1           Software

1.1        Subject to the continued payment of the Fees, MST grants to the Client a limited, non-exclusive, non-transferable, revocable licence, without the right to
sublicense (other than to its End Customers and Invitees in accordance with
these T&Cs), to permit the Client, via rights of access granted to the
Client’s Users, to access and use the Software and Documentation solely for the
Client’s Internal Business Purposes (including the Client’s End Customers’
personal finance administration), in accordance with the terms of this
Agreement. This licence is granted to the Client only and shall not be
considered to be granted to any third party, subsidiary or holding company of
the Client.

1.2        The Client shall not:

1.2.1    except as may be allowed by any applicable Law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

a)          attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the
Software or Documentation in any form or media or by any means; or

b)          attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

1.2.2    make any copies of any Documentation, specifications or documents provided by MST in relation to the Software;

1.2.3    without the prior written consent of a Director of MST, access all or any part of the Software in order to build a product or service which competes with the
Software and / or Services;

1.2.4    use the Software to provide services to third parties other than its End Customers;

1.2.5    act as a reseller of the Software and / or Services, or otherwise market and sell the Software and / or Services to any third party;

1.2.6    license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third
party except the Users;

1.2.7    provide any information to any third party that is likely to constitute Intellectual Property Rights, confidential or proprietary knowledge of the Software and Services;

1.2.8    copy, reproduce, modify, translate, alter, decompile, manipulate, disassemble or reverse engineer the Software (or its data) or release it into the public
domain (or allow anyone else to do these things);

1.2.9    attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 1; or

1.2.10 introduce, or permit the introduction of, any Virus into MST’s network and information systems, including via the Client Data and Documents.

1.3        The Client shall prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify MST.

1.4        The Client shall not access, store, distribute or transmit any Virus or any material during the course of its use of the Software that:

1.4.1    is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

1.4.2    facilitates illegal activity;

1.4.3    depicts sexually explicit images;

1.4.4    promotes unlawful violence;

1.4.5    is discriminatory based on race, gender, colour, religious belief, sexual
orientation, disability; or

1.4.6    is otherwise illegal or causes damage or injury to any person or property, or permit its End Customers or Invitees to do the same, and MST reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s (or any End Customers’ or Invitees’) access to the Software and Services (or any part thereof) if there is a breach of this clause.

Approved Users

1.5        The Client acknowledges and agrees that:

1.5.1    the maximum number of Approved Users that it authorises to access and use the Software shall not exceed the number of User Licences that it has purchased from time to time; and

1.5.2    the number of Approved Users shall not at any time be reduced beyond the number agreed between the parties and set out in the Order Form.

If the Client wishes to:

1.5.3    increase the number of User Licences, it shall request the same from MST in accordance with the Change Control Process on at least five Business Days’ notice. Where such change takes effect before the next invoice date, the Client shall be invoiced a pro-rata amount of the User Licence Fee for the month in which the User
Licence is activated, and Total A shall be increased to reflect the increase in
the number of User Licences; and

1.5.4    decrease the number of User Licences it shall request the same from MST in accordance with the Change Control Process at least 10 Business Days prior to the next invoice date. The Client acknowledges that it shall not be entitled to any refund in such circumstances.

1.6        In relation to the Users, the Client undertakes that:

1.6.1    it will procure the compliance of all Users with the EULA;

1.6.2    End Customers and Invitees shall only be given access to the Products via MST’s approval process in place from time to time;

1.6.3    the Approved Users shall send a communication to all End Customers and Invitees (whether by email, SMS or any other communication method) to enable them to activate their use of the Products;

1.6.4    it will not allow or suffer any User Licence to be used by more than one individual Approved User unless it has been reassigned in its entirety to another
individual Approved User, in which case the prior Approved User shall no longer
have any right to access or use the Software and Services;

1.6.5    it shall maintain a written, up to date list of current Users and provide such list to MST within five Business Days of MST’s written request at any time or times;

1.6.6    it shall permit MST or MST’s designated auditor to audit any directly applicable records and the use of the Software in order to establish the name and password of each Approved User and the Client’s data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at MST’s expense, and this right shall be exercised with reasonable
prior notice, in such a manner as not to substantially interfere with the
Client’s normal conduct of business;

1.6.7    if any of the audits referred to in clause 1.6.6 reveal that any password has been provided to any individual who is not an Approved User, then without prejudice to MST’s other rights, the Client shall promptly disable such passwords and MST shall
not issue any new passwords to any such individual; and

1.6.8    if any of the audits referred to in clause 1.6.6 reveal that the Client has underpaid the Fees to MST, then without prejudice to MST’s other rights, the Client shall pay to MST an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.

1.7        The Client is responsible for all acts and omissions of each User and any and all use of the Software using each User’s access credentials and any reference to the
liability of the Client shall extend to liability of its Users.

2           API

2.1        Where the Client licences the API under this Agreement, this clause 2 shall apply and the API shall form a part of the ‘Products’.

2.2        MST grants the Client a non-exclusive right to use the API solely for the purpose of receiving the benefit of the Software and Services under this Agreement. The Client shall not sublicence, assign or otherwise transfer the rights granted in this clause 2.2.

2.3        MST warrants that the API shall perform materially in accordance with the API Documentation.

2.4        The Client acknowledges that, where the API links into external systems, software, platforms (or similar), whether provided by MST or a third party, its use of the API is dependent on it retaining its licences and access to the same and, in the event that the Client no longer has the necessary permissions, the API will not function and its use of the API shall be suspended. MST shall not have any liability in relation to the same.

2.5        Clause 2.3 shall not apply to the extent of any non-conformance which is caused by use of the API contrary to MST’s instructions or modification / alteration of the API by any party other than MST. If the API does not materially conform with the API Documentation, MST will, at its expense, use reasonable endeavours to correct any such non-conformance promptly or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of clause 2.3.

2.6        MST does not warrant that the Client’s use of the API will be uninterrupted or error-free and is not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communication networks and facilities, including the internet. The Client acknowledges that the API and API Data may be subject to limitations, delays and other problems inherent in the use of such communication facilities.

2.7        The Client acknowledges that the API is subject to upgrades and changes. In line with the foregoing, and unless agreed otherwise with MST, the Client shall not place any reliance on the compatibility of the API with the Client System, any software, technology, services, or materials (including any third party platforms or software).

2.8        The Client shall not:

2.8.1    make API Calls in excess of the API Limits. The Client acknowledges that, in the event that it breaches this clause and without prejudice to any other rights or remedies that MST may have, MST may suspend access to the API;

2.8.2    use the API or the API Data in any manner or for any purpose that infringes, misappropriates or otherwise infringes any Intellectual Property Rights or other rights of any person;

2.8.3    combine or integrate the API or API Data with any software, technology, services or materials not approved in advance by MST, including AI-related technologies, large language or other foundation models;

2.8.4    pass or allow access to the API or API Data to any third party; and / or

2.8.5    access all or any part of the API or API Data to build a product and / or service which competes with the API or the Services (or any part of it).

2.9        The Client has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify or make error corrections to the API, in whole or in part (except to the extent that any Law overrides this provision or any part hereof).

2.10     As the use of the API may rely on information from external sources, accordingly, MST does not guarantee the accuracy of such information.

