Rittman Analytics MASTER SERVICES AGREEMENT (RA/MSA/3)
Each Statement of Work signed by Customer and Rittman Analytics ltd (company number: 10456203) whose registered address is at Mocatta House, Trafalgar Place, Brighton BN1 4DU (“Rittman Analytics”) is subject to this Master Service Agreement (these “Terms”).
1.1 The definitions and rules of interpretation in this Clause apply in this Agreement
Agreement : means these Terms and conditions contained herein, together with a completed and signed Statements of Work.
Business Day : means any day that is not a Saturday, Sunday or public holiday in the United Kingdom.
Change Request : means any request for work outside the scope of the Statement of Work.
Confidential Information : means any information disclosed by or on behalf of a party (the “Disclosing Party”) to the other party (the “Receiving Party”) or its Representatives (as defined below) that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, Customers, suppliers, plans, intentions, market opportunities, operations, processes, product information, know-how, designs, trade secrets or software of a party or any of its subsidiaries or affiliates (but not information that is publicly known through no fault of the Receiving Party). Information shall not constitute Confidential Information for the purposes of this Agreement to the extent that the information (a) is or becomes publicly available through no fault of the Receiving Party; (b) is already in the Receiving Party’s lawful possession prior to the Disclosing Party’s disclosure; (c) is received by the Receiving Party from a third party without any restriction and without breach of any confidentiality obligation; or (d) is developed independently without assistance of the Disclosing Party and without the use of any information disclosed by the Disclosing Party. To implement exchanges of Confidential Information pursuant to this Agreement, from time to time, either party may be the Disclosing Party and the other party shall be the Receiving Party.
Customer : means any entity which purchases the Rittman Analytics services, as more particularly detailed in a Statement of Work.
Customer Affiliate : means an entity which directly or indirectly controls, is controlled by, or is under common control by or with a Customer.
Customer Data : means all data provided by the Customer for use in the preparation of and/or incorporation in the Deliverables.
Customer IP : means any Intellectual Property Rights which are either (a) owned by the Customer outside of this Agreement, or (b) licenced to the Customer independently of the Services.
Customer New IP : means any Intellectual Property Rights developed by Rittman Analytics in carrying out the Services.
Data Processing Agreement : an agreement entered into between the Parties in relation to data processing.
Deliverables : means the services and work product specified in the Statement of Work to be delivered by Rittman Analytics to Customer, in the form and media specified in the Proposal.
Disclosing Party : means a Party which discloses Confidential Information to the other Party.
Effective Date : is the date defined in the Statement of Work.
Fees : means the services fees and expenses (if applicable) as such amounts are more particularly detailed in the Statement of Work.
Force Majeure Event : means acts, events, omissions or accidents beyond reasonable control
Intellectual Property Rights : means all intellectual property rights in any part of the world, including patents, rights to inventions, utility models, copyright and related rights, trade and service marks, trade, business and domain names, rights in trade dress, rights to goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semiconductor and topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future.
Party : means either Customer or Rittman Analytics as a Party to this Agreement.
Personnel : means Rittman Analytics’ its directors, officers, employees, agents and subcontractors.
Professional Standard : means providing services in a professional manner and in accordance with applicable professional standards.
Receiving Party : means a Party in receipt of Confidential Information from the other Party.
Rittman IP : means Intellectual Property Rights which are either (a) owned by Rittman Analytics before the commencement of the Services, or (b) developed by Rittman Analytics at any time independently of the Services.
Services : means those services provided in accordance with Clause 2, as more particularly described in the Statement of Work.
Solicit : means to entice, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other basis, and Solicitation shall be interpreted accordingly.
Statement of Work : means Rittman Analytics’ standard form for specifying the scope and detail of Services or any other written document or letter which references this Master Services Agreement and which specifies the Services and applicable Fees.
Sub-Contractors : means third party analysts or service providers hired by Rittman Analytics as independent contractors.
Sub-Processor Agreement : an agreement entered into between the Parties in relation to data processing.
Third Party IP : means any Intellectual Property Rights incorporated by Rittman Analytics into the Deliverables which are either open-source or owned by a third party.
2.1 Rittman Analytics will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work. Rittman Analytics' delivery timeframe depends upon the Customer's prompt response to any questions, requests for Customer materials, and general cooperating throughout the process.
2.2 Rittman Analytics shall deliver all Services from Rittman Analytics offices unless otherwise mutually agreed between the parties. If any Rittman Analytics resource is required to travel to Customer’s premises or any other third party premises to deliver the Services to Customer, Customer shall be responsible for Rittman Analytics reasonable expenses.
2.3 Subject to the Sub-Processor Agreement or Data Processing Agreement, Rittman Analytics may, in its reasonable discretion, use Sub-Contractors inside or outside the United Kingdom to perform any of its obligations hereunder. Rittman Analytics will be responsible for the performance of Services by its Personnel and their compliance with Rittman Analytics obligations under this Agreement.
2.4 Rittman Analytics shall use commercially reasonable efforts to test Deliverables before providing them to the Customer. The Customer shall promptly review all Deliverables, and must notify Rittman Analytics of any failure to conform to the Statement of Work within 5 business days of receipt. If Rittman Analytics does not receive a timely notification, the Deliverable will be deemed accepted. The Customer's notification must clearly identify the problems with the Deliverable.
2.5 Customer must promptly: (a) coordinate any decision-making activities with third parties; (b) provide Customer Data in a form suitable for reproduction or incorporation into the Deliverables; and (c) proofread the Deliverables. Additional Customer responsibilities may be outlined within the attached Statement of Work document(s).
2.6 If a request for work outside the scope of the Statement of Works is made, Rittman Analytics will notify the Customer that it is a Change Request. If the Customer still wants to proceed with the Change Request, Rittman Analytics will provide a price estimate to the Customer. Upon approval of the Change Request’s scope and price, Rittman Analytics will incorporate the work into the schedule. The Customer understands that the schedule may be affected depending on the size or volume of Change Requests.
2.7 Rittman Analytics shall (and shall ensure that its Personnel): (a) provide the Services to Qubit in accordance with the Statement of Work and with reasonable skill and care and in accordance with generally recognized commercial practices and standards; (b) as required in the Statement of Work report to Qubit regarding the progress and performance of the Services; and (c) not (unless specifically authorised to do so by Qubit in writing): (i) have any authority to incur any expenditure in the name of or for the account of Qubit; or (ii) hold itself out as having authority to bind Qubit.
3. DATA PROCESSING
3.1 All personal data to be processed by Rittman Analytics on behalf of the Customer, is subject to a Sub-Processor Agreement or Data Processing Agreement signed between parties on or around the effective date of this Agreement (the “SPA” or "DPA").
4. CHARGES AND PAYMENT
4.1 Unless otherwise expressly specified in the applicable Statement of Work, Services shall be provided on a time and material ("T&M") basis; that is, Customer shall pay Rittman Analytics for the time spent performing such Services, plus materials, taxes, and expenses, and Fees for the Services shall be the prices set out in the Statement of Work.
4.2 Customer will pay each invoice submitted by Rittman Analytics: (a) within 30 days of the date of the invoice; and (b) in full and cleared funds. Time is of the essence for any payment due to Rittman Analytics and a condition precedent to services being continued in Rittman Analytics sole discretion.
4.3 If Customer fails to make payment of any and all Fees within thirty (30) days of the invoice becoming due, then, without liability to Customer or prejudice to any of Rittman Analytics’ other rights and remedies:
4.3.1 Rittman Analytics shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;
4.3.2 Rittman Analytics shall be entitled to recover all reasonable legal fees and other reasonable costs associated with the collection of such amounts;
4.3.3 Rittman Analytics can charge Customer interest on the overdue amount(s) on a daily basis at an annual rate equal to two percent (2%) over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
4.4 All amounts and Fees stated or referred to in this Agreement:
4.4.1 Shall (unless otherwise detailed in the Statement of Work) be payable in Pounds Sterling (GBP);
4.4.2 Are exclusive of any applicable taxes or charges (including any sales or other transaction-based tax, or value added or non-resident withholding tax), which shall (if applicable) be added to Rittman Analytics’ invoice at the appropriate rate and be payable by Customer;
4.4.3 Are non-cancellable and all payments are non-refundable. Customer must make all payments without setoffs, withholdings or deductions of any kind.
4.5 In the event of a default of this Agreement by Customer, which shall be defined as: (a) Customer’s inability to pay any sums due and owing under this Agreement; or (b) a breach by Customer of any warranty or representation, then:
4.5.1 All sums due and owing under this Agreement, the Service Level Agreement and the Statement of Work for theterm shall immediately become due and owing to Rittman Analytics;
4.5.2 Rittman Analytics may immediately suspend all Services, without notice or further opportunity to cure in its sole discretion.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Nothing in this Agreement shall affect the Customer’s ownership of Customer IP.
5.2 Rittman Analytics hereby assigns to the Customer all Customer New IP.
5.3 Nothing in this Agreement shall affect Rittman Analytics’ ownership of any Rittman IP which is incorporated into the Deliverables.
5.4 Rittman Analytics hereby grants to the Customer a non-exclusive licence of such Rittman IP as is incorporated into the Deliverables for use in the Customer’s use of the Deliverables.
