Agreement for the Purchase of IT Services
version 0.1
30 April 2019
 
This  Agreement is dated [DATE]
Between
(1)	CloudThing Limited incorporated and registered in England and Wales with company number 7510381 whose registered office is at Galtons Mill, Galtons Lane, Worcestershire, DY9 9TS (Supplier).
(2)	[customer] incorporated and registered in England and Wales with company number [number] whose registered office is at [address] (Customer).
Agreed Terms
1	Interpretation
The definitions and rules of interpretation in this clause apply in this agreement.
1.1	Definitions:
Customer's Project Manager: the Customer's manager for the Project appointed in accordance with clause 3.1 (a). 
Customer's Responsibilities: the Customer's obligations set out in clause 3.
Deliverables: all products and materials developed by the Supplier in relation to the Proposal and the Project in any media, including without limitation computer programs, data, diagrams, reports and specifications (including drafts). 
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including without limitation, all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Project: the project, as described in Annex A. 
Proposal: the materials handed to the Customer describing the scope and costs for creating the design, product road map and implementation plan for the Project.
Services: the consulting and related services to be supplied, and obligations to be performed, by the Supplier in preparing the Proposal. 
Supplier's Project Manager: the Supplier's manager for the Project appointed in accordance with clause 2.3
VAT: value added tax chargeable under English law for the time being and any similar tax.
1.2	Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3	A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4	A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5	Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6	Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7	A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8	A reference to writing or written includes faxes and email.
1.9	References to clauses and Annexes are to the clauses of and Annexes to this agreement and references to paragraphs are to paragraphs of the relevant Annex. The Annexes form part of this agreement.
1.10	This agreement shall be deemed to have commenced on [DATE] (Commencement Date).
2	Supplier’s Responsibilities
2.1	The Supplier shall carry out the Services to enable it to complete the Proposal, and deliver the Deliverables. 
2.2	The Supplier shall use reasonable endeavours to meet any date for completion of the Services agreed with the Customer, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
2.3	The Supplier shall co-operate with the Customer in all matters relating to the Project and appoint a Project Manager, who shall have authority to commit the Supplier on all matters relating to the provision of the Services.
3	Customer’s Responsibilities
3.1	If the Customer is procuring Microsoft licenses or cloud services via the Supplier through the Microsoft Cloud Services Provider (CSP) programme,  Microsoft requires all of its cloud service provider partners to confirm their customer’s consent to the Microsoft Cloud Agreement (“MCA”) prior to placing any order for Microsoft’s products.  Proper execution of the MCA protects Microsoft, its partners and customers by ensuring mutual alignment on many important topics such as security, privacy and data protection and allows Microsoft to better assist customers who need to promptly respond to regulatory enquiries.
3.2	The Customer must therefore indicate its acceptance to the terms of the MCA, the latest version of which can be viewed at https://docs.microsoft.com/en-us/partner-center/agreements under the heading of Europe, and specific to the United Kingdom.
3.3	In order that the Supplier can confirm to Microsoft the Customer’s acceptance of the terms of the MCA, please confirm to the Supplier by email:
3.3.1	the first and last names of the Customer’s representative;
3.3.2	that such representative has the Customer’s authority to give this confirmation of acceptance of the MCA;
3.3.3	the Customer’s email address; and
3.3.4	the Customer’s phone number.
3.4	The Supplier will pass this information to Microsoft who will process Personal Data only on the data subject’s documented instructions.
3.5	If the Customer does not agree to the terms of the MCA then cloudThing will be obliged to cancel the Customer’s Microsoft subscription.
3.6	The Customer shall:
3.6.1	co-operate with the Supplier in all matters relating to the Services and appoint a Project Manager, who shall have the authority to commit the Customer on all matters relating to the Project;
3.6.2	provide in a timely manner such access to the Customer's premises and data, and such office accommodation and other facilities, as requested by the Supplier for the purposes of providing the Services; and
3.6.3	provide, in a timely manner, such information as the Supplier may request, and ensure that all information the Customer provides is accurate in all material respects.
3.7	If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer's agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
3.8	The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier, except that the Customer shall not be in breach of this condition 3.8 if it hires an employee or sub-contractor of the Supplier as a result of a recruitment campaign not specifically targeted to any employees or sub-contractors of the Supplier.
3.9	Any consent given by the Supplier in accordance with condition 3.8 shall be subject to the Customer paying to the Supplier on demand a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or sub-contractor.
4	Change Control
4.1	The Customer's Project Manager and the Supplier's Project Manager shall meet at least once every [PERIOD OF TIME] to discuss matters relating to the provision of the Services.  If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other party in writing.
