1. DEFINITIONS AND INTERPRETATIONS
In this Master Services Agreement:
Order Form means the Order Form that sets out the Services that StratoGen has agreed to supply to the Client including, without limitation, any such paper or web-based order form or any form that StratoGen completes on behalf of the Client in the course of any telephoned order.
Agreement means the Order Form, these General Terms and Conditions and all relevant Special Terms and Conditions.
Services means those services that StratoGen has agreed to supply the Client as set out and described on the Order Form; and Service means any one of them.
Start Date means the date that StratoGen actually starts supplying the Services to the Client in accordance with the relevant Order Form.
Term means the period from the signature of this Agreement to the date that this Agreement expires or terminates.
StratoGen means StratoGen Inc, a Delaware corporation of 3500 South Dupont Highway, Dover, DE 19901 USA.
2. APPLICABILITY OF THESE TERMS AND CONDITIONS
2.1. These General Terms and Conditions apply to all Services that StratoGen supplies to the Client. This includes any and all past, present and future orders, unless otherwise agreed.
2.2. In respect of each individual Service that StratoGen agrees to supply to the Client as set out on the Order Form, a relevant set of Special Terms and Conditions may also apply.
2.3. To the extent that there is any inconsistency between an Order Form, any Special Terms and Conditions and these General Terms and Conditions the order of precedence as to their interpretation shall be:
2.3.1. the Order Form;
2.3.2. any relevant Special Terms and Conditions; and
2.3.3. these General Terms and Conditions.
3.1. This Agreement shall take effect in respect of each Service from the later of the dates that:
3.1.1. the Client and StratoGen sign the relevant Order Form for that Service (if a paper-based Order Form is used); or
3.1.2. the Start Date on which the Services are supplied, or which is stipulated on the relevant Order Form.
3.2. Notwithstanding that an Order Form may be binding on a Party from the date of signature, it may be that StratoGen is not able to start supplying the relevant Service until a later date. StratoGen will usually include an anticipated start date for the Service on the Order Form for the relevant Service; this shall be indicative only and time shall not be of the essence in this regard.
3.3. This Agreement shall continue for the duration stipulated on any Order Form, and shall remain in force thereafter until either Party serves the other Party least 30 days’ notice in writing that it does not wish to renew this Agreement in respect of such Service, subject in all cases to earlier termination in accordance with Clause 16. In all other cases all Services shall continue in force unless terminated in accordance with Clause 16.
4. ACCEPTABLE USE POLICY
4.1. StratoGen publishes an Acceptable Use Policy as a schedule to this Agreement.
4.2. The Client must comply with the Acceptable Use Policy at all times during the Term.
4.3. StratoGen may change the Acceptable Use Policy from time to time and StratoGen will give the Client no less than 14 days’ notice of such change and thereafter the Client must comply with the Acceptable Use Policy as changed. StratoGen will not make changes to the Acceptable Use Policy that are unreasonable or that undermine the purpose of this Agreement.
5.1. StratoGen may issue the Client with one or more username and password combinations (Credentials) for use in connection with the Services. These Credentials are personal to the Client; the Client should not permit any unauthorized third party to use them.
5.2. StratoGen may assume that all use of the Credentials is by the Client or authorized by the Client. StratoGen shall have no liability to the Client for any unauthorized use of the Credentials.
5.3. StratoGen may decline to provide certain aspects of the Services if the Client has not provided the correct Credentials to StratoGen on request.
5.4. the Client must notify StratoGen immediately if the Client believes that the Credentials have been compromised. Promptly upon notice StratoGen shall:
5.4.1. remove permissions from the compromised Credentials;
5.4.2. issue the Client with a new set of Credentials.
6.1. The Fees for each of the Services shall be as set out on the Order Form.
6.2. Any Fees that are indicated as ‘set up costs’ may be invoiced by StratoGen any time after signature of this Agreement.
