DRUM CUSSAC MASTER SERVICE AGREEMENT
TERMS & CONDITIONS
This Master Service Agreement (“MSA”) is made upon the date of signature of the Service Agreement between DRUM CUSSAC GROUP LIMITED, a company registered in England and Wales under company number 08982933, having its registered office at 26-32 Oxford Road, Bournemouth, Dorset. BH8 8EZ. United Kingdom ("Drum Cussac") and the Client named within the Service Agreement (“Client”), together referred to as the “Parties” and each individually as a “Party”. Specific service terms, product details, any applicable licence and/or subscription terms will be set forth in an applicable Service Agreement, Order Form, Purchase Order or Statement of Work, collectively referred to as an “Order”, which shall become binding on the Parties and subject to the terms of this Master Service Agreement.
In the event of any conflict between the Terms and Conditions set forth in this MSA and any Order the order of precedence shall be Order and then MSA. The offer by Drum Cussac is expressly conditioned on the acceptance of the Terms and Conditions of this MSA and any different or additional terms of conditions agreed on any Order.
By signing the Service Agreement and/or any applicable Order each Party agrees to the following:
BACKGROUND
A. Drum Cussac is a company specializing in the delivery of travel risk management and organizational resilience, delivered primarily through a combination of technology based solutions, consultancy and telephone based advice and assistance. Drum Cussac runs a web-based organizational resilience platform on which organizations can track the latest threats to employee and asset safety, review country risk information and risk ratings, track people and assets globally and communicate with them as and when required. In addition services such as E-learning, Training, Consultancy, Intelligence Reporting, Medical and Security Assistance, Evacuations and fully Managed Services are all offered by Drum Cussac. These services are offered on a subscription or one-off basis to Clients depending on the service purchased (the overarching service provided to subscribers by Drum Cussac is referred to in this Agreement as “GlobalRiskManager”, GlobalRiskManager is a modular based solution made up of, but not limited to, the following modules: RiskMonitor, PeopleMonitor, GlobalSOS, TravelPrepare OverWatch, MedicalAssist and PEND and Drum Cussac will notify Client if the name of any of the services should change).
B. The Client wishes to be granted a licence or purchase one or more of the service modules that make up the GlobalRiskManager solution.
IT IS AGREED AS FOLLOWS
1. DEFINITIONS
1.1 In this Agreement, the following terms shall have the following meanings:
“Affiliate” of a Party means any entity that the Party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.
"Authorised User" means an individual who is authorised by the Client to have access to the services (whether on-site or off-site) via Secure Authentication and who is an employee, business partner, contractor, officer, agent, student or member of faculty of the Client or its Affiliates.
"Commercial Use" means use for the purpose of monetary reward (whether by or for the Client or an Authorised User) by means of the sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Material.
“Deliverables” means the products purchased within any Order, including the Licenced Material
“Fee" means the fee for the Service as stated on the Order and paid to Drum Cussac.
“GlobalRiskManager Website” means the websites based at WWW.DRUM-CUSSAC.NET and WWW.TRAVELPREPARE.DