Zen Managed Services Master Service Agreement (“MSA”)

Your agreement with us consists of this Master Service Agreement (MSA), your Service Order, our Usage Policy, the SLA and our Privacy Policy (collectively the “MSA”).  We strongly encourage you to review each of these documents as they are a part of this MSA.

Throughout this MSA, Zen Managed Services is referred to as Zen Managed Services, ZENMSP, we, us or our. Our customer is referred to as you or your. Your customer, or user of your services, is referred to as the “End User.”

The Service Order

The Service Order contains the products, services, software and hardware we provide to you and how they are configured. These are referred to collectively as the “Service” or “Services”. The Service Order also contains information on the Fees Charged and duration of the Agreement.  The Effective Date of this MSA is the date on which we create a billing profile for you.

1. Our Rights and Responsibilities

1.1. You have the right to connect to our data centre and network, using the Equipment, on a 24 x 7 basis, limited by this MSA.

1.2. We agree to sell to you the amount of bandwidth, server capacity (including dedicated hardware) and data centre facilities specified in your Service Order. If we provide Equipment to you, it is leased to you: we will retain ownership of the Equipment; you agree to take no action inconsistent with our ownership interest.

1.3. The IP address space we agree to lease to you is listed in the Service Order. While we will not change your IP address arbitrarily, it may be necessary to do so if required by business needs. We agree to provide you with 5 days advance notice if we are required to reassign your IP address.

1.4. You control the configuration, system updates and general security of the Equipment. If you have not purchased managed services and support from us, there may still be certain circumstances in which we apply updates or patches to the Equipment (Updates). However, since the Equipment is not controlled or configured by us, we have no liability, and you agree to release us from any liability, that results from our actions installing Security Updates.

1.5. Please review our Service Level Agreement (SLA), a link to our SLA is provided at the bottom of this Agreement and linked from our website zenmsp.uk – it is your sole and exclusive remedy for disruptions to the Service. We will make every reasonable effort to minimize impact to the Service, although it may become necessary to interrupt the operation of the Service, remove or rearrange equipment, disconnect or disable devices, limit access, or disable software, during an emergency.

1.6. If the traffic you receive is detrimental to our network stability, it may be necessary to limit or stop all your data transfer. If this occurs, we will use commercially reasonable efforts to contact you using the information provided within the ‘Customer Details’ section of the Service Order. We will attempt to limit the time period on restrictions to your data transfer, but this type of restriction will not be a material breach of this MSA.

1.7. We retain the right to maintain and operate our facilities in such a manner as will best enable us to conduct our normal business operations. Disruptions to the Service, including scheduled and emergency maintenance, are covered by the SLA. You may not terminate this MSA based on changes in this operation unless such a change materially alters the type of Service provided by us. The term “materially” shall be determined from the perspective of a reasonable business person with significant experience conducting business on the Internet.

1.8 If the Service Order includes deliverables, or professional services (each included within the definition of Services), we agree to undertake and complete the Services set out in the Service Order in accordance with, and on, the schedule set out therein. We also agree to provide the goods set out in the Service Order. In some cases these goods will be licensed to you, rather than sold. You agree to be bound by the terms of any license agreement covering these goods. We will devote reasonable time and effort, skill and attention to the performance of the Services. Provided, however, that we will not be required to perform Services above and beyond those set out in the Service Order unless it is modified in writing.

1.9 The Services set out herein, and described in the Service Order, shall be performed by us as an independent contractor. We shall be your agent solely for the purpose of purchasing, and if necessary entering into license agreements for, the goods. Other than the specific acts set out in the previous sentence, we shall not have the power to bind or represent you for any other purpose.

1.10 You will promptly obtain, and upon our request provide to us confirmation that you have received all “Necessary Consents.” “Necessary  Consents” means any consents or approvals required to give us, and if necessary, our subcontractors the right or license to access, use and/or modify, the hardware, software and other products, data and content that you provide to us to perform the Services, or that we require to perform the Services. If you fail to provide us with the Necessary Consents, and we are unable to perform the Services as a result, you will remain responsible for the full amount of the Fees.

2. Your Rights and Responsibilities

2.1. You are solely responsible for any breaches of security affecting the Equipment. If the Equipment is involved in an attack on another server or system, it will be shut down without warning and an immediate investigation will be launched to determine the cause/source of the attack. In such an event, you are solely responsible for the cost to rectify any damage done to the Equipment and any other hardware or software affected by the security breach.

2.2. Unless you have purchased managed services and support from us, you are required to apply all security patches to the software on the Equipment. You are solely responsible for maintenance of all software you install on the Equipment.

