MASTER TERMS AND CONDITIONS  

MASTER TERMS AND CONDITIONS   

Think Cloud Inc. Ltd. “Supplier”) provides a range of services including managed services and professional services and resells various cloud services including Microsoft and Google cloud services, in accordance with these terms and conditions and the applicable ‘Associated Agreement’. The Supplier may amend or replace these terms and conditions on one month’s written notice to the Customer at any time (for existing Contracts the terms and conditions in place at the time that the Contract was made continue to apply for that Contract, unless the Customer agrees otherwise in writing). By ordering services such as managed services, professional services and/or cloud services from the Supplier, the Customer accepts the terms and conditions that apply at that time. Any additional or different terms that the Customer includes in any communication with the Supplier will not be binding on the Supplier or included in any Contract unless expressly agreed upon in writing by the Supplier. 
1. Definitions and interpretation 
 
1.1 Definitions: In these terms and conditions: 
 
“Associated Agreement” means: 
 
(a) any agreement or statement of work or statement of supply that is entered into between the parties which is made pursuant to these terms and conditions (for example by referencing that it is made under these Master Terms and Conditions) and may include by way of example only a ‘Managed Services Agreement’ or ‘Statement of Work - Managed Services’, and/or ‘Cloud Supply Agreement’ or ‘Statement of Supply - Cloud Supply’; and 
 
(b) any additional terms and conditions that are accepted and agreed by the Customer and which are expressed as being subject to these Master Terms and Conditions (and may include by way of example only the ‘Professional Services Terms and Conditions’). 
 
“Confidential Information” means any information disclosed in confidence to one party by the other party including without limitation the Customer Data, whether of a business, financial, technical or non-technical nature or otherwise and whether existing in hard copy form, electronically or otherwise but does not include any information which is: 
 
(a) on receipt by the recipient party, in the public domain or which subsequently enters the public domain without any breach of the Contract; 
 
(b) on receipt by the recipient party, already known by that party (otherwise than as a result of disclosure by the other party); 
 
(c) at any time after the date of receipt by the recipient party, received in good faith by the recipient party from a third party; 
 
(d) required by law to be disclosed by the recipient party; 
 
“Contract” means these terms and conditions and the GDPR Attachment, and the relevant Associated Agreement; 
 
“Customer Data” means the Customer’s data including all text, sound, video or image files and the Customer’s software and includes Personal Data; 
 
“Data Protection Laws” means the GDPR as incorporated into UK law by the UK Data Protection Act 2018, and the UK Data Protection Act 2018 itself, and, to the extent applicable, the data protection or privacy laws of any other country, and includes any statutory modification or re-enactment of such laws for the time being in force; 
 
“Force Majeure Event” means any war, riot, third party strike, pandemic, civil emergency, natural disaster or other circumstance of a similar nature that is outside of the control of the affected party; 
 
“GDPR” means the EU General Data Protection Regulation 2016/679; 
 
“Intellectual Property” means copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property; 
 
“Personal Data” means any information relating to an identified or identifiable natural person, as defined in the Data Protection Laws; 
 
“Personal Data Breach” has the meaning given to that term in the Data Protection Laws (and includes unauthorised access to, unauthorised disclosure of, or loss of, Personal Data), in respect of Personal Data that is Processed by the Supplier under this Agreement); 
 
“Processing” has the meaning given to that term in the Data Protection Laws, in respect of any operation which is performed on Personal Data by the Supplier (whether or not by automated means, and includes but is not limited to collection, recording or storage of the Personal Data), in respect of and ‘Process’ and ‘Processed’ has/have a corresponding meaning; 
 
“Products, Deliverables and Services” means the products, deliverables and/or services provided under an Associated Agreement, as described in the relevant Associated Agreement; 
 
“Working Day” means Monday to Friday excluding public holidays in the United Kingdom. 
 
1.2 Interpretation 
 
(a) In these terms and conditions, reference to the plural includes reference to the singular, and vice versa. 
 
(b) Headings inserted in these terms and conditions are for convenience of reference only and do not affect the interpretation of these terms and conditions. 
 
2. Term 
 
2.1 Each Contract will commence on the date specified in the relevant Associated Agreement or if not specified will commence on the date that the Associated Agreement is signed by both parties. 
 