5.5 Rittman Analytics shall procure for the benefit of the Customer a non-exclusive licence of such Third Party IP as is incorporated into the Deliverables.
5.6 Upon written permission by Customer, Rittman Analytics may publish non-confidential components of Deliverables under an open source license on Rittman Analytics’ websites and Github repositories for the purposes of promotion of Rittman Analytics.
5.7 Rittman Analytics may publicly describe its role in the Project without mentioning or indicating the identity of the Customer.
6.1 The Receiving Party shall hold all Confidential Information in confidence and, unless required by law, not make Confidential Information available to any third party, or use the Confidential Information for any purpose other than the performance of its obligations or exercise of its rights under this Agreement. The Receiving Party undertakes to take the same degree of care (but not less than reasonable care) that it uses to protect its own Confidential Information of a similar nature and importance to safeguard the Confidential Information from unauthorised access or use.
6.2 Without prejudice to Clause 6.1, the Receiving Party may disclose Confidential Information to those of its affiliates, employees, agents and advisors (together the “Representatives”) who need to know such Confidential Information solely in connection with the implementation of this Agreement, provided that the Receiving Party is at all times responsible for its Representatives’ compliance with the obligations set out in this Agreement. Each party shall procure that its Representatives are bound by confidentiality agreements applicable to the Confidential Information supplied to the Receiving Party on terms no less onerous than those contained in this Clause 6. Subject to the foregoing, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party, provided that such loss, destruction, alteration or disclosure was not caused or Authorised by the Receiving Party.
6.3 The Disclosing Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information to the Receiving Party (or its Representatives).
6.4 The Receiving Party agrees that the Confidential Information is and shall at all times, unless otherwise notified, remain the exclusive property of the Disclosing Party and the Receiving Party shall not acquire, by implication or otherwise, any right, title, interest or licence in or to any Confidential Information or to any Intellectual Property Rights, if any, embodied in such Confidential Information.
6.5 The Receiving Party acknowledges and agrees that Disclosing Party may be irreparably harmed by a breach of the terms of this Agreement and that damages may not be an adequate remedy. The Disclosing Party shall be entitled to seek an injunction or specific performance for any threatened or actual breach of the provisions of this Agreement by the Receiving Party or any other person receiving Confidential Information pursuant to this Agreement.
7. LIMITATION OF LIABILITY
7.1 Rittman Analytics’ total liability shall be limited to of £400,000 (Four Thousand Pounds Sterling), except that nothing in this Agreement shall exclude or limit either party’s liability: (i) for death or personal injury; (ii) under the indemnity in Clause 10.1 hereof; (iii) for fraud or fraudulent misrepresentation; or (iv) for any other liability that may not be limited or excluded by applicable law.
7.2 Notwithstanding any other provision of this Agreement neither party shall be liable for indirect or consequential loss of whatever nature, howsoever caused, whether occurring in contract, tort, negligence or otherwise.
8. TERM AND TERMINATION
8.1 This Agreement shall commence on the Effective Date shall remain in effect until completion of the Services or terminated in accordance with this Clause 8.
8.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving written notice to the other if: (a) (i) the other party is in material breach of this Agreement where the breach is incapable of remedy; or (ii) the other party is in material breach of this Agreement where the breach is capable of remedy and the breaching party fails to remedy that breach within thirty (30) days after receiving written notice of such breach; (b) the other party enters into an arrangement for an assignment for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or (c) any event analogous to those described in Clause 8.2(b) above happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
8.3 On termination of this Agreement for any reason: (a) all licences and other rights granted by Rittman Analytics under this Agreement shall immediately terminate; (b) Customer shall immediately pay to Rittman Analytics all outstanding unpaid invoices and interest and, in respect of Services rendered but for which no invoice has been submitted, Rittman Analytics will submit an invoice, which will be payable by Customer immediately on receipt; (c) each party shall (and Customer shall procure that any applicable Authorised User shall), return or destroy as promptly directed by the other party and make no further use of any equipment, property, Confidential Information and other items (and all copies of them) belonging to the other party; (d) the accrued rights of the parties as at termination, and Clauses 1 and 3 through 12, will survive any expiration or termination of this Agreement.
8.4 Termination of a Statement of Work. Customer may terminate a Statement of Work by giving not less than 90 days’ prior written notice to Rittman Analytics. On termination of a Statement of Work for any reason: (a) Customer shall pay to Rittman Analytics (i) all outstanding fees which have become properly due and payable for Services performed in accordance with that Statement of Work as at the date of such termination and (ii) the aggregate amount of any expenditure to which Rittman Analytics was, prior to the date of receiving notice of termination, contractually committed to in relation to the Services; and (b) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
9. RISK ALLOCATION
9.1 Customer represents and warrants to Rittman Analytics that they shall comply with all laws and regulations governing the services and Deliverables. Rittman Analytics represents and warrants to Customer that they shall comply with all laws and regulations governing the Services and Deliverables.