6.3. Any Fees that are indicated as recurring shall be invoiced in advance at the frequency shown on the Order Form.
6.4. Fees do not include Sales Tax. Sales Tax is charged at the current rate on all services.
6.5. Clauses 6.2 and 6.3 shall apply unless the Order Form states otherwise.
7. STRATOGEN’S RIGHT TO CHANGE THE FEES
StratoGen reserves the right to amend StratoGen’s Fees with effect from the expiry of the initial Term. StratoGen will give the Client at least 60 days’ notice of any increase in Fees for the Services. In certain cases an increase in Fees may permit the Client to terminate the affected Service pursuant to Clause 16.3.
8.1. The Client must pay StratoGen’s Fees within 30 days of the date of StratoGen’s invoice, subject to the provisions of clause 8.2 and 8.3.
8.2. If the Client disputes any item on any of StratoGen’s invoices in good faith, the Client must notify StratoGen within 7 days of the date of the relevant invoice and must still pay any undisputed amount within the time permitted in clause 8.1. If the Client does not notify StratoGen within this time the Client must pay the full amount of the invoice within the time permitted clause 8.1, but the Client may still query the invoice with StratoGen and in the event of a discrepancy, StratoGen will correct the error on the next invoice (or if the Agreement has expired or terminated in the interim, issue a credit note or closing invoice (depending on whether the error constituted an over-charge or an under-charge).
8.3. In some circumstances StratoGen may require payment in advance of providing the Services (for example, and without limitation, material hardware purchases and/or an inadequate credit check on Client). StratoGen will notify the Client if StratoGen has such a requirement.
8.4. The Client may not off-set any amounts that StratoGen may owe the Client (under this or any other Agreement) against any of StratoGen’s invoices unless StratoGen has given the Client written permission to do so.
8.5. If the Client is late in paying any of StratoGen’s invoices, StratoGen may charge the Client (and the Client must pay) interest on such late payment at a rate of 10% (ten per cent) per annum, such interest to be calculated and compounded daily from the date that such payment should have been made to the date that it is actually made.
The Client indemnifies and shall hold StratoGen and StratoGen’s employees and directors (together the “Indemnified Persons”) harmless against all loss, costs, expenses, damages and liabilities suffered as a result of a claim against the Indemnified Persons (or any of them) brought or threatened to be brought in a court or tribunal of competent jurisdiction that arises directly or indirectly from a breach by the Client of this Agreement.
StratoGen may make certain warranties and representations in any relevant Special Terms and Conditions. With the limited exception of any such warranties and representations, in entering into this Agreement, the Client acknowledges and agrees that the Client has not relied on any other warranty or representation, and StratoGen expressly disclaims all such warranties and representations including, without limitation, but to the maximum extent permitted by applicable law, any warranty relating to fitness for any particular purposes and merchantable quality.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. For the avoidance of doubt, nothing in this Agreement shall act so as to transfer the intellectual property rights or any other proprietary right from one Party to the other.
11.2. Ownership of any documents produced by StratoGen for the Client as part of the Services (and the intellectual property rights therein) shall remain StratoGen’s unless otherwise agreed in writing. To the extent that any such document contains Confidential Information (as defined in Clause 15.1, the provisions of Clause 15 shall apply notwithstanding the provisions of this Clause or any agreement to the contrary as to ownership.
The Client agrees that at all times during the currency of this Agreement StratoGen may identify the Client in StratoGen’s marketing material and on StratoGen’s websites as a client. StratoGen may use the Client’s corporate name, trading name and/or and logo to identify the Client. StratoGen agrees that the Client may withdraw this consent at any time on no less than 14 days’ notice in writing to us.
13. DATA PROTECTION
The Client consents to StratoGen’s use of information about the Client for the following purposes:
13.1. performing credit checks on the Client;
13.2. the performance of StratoGen’s obligations under this Agreement; and
13.3. as otherwise disclosed in StratoGen’s Notification to the Office of the Information Commissioner.
14. EXCLUSIONS AND LIMITATIONS OF LIABILITIES
14.1. Neither Party limits or excludes its liability hereunder for any loss:
14.1.1. resulting from death or personal injury caused by its negligence or that of any of its agents or subcontractors;
14.1.2. resulting from any statement or other representation made fraudulently.