2.2 Each Contract will continue for the term specified in the relevant Associated Agreement or if no term is specified will continue until terminated in accordance with the relevant Associated Agreement or under the termination provisions in these terms and conditions. 
 
 
3. Order of precedence 
 
3.1 If there is any conflict or inconsistency between these terms and conditions and an Associated Agreement, the following order of precedence applies to the extent of that conflict or inconsistency (listed below in order of high to low priority): 
 
(a) the GDPR Attachment to these terms and conditions; 
 
(b) each Associated Agreement (with the order of priority of the parts of each Associated Agreement being as described in the relevant Associated Agreement); 
 
(c) these terms and conditions. 
 
 
4. Products, Deliverables and Services 
 
4.1 The Supplier will provide Products, Deliverables and Services (as applicable) to the Customer: 
 
(a) in accordance with each Associated Agreement entered into between the parties; 
 
(b) using reasonable care and skill; 
 
(c) using people who have the necessary skills and experience; and 
 
(d) in accordance with all applicable laws. 
 
4.2 If the Customer requests services which are not covered by an existing Associated Agreement, the Supplier will issue a draft of the relevant Associated Agreement to the Customer for review and signing. Nothing in this Agreement commits the Supplier to providing services unless an Associated Agreement is agreed and signed by both parties, or approved and signed by the Customer (as applicable). 
 
4.3 The Customer will: 
 
(a) only use the Products, Deliverables and Services, for lawful purposes and not for fraudulent, illegal or destructive purposes; 
 
(b) adhere to any specific requirements or restrictions in respect of the Products, Deliverables and Services included or referenced in an Associated Agreement; 
 
(c) not sell, re-sell, or otherwise provide the Products, Deliverables and Services to any third party unless such selling, re-selling, or provision is expressly permitted or anticipated in the relevant Associated Agreement; 
 
(d) not allow the Products, Deliverables or Services to be affected by any virus or destructive media, or use the Products, Deliverables or Services in any way which is intended to be, or is, detrimental to: 
 
i. the use of those Products, Deliverables or Services by other customers of the Supplier or other users; or 
ii. the systems utilised to provide the Products, Deliverables and Services. 
 
 
5. Customer’s obligations 
 
5.1 Without limiting the Customer’s obligations under any Associated Agreement, the Customer will: 
 
(a) where required to provide data to the Supplier, provide that data in a format suitable for import and otherwise as reasonably requested by the Supplier; 
 
(b) where the Supplier’s personnel will work on site at the Customer’s premises, provide for the safety of the Supplier’s personnel while on site in accordance with all applicable health and safety legislation; 
 
(c) meet all of the Customer’s obligations as specified in these terms and conditions and in each Associated Agreement; 
 
(d) where applicable in light of the services provided under an Associated Agreement, undertake frequent and adequate backups of the Customer’s data provided always that except where expressly included under an Associated Agreement it is not the Supplier’s responsibility to advise the Customer to undertake backups. The Customer should ensure that backups are always completed, as well as ensuring the backups are secure and checking that they can be successfully restored; 
 
(e) make available to the Supplier in a timely manner (and in accordance with any timeframes which the Customer has agreed to) all assistance (including availability of relevant personnel), permissions (including permissions from any relevant third parties), information, facilities and access to systems reasonably required by the Supplier; and 
 
(f) follow the Supplier’s reasonable directions. 
 
6. Pricing and payment 
 
6.1 Each Associated Agreement will specify the basis of the Supplier’s charges for the relevant supply of Products, Deliverables and Services and the Supplier will invoice the Customer accordingly. All amounts specified in an Associated Agreement are exclusive of any taxes unless expressly specified otherwise. 
 
6.2 Unless otherwise specified in an Associated Agreement, all invoices issued by the Supplier are due for payment by the Customer within 7 days following the date of the invoice. 
 
6.3 All reasonable accommodation, travel and other expenses incurred in providing Products, Deliverables and Services to the Customer will be charged to the Customer provided that such expenses are identified and agreed in advance. Expenses will be invoiced on a monthly basis by the Supplier. 
 
6.4 Subject to clause 6.5, the Customer must pay all invoices in full without set-off or deduction of any kind. 
 
6.5 If the Customer wishes to dispute an invoice, it must notify the Supplier in writing within 7 days of the date of the invoice and provide details of the dispute. The Customer may withhold payment of the disputed part of an invoice only and must pay that part (or any amount subsequently agreed or determined to be the correct amount owing) promptly on resolution of the dispute. 
 
