Sibylline Group – Master Service Agreement

1.1 In this Agreement:

1.2 In this Agreement:

1. a reference to this Agreement includes its schedules, appendices and annexes (if any);
2. a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
3. a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
4. a reference to a gender includes each other gender;
5. words in the singular include the plural and vice versa;
6. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
7. the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and
8. a reference to legislation is a reference to that legislation as in force as at the date of this Agreement.

3.1 During the Term, the Supplier agrees to supply, and the Customer agrees to purchase, Services on the terms set out in this Agreement.

3.2 The Customer shall at all times and in all respects:

1. perform its obligations in accordance with the terms of this Agreement;
2. comply with any additional or special responsibilities and obligations of the Customer specified in each Order;
3. pay the Prices for the Services and the Milestone Payments in accordance with the provisions of clause 12 and the terms of the Order;
4. co-operate with the Supplier in all matters arising under this Agreement or otherwise relating to the performance of the Services;
5. make the Performance Location accessible to the Supplier and the Supplier Personnel as may be necessary for the Supplier to perform the Services and otherwise comply with its obligations under this Agreement;
6. provide the Customer Materials, and all other information, documents, materials, data or other items necessary for the provision of the Services, to the Supplier in a timely manner;
7. inform the Supplier in a timely manner of any matters (including any health, safety or security requirements) which may affect the provision of the Services or the performance of any Order;
8. ensure that all tools, equipment, materials or other items provided to the Supplier for the provision of the Services are suitable for the performance of the Services, in good condition and in good working order; and
9. obtain and maintain all necessary licences, permits and consents at their own cost required to enable the Supplier and Supplier Personnel to perform the Services and otherwise comply with its obligations under this Agreement.

4.1 Nothing in this Agreement shall restrict the Supplier from supplying any services which are the same as or similar to the Services to other customers.

5.1 Subject to clause 5.4, the Customer may at any time provide the Supplier with a written order for Services substantially in the form set out in Schedule 4 or in any other form that the parties may agree in writing from time to time, provided always that where the Services are Services of the type which require the parties to agree a Statement of Work then that Statement of Work shall first be agreed by the parties pursuant to clause 5.2 (an Order).

5.2 Where the Services required by the Customer are Services of the type which require the parties to agree a Statement of Work, then:

1. the Customer shall submit a draft Order for such Services to the Supplier requesting the Supplier submit a corresponding draft Statement of Work
2. the Customer shall promptly, and at its cost and expense, provide all necessary information, support and assistance as may be required by the Supplier from time to time in considering the draft Order;
3. the Supplier shall submit a draft Statement of Work to the Customer within a reasonable period of time of the date of receipt of the draft Order
4. the Supplier shall update and amend the draft Statement of Work from time to time as reasonably required as a result of its interactions with the Customer pursuant to clause 5.2.3; and
5. the Supplier and the Customer shall sign the Statement of Work when it is agreed and the signed Statement of Work shall complete the draft Order.

5.3 The Customer shall not be entitled to amend or withdraw an Order.

5.4 An Order shall not constitute a binding obligation on the Supplier to supply the Services until such time as the Supplier has acknowledged and accepted the Order in writing. The Supplier may accept or reject each Order in its absolute discretion.

5.5 No variation to an Order shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier, or otherwise in accordance with the provisions of clause 8.

5.6 No Orders shall be placed following the date on which notice is validly served pursuant to clauses 17 or 21.3, or following the date on which the Agreement expires pursuant to clause 2.

5.7 Each Order shall form part of and be interpreted in accordance with the provisions of this Agreement.

6.1 Each Order shall specify the Performance Location and the Customer shall make such premises fully available for the Supplier and the Supplier Personnel.

6.2 Following performance of the Services, the Supplier shall provide written confirmation to the Customer stating:

1. the date and reference number of the Order;
2. a description of the Services performed;
3. the categories, type and quantity of any Deliverables supplied; and
4. any further information identified as being required in the corresponding Order

(a Completion Note).

6.3 Each Order shall be deemed to have been completed in full and in accordance with the terms of this Agreement and the terms of the corresponding Order upon delivery of the Completion Note (Completion).

