail Signed For® 1st Class post or other signed-for next working day delivery service, delivery charges prepaid, for next day delivery.

(j) Publicity. Each Party may use the other Party’s name and logo on its website and printed materials to identify Thrive as a service provider to Client.

(k) Independent Contractor. Each of the Parties is an independent contractor and neither Party is, nor will be considered to be, an agent, distributor or representative of the other. All personnel supplied or used by each Party will be its employees or subcontractors and each Party assumes full responsibility for the actions of such personnel and for the payment of their compensation (including, if applicable, withholding of income taxes and the payment and withholding of social security and other payroll taxes), workers’ compensation, disability benefits and the like to the extent applicable.

END OF GENERAL TERMS AND CONDITIONS

 

EXHIBIT A
DATA PROTECTION ANNEX

The following provisions of this Data Protection Annex apply if and to the extent Thrive is the data processor of Personal Data with respect to Services provided to Client under one or more Service Orders.

1 DATA PROCESSING

1.1 The provisions of this Data Protection Annex only apply if and to the extent Thrive is a data processor of any Personal Data for the purposes of the Privacy and Data Protection Requirements.
1.2 Thrive shall process the Personal Data in all material respects in compliance with Client’s documented instructions provided to Thrive from time to time unless Thrive is legally required to do otherwise in which case Thrive, unless legally prohibited from doing so, shall inform Client of such legal requirement before processing.
1.3 The parties agree that the subject matter, duration, nature and purpose of processing, the type of Personal Data and the categories of data subject are set out in Schedule I to this Data Protection Annex.
1.4 Client is responsible for, and shall ensure that, all relevant third parties are informed of, and have consented to, such use, processing and transfer of their Personal Data in accordance with the Privacy and Data Protection Requirements.

2 AUDIT

2.1 Thrive shall keep at Thrive’s regular place of business in the United Kingdom records relating to Thrive’s processing of the Personal Data insofar as it is necessary to demonstrate Thrive’s compliance with Thrive’s obligations under this Data Protection Annex (“Data Records”).
2.2 Thrive shall permit Client, on reasonable notice, to gain access to, and take copies of, the Data Records at Thrive’s premises and inspect those Data Records on the following conditions:
2.2.1 such Data Records shall only be made available to the extent the same are necessary for Thrive to discharge Thrive’s obligations pursuant to the GDPR (and, in particular, Article 28(3)(h) of the GDPR);
2.2.2 Client shall use the Data Records for no other purpose other than auditing Thrive’s compliance with Thrive’s obligations under this Data Protection Annex;
2.2.3 Client shall carry out such inspection as soon as practicable after Thrive makes the Data Records available to Client and then return copies of the same to Thrive as soon as possible after completion of such inspection; and
2.2.4 Thrive shall provide Client with access to its premises and the Data Records at reasonable times during Thrive’s normal business hours and Client shall take no action in connection therewith that would interrupt or interfere in any material with respect with Thrive’s normal operation of its business.

3 THRIVE’S PROCESSING OBLIGATIONS

3.1 If Thrive become aware of a Security Breach relating to Client’s Personal Data, then Thrive shall, as soon as reasonably practicable (and in any event as required by UK GDPR or other applicable law), notify Client of the same.
3.2 For the purposes of Article 28 of UK GDPR (Processor) Thrive agrees as follows:
3.2.1 Thrive shall not engage another processor unless in accordance with clause 5;
3.2.2 all persons authorised to process Client’s Personal Data on Thrive’s behalf have a contractual, fiduciary or similar duty or obligation to Thrive to maintain the confidentiality of Client’s Personal Data;
3.2.3 Thrive shall provide to Client (at Client’s expense) such technical and other assistance as Client may reasonably request in fulfilling Client’s obligations with respect to data subjects under UK GDPR Chapter III and
3.2.4 Thrive shall provide to Client (at Client’s expense) such technical and other assistance as Client may reasonably request in complying with Client’s obligations pursuant to Articles 32 (Security of processing) to Article 36 (Prior consultation) of UK GDPR, taking into account the nature of processing and the information available to Thrive.

4 EFFECT OF TERMINATION
4.1 On any termination of a Service Order for any reason or expiry of the Term thereof, Thrive shall (i) unless notified otherwise by Client or required by law, as soon as reasonably practicable cease all processing of the Personal Data relating to such Service Order; and (ii) as soon as reasonably and commercially practicable, return or destroy (as directed in writing by Client) all Client Personal Data provided to Thrive by Client in connection with such Service Order.

5.SUB-PROCESSING
5.1 Client hereby authorises Thrive to engage Thrive’s existing sub-processors as at the Effective Date to process Client Personal Data on Thrive’s behalf.
5.2 Thrive shall not engage any additional processor (or change our existing sub-processors) without Client’s prior authorisation and without acting in accordance with the provisions of this clause
5.3 Thrive shall promptly notify Client of the identity of any proposed new sub-processor following which Client shall either approve or reject the appointment of such sub-processor (and any such approval shall not be unreasonably withheld, conditioned or delayed).
5.4 If Client rejects such appointment under clause 5.3, or Thrive does not receive a response from Client within five days (excluding Saturdays, Sundays and legal holidays in England) of Thrive’s notice under clause 5.3, Thrive shall not sub-contract any of Thrive’s obligations under this Exhibit A to such proposed sub-processor and Thrive reserves the right to terminate the affected Service on written notice, and Thrive shall not thereafter have any liability for any costs, delays or other damages Client may incur as a result of such termination. If Client approves the appointment of such sub-processor under clause 5.3, then before such appointment takes effect, Thive shall enter into and maintain for the duration of such appointment a written agreement with such sub- processor on terms that are similar to those set out in these Data Protection Clauses.

 

SCHEDULE I

PROCESSING PARTICULARS

 

ITEM	DESCRIPTION
Subject Matter	The Services.
Duration	The Term.
Nature and purpose of processing	When providing the Services, Thrive may collect, host and store Personal Data. For example, where Thrive provides back up and disaster recovery services, then Thrive  will be the data processor. For all other Services, Thrive may incidentally access Personal Data as part of providing the Services.
Type of data	All personal data that are supplied by or on behalf of Client which Thrive is required to process pursuant to the applicable Service Order. This may include names, contact details, place of work, financial details and technical details. It may also include sensitive personal data such as medical records, religious beliefs and/or political opinions.
Categories of data subjects	This will vary depending on the type of data being processed. For example, data subjects may include Client employees, representatives, customers and/or suppliers.