6.6 Without limiting any other remedies available to the Supplier for late payment or failure to pay any amount due, if any amount due is not paid by the Customer by the due date, the Supplier may: 
 
(a) charge the Customer interest calculated at 4% on the balance of the amount due by the Customer from the due date until payment is received in full by the Supplier; and/or 
 
(b) charge the Customer all collection costs reasonably incurred by the Supplier in collection of the amount outstanding (including solicitor and/or collection agency fees); and/or 
 
(c) on 5 Working Days’ notice in writing, suspend delivery of further Products, Deliverables and Services until the outstanding amount is paid in full. 
 
6.7 Unless otherwise specified in the relevant Associated Agreement, the Supplier may increase its pricing for Products, Deliverables and Services from time to time but not more often than once every 12 months. One month’s notice in writing will be given. 
 
7. Taxes 
 
7.1 In addition to the amounts due under clause 6, the Customer will pay the Supplier amounts equal to any applicable government taxes or duties however designated, based on this Agreement (or the Products and Services provided under it), paid or payable by the Supplier in respect of the foregoing, exclusive however of taxes based on the Supplier’s income. 
 
 
8. Customer Data 
 
8.1 Subject to clause 8.2, the Supplier will access the Customer Data only as required in the performance of the relevant Contract. 
 
8.2 Without limiting clause 9, the Supplier will only access the Customer Data and disclose the Customer Data to law enforcement or government authorities to the extent required by law. If a request for Customer Data is made by a law enforcement agency or government authority, the Supplier will redirect the request to the Customer or if redirection is not permitted or feasible in the available time frame and unless legally prohibited from doing so, the Supplier will notify the Customer of the request as soon as practically possible. 
 
8.3 Nothing in this Agreement transfers ownership of the Customer Data to the Supplier. 
 
9. Personal Data and Data Protection 
 
9.1 The Customer consents to the Processing of Personal Data by the Supplier for the purposes of each Contract, in accordance with these terms and conditions including in particular the GDPR Attachment. Before providing Personal Data to the Supplier, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable Data Protection Laws. 
 
9.2 To the extent permitted by applicable law and subject to applicable contractual rights and obligations, including the rights and obligations in the GDPR Attachment, Personal Data collected by the Supplier under these terms and conditions may be transferred, stored and processed in the United Kingdom and/or any other country (or countries) in which the Supplier maintains facilities or any other country in which the Supplier’s contractors or service providers (including for example Microsoft and other third party vendors) maintain facilities. 
 
9.3 In the event of any Personal Data Breach, the Supplier will comply with its obligations, including notification obligations, (if any), under applicable Data Protection Laws. 
 
9.4 To make enquiries, exercise any of your rights set out above, or withdraw your consent to the processing of your Data (where consent is our legal basis for processing your Data), please contact us via this e-mail address: [email protected] 
 
 
10. Confidential Information 
 
10.1 Each party agrees to: 
 
(a) hold in confidence all Confidential Information disclosed to it by the other party and disclose that information to its directors, employees and contractors only to the extent required in the performance of the Contract; 
 
(b) ensure that all Confidential Information is protected at all times from unauthorised access or use by, or disclosure to, any third party or misuse, damage or destruction by any person. 
 
10.2 A party may disclose the other party’s Confidential Information if and to the extent required by law if it first notifies the other party of the obligation to disclose the Confidential Information, provided that a party is not required to notify the other party under this clause if it is not legally permitted to do so or if the timing within which the party is required by law to disclose the Confidential Information does not permit notification to the other party. 
 
 
11. Intellectual property 
 
11.1 The Supplier or its licensors own the Intellectual Property in the means, methods, processes and know-how used by the Supplier to provide the Products, Deliverables and Services and to otherwise perform the Supplier’s obligations under the Associated Agreements. 
 
11.2 The provisions relating to Intellectual Property ownership in relation to particular Products, Deliverables and Services are included in the relevant Associated Agreement. 
12 Warranties 
 
12.1 Each party warrants that it has all requisite right, power and authority to enter into this Agreement. 
 
12.2 Except as provided under clause 12.1 and in any express warranties contained in an Associated Agreement, to the extent permitted by law, all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability) implied by legislation or otherwise, are excluded by the Supplier. 
 
 
12. Warranties 
 
12.1 Each party warrants that it has all requisite right, power and authority to enter into this Agreement. 
 
12.2 Except as provided under clause 12.1 and in any express warranties contained in an Associated Agreement, to the extent permitted by law, all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability) implied by legislation or otherwise, are excluded by the Supplier. 
 
13. Termination of Contracts 
 
13.1 Except where a Contract has a fixed term, either party may terminate a Contract at any time without cause on giving thirty days’ notice in writing to the other party. 
 
13.2 Either party may terminate a Contract immediately (or with effect from any later date that it may nominate) by written notice to the other party if: 
 
(a) one or more Insolvency Events occurs in relation to that other party. For the purposes of this clause, ‘Insolvency Event’ means, in respect of a party (other than for the purpose of solvent reconstruction or amalgamation): 
 
i. a receiver, manager or liquidator is appointed over the party’s undertaking or assets or the party enters into any assignment, composition or arrangement with its creditors; or 
 
ii. the party is unable to pay its debts when due or is deemed unable to pay its debts under any law or suspends payment to its creditors. 
 
(b) the other party commits a material breach of any of its obligations under the Contract and fails to remedy that breach within 30 days of prior written notice of such breach. For the purposes of this clause 13.2 (b), non-payment by the Customer for a period of 30 days or more after the due date of any undisputed invoice constitutes a material breach by the Customer. 
 
13.3 Additional rights of termination that apply to individual Associated Agreements may be included in each of those agreements. 
 
 
14. Consequences of termination 
 
14.1 On termination of a Contract, in addition to any other consequences of termination included in the relevant Associated Agreement and without limiting either party's rights or remedies: 
 
(a) each party will, on request, return the other’s Confidential Information in its possession or control in respect of that Contract except for copies that it may be required to hold for compliance, audit or legal reasons; 
 
(b) all amounts owed to the Supplier under the Contract which accrued before termination will be due and payable in accordance with the payment terms in that Contract; 
 
(c) the Supplier will deliver to the Customer all Deliverables paid for by the Customer. 
 
14.2 On any termination of a Contract, all clauses which by their nature survive termination, will survive the termination. 
 
 
15. Liability and indemnity 
 
15.1 The Supplier’s liability under a Contract is limited to direct loss only, to one months fees paid to the Supplier under that Contract.. 
 
15.2 In no event is the Supplier liable for any indirect loss or for any loss of profits, lost savings, loss of data, business interruption, incidental or special damages, or for any consequential loss. In addition, the Supplier is not liable for any damages claimed by the Customer based on any third party claim, including, but not limited to, any claim in negligence. In no event is the Supplier liable for any damages caused (whether directly or indirectly) by the Customer’s failure to perform its responsibilities under the Contract. 
 
15.3 The Customer indemnifies the Supplier against any costs (including legal costs on a solicitor and own client basis, all and any court costs and witness fees and related legal expenses), expenses, claims, demands or liability whether direct, indirect or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of, and must at the Supplier’s request, and subject to clause 15.4 and any reasonable conditions imposed at the Supplier’s discretion, at the Customer’s own cost defend or settle, any claim, action or proceedings brought against the Supplier in connection with: 
 
(a) any software, services, documents or materials issued, provided or made available by the Customer to the Supplier for use or access by the Supplier in the performance by the Supplier of a Contract where that use or access infringes or is alleged to infringe the intellectual property rights of any third party; or 
 
(b) a breach by the customer of a Contract. 
 
15.4 If the Supplier wishes to rely on an indemnity under clause 15.3, the Supplier: 
 
(a) must ensure that the Customer is notified promptly in writing of the relevant claim, action or proceedings ("Claim") once it becomes aware of the Claim; 
 
(b) will make no admission of liability regarding the Claim nor any offers of settlement regarding the Claim without the Customer’s written approval; 
 
(c) may, at its discretion, grant control of the defence or settlement to the Customer; 
 
(d) will, where the Supplier has granted control of the defence or settlement negotiations to the Customer: 
 
i. co-operate reasonably with the Customer in defending or settling the Claim and make its employees available to give statements, advice and evidence, as the Customer may reasonably request, all at the expense of the Customer; and 
 
ii. give the Customer sufficient authority and relevant information in its possession or control in order to assist the Customer to conduct the defence of the Claim and all negotiations for its settlement or compromise. 
 