3. Term

The initial term will begin on the Effective Date (Initial Term). If you purchase additional Services from us, the Term of this Agreement, and all Services, shall be extended to the termination date of the additional Services. Should the Term of the additional Services be shorter than your current Term, the current Term will remain in effect. Following the expiration of a Service’s respective Initial Term, the term will automatically renew for the length of the Initial Term (Renewal Period). Unless otherwise set out in  the Service Order, you must cancel a particular Service in writing no later than 30 days prior to the expiration of the Initial Term or any Renewal Period.

4. Payment Terms

4.1. You are responsible for the Fees set out on the Service Order. Fees are due on the date set out on your invoice.

4.2. You are responsible for all taxes and fees levied on the Service – other than those charged for VAT or other taxes based on our net income.

4.3. Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Except in the case of a Force Majeure event, should the Service be suspended, for any reason, Fees will continue to accrue. Set up and domain name registration charges are not refundable for any reason.

4.4. If the Fees are not paid by the Due Date, your account will be considered in-arrears and Services may be suspended. You are responsible for all fees charged to us as a result of your failure to pay, including, but not limited to collection charges and associated legal fees. We reserve the right to charge you late fees of 2% per month.

4.5. If you believe there is an error on your bill you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. Your dispute must include sufficient facts for us to investigate your claims and be received by us at least 5 days prior to the Dispute Deadline Date. You waive your right to dispute any charges or Fees if you fail to meet Dispute Deadline. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute on your next bill. If you contact your credit card company, prior to notifying us of the dispute, and initiate a “charge back” based on this dispute, and your charge back claim is past the Dispute Deadline, you will be charged a non-refundable £100 investigation fee. This fee compensates us for the investigation your credit card issuer requires us to conduct in order to demonstrate our right to payment.

4.6. Our SLA sets out your rights for disruption of the Service. Under the SLA you may be entitled to an “Uptime” or “Infrastructure” Credit (Credit). Should the Service be disrupted, you may request a Credit by calling our customer service representatives or email the accounts department from our support desk. This Credit is our only obligation, and your only remedy, in the case of a disruption to the Service. If you are past due on any Fees, we are not required to provide the Credit to you. You must request a Credit within 3 days of the event covered by the SLA. You will receive only one Credit per disruption. For example, should the disruption qualify for both an

Uptime Credit and an Infrastructure Credit, you will receive only one Credit. Credits may not be aggregated, are limited to 1 month’s Fees, and may not be carried over from month-to-month.

5. Cancellation & Termination

5.1 Termination by Zen Managed Services.

5.1.1 We may terminate a Service, or this entire MSA, prior to the end of an Initial Term or Renewal Period, without liability to you, or waiving any of our rights, if:

5.1.1.1 You, your End Users, or any third party using the Services through you, does not comply with the applicable terms of any aspect of this MSA, including those incorporated by reference;

5.1.1.2 You have made any material false statements to us;

5.1.1.3. We are prohibited from offering the Service, or a third party vendor stops making aspects of the Service available to us;

5.1.1.4. You fail to remedy a material breach within 10 days of notice from us, or the material breach is incapable of remedy;

5.1.1.5. You file for bankruptcy, whether voluntary or involuntary;

5.1.1.6.                 You fail to provide us with technical information necessary for us to implement the Service in a commercially reasonable amount of time, or within the time set out on your Service Order; and/or

5.1.1.7. Your use of our support services is unreasonable or abusive.

5.1.2. If we terminate the Service, or this MSA, based on this paragraph, we reserve the right to apply  early termination charges. These charges will be in addition to any other rights and/or charges set out in the MSA. If you have an MSA with a fixed term, you will be charged for the balance of the Term, with the addition of any discounts you received for agreeing to purchase the Service.

5.1.3. After termination, we may choose to resume providing the Service to you, at your request. We are under no obligation to do so, and new fees may be applied.

5.2 Termination by you.

5.2.1. You may terminate a Service, or this entire MSA, prior to the end of an Initial Term or Renewal Period, if we have failed to remedy a material breach within 10 days of written notice from you, or our material breach is incapable of a remedy.

5.2.2. This termination right shall be your sole and exclusive remedy. If our material breach does not include a third party Service set out on your Service Order, you may still remain responsible for early termination charges assessed by that entity.

5.3 Cancellation

5.3.1. Cancellation or termination of services for any other reason, requires 30 days notice prior to your next billing date. So if your next due date is 15th April, then you would need to cancel by 15th March.

5.3.2 Services may be cancelled/terminated at any time, but will require a final payment of the subsequent month if after the 30 day notice period.

6. Licenses and Intellectual Property

6.1. License from Zen Managed Services to you:

We grant to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by us solely to access and use the Service. This license terminates on the expiration or termination of this MSA. Except for the license rights set out in this MSA, this license does not grant any additional rights to you. All right, title and interest in our technology shall remain with us or our licensors. You are not permitted to circumvent any devices designed to protect us, or our licensor’s, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology. Unless set out in the Service Order, we shall own all right title and interest in the Services, and they shall not be considered to be “works made for hire.”

6.2. Licenses from you to Zen Managed Services:

Information provided us in connection with our technical or customer support shall be considered our property. By submitting that information to us, you agree to a royalty free assignment to us of all worldwide rights, title, and interest in copyrights and other intellectual property rights to the information, and we shall be free to use such information on an unrestricted basis. However, notwithstanding this assignment all confidential and/or proprietary information provided by you or contained on the Equipment is yours and will not be shared by us with any third party, other than as necessary to fulfil our obligations set out herein. You expressly understand and agree that certain intellectual property incorporated into the Services may have been used by us in other projects, and will be used by us in subsequent projects (“Template Services”). You shall have no intellectual property interest in the Template Services, other than a right to use it as incorporated in to the Services. You grant to us unlimited, royalty-free, non-exclusive rights to use, distribute, license, sub-license, sell and/or create derivative uses of the Template Services, regardless of the fact that it has been incorporated into the Services.

7. Representations and Warranties

7.1. Reciprocal Warranties

We each warrant to the other that:

• we each have the power, authority and legal right to enter into this MSA; and
• we each have the power, authority and legal right to perform our obligations under this MSA and all incorporated provisions.

7.2. Your Representations and Warranties

7.2.1 You represent and warrant to us that:

• you have the experience and knowledge necessary to use the Service;
• you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet;
• you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service and Equipment to take advantage of the Service;
• that in entering into this MSA, and performing the obligations set out in it, you will not violate any applicable laws and regulations;
• that you will make backup copies of your data even if you purchase “back up” services from us
• that you are over the age of 18; and/or
• that you will pass through the terms of our Usage Policy and Privacy Policy to End Users in your agreements with them.

7.2.2. You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or those which may be accessed or transmitted using the Service. You also warrant that to the extent you do business with other parties using the Service, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this sub paragraph.

8. Warranties, Disclaimers And Limitations Of Liability

8.1. Other than set out in the paragraph entitled “Reciprocal Warranties” we make no warranties, and any implied warranties are expressly disclaimed.

8.2. THE SERVICE(S) ARE PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS, AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S), WILL MEET ANY OR ALL OF YOUR

EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE, OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF. YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS MSA FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE 3 MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE

LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

9. Indemnification

9.1. You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to;

• your use of the Service;
• any violation by you of any of our policies;
• any breach of any of your representations, warranties or covenants contained in this MSA; and/or
• any acts or omissions by you. The terms of this section shall survive any termination of this MSA. For the purpose of this paragraph only, the term “you” as set out in subparagraphs (i) through (iv) include you, End Users, visitors to your website, and users of your products or services, the use of which is facilitated by us.

9.2. We shall indemnify and hold you harmless from, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Service infringes any issued UK registered copyright or patent. This indemnification provision is expressly limited to aspects of the Service which are fully owned by us. It does not extend to products or services provided by third parties even if incorporated into the Service.

10. Credit

Your execution of this MSA signifies your acceptance of our credit approval policies and procedures.

11. Transfer and Assignment

• This MSA may not be transferred or assigned by you without our consent, which we may withhold.
• We reserve the right to subcontract, transfer or assign the Services, work or any of our other obligations set out in this MSA without your consent.

12. General

12.1. Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labour disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than 10 days from the beginning of the event.

12.2. This Agreement shall be governed and construed in accordance with English law, and the Parties irrevocably agree to the non-exclusive jurisdiction of the English courts.

12.3. No waiver of rights under this MSA, or any Zen Managed Services policy, or other Agreement between you and Zen Managed Services shall constitute a subsequent waiver of this or any other right under this MSA.

12.4. This MSA, the Service Order, AUP, Privacy Policy and/or attachments shall be construed as one document. To the extent that there is a conflict between the terms of these documents and they shall have the following precedence: Privacy Policy, AUP, MSA, Service Order, and then Attachment(s).

12.5. All notices to you will be sent to the address set out in our records. Notices will be effective upon receipt. All notices from you to us should be addressed as follows:

Zen Managed Services
Kent Innovation Centre
Thanet Reach Business Park
Millennium Way
Broadstairs
Kent
CT10 2QQ

12.6. This MSA may be executed in one or more counterparts, transmitted by facsimile and acknowledged electronically each of which shall be deemed an original, but which together shall constitute one and the same document.

12.7 The following paragraphs shall survive the expiration or termination of this MSA and/or any attachment: 4.1, 8, 9, and 12.