Security

2.11     The Client shall:

2.11.1 secure the API, the API Data and the API Key from infringement, misappropriation, theft, misuse and unauthorised access;

2.11.2 prevent any unauthorised access to, or use of, the API, API Data and API Key and, in the event of any such unauthorised access or use, promptly notify MST; and

2.11.3 prevent the introduction of any Virus or vulnerability into MST’s systems and network via the Client’s use of the API, the API Key or otherwise.

API Key

2.1        Where the Client licences the API under this Agreement, this clause 2 shall apply and the API shall form a part of the ‘Products’.

2.2        MST grants the Client a non-exclusive right to use the API solely for the purpose of receiving the benefit of the Software and Services under this Agreement. The Client shall not sublicence, assign or otherwise transfer the rights granted in this clause 2.2.

2.3        MST warrants that the API shall perform materially in accordance with the API Documentation.

2.4        The Client acknowledges that, where the API links into external systems, software, platforms (or similar), whether provided by MST or a third party, its use of the API is dependent on it retaining its licences and access to the same and, in the event that the Client no longer has the necessary permissions, the API will not function and its use of the API shall be suspended. MST shall not have any liability in relation to the same.

2.5        Clause 2.3 shall not apply to the extent of any non-conformance which is caused by use of the API contrary to MST’s instructions or modification / alteration of the API by any party other than MST. If the API does not materially conform with the API Documentation, MST will, at its expense, use reasonable endeavours to correct any such non-conformance promptly or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of clause 2.3.

2.6        MST does not warrant that the Client’s use of the API will be uninterrupted or error-free and is not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communication networks and facilities, including the internet. The Client acknowledges that the API and API Data may be subject to limitations, delays and other problems inherent in the use of such communication facilities.

2.7        The Client acknowledges that the API is subject to upgrades and changes. In line with the foregoing, and unless agreed otherwise with MST, the Client shall not place any reliance on the compatibility of the API with the Client System, any software, technology, services, or materials (including any third party platforms or software).

2.8        The Client shall not:

2.8.1    make API Calls in excess of the API Limits. The Client acknowledges that, in the event that it breaches this clause and without prejudice to any other rights or remedies that MST may have, MST may suspend access to the API;

2.8.2    use the API or the API Data in any manner or for any purpose that infringes, misappropriates or otherwise infringes any Intellectual Property Rights or other rights of any person;

2.8.3    combine or integrate the API or API Data with any software, technology, services or materials not approved in advance by MST, including AI-related technologies, large language or other foundation models;

2.8.4    pass or allow access to the API or API Data to any third party; and / or

2.8.5    access all or any part of the API or API Data to build a product and / or service which competes with the API or the Services (or any part of it).

2.9        The Client has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify or make error corrections to the API, in whole or in part (except to the extent that any Law overrides this provision or any part hereof).

2.10     As the use of the API may rely on information from external sources, accordingly, MST does not guarantee the accuracy of such information.

Security

2.11     The Client shall:

2.11.1 secure the API, the API Data and the API Key from infringement, misappropriation, theft, misuse and unauthorised access;

2.11.2 prevent any unauthorised access to, or use of, the API, API Data and API Key and, in the event of any such unauthorised access or use, promptly notify MST; and

2.11.3 prevent the introduction of any Virus or vulnerability into MST’s systems and network via the Client’s use of the API, the API Key or otherwise.

API Key

2.12     The parties acknowledge that the Client’s sole means of accessing the API shall be via the API Key. The API Key will be provided by MST to the Client.

2.13     The Client shall not share the API Key with any third party and must keep the API Key and all log-in information secure.

2.14     The API Key may be replaced at any time by MST on notice to the Client.

3           Releases & Upgrades

3.1        MST may, from time to time, make changes to the Software and Services (which will be automatically applied) to:

3.1.1    improve, update or upgrade existing functionality or services;

3.1.2    introduce new functionality or services;

3.1.3    reflect changes to technology or market practice; or

3.1.4    ensure that the Software and Services remain compliant with all applicable Laws, legal obligations or regulations.

3.2        Any such changes shall not result in a material degradation in the Software.

4           Services

4.1        General

4.1.1    MST shall provide the Software and Services:

1. a) substantially in accordance with the Documentation;
2. b) in accordance with all applicable Laws; and
3. c) using reasonable skill and care.

Subject to clause 4.1.2, in the event that the Products and / or Services do not comply with the above, MST shall use all commercially reasonably endeavours to correct any non-conformance in accordance with clause 4.3. The foregoing sets out the Client’s sole and exclusive remedy for any breach of this clause 4.1.1.

4.1.2    Clause 4.1.1 and clause 6.1.3 shall not apply to the extent of any non-conformance as a result of any:

1. a) use by the Client (or Users) contrary to MST’s instructions;
2. b) abuse or corruption of the Software;
3. c) use with software or on equipment which is incompatible; or
4. d) modification / alteration of the Software and Services by any third party not approved by MST.

4.1.3    Any delivery or completion dates specified by MST are approximate only and time shall not be of the essence for delivery or completion. However, MST shall use reasonable endeavours to achieve the same.

4.1.4    MST reserves the right at any time to:

1. a) make changes to the Software, Client Data or relocate the Client Data, Documents or files used by the Software;
2. b) move, change or reconfigure (as applicable) any of the Software, Services or the components used to deliver any of the Software or Services for reasons of health, safety or security; and / or
3. c) make any change, improvement, substitution or modification in the format, operation, manufacture, specification, design or configuration of the Services or Software for any reason, provided that any such change, improvement, substitution or modification shall not result in any material reduction in the functionality or performance of the Software or Services.

4.1.5    In relation to changes made in accordance with clause 4.1.4 above, if such change is likely to materially adversely affect performance, MST shall notify the Client of any such proposed variation(s) to the type and technical specification, together with an assessment on the impact of such proposed variation(s) in writing prior to implementation of such variation (unless it is not practicable to do so in the case of an emergency, in which case such notification shall be given as soon as practicable after the variation has taken place).

4.2        Implementation Services

The Client acknowledges that MST may be required to make changes to the Client’s system(s), data or re-locate the data files used by the Software as part of the Implementation Services. Accordingly, the Client shall ensure that it has the necessary backups of the relevant data during this period and that MST is not liable for the loss, damage or alteration of such data.

4.3        Support Services

4.3.1    MST shall provide the Client with standard Support Services in relation to the Software at no additional cost.

4.3.2    The Client shall communicate all errors in accordance with the Support Services Document all information necessary to enable MST to identify the root cause and correct the issue.

4.3.3    Where relevant in relation to a Product, the Client acknowledges that any errors or support requests from its End Customers and Invitees must be routed via the Client, and that MST will not have direct contact with the End Customers or Invitees in any event. If an End Customer or Invitee contacts MST directly, MST reserves the right to charge and invoice the Client for any time spent by MST in relation to the same at MST’s then-current rates.

4.4        Hosting Services

4.4.1    MST shall provide the Hosting Services.

4.4.2    The Software is designed to be available during Business Hours, subject to any emergency or scheduled maintenance or circumstances beyond MST’s control. Scheduled maintenance shall be performed by MST at regular intervals outside of Business Hours. MST shall use reasonable endeavours to give the Client advance notice of any emergency maintenance, where possible.

4.4.3    MST shall not be responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. The Client acknowledges that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5           Security

5.1        MST shall have in place appropriate security measures, policies and processes to ensure compliance with all applicable Laws.

5.2        In using and accessing the Software, the Client shall have in place any security requirements notified to it by MST from time to time.

5.3        The Client is responsible for the operation and security of the Client System and shall:

5.3.1    ensure that the Client System complies with any specifications provided by MST from time to time; and

5.3.2    be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from the Client System to MST’s systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

6           MST Warranties

6.1        MST warrants that:

6.1.1    it shall perform its obligations under this Agreement with reasonable skill and care and the applicable Laws;

6.1.2    it has the power and authority to grant a licence in respect of the Software upon these T&Cs; and

6.1.3    the Software shall perform materially in accordance with any relevant specifications provided by MST. MST’s sole liability and obligations in relation to a breach of this warranty shall be to provide remedial action under and in accordance with the terms of the Support Services.

6.2        The Client acknowledges that MST does not warrant or represent that the Services or the operation of the Software will be uninterrupted or entirely error-free. MST shall notify the Client as soon as reasonably practicable upon becoming aware of any possible or actual interruptions or errors. Additionally, MST reserves the right to suspend the access to the Software and / or the Services to carry out scheduled maintenance or emergency maintenance to the Software or where any such maintenance is required to the Hosting Service which has an impact on the Software (in each case on reasonable prior notice where reasonably practicable).

6.3        MST does not warrant that the Software is fit for the Client’s (or its Users’) purposes, error-free or uninterrupted or compatible with any hardware or software not specified in any specification. MST shall not be liable for the transfer of data over communications facilities, including the internet, and any limitations, delays, and other problems inherent in the use of such communications facilities.

6.4        MST does not warrant that the Documentation or reports / data produced by the Software and Services will be accurate, complete or comply with any requirements (whether the Client’s own or legislative) and the Client shall satisfy itself of the suitability of the Software and Services with the same.

6.5        If the Client considers that MST is in breach of the warranties contained in this Agreement, the Client shall advise MST in writing as soon as reasonably practicable upon becoming aware of such breach and shall provide MST with a reasonable opportunity to rectify such breach before the Client exercises any rights under the Agreement.

6.6        The Client acknowledges that the Software and Services are provided to the Client on an ‘as is’ basis and accepts the sole responsibility of the selection of the Software to achieve its intended results (noting that these have not been developed to meet the individual requirements of the Client). Additionally, the Client acknowledges that all output of the Software is for general information purposes only and should not be construed as investment advice (which should be sought from a professional advisor). The Client shall ensure its compliance with all Laws in relation to any financial advice.

6.7        The warranties in these T&Cs are the only warranties given in respect of this Agreement. Any other warranties, conditions, obligations or implied terms which might otherwise be implied into this Agreement by statute, custom or at law (including, without limit, any warranties of fitness for purpose or relating to satisfactory quality) are excluded to the fullest extent permitted by Law.

7           Client Obligations & Warranties

7.1        The Client shall:

7.1.1    perform or procure the performance of the Client Obligations;

7.1.2    at all times remain liable for the Users’ use of the Software and Services;

7.1.3    be solely responsible for procuring and maintaining its telecommunication links during the Term;

7.1.4    ensure that its network and systems comply with the specifications provided by MST from time to time;

7.1.5    provide the Mandatory Information;

7.1.6    comply with all applicable Laws and regulations;

7.1.7    cooperate with MST in relation to all matters under or in connection with this Agreement;

7.1.8    comply with the user manuals;

7.1.9    provide adequate, accurate and timely assistance, instructions, information and data to MST (and its subcontractors) as is required for the purposes of complying with and performing its obligations under this Agreement;

7.1.10 ensure that its anti-malware controls are applied and maintained in accordance with good industry practice and shall not intentionally or negligently transfer any Virus or other malicious materials onto any of MST’s systems; and

7.1.11 not conduct or procure that any party conducts any load testing or penetration testing on the Software without the prior written consent of MST.

7.2        The Client:

7.2.1    warrants that it has all necessary rights to the Client Mark, Client Data, Documents and Client Personal Data for the purposes of this Agreement;

7.2.2    warrants that the Client Mark, Client Data, Documents and Client Personal Data does not infringe any third party rights, including Intellectual Property Rights;

7.2.3    shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Client Data, Documents and Client Personal Data; and

7.2.4    shall grant MST a non-exclusive right and licence to copy, exploit, process, store, transmit and use the Client Mark, Documents and Client Data to the extent necessary to provide the Software and Services.

7.3        The Client acknowledges that MST’s obligations under this Agreement depend on the performance by the Client of the Client Obligations. In there is any delay in or failure to perform the Client Obligations (a Client Default) and this causes MST:

7.3.1    delay in, failure in or to change its performance of its obligations under the Agreement;

7.3.2    to incur additional costs; and / or

7.3.3    to incur additional time of its personnel,

without prejudice to any other rights and remedies which MST may have:

7.3.4    MST shall not be in breach of this Agreement and shall be given an extension of time to meet its obligations under this Agreement to take account of the impact caused by the Client Default;

7.3.5    the Client shall pay MST any such reasonable costs and / or charges which have been properly incurred as a result of such Client Default (including to rectify the impact of such Client Default and for work carried out by MST’s personnel). This shall include the right for MST to charge the Client for any time and costs incurred in having to repeat any of the Services as a result of the Client failing to submit the relevant information to MST in a timely manner and / or in accordance with this Agreement; and

7.3.6    to the extent that MST (acting reasonably) determines that the Client Default results in a change to the nature, extent or level of performance of its obligations under the Agreement:

1. a) MST shall be relieved of such obligations; and
2. b) the parties shall seek to agree any necessary changes to this Agreement.

7.4        The Client warrants that it shall maintain and comply with all necessary licences, registrations or consents necessary to use the Software and will comply with all applicable Laws which are required to be complied with by the Client.

7.5        The Client warrants that it owns all Client Data transferred under the Software and that it has provided MST with the appropriate consents and permissions to access and transfer the Client Data, Documents and Client Personal Data into the Software.

7.6        The Client shall:

7.6.1    not do anything that could or might (in MST’s sole opinion) damage or harm MST’s brand, goodwill and / or reputation or bring MST into disrepute;

7.6.2    not do anything which (in MST’s opinion) has or will have a negative effect on the reputation of MST or any aspect of its business;

7.6.3    not do anything which brings or could bring MST into disrepute or ridicule, damages or could damage any aspect of MST’s business or reputation;

7.6.4    not do anything which reflects unfavourably on MST’s reputation, brand or business; and

7.6.5    indemnify MST against any and all losses arising out of or in connection with a breach of this clause 7.6.

7.7        The parties acknowledge that the Client Contact will have the ability to contractually bind the Client, and the Client shall ensure that the contact details for the same remain current. Any amendments to the Client Contact and their contact details shall only take effect once approved by MST in writing.

8           Third Party Software

8.1        The Client shall procure at its cost, install and maintain all required enabling software and third party software required to access and use the Software and Services. The Client acknowledges that a failure to do so may impact its use of the same.

8.2        To the extent that the Client elects to use third party software via the Product (the Third Party Software):

8.2.1    the Client’s use and licence to the Third Party Software is subject to the relevant third party’s terms and conditions, including any maintenance windows that the third party shall impose (which the Client acknowledges is beyond the control of MST) and any limitations in relation to the relevant software. MST shall not be liable for any losses or liabilities incurred arising out of or in connection with the same; and

8.2.2    the Client shall be granted a non-exclusive, non-transferable, non-sublicensable right to permit Authorised Users to use the Third Party Software during the Term solely for the Client’s Internal Business Purposes and in conjunction with its use of the Software and Services.

8.3        The Client shall:

8.3.1    ensure that all Users comply with the Third Party Software terms and conditions;

8.3.2    prevent any unauthorised access to, or use of, the Third Party Software; and

8.3.3    not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any part of the Third Party Software.

8.4        In relation to the Third Party Software, the Client acknowledges that:

8.4.1    MST may add to or reduce the scope of the same from time to time at its discretion, and notify the Client of the same;

8.4.2    this is a third party dependency. If there is any failure or delay on the third party in fulfilling its dependency and this impacts on the Software and / or Services, MST shall not be in breach of this Agreement in any way;

8.4.3    this relies on information provided by third parties and, accordingly, MST does not guarantee the accuracy of such information; and

8.4.4    if there is an update to such information, MST may not be able to update the Software immediately and there may be a delay in doing so.

8.5        MST may treat the Client’s breach of any Third Party Software terms and conditions as a breach of this Agreement.

8.6        The Client shall indemnify MST against any loss or damage which it may suffer or incur as a result of the Client’s breach of any Third Party Software terms and conditions howsoever arising and such terms shall be made available to the Client by MST on request.

9           Fees & Payment Terms

9.1        The Client shall pay the Fees in accordance with this clause 9 and the Order Form.

9.2        The Fees for the Additional Services shall be invoiced in advance at the points at which the Additional Services are agreed between the parties. The Fees will be calculated using the Standard Rate on a time and materials basis

9.3        If payment is made other than via direct debit, the Client shall be liable to MST for a reasonable administrative fee and payment shall be made within 15 days of the invoice date.

9.4        The Client shall have 10 Business Days in which to dispute an invoice. If the invoice has not been disputed before the end of 10 Business Days, the invoice shall be deemed to have been approved.

9.5        Subject to clause 9.4, if the Client determines in good faith that any invoice submitted by MST is invalid or that the amount being claimed is incorrect for any reason, the Client shall advise MST accordingly in writing. The Client shall provide details of the invoice and the amount in dispute and if MST agrees, it shall re-submit the invoice to the Client within five Business Days of receiving the Client’s dispute notice. If the parties cannot agree the validity of the amount being disputed, then the authorised representatives of each party (or their nominees) shall discuss and resolve the matter.

9.6        If MST has not received payment by the due date, without prejudice to any other rights and remedies of MST:

9.6.1    any discount previously provided by MST to the Client shall be deemed to be invalid and disapplied, with the additional sums being invoiced by MST for immediate payment by the Client;

9.6.2    MST may refer the matter to its debt collection agents, which will incur an additional surcharge of 15% of the debt plus VAT which the Client shall be liable for;

9.6.3    MST may, without liability to the Client, disable the Client’s password, account and access to all or part of the Software and / or Services and MST shall be under no obligation to provide any or all of the Software and / or Services while the invoice(s) concerned remain unpaid; and

9.6.4    MST may charge a reasonable administration fee and interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of MST’s bank in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.7        All amounts and fees stated or referred to in this Agreement:

9.7.1    shall be payable in pounds sterling;

9.7.2    are non-cancellable and non-refundable; and

9.7.3    are exclusive of value added tax, which shall be added to MST’s invoice(s) at the appropriate rate.

9.8        The Fees may be subject to an annual increase. Such increased fees shall take effect on or around 15 November of each year during the Term.

9.9        The Client acknowledges that any discount (detailed in the Order Form) will only apply during the Minimum Agreement Period. Once the Minimum Agreement Period has expired, any discount may be removed, and the Fees will revert to the currently prevailing non-discounted rates.

9.10     Fees related to Add-On Modules are subject to a fair use policy and MST reserves the right to increase the Fees where usage exceeds the monthly per user per month rates (as may be updated from time to time).

10         Change Control Process

10.1     The Client may at any time request and MST may at any time recommend changes (including additional Users and Products) to this Agreement via email or by contacting the relevant account manager.

10.2     Neither party will be obliged to agree to any requested or recommended change. For the avoidance of doubt, any such request will be either accepted or rejected at MST’s absolute discretion, subject to any conditions it may impose.

10.3     MST will advise the Client of the likely impact of any change, impact on the Fees and timescales under this Agreement within a reasonable timescale prior to such change.

10.4     Until such time as any change is formally agreed and the parties enter into an addendum to reflect the same, MST will, unless otherwise agreed, continue to perform and to be paid under this Agreement as if such change had not been requested or recommended. The parties acknowledge that where any agreed changes take effect part way through a month and this impacts on Total A, the Client shall be invoiced a pro-rata amount of any applicable monthly fee for the remainder of the month in which the change takes effect.

10.5     MST will not be obliged to deliver any services additional to the Services (and will not have any liability for such services that it nonetheless provides) unless the scope of such services and the amount of any related payment has been agreed between the parties in writing in advance of their provision.

11         Confidentiality

11.1     The provisions of this clause 11 shall not apply to any Confidential Information that:

11.1.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);

11.1.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

11.1.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or

11.1.4 the parties agree in writing is not confidential or may be disclosed.

11.2     Each party shall keep the other party’s Confidential Information secret and confidential and shall not:

11.2.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or

11.2.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.

11.3     A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

11.3.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and

11.3.2 at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause 11.

11.4     A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

11.5     A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.

11.6     Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this clause are granted to the other party, or to be implied from this Agreement.

11.7     Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.

12         Intellectual Property Rights

12.1     The Intellectual Property Rights, interests and title in the Software and the Services (and related materials) shall at all times remain the exclusive property of MST and its licensors.

12.2     MST shall indemnify the Client against any and all actions or claims incurred by the Client arising out of any actual or alleged infringement of any patent, copyright or trade secret in respect of the Products supplied under the Agreement provided that:

12.2.1 the action and / or claim does not arise as a result of the:

1. a) unauthorised modification, alteration or adaptation of the Software or the output of the Software or Services by the Client;
2. b) use or output of the Software in combination with any software or equipment not supplied or approved by MST in writing; and / or
3. c) use or possession of an outdated or unaltered release of the Software, if such infringement would have been avoided by use of updated and amended software which had been offered to the Client,

and the Client acknowledges that MST shall generally have no liability for any claim of infringement based on or to the extent arising from the above;

12.2.2 the Client shall notify MST immediately of any claim or demand made or action brought against the Client for infringement or alleged infringement of any patent, copyright or trade secret in respect of the Software and shall not make any comment or admission to any third party in respect thereof nor in any other way materially prejudice MST’s defence of the claim;

12.2.3 MST shall have sole control of the defence and conduct of all proceedings or negotiations relating to such allegations or claims and shall deal with the same as it sees fit in its absolute discretion; and

12.2.4 the Client shall provide reasonable assistance to MST in relation to the conduct of such litigation and / or negotiations and MST shall be responsible for the payment of all reasonable costs arising from the Client’s provision from such assistance.

12.3     In the defence or settlement of any claim, MST may procure the right for the Client to continue using, replace or modify the Software so that they become non-infringing or repay the Client the proportion of the Fees relating to the whole or part of the infringing Software.

12.4     This clause 12 states the Client’s sole and exclusive rights and remedies, and MST’s entire obligations and liability, for infringement of any Intellectual Property Rights.

13         Data Protection

13.1     Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

13.2     The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and MST is the Processor. MST shall only Process Personal Data under this Agreement for the purpose of providing the Software and Services (and any other related purpose) and in accordance with clause 13.3.2a) below. The Client shall ensure that such instructions comply with all Laws and MST may Process the Client Personal Data in conflict with the Client’s instructions if a failure to do so would (potentially) infringe any Laws. MST shall promptly inform the Client if it believes that any instructions provided by it infringes the Data Protection Legislation and may withhold its permission for an audit and suspend access to the Software and Services until such instruction is amended to be non-infringing.

13.3     Without prejudice to the generality of clause 13.1:

13.3.1 the Client shall have all necessary and appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to MST for the duration and purposes of this Agreement;

13.3.2 MST shall, in relation to any Personal Data Processed in connection with the performance by MST of its obligations under this Agreement:

1. a) Process that Personal Data only on the documented written instructions of the Client (as detailed in the Data Protection Particulars) unless MST is required by applicable Law to otherwise Process that Personal Data. Where MST is relying on applicable Law as the basis for Processing Personal Data, MST shall promptly notify the Client of this before performing the Processing required by the applicable Law unless the applicable Law prohibits MST from so notifying the Client;
2. b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
3. c) ensure that all personnel who have access to and / or Process Personal Data are obliged to keep the Personal Data confidential;
4. d) assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5. e) notify the Client without undue delay on becoming aware of a Personal Data Breach;
6. f) on termination of the Agreement, at the written direction of the Client, delete or return Personal Data and copies thereof to the Client within three months unless required by applicable Law to store the Personal Data for a longer period; and
7. g) maintain complete and accurate records and information to demonstrate its compliance with this clause 13.

13.4     Each party shall notify the other of any complaint, notice or communication received in relation to the Client Personal Data without undue delay and cooperate with the other’s reasonable instructions in the handling of the same.

13.5     The Client acknowledges and agrees that MST shall be entitled to use sub-processors to Process Personal Data on its behalf in connection with this Agreement (each a Sub-Processor). In the event that MST wishes to appoint additional or replacement sub-processors during the Term, then it shall inform the Client in advance of such appointment and provide the Client the opportunity to object to such proposal. Any objections that are communicated to MST by the Client shall be taken into account when deciding whether to make the appointment, but shall not be binding on MST.

13.6     MST shall procure that any of its Sub-Processors shall be subject to binding contractual obligations on terms which reflect the obligations which the Client would be obliged to impose on such Sub-Processor pursuant to the Data Protection Legislation if the Sub-Processor were a direct data Processor of the Personal Data (the Sub-Processor Obligations). MST shall ensure that any Processing of Personal Data which is carried out by any Sub-Processors shall be carried out in accordance with the Sub-Processor Obligations and the Sub-Processor Obligations shall be deemed to be the obligations imposed upon MST for the purposes of MST’s obligations in relation to its contract with any such Sub-Processor pursuant to Article 28 (4) of the UK GDPR.

13.7     MST shall not cause or allow Client Personal Data to be transferred and / or otherwise Processed in a Non-Adequate Country, unless such transfer or Processing complies with the Data Protection Legislation.

13.8     In the event of the termination of this Agreement, MST shall (at the Client’s cost and option) securely delete or destroy all Client Personal Data (except for any Personal Data which Data Protection Legislation requires to be stored or where the Client has otherwise instructed MST to store the data in order to fulfil any necessary industry obligations). If the Client does not notify MST of its option within three months of termination of this Agreement, MST may choose to destroy the Client Personal Data in accordance with the foregoing and issue an invoice to the Client for the same.

13.9     On reasonable prior notice (of not less than 30 days) and limited to once in each Contract Year, MST shall allow the Client reasonable access during Business Hours to premises where the Client Personal Data is Processed to allow the Client to audit MST’s compliance with this clause 13, provided that such audit shall be carried out at the Client’s cost (and the Client shall reimburse MST’s reasonable costs in relation to the same) and MST is not required to provide or permit access to information concerning: (a) other clients of MST; or (b) any MST confidential information, including reports prepared by MST’s internal audit function.

13.10   Where the Invitee is the Controller of the personal data, the Client warrants that it will have in place all necessary rights, obligations, consents, processes and notices with its End Customers and the Invitees to ensure the lawful processing of the personal data by both the Client and MST, and shall remain liable to MST for any liability, costs, claims, damages and losses arising out of or in connection with any breach of this clause 13.10.

14         Indemnities

14.1     Each party shall indemnify the other against all costs, claims, damages and losses incurred as a result of malicious acts by the other.

14.2     The Client shall indemnify MST against all costs, claims, damages and losses arising out of or in connection with:

14.2.1 breach of clause 1;

14.2.2 breach of clause 2;

14.2.3 breach of clause 7.2;

14.2.4 claims brought against MST by End Customers and / or Invitees; and / or

14.2.5 errors or inaccuracies in the Client Data and / or Documents.

14.3     The Client shall indemnify MST against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Client’s (and / or Users’) use of the Software and Services, provided that:

14.3.1 the Client is given prompt notice of any such claim;

14.3.2 MST provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and

14.3.3 the Client is given sole authority to defend or settle the claim.

14.4     The indemnities granted under this Agreement shall be subject to both parties taking all reasonable steps to mitigate its losses, which may include MST suspending access to the Software and Services, where appropriate.

15         Limits on Liability

15.1     Notwithstanding anything to the contrary in this Agreement, neither party excludes or limits liability pursuant to this Agreement for:

15.1.1 death or personal injury arising from the first party’s negligence;

15.1.2 any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 and Section 2 of the Sale of Goods and Services Act 1982;

15.1.3 fraud or fraudulent misrepresentation; or

15.1.4 any other Liability which cannot be excluded or limited by Law,

and the Client’s liability shall not be excluded or limited in relation to the Client’s:

15.1.5 breach of clause 1;

15.1.6 breach of clause 2;

15.1.7 liability under any indemnities provided under the Agreement;

15.1.8 any breach, infringement or misappropriation of MST’s Intellectual Property Rights; and

15.1.9 liability to pay the Fees.

15.2     Subject to the remainder of this clause 15, each party’s aggregate liability to the other under this Agreement in each Contract Year shall be limited to the higher of the Fees paid and / or payable by the Client to MST under this Agreement in the relevant Contract Year or £50,000.

15.3     Subject to clause 15.1, neither party shall have any liability for any of the following, whether arising from negligence, breach of contract or otherwise:

15.3.1 any indirect, special or consequential losses; and / or

15.3.2 any loss of goodwill, use, or anticipated savings.

15.4     Subject to clause 15.1, MST shall have no liability for:

15.4.1 any damage suffered as a result of an action brought by a third party arising from any use, or inability to use, any software or item supplied under this Agreement or from any breach of the Agreement (excluding the provisions of clause 12);

15.4.2 any issues with failures of or unavailability of third party applications used in conjunction with the Software and Services;

15.4.3 any user input errors or any inaccuracies or incomplete inputs of the data;

15.4.4 loss or damage to the Client’s or any third party’s data or records. In the event of any loss of data, MST shall use all commercially reasonable endeavours to restore the lost or damaged data from the latest back-up of the same;

15.4.5 any claim made by, or on behalf of an Invitee and / or End Customer or any acts or omissions of an Invitee and / or End Customer;

15.4.6 any wasted expenditure, loss of business, profits or revenue;

15.4.7 all issues, conditions, delays, delivery failures and other loss or damage arising from the Client’s network connections, telecommunications links or caused by the internet;

15.4.8 any defect or malfunction caused by the Client’s breach of this Agreement or any failure of the Client’s own infrastructure, software or systems;

15.4.9 any security breach either at the Data Centre or which affects the Data Centre or failure of the Data Centre;

15.4.10             failure of the Client to agree to the implementation of any releases or upgrades;

15.4.11             any defect or malfunction caused by the Client’s improper use or operation of the Software and Services;

15.4.12             any use of the Software by anyone who has not been appropriately trained;

15.4.13             any use of the Software in conjunction with any software, systems or infrastructure not provided by MST, or interfaces with any software, systems or infrastructure where these interfaces are not provided by MST; and / or

15.4.14             any denial of service attacks or other type of network attack.

15.5     The Client assumes sole responsibility for any results obtained, conclusions drawn and / or decisions made from the use of the Software and Services and MST shall have no liability for any damage caused by the same or and errors or omissions in any information provided by the Client or instructions taken at the Client’s discretion.

15.6     The Client acknowledges that the Fees are determined on the basis of the warranties as stated in clause 6 and the limits of liability as stated in this clause 15.

16         Term

16.1     This Agreement commences on the Commencement Date and shall continue for the Minimum Agreement Period. Following the Minimum Agreement Period, the Agreement shall automatically continue for further periods of 12 months (each a Renewal Period) unless either party gives the other at least 90 days’ prior written notice to terminate this Agreement, such notice to expire at the end of the Minimum Agreement Period or the then-current Renewal Period (as applicable).

16.2     The Client acknowledges that if this Agreement extends beyond the Minimum Agreement Period, a Technology Refresh will be required for each Renewal Period in order for MST to continue to provide the Software and Services in accordance with the terms of this Agreement. The parties will use reasonable endeavours to agree the scope and terms of the Technology Refresh (and the costs of the same) prior to the commencement of the relevant Renewal Period. 

17         Termination & Suspension

Termination

17.1     Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

17.1.1 the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

17.1.2 the other party presents a petition or has a petition presented by a creditor for its winding up, or convenes a meeting to pass a resolution for voluntary winding up, or enters into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation); calls a meeting of its creditors, or has a receiver of all or any of its undertakings or assets appointed, or is deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts;

17.1.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986 or (being an individual / sole trader) is deemed either unable to pay their debts or as having no reasonable prospect of doing so, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

17.1.4 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above;

17.1.5 the other party (being an individual / sole trader) is the subject of a bankruptcy petition, application or order;

17.1.6 the other party (being an individual / sole trader) is imprisoned, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation;

17.1.7 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

17.1.8 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.

17.2     MST may terminate the Agreement, at any time on written notice to the Client, if the Client fails to pay any fees or charges due under the Agreement which are not the subject of a bona fide dispute and which remain outstanding for a period of 30 days after they have become due for payment.

17.3     MST may, without prejudice to any other right or remedy, suspend the provision of the Services and / or the licence to use the Software (or any part thereof) if it would otherwise be entitled to terminate this Agreement.

Suspension

17.4     MST may, without prejudice to any other rights or remedies available to it, suspend the Client’s access to, or use of, the Software and Services (in whole or in part and on a User by User basis) immediately on notice to the Client if:

17.4.1 the Client has failed to pay any amounts due to MST in accordance with clause 9;

17.4.2 the Client is otherwise in breach of its obligations under this Agreement;

17.4.3 there is an attack on the Software used by the Client or Documents or Client Data is accessed or manipulated by a third party without the Client’s consent;

17.4.4 MST is required by applicable Law to suspend the Client’s access to, or use of, the Software and / or Services; or

17.4.5 MST reasonably believes that the suspension of the Software and / or Services is necessary to protect its infrastructure, network or the use of the Software and / or Services by other customers because of a threat to the security, integrity or use of the Software and / or Services.

17.5     MST shall use reasonable endeavours to re-establish or permit access to the Software and / or Services as soon as possible following MST’s determination that the cause of the suspension has been resolved.

17.6     MST shall have no liability whether under this Agreement or at Law to the Client for any exercise of its rights pursuant to clause 17.4.

18         Consequences of Termination

18.1     Upon termination or expiry of the Agreement, the Client shall immediately:

18.1.1 complete all relevant documentation and cooperate with MST as required;

18.1.2 cease use of the Services and the Software;

18.1.3 pay all sums due and owing to MST; and

18.1.4 deliver up all copies of MST’s Confidential Information and copies of the Software, other software, programs, user manuals and Documentation supplied by MST for the purposes of providing the Software and Services. A director of the Client shall also certify to MST that the Client has complied with this clause 18.1.4.

18.2     Upon termination or expiry of the Agreement, MST shall:

18.2.1 immediately destroy the Client’s Confidential Information (excluding the Client Data and Documents); and

18.2.2 be entitled to invoice:

1. a) all Fees and additional charges and expenses that have validly accrued and are not the subject of a bona fide dispute or become due as a result of the termination but have not yet been invoiced; and
2. b) any and all remaining Fees which are scheduled for payment during the Minimum Agreement Period of the Agreement (or, where the Term has run beyond the Minimum Agreement Period, the relevant Renewal Period) unless if the Agreement is terminated by the Client as a result of MST’s breach of its obligations under this Agreement.

18.3     During the notice period for termination of the Agreement (provided that this is not a termination in accordance with clause 17.1 or clause 17.2) or prior to expiry, the parties will agree whether the Client Data and Documents will be transferred, destroyed or continued to be hosted by MST in accordance with the following:

18.3.1 if the Client wishes for the Client Data and Documents to be transferred or hosted by MST, it shall provide MST with at least 14 days’ written notice of the same prior to expiry or termination. In relation to:

1. a) the transfer of the Client Data and Documents, MST will transfer the Client Data and Documents to a data storage service, provided that the Client pays MST the agreed Data Transfer Fee and all reasonable costs incurred in relation to the same; or
2. b) the hosting of the Client Data and Documents, the Client acknowledges that such arrangement is subject to continued payment of the Data Hosting Fee and it continuing to comply with all obligations under this Agreement in relation to such Client Data and Documents and hosting arrangements. The parties acknowledge that, where this applies:

i             the Client shall only have read-only access to the Client Data and Documents and no additional data shall form scope of the Client Data and Documents following the date of termination or expiry;

ii           unless otherwise agreed in writing, the Client Data and Documents hosting arrangements shall remain in place for a minimum of period of 12 months. Following this period, the arrangement shall automatically renew for annual periods unless if either party provides the other with at least 90 days’ written notice prior to the end of the annual period to terminate such arrangements. If, following such hosting, the Client wishes for MST to transfer the Client Data and Documents, it shall provide MST with at least 14 days’ written notice and comply with clause 18.3.1a); and

iii          subject to the above, the Agreement shall remain in force only to the extent applicable in relation to each party’s obligations in relation to the hosting of the Client Data and Documents;

18.3.2 if the Client wishes for MST to destroy the Client Data and Documents, it shall provide MST with written notice of the same; or

18.3.3 if no agreement is reached between the parties in relation to the matters above, the relevant fees are not paid or the Client does not provide notice in accordance with the above (or if the Agreement is terminated in accordance with clause 17.1 or clause 17.2) then, on expiry or termination, MST will destroy the Client Data and Documents (unless it decides to retain this for a reasonable period at its discretion, following which it may destroy the Client Data and Documents).

18.4     Save as provided in the following, each party’s rights, liabilities and obligations under this Agreement shall cease upon this Agreement’s termination or expiration. Each party’s accrued rights and liabilities and the rights and obligations of each party that are expressly or by implication intended to come into force upon, or remain in force following, the termination or expiration of this Agreement shall survive any termination or expiration of this Agreement.

19         Force Majeure

19.1     Neither party shall be liable for any delay in performing its obligations under this Agreement (other than to pay the Fees) if such delay is caused by a Force Majeure Event.

19.2     A party suffering a Force Majeure Event shall have its time for performance of its affected obligation(s) extended by a period equal to the delay caused by such circumstances but shall use all reasonable endeavours to mitigate the effect of such circumstances.

20         Anti-Bribery

20.1     Each party shall:

20.1.1 comply with all applicable laws, regulations, codes, and sanctions relating to anti-bribery and anti-corruption including the Bribery Act 2010;

20.1.2 not engage in any activity, practice, or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice, or conduct had been carried out in the UK;

20.1.3 promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by the party in connection with the performance of this Agreement; and

20.1.4 immediately notify the other party (in writing) if a foreign public official becomes an officer or employee of their organisation or acquires a direct or indirect interest in the organisation (and each party warrants that it has no foreign public officials as officers or employees or direct or indirect owners at the date of this Agreement).

20.2     Breach of this clause 20 shall be deemed a material breach which is irremediable under clause 17.1.1.

21         General

21.1     Subcontracting

21.1.1 MST may, at any time, without requiring the consent of the Client:

1. a) sub-contract its obligations under this Agreement; and / or
2. b) assign its right under this Agreement to any of its Affiliates.

21.1.2 Save as set out in clause 21.1.1, neither party may assign or novate this Agreement or otherwise sub-contract or transfer any of its rights or obligations under the Agreement, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

21.1.3 The parties will not, by reason of their sub-contracting any of their duties under this Agreement, be released from their obligations to comply with and satisfy all these T&Cs.

21.2     No partnership

No partnership or agency relationship will be deemed to exist between the Client and MST.

21.3     No waiver

Any delay or failure by either party to exercise any rights or remedies set out in this Agreement shall not be deemed to be a waiver or relinquishment thereof.

21.4     Severance

The provisions of this Agreement shall be deemed to be severable and any invalidity of any provision shall not affect the validity of the remaining provisions of this Agreement and the parties shall use reasonable endeavours to agree an appropriate substitute provision.

21.5     Notice

21.5.1 Any notice or other document to be served under this Agreement must be in writing, and a notice or other document will be effectively served if served in any one of the following ways (and shall be deemed to have been served at the times stated):

1. a) by pre-paid recorded delivery post – on the second day after posting;
2. b) by email – on receiving a message transferred confirmation (provided that no out of office response is received and a copy of the notice is sent by pre-paid first class post on the date the email is sent); or
3. c) by personal delivery – upon actual delivery or upon refusal to accept delivery.

21.5.2 Any notice by:

1. a) postal delivery or delivery by hand, shall be sent to the address of the party to be served as set out in the Order Form or such other address as that party may advise the other party as being its address for service; and
2. b) e-mail shall be sent to e-mail address(es) contained in the Order Form, as may be updated by either party from time to time by providing notice in accordance with this Agreement.

21.5.3 This clause does not apply to the service of any proceedings or other documents in any legal action.

21.6     Variation

Save where MST is entitled to make changes in accordance with this Agreement, any variation, modification or amendment to this Agreement must be made in writing and signed by an authorised signatory of each party.

22         Entire Agreement

22.1     This Agreement contains all of the terms agreed by the parties in relation to its subject matter and supersedes any and all prior agreements, understandings or arrangements between them, whether oral or in writing in relation to such matters.

22.2     Except in relation to fraudulent misrepresentation (in respect of which neither party’s liability is limited or excluded):

22.2.1 neither party shall have any right or liability in respect of any statement, representation or promise made prior to the date of this Agreement; and

22.2.2 each party acknowledges and accepts that, in entering into this Agreement, it has not relied upon any statement, representation or promise except as set out in this Agreement.

23         Third Party Rights

This Agreement shall not create any rights that shall be enforceable by anyone other than the parties to this Agreement or any person to whom it is lawfully assigned and no third party shall have the right to enforce this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.

24         Publicity

24.1     Each party may wish to publicise that it is providing Software and Services to the Client. The publicity material may include such things as press releases, case studies and general advertising literature. Such publicity shall be subject to the consent or prior approval of the other party.

24.2     If requested, the Client shall work with MST to produce an initial press release following signature of this Agreement and shall then contribute to further press releases following the successful delivery and implementation of the Software and Services, and at other times during the Term whenever noteworthy events occur. Where applicable, any publicity material shall give due credit to the contributions made by each party.

24.3     Subject to obtaining the Client’s consent, MST may place a copy of the Client’s logo and / or other brand images on MST’s own website and to use any logos and images in its own publicity materials (and the Client shall grant MST an appropriate licence in relation to the same).

25         Governing Law & Jurisdiction

25.1     This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of England and Wales.

25.2     Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

26         Definitions & Interpretation

26.1     Words in the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to legal persons shall include natural persons and vice versa.

26.2     The headings to this Agreement are for reference only and shall not affect their construction. The Schedules and Annexes shall form part of this Agreement as if set out in full.

26.3     Any reference in this Agreement to a clause, paragraph, Schedule or Annex shall be to a clause or paragraph of, or the Schedule or Annex to this Agreement. Unless otherwise expressly stated, any reference to a paragraph in a Schedule or Annex shall be a reference to the relevant paragraph of that Schedule or Annex (as applicable).

26.4     Any reference to any law or enactment shall be construed as including a reference to that enactment as modified, superseded, amended or replaced by any subsequent enactment or law (whether before on or after the date of this Agreement and whether directly or indirectly).

26.5     Reference to persons shall include bodies corporate, partnerships, unincorporated associations and any other legal or commercial entity or undertaking.

26.6     The words include, includes, including and included shall be construed as being followed by the words “without limitation”.

26.7     A reference to writing or written includes email.

26.8     Terms defined in any Schedule or Annex shall (unless otherwise indicated) have the same meaning in the remainder of this Agreement.

26.9     Any obligation on a party under this Agreement to not do something shall be deemed to include an undertaking to not permit or allow the relevant thing to be done.

26.10   Where relevant, any obligation or restriction on the Client shall include an obligation on the Client to procure its Users’ compliance with the same. The Client shall be liable for the Users as if their actions were its own.

26.11   In addition to the meaning given to certain terms in the Order Form of this Agreement and elsewhere in these T&Cs, the following words and expressions shall have the following meanings:

Add-On Module          the ancillary modules licensed to the Client under this Agreement, as detailed in the Order Form and may be added or removed by MST from time to time, including the Third Party Software;

Additional Services   services additional to the Services that MST has agreed in writing to provide to the Client;

Adequacy Decision   a finding under Article 25(2) of the Data Protection Directive that a country or territory ensures an adequate level of protection within the meaning of Article 25 of the Data Protection Directive, while such finding remains in force pursuant to Article 45(9) of the GDPR, or (as applicable) a finding under Article 45(1) of the GPDR or the UK GDPR, that a country, a territory or one or more specified sectors within that country, or the international organisation in question ensures an adequate level of protection within the meaning of Article 45 of the GDPR or (as applicable) the UK GDPR;

Affiliate            each of the parties’ holding companies and ultimate holding companies and each of its subsidiary companies and its holding company’s subsidiary companies and ultimate holding company’s subsidiary companies from time to time, holding company and subsidiary having the meaning given to them in section 1159 of the Companies Act 2006;

API       application programming interface described in the API Documentation;

API Call            each call from the Product via the API to interact with MST’s network and systems;

API Data           all data published or made available through the API, along with any related metadata;

API Documentation   means the API documentation made available to Client by MST, as may be updated from time to time;

API Key             the security key that MST makes available for Client to access the API;

API Limits        the restrictions provided or published by MST from time to time, or otherwise set out in the Order Form;

Approved Users          those employees of the Client who are authorised by the Client and MST to use the Software;

Business Day         a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

Business Hours          09:00 to 17:30 on a Business Day;

Change Control Process       the process detailed in clause 10;

Client  the Company contracting with MST under this Agreement whose details are set out on the Order Form;

Client Data     the data relating to the End Customers and / or input into the Software by the Client, Users or MST on the Client’s behalf, and data obtained and used by the Client via the Software, for the purpose of using the Software or facilitating the Client’s use of the Software (but excluding the Documents);

Client Marks      any trademarks, trade names, service names, service marks, trade dress, logos of the Client;

Client Obligations      all obligations and dependencies of the Client, as set out in this Agreement or otherwise agreed between the parties;

Client Personal Data         all Personal Data subsisting in the Client Data and Documents which is owned or controlled by the Client and which is provided to MST under this Agreement;

Client System        any network and information systems (including any hardware, software and other infrastructure) and processes operated by or on behalf of the Client that is used to access the Software, make an API Call or otherwise communicate or interact with MST’s network or systems;

Confidential Information      all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party’s Representatives in connection with this Agreement, including:

(a)         the existence and terms of this Agreement;

(b)         any information that would be regarded as confidential by a reasonable business person relating to:

(i)          the business, assets, affairs, customers, clients, suppliers of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and

(ii)         the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and

(c)         any information developed by the parties in the course of carrying out this Agreement and the parties agree that:

(i)          details of the Software and Services, and the results of any performance tests of the same shall constitute Confidential Information of MST; and

(ii)         Client Data and Documents shall constitute Confidential Information of the Client;

Contract Year       the period commencing on the Commencement Date and ending 12 months from the earliest Payment Start Date set out in the Products Table in the Order Form, and each subsequent 12-month period;

Data Centre       at the date of this Agreement, the cloud-based Microsoft Azure solution (as may be changed by MST from time to time);

Data Protection Directive          Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

Data Protection Legislation         all law in force from time to time including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the LED; the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other Law in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications), and references to Controller, Processor, Data Subject, Personal Data, Process, Processed and Processing shall have the meanings set out in, and will be interpreted in accordance with, the UK GDPR;

Documentation          the documents, training materials and recorded materials made available to the Client and Users by MST as part of the provision of the Services;

Documents    all electronic documents generated by the Client, End Customer and Invitees when using the Software, including fact finds, scheduled reports, letters as well as the emails collected by the Software and any other electronic files or scanned documents that the Client, End Customers and Invitees choose to attach or store through the Software but excluding Client Data and Documentation;

End Customer             the customers and prospective customers of the Client who make use of the Products and have been (where relevant) either: (i) approved; or (ii) given temporary access to the Product(s) by MST (in accordance with MST’s approval process in place from time to time) under a temporary user account;

EULA   the end user licence agreement, as set out at https://www.twenty7tec.com/end-user-license-agreement/ as updated from time to time;

Fees    the Fees payable under this Agreement, as set out in the Order Form and updated in accordance with clause 9;

Force Majeure Event        an event beyond a party’s reasonable control which that party is unable to reasonably prevent or avoid and which may include an act of God, weather, flood, lightning or fire, war, insurrection, civil disorder or military operations, act or omission of government or other appropriate authority, the act or omission of any person for whom the party in breach is not responsible, riots, labour disputes or strikes, denial of service or malicious technological attacks, trade blockage or embargo and the failure or delay of supplies of power, fuel, transport, equipment or other goods or services for which a substitute is not available;

GDPR  means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;

Hosting Services        the hosting of the Software by MST at the Data Centre;

Implementation Services     the on-boarding services provided by MST in setting up the Software and Services, including any migration of data;

Intellectual Property Rights  any and all patents, trademarks, service marks, rights in designs, get-up, trade, business or domain names, copyrights, know how, rights in databases, actual property rights (whether registered or not) and any applications to register or rights to apply for registration of any of the foregoing and all other intellectual property rights of a similar or corresponding character which may now or in the future subsist in any part of the world;

Internal Business Purposes advising End Customers on mortgage, financial protection and wealth products in the UK as a part of the ordinary course of the Client’s business;

Invitees            third party businesses (other than the Client) that are invited by the Client to access and use the Software and Documentation under a temporary user account (in accordance with MST’s approval process in place from time to time) for the sole purpose of genuine collaboration and communication with the Client and / or the End Customer;

Law      any law applicable in the relevant part of the UK, any Act of Parliament or subordinate legislation within the meaning of Section 21(1), Interpretation Act 1978 and any other regulation, decision or authorisation as applicable having the force of law in relation to matters dealt with by the Agreement;

Mandatory Information          the information and documents that must be supplied by the Client before the Software can be accessed;

MST     MORTGAGESOURCETEC LIMITED (Company Number 09135158);

Non-Adequate Country         a country or territory which is outside the UK and the European Economic Area and in respect of which there has not been an Adequacy Decision;

Order Form     means a document entered into between the parties from time to time which identifies the Software and / or Services to be supplied, applicable Fees, and related terms, and which is subject to and governed by these T&Cs;

Products          subject to clause 2.1, the software modules licensed to the Client under this Agreement, as detailed in the Order Form;

Renewal Period           has the meaning given to it in clause 16.1;

Representatives         in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisors;

Services          the Services provided by MST in relation to the Products from time to time, as further detailed in this Agreement and agreed between the parties in writing from time to time;

Software          each Product and Add-On Module licensed under this Agreement;

Standard Rate             MST’s daily rates of charge for the provision of Additional Services (at the date of this Agreement, being £1,500 per day for non-standard support and £250 per hour for additional customer service support), as amended from time to time on notice;

Support Services       the support services being provided to the Client in relation to the Software, as described in the Support Services Document;

Support Services Document             MST’s support services document made available to Client by MST, as may be updated from time to time;

Technology Refresh   updates to the Fees, the details set out in Order Form and any other commercial details relating to the arrangements under this Agreement;

T&Cs   the terms and conditions set out in this document;

Term    the Minimum Agreement Period together with any Renewal Period(s);

UK GDPR         the General Data Protection Regulation (as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time));

User Licences             the user licences purchased by the Client pursuant to this Agreement which entitle Users to access and use the Software in accordance with this Agreement;

Users  the Approved Users, End Customers and Invitees; and

Viruses             any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.