4.2	If either party requests a change to the scope or execution of the Services:
4.2.1	the Supplier shall, within a reasonable time provide a written estimate to the Customer of:
4.2.1.1	the likely time required to implement the change;
4.2.1.2	any variations to the Supplier's charges arising from the change;
4.2.1.3	the likely effect of the change on the Services and the Proposal; and
4.2.1.4	any other impact of the change on the terms of this agreement;
4.2.2	if the Customer does not wish to proceed, there shall be no change to the Services or this agreement; and
4.2.3	if the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Services, the Proposal and any other relevant terms of this agreement to take account of the change.
5	Charges and Payment
5.1	Annex B sets out the basis on which the Supplier shall charge for the Services.  Clause 5.2 shall apply if the Services are to be provided on a time-and-materials basis. Clause 5.3 shall apply if the Services are to be provided for a fixed price. The remainder of this clause 5 shall apply in either case.
5.2	Where the Services are provided on a time-and-materials basis:
5.2.1	the charges payable for the Services shall be calculated in accordance with the Supplier's standard daily fee rates as amended from time to time;
5.2.2	the Supplier's standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);
5.2.3	the Supplier shall be entitled to charge at an overtime rate of 150 % of the normal rate for part days and for time worked by members of the project team outside the hours referred to in condition 5.2 (b) on a pro-rata basis;
5.2.4	the Supplier shall ensure that the members of the Supplier's Project Team complete time sheets recording time spent on the Services, and the Supplier shall use such time sheets to calculate the charges; and
5.2.5	any expenses, materials and third party services shall be invoiced by the Supplier at cost. 
5.3	Where the Services are provided for a fixed price, the total price for the Services and the payment terms are as set out in Annex B.
5.4	The Supplier's fixed charges exclude:
5.4.1	the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably and properly incurred by members of the Supplier's team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services.  Such expenses, materials and third party services shall be invoiced by the Supplier at cost price; and
5.4.2	VAT, which the Supplier shall add to its invoices at the appropriate rate.
5.5	All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6	Intellectual Property Rights
6.1	All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. The Supplier hereby licenses all such rights to the Customer free of charge and on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If the Supplier terminates the Contract under condition 9.1, this licence will automatically terminate.
7	Confidentiality and Supplier’s Property
7.1	The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees are subject to obligations of confidentiality corresponding to those which bind the Customer.
7.2	Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
7.2.1	is or becomes publicly known other than through any act or omission of the receiving party;
7.2.2	was in the other party's lawful possession before the disclosure;
7.2.3	is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
7.2.4	is independently developed by the receiving party, which independent development can be shown by written evidence.
7.3	Subject to condition 7.5, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
7.4	Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
7.5	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 condition 7.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
7.6	All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
7.7	The above provision of this condition 7 shall survive termination of the Contract, however arising.
8	Limitation of Liability
8.1	The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
8.1.1	any breach of this agreement howsoever arising;
8.1.2	any use made by the Customer of the Services, the Deliverables or any part of them; and
8.1.3	any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with this agreement.
8.2	All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.3	Nothing in these conditions excludes the liability of the Supplier:
8.3.1	for death or personal injury caused by the Supplier's negligence; or
8.3.2	for fraud or fraudulent misrepresentation.
8.4	Subject to condition 8.2 and condition 8.3:
8.4.1	the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
8.4.1.1	loss of profits; or
8.4.1.2	loss of business; or
8.4.1.3	depletion of goodwill or similar losses; or
8.4.1.4	loss of anticipated savings; or
8.4.1.5	loss or corruption of data or information; or
8.4.1.6	any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
8.4.2	the Supplier's total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.
9	Termination
9.1	Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
9.1.1	the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
9.1.2	the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
9.1.3	the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
9.1.4	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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
9.1.5	the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.6	a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.7	an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
9.1.8	the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
9.1.9	a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
9.1.10	a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; and
9.1.11	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 in clause 9.1 (e) to clause 9.1 (l) (inclusive).
9.2	Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
9.3	Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
10	Force Majeure
The Supplier shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
11	Waiver
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12	Severance
12.1	If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
12.2	If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13	Entire Agreement
13.1	This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.2	Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
13.3	Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
14	Assignment
14.1	The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
14.2	The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
15	No Partnership Or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16	Third Party Rights
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
17	Notices
17.1	Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
17.1.1	delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
17.1.2	sent by fax to its main fax number.
17.2	Any notice or communication shall be deemed to have been received:
17.2.1	if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
17.2.2	if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
17.2.3	if sent by fax, at 9.00 am on the next Business Day after transmission.
17.3	This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall include email.
18	Governing Law
This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England and Wales.
19	Jurisdiction
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).