6.4 Time of performance shall not be of the essence. The Supplier shall use its reasonable endeavours to perform the Services in accordance with any commencement or end dates specified for performance in the corresponding Order. Services which do not have specified commencement or end dates shall be performed by the Supplier within a reasonable period of time.

6.5 The Supplier shall not be liable for any delay or failure in Completion of the Services caused by:

1. the Customer’s failure to make the Performance Location available;
2. the Customer’s failure to prepare the Performance Location as required for the supply and Completion of the Services;
3. the Customer’s failure to provide the Supplier with adequate instructions for supply and Completion of the Services;
4. the Customer’s failure to supply the Customer Materials in a timely manner; or
5. Force Majeure.

7.1 Each party shall appoint a Contract Manager to act as the main point of contact for the other party in respect of all day-to-day matters relating to the supply of the Services and this Agreement.

7.2 With specific regard to Embedded Operations services, the parties shall ensure that the Contract Managers meet at quarterly intervals to discuss the progress being made in relation to the provision of the Services and any disagreements which may arise.

8.1 Where the Customer or the Supplier sees a need to change this Agreement (or any of the provisions therein, including the Services or the Orders), whether in order to include an additional service, function or responsibility to be performed by the Supplier for the Customer under this Agreement, to amend the Services or the service levels as set out in the Services or otherwise in an Order, the Supplier may at any time request, and the Customer may at any time recommend, such Change and a Change Request shall be submitted by the party requesting/recommending (as applicable) the Change to the other. Such Change shall be agreed by the parties only once the Change Request is signed by both parties.

8.2 Each Change Request shall conform to the requirements of Schedule 6.

8.3 Until such Change is made in accordance with clause 8.1, the Customer and the Supplier shall, unless otherwise agreed in writing, continue to perform this Agreement in compliance with its terms prior to such Change.

8.4 Any discussions which may take place between the Customer and the Supplier in connection with a request or recommendation before the authorisation of a resultant Change shall be without prejudice to the rights of either party.

8.5 Any Services or other work required by the Customer which have not been agreed in accordance with the provisions of clause 8 shall be undertaken entirely at the expense and liability of the Customer.

9.1 The Customer warrants that:

1. it has the right, power and authority to enter into this Agreement and grant to the Supplier the rights (if any) contemplated in this Agreement; and
2. the Customer Materials and all other information, documents, materials, data or other items provided by the Customer pursuant to this Agreement do not infringe the Intellectual Property Rights of any third party.

9.2 The Supplier shall not be liable for any failure of the Services or the Deliverables where the same arises directly or indirectly and whether in whole or in part as a result of:

1. a breach by the Customer of any of its obligations under this Agreement;
2. an event of Force Majeure;
3. any design, specification or requirement of the Customer; or
4. use of the Customer Materials.

9.3 Except as set out in this clause 9:

1. the Supplier gives no warranty and makes no representations in relation to the Services; and
2. the conditions implied by the Supply of Goods and Services Act 1982 ss 12–16 are expressly excluded.

9.4 The Customer acknowledges that the Supplier is not and cannot be aware of the extent of any potential loss or damage to the Customer resulting from any failure of the Services to conform to the Specification or any failure by the Supplier to discharge its obligations under this Agreement.

9.5 The provisions of this clause 9 set out the Customer’s sole and exclusive remedies (howsoever arising, whether in contract, tort, negligence or otherwise) for any error or defect in the Deliverables or defective performance of the Services.

10.1 If, in relation to an Order, the Customer is in breach of any of its obligations under this Agreement or if the Supplier is prevented or delayed in performing the Services for any reason attributable to the Customer, its Affiliates, employees, agents, representative or subcontractors, then the Supplier (without prejudice to its other rights):

1. may suspend performance of the Services under the Order until such time as the Customer fully remedies its breach or default;
2. shall not be liable for any losses, damages, costs and expenses incurred by the Customer as a result of such suspension; and
3. shall recover from the Customer all losses, damages, costs and expenses incurred by the Supplier arising from the Customer’s breach of default.

11.1 The Prices payable by the Customer in respect of each Order are contained in Schedule 3, as the same may be increased under clauses 11.4 and 11.5.