14.2. StratoGen's liability hereunder shall be limited solely to direct loss or damages caused directly by its gross negligence or willful misconduct. In no case shall StratoGen be deemed or held liable, in law, equity or otherwise, for any special, incidental, indirect or consequential loss or damages, including, without limitation, any loss or damages arising from lost customers, lost orders, lost profits, or lost revenues.
14.3. Neither Party shall be liable, nor responsible, for any third party technology, product, service, declaration, act or omission, or any other condition that is directly or indirectly referable to a third party.
14.4. For any Service in respect of which StratoGen has agreed to offer the Client Service Credits, StratoGen’s sole liability to the Client, and the Client’s sole remedy under this Agreement, for failure to comply with the relevant Service Levels shall be the payment by StratoGen of the relevant Service Credits.
14.5. StratoGen shall not be liable to the Client for any reason, for any loss of data.
14.6. Subject to sub-clauses 14.1 to 14.5 inclusive, each Party’s aggregate liability to the other in respect of all matters connected to this Agreement and under any head of law (including, without limitation, the tort of negligence) shall be limited to the greater of (i) $5,000; and (ii) the aggregate of the Fees paid over the period of 12 months immediately preceding the relevant breach, for the relevant Service in respect of which the breach occurred even if the Party was aware or ought reasonably to be aware of the likelihood of such liability.
14.7. In no event may the Client bring any claim against StratoGen more than 12 months after the Client knew of (or ought reasonably to have discovered) the event(s) giving rise to the potential liability.
15.1. All information of a confidential nature (“Confidential Information”) given by either Party to the other or otherwise obtained shall be treated by the other Party, its employees and subcontractors as confidential and shall not be used other than for the benefit of the disclosing Party or the furtherance of each Party’s obligations under this Agreement. The foregoing applies notwithstanding that such Confidential Information may have been disclosed prior to this Agreement.
15.2. Each Party undertakes not to disclose, without the prior consent in writing of the other, Confidential Information belonging to or disclosed by the other in whole or in part to any other person save those of its employees, agents and contractors who are engaged in performing the provision or receipt of that Party’s obligations hereunder and have a reasonable need to know such information and to its board members, professional advisers and auditors who have a reasonable need to know such information in order to advise the Company or otherwise carry out their duties.
15.3. The provisions of the preceding clause shall not apply to any information which:
15.3.1. is trivial or obvious (for the avoidance of doubt an element that is trivial or obvious in and of itself should not necessarily be taken as trivial or obvious in the context of the whole of the Confidential Information);
15.3.2. becomes public knowledge other than by breach of this clause;
15.3.3. is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party;
15.3.4. is received from a third party who lawfully acquired or developed it and who is under no obligation restricting its disclosure;
15.3.5. is independently developed without use of the other Party’s Confidential Information
15.4. It shall not be a breach of this Clause if the receiving Party is obliged to disclose the Confidential Information of the disclosing Party by order of a court of competent jurisdiction, pursuant to a regulatory demand or the rules of an internationally recognized stock-exchange provided that, so far as practical, the receiving Party gives prior written notice of such disclosure and provides reasonable assistance to the disclosing Party in trying to prevent or contain such disclosure.
15.5. At the request of a disclosing Party, the receiving Party shall promptly (and in any event within 30 days) return to the disclosing Party or destroy all Confidential Information of the disclosing Party and shall certify by a signature of a Director (as the term is understood in law) that is has complied with this sub-clause. In respect of confidential information stored electronically, it shall be sufficient that a party uses its reasonable endeavors to expunge such data from its systems. This shall not include the expunging of such data from a party’s data backups or archives unless and until such backups and/or archives are restored to a live environment.
16. RIGHTS TO TERMINATE
16.1. Either Party may terminate this Agreement without liability immediately on written notice to the other Party in the event that:
16.1.1. the other Party has breached any material provision of this Agreement, or, in the Client’s case, the Client has breached the provisions of Clause 3.3 and/or 8 (whether or not such provisions are regarded as material) and:
18.104.22.168. such breach is un-remediable; or
22.214.171.124. such breach has not been remedied within 15 days of receipt of written notice from the other Party requiring that such breach is remedied.