9.2 Rittman Analytics represents and warrants to Customer that for any Deliverable that includes the work of independent contractors or third party material, Rittman Analytics shall secure sufficient rights for Customer to use such Deliverable for its intended purpose, and that to the best of Rittman Analytics' knowledge, the Deliverables will not infringe upon the Intellectual Property Rights of any third party.
10. INDEMNITY AND LIMITED WARRANTY
10.1 Rittman Analytics will defend the Customer against any successful claim made or brought against the Customer by a third party that any Services or Deliverables infringes or misappropriates such Third Party IP, and will indemnify the Customer in relation to (a) any damages, legal fees and costs awarded by a court with jurisdiction in the matter against the Customer following such claim, or (b) any amounts paid by the Customer under a settlement of the claim approved by Rittman Analytics in writing , provided the Customer (i) promptly gives Rittman Analytics written notice following receipt of the claim against the Customer, (ii) gives Rittman Analytics sole control of the defence and settlement of the claim against the Customer (except that Rittman Analytics may not settle any claim against the Customer unless it unconditionally releases the Customer of all liability), and (iii) gives Rittman Analytics all reasonable assistance, at Rittman Analytics’ expense.
10.2 Except for the express representations and warranties stated in this agreement, Rittman Analytics makes no warranties or representations whatsoever in relation to any matter connected with this Agreement. Rittman Analytics explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
11.1 During a period of 12 months from the completion of the Services or termination of the Agreement (whichever is the later), neither Party shall without the prior written agreement of the other Party engage or Solicit the services of any employee or Sub-Contractor of the other Party who or which are or were involved in the Services. In this Clause 11, a Party in breach of this Clause 11.1 is referred to as the “Party in Breach” and the other Party as the “Breached Party”.
11.2 In the event of any breach of Clause 11.1, the Party in Breach shall pay to the Breached Party an agency commission of (as applicable) either: (a) if the breach relates to an employee or former employee of the Breached Party: 50% of the employee's final annual salary when employed by the Breached Party; or (b) if the breach relates to a Sub-Contractor or former Sub-Contractor of the Breached Party: 50% of the total contract fees paid to the Sub-Contractor during the final 12 months of the Sub-Contractor’s engagement by the Breached Party.
12.1 Neither Party shall have any liability to the other under or in connection with this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by a Force Majeure Event including strikes, lock-outs or other industrial disputes (whether involving the workforce of either Party to this Agreement or any other Party), failure of a utility service or transport network, act of God, war, riot, internet interruptions, civil commotion, malicious damage, compliance with any law or governmental order, rule, change in law, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. If a Force Majeure Event prevents, hinders, or delays a Party’s performance of its obligations under this Agreement for a continuous period of more than 6 months, either Party may terminate this Agreement immediately upon written notice to the other Party.
12.2 The parties are independent contracting parties and owe no fiduciary or other duties to each other except as set forth in this Agreement and any Sales Order. Neither Party has, or will hold itself out as having, any right, title or authority to incur any obligation on behalf of the other Party, unless expressly authorised in writing to do so. The parties relationship in this Agreement shall not be construed as a joint venture, partnership, franchise, employment or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.
12.3 A waiver of any right under this Agreement is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a Party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
12.4 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.5 This Agreement, and any documents referred to in it, constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter (including any Customer purchase orders). Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in this Agreement. Each Party represents and warrants that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings (or the failure or omission of the other Party to make statements, assurances, representations or undertakings) (together “Pre-Contractual Statements”) other than what is expressly set forth in this Agreement. Each Party waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements, including any claim it was induced into entering into this Agreement or accepting its terms based on any Pre-Contractual Statements.
12.6 Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement as a whole without such consent to an entity of good standing (other than any direct competitor of the other Party) capable of complying with the rights and obligations under this Agreement succeeding to all or substantially all of such assigning Party’s assets or business.
12.7 A person who is not a Party to this Agreement shall not have any rights under or in connection with it. No third Party beneficiaries are created by this Agreement.
12.8 All notices must be in English, in writing, addressed (a) in the case of Rittman Analytics to email@example.com, and (b) in the case of Customer to the postal address or email address detailed in the Statements of Work, or such other address as either Party has notified the other in accordance with this Clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
12.9 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 construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including non-contractual disputes or claim).