11.2 The Prices are exclusive of:

1. VAT (or equivalent sales tax).

11.3 The Supplier will be entitled to be reimbursed by the Customer for all out-of-pocket expenses (including travelling and entertainment expenses but not parking fines or road traffic offence fines) incurred by the Supplier and the Supplier Personnel in the proper provision of the Services. Supplier will also be entitled to charge a 10% processing and administration fee for all such reimbursements.

11.4 The Supplier may increase the Prices at any time by giving the Customer not less than 15 Days notice in writing provided that:

1. the number of Price increases per Contract Year under this clause does not exceed two.

11.5 In addition to its rights under clause 11.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Services which exceeds 1% and which is due to any factor beyond the control of the Supplier.

12.1 The Supplier may issue its invoice in respect of an Order at any time after the Order is placed or, where the Order specifies Milestone Payments, the Supplier may issue its invoices for Milestone Payments upon the achievement of the corresponding Milestone.

12.2 The Customer shall pay all invoices:

1. in full in cleared funds within 30 Days of the date of each invoice; and
2. to the bank account nominated by the Supplier in the Order.

12.3 The Customer shall pay any applicable VAT (or equivalent sales tax) to the Supplier on receipt of a valid VAT invoice.

12.4 Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:

1. the Supplier may, without limiting its other rights, charge interest on such sums at 3 percentage points a year above the base rate of Barclays Bank from time to time in force; and
2. interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

14.1 Each party agrees that, in the performance of their respective obligations under this Agreement, it shall comply with the provisions of Schedule 5.

15.1 In consideration of the Prices payable under this Agreement and the parties’ mutual obligations under this Agreement where specifically provided in an Order, the Supplier licences to the Customer on a non-exclusive basis the Supplier’s Intellectual Property Rights in the Services and Deliverables and all other materials created by the Supplier pursuant to this Agreement for the Permitted Use.

15.2 Except as expressly agreed above, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.

16.1 The extent of the Supplier’s liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 16.

16.2 Subject to clause 16.4 and 16.5, the liability of the Supplier whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the fees payable to the Supplier in respect of the Statement of Work which gave rise to the liability.

16.3 Subject to clause 16.5, the Supplier shall not be liable for any consequential, indirect or special loss.

16.4 Subject to clause16.5, the Supplier shall not be liable for any of the following (whether direct or indirect):

1. loss of profit;
2. loss of revenue;
3. loss or corruption of data;
4. loss or corruption of software or systems;
5. loss or damage to equipment;
6. loss of use;
7. loss of production;
8. loss of contract;
9. loss of commercial opportunity;
10. loss of savings, discount or rebate (whether actual or anticipated);
11. harm to reputation or loss of goodwill; and/or
12. wasted expenditure.

16.5 Notwithstanding any other provision of this Agreement, the Supplier’s liability shall not be limited in any way in respect of the following:

1. death or personal injury caused by negligence;
2. fraud or fraudulent misrepresentation;
3. any other losses which cannot be excluded or limited by applicable law.

17.1 This Agreement may be terminated by the Supplier giving not less than 8 weeks’ notice in writing to the Customer.

17.2 Either party may terminate this Agreement at any time by giving notice in writing to the other party if:

1. the other party commits a material breach of this Agreement and such breach is not remediable;
2. the other party commits a material breach of this Agreement which is not remedied within 30 days of receiving written notice of such breach;
3. any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled.

17.3 Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:

1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
2. is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;
3. becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
4. becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
5. becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
6. becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
7. has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
8. has a resolution passed for its winding up;
9. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
10. is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
11. has a freezing order made against it;
12. is subject to any events or circumstances analogous to those in clauses 17.3.1 to 17.3.11 in any jurisdiction.

17.4 The right of a party to terminate the Agreement pursuant to clause 17.3 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement.

17.5 On termination of this Agreement for any reason:

1. the Supplier shall immediately stop the performance of all Services unless expressly requested and agreed between the parties otherwise in relation to all or part of the Services in writing;
2. the Supplier shall promptly invoice the Customer for all Services performed but not yet invoiced;
3. without prejudice to any additional obligations under Schedule 5, the parties shall within 30 Days return any materials of the other party then in its possession or control; and
4. all rights granted to the Customer under this Agreement or any Order shall immediately cease.