16.1.2. the other Party can no longer pay its debts as they fall due or has had an Administrator, Liquidator, Manager, Receiver or Administrative Receiver (or any appointment similar in effect to any of the foregoing) appointed over any or all of its assets.
16.2. StratoGen may terminate the supply of any Service without liability to the Client in the event that StratoGen is no longer commercially able to continue the supply of such Service due to a change in the legal or regulatory environment. In such a case StratoGen will give the Client reasonable prior written notice and shall try to provide the Client with reasonable assistance in migrating to an alternative supplier.
16.3. The Client may terminate the receipt of a Service hereunder, without liability to StratoGen, in the event that StratoGen has notified the Client of an increase in Fees for that Service that is in excess of 15% of the Fees previously charged (excluding any discounts that may have been offered). The Client must exercise this right to terminate within 30 days of receiving the notice of such increase otherwise the Client shall be deemed to have unconditionally accepted such increase in Fees.
16.4. The Client may terminate the receipt of a Service hereunder, without liability to StratoGen, in the event that an event of Force Majeure (as referred to in Clause 19) continues for more than 15 days.
16.5. References to the termination of a Service in this Clause shall be deemed to include any other Service that is materially dependent on the Service being terminated.
17. EFFECT OF TERMINATION AND EXPIRY
On termination or expiry (howsoever caused):
17.1. (or at the expiry of any Run-Off Period if provided for in any Service), StratoGen will cease providing the relevant Service or Services (as the case may be);
17.2. all the accrued rights and remedies of both Parties shall remain unaffected;
17.3. the provisions of Clauses 1, 2, 8 (in respect of any unpaid invoices), 9, 14, 15, 17, 19 and 20 shall remain in force, notwithstanding termination.
18. RIGHTS TO SUSPEND
18.1. In any circumstances in which StratoGen may have the right to terminate this Agreement and/or any Order, StratoGen may suspend the provision of any Services under any one or more Orders in order to provide the Client and us some time to resolve any issues that have arisen.
18.2. Suspension shall not relieve the Client from the liability to pay the Fees during the suspended period.
18.3. StratoGen shall promptly re-enable the relevant Services in the event that the issues prompting the suspension have been resolved to StratoGen’s satisfaction (acting reasonably).
18.4. The provisions of this Clause are in addition to and are without prejudice to StratoGen’s right to terminate this Agreement and/or any Order.
19. FORCE MAJEURE
In the event that StratoGen is prevented or hindered from providing the Services to the Client as a result of any event beyond StratoGen’s reasonable control then StratoGen shall not be liable to the Client in respect of any resultant breach.
20.1. If any part of this Agreement becomes or is illegal or unenforceable that part of this Agreement shall be deemed excised and the Parties shall act in good faith to replace the relevant part of this Agreement with an alternative that is not illegal or unenforceable and that maintains the intended business relationship between the Parties.
20.2. This Agreement represents the entire relationship between the Parties and supersedes all previous written or other correspondence and agreements as to the subject matter of this Agreement.
20.3. The Parties are entering into this Agreement as principals and nothing in this Agreement shall serve to create any agency or partnership benefiting the Parties.
20.4. No amendment to this Agreement shall be valid unless made in writing and signed by authorized representatives of both Parties.
20.5. No rights under this Agreement shall accrue to any person that is not expressly a party to this Agreement.
20.6. If either Party needs to send notices to the other Party they shall do so by first-class (or international equivalent) pre-paid post to the address given for that Party at the start of this Agreement or such other address as a Party may notify the other Party in accordance with this Clause.
20.7. Any notice will be deemed to be delivered 48 hours after posting it unless posted internationally, in which case delivery shall be deemed to take place 72 hours after postage.
20.8. This Agreement shall be governed by and construed in accordance with the laws of Delaware (without regard to its provisions on conflict of law). The Parties expressly and unconditionally submit to the exclusive jurisdiction of the courts of Delaware save that StratoGen may enforce any judgement on the Client anywhere in the World where the Client may have assets.