 
16. Dispute Resolution 
 
16.1 In the event of any dispute arising between the parties in relation to a Contract, no party may commence any proceedings relating to the dispute (except where the party seeks urgent interlocutory relief) unless that party has complied with the procedures in this clause 16.1. 
 
16.2 The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within fourteen days of receipt of the notice, give written notice to the first party naming its representative for the negotiations ("Other Party's Notice"). Each nominated representative will have authority to settle or resolve the dispute. The parties will cooperate with each other and endeavour to resolve the dispute through discussion and negotiation. 
 
16.3 If the dispute is not resolved within one month following the date of the Other Party's Notice (or such longer period as may be agreed upon in writing by the parties), either party may utilise any other legal remedies available to it in seeking to resolve the dispute. 
 
 
17. Non-Solicitation 
 
17.1 Neither party will, without the written consent of the other party, solicit, employ, or otherwise engage the services of, the other party’s personnel (including employees and contractors). This clause will apply from commencement of the first Contract between the parties and will continue until there has been no Contract between the parties for a continuous period of six months (and if there is subsequently a Contract between the parties the non-solicitation period will re-commence). 
 
17.2 A party may as a condition of granting its consent under clause 17.1 above, require the other party to pay to it a fee of 100% of the person’s gross annual remuneration to cover the cost of replacing the employee or contractor. 
 
18. Notices 
 
18.1 Any notice or other communication in connection with a Contract must be: 
 
(a) marked for the attention of the primary contact person and delivered or sent to the address of the other party by prepaid post or email, as set out in the relevant Associated Agreement. 
 
18.2 Notices or other communications are deemed received: 
 
(a) if delivered by hand, on delivery; 
 
(b) if delivered by post: 
 
i. on the fifth Working Day following posting if sent and received within the United Kingdom; and 
 
ii. on the tenth day following posting if posted internationally; or 
 
(c) if sent by email, on sending the email provided that no email is successfully sent if the sender receives any type of delivery notification failure and provided further that the onus is on the sender to ensure that the email has been successfully received by the recipient. 
 
 
19. Force majeure 
 
19.1 Either party may suspend its obligations to perform under a Contract if it is unable to perform as a direct result of a Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues. 
 
19.2 Where a party's obligations have been suspended pursuant to clause 19.1 for a period of 30 days or more, the other party may immediately terminate the Contract by giving notice in writing to the other party. 
 
 
20. General 
 
20.1 Assignment: Neither the Customer nor the Supplier may assign its rights under a Contract without the prior written consent of the other party. 
 
20.2 Contractors: The Supplier may perform its obligations under a Contract by the use of the Supplier-selected independent contractors. 
 
20.3 Other agreements: Subject to clauses 10 and 11, nothing in these terms and conditions prevents the Supplier from entering into similar agreements with others or from providing products, deliverables or services which are similar to the Products, Deliverables or Services provided under a Contract. 
 
20.4 Survival: All clauses of these terms and conditions, which by their nature survive the termination of a Contract will do so. 
 
20.5 Entire agreement: Each Contract constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of that Contract. 
 
20.6 Further assurances: The parties must each do all such further acts (and sign any documents), as may be necessary or desirable for effecting the transactions contemplated by the Contract. 
 
20.7 Amendments: Except as specifically provided, no amendment to a Contract will be effective unless it is in writing and signed by both parties. 
 
20.8 Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other available right or remedy. 
 
20.9 Partial invalidity: If any provision of a Contract or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Contract and its application will not be affected and will remain enforceable to the greatest extent permitted by law. 
 
20.10 Relationship of the Parties: The parties agree that the Supplier is an independent contractor to the Customer and that nothing in these terms and conditions or any Contract constitutes a partnership, joint venture or relationship of employer and employee between the parties. Neither party may: 
 
(a) act or hold itself out as an agent or representative of the other party; or 
 
(b) assume or create any obligations on behalf of the other party. 
 
 
21. Governing Law 
 
21.1 Each Contract is governed by the laws of England and Wales. The parties hereby submit to the non-exclusive jurisdiction of the courts of the United Kingdom. 
 
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