18.1 In order to protect the legitimate business interests of the Supplier, during the Restricted Period the Customer shall not, either directly or indirectly, by or through itself, its affiliate, its agent or otherwise, or in conjunction with its affiliate, its agent or otherwise, whether for its own benefit or for the benefit of any other person:

1. solicit, entice or induce, or endeavour to solicit, entice or induce, any Restricted Person of the Supplier with a view to employing or engaging the Restricted Person, or
2. employ or engage, or offer to employ or engage a Restricted Person of the Supplier

18.2 In the event of a breach of clause 18.1 specific to embedded operations employees, the Customer shall pay to the Supplier by way of liquidated damages of three months billing for the specific role impacted.

18.3 The provisions in clause 18.2 shall be without prejudice to a party’s ability to seek damages or claim injunctive relief.

19.1 Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its Affiliates including, any details of its business, affairs, customers, clients, suppliers, plans or strategy (Confidential Information) confidential and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by clause 19.2.

19.2 A party may:

1. disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party ensures that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with clause 19 as if it were a party;
2. disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
3. use Confidential Information only to perform any obligations under this Agreement.

19.3 Each party recognises that any breach or threatened breach of clause 19 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

20.1 Any dispute arising between the parties out of or in connection with this Agreement shall be dealt with in accordance with the provisions of clause 20.

20.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.

20.3 The parties shall thereafter use all reasonable endeavours to reach a negotiated resolution within 60 Days.

20.4 If the dispute has not been resolved within this timeframe, the dispute shall be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.

20.5 Until the parties have completed the steps referred to in clauses 20.2 to 20.4, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration, except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.

21.1 In this clause 21, Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement. Inability to pay is not Force Majeure.

21.2 A party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:

1. promptly notifies the other of the Force Majeure event and its expected duration; and
2. uses reasonable endeavours to minimise the effects of that event.

21.3 If, due to Force Majeure, a party:

1. is to perform a material obligation; or
2. is delayed in or prevented from performing its obligations for a continuous period of 90 Days,

the other party may terminate this Agreement on not less than four weeks’ written notice.

22.1 The parties agree that this Agreement and the Orders entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

22.2 Each party acknowledges that it has not entered into this Agreement and the Orders entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement and the Orders entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.

22.3 Nothing in this Agreement purports to limit or exclude any liability for fraud.

23.1 Any notice given by a party under this Agreement shall:

1. be in writing and in English;
2. be signed by, or on behalf of, the party giving; and
3. be sent to the relevant party at the address set out in clause 23.3

23.2 Notices may be given, and are deemed received:

1. by hand: on receipt of a signature at the time of delivery; and
2. by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting.

23.3 Notices shall be sent to the relevant party’s registered address and via email to:

clients@sibylline.co.uk in the case of the Supplier and [insert the Customer’s primary email address and a cc email address] in the case of the Customer.

23.4 All references to time are to the local time at the place of deemed receipt.

23.5 This clause does not apply to notices given in legal proceedings or arbitration.

26.1 The Supplier may perform any of its obligations and exercise any of its rights granted under this Agreement through any Affiliate.

30.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.

30.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

31.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

31.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.

31.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.

33.1 In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:

1. the terms and conditions in the main body of this Agreement and Schedule 5;
2. the other Schedules; and
3. the Order.

33.2 Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.

34.1 This Agreement may be signed in any number of separate counterparts, each of which when signed and dated shall be an original, and such counterparts taken together shall constitute one and the same agreement.

34.2 Each party may evidence their signature of this Agreement by transmitting by email a signed signature page of this Agreement in PDF format together with the final version of this Agreement in PDF or Word format, which shall constitute an original signed counterpart of this Agreement. Each party adopting this method of signing shall, following circulation by email provide the original, hard copy signed signature page to the other parties as soon as reasonably practicable.

36.1 Except as expressly provided for in clause 36.2, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.

36.2 The Affiliates of the Supplier shall have the right to enforce the provisions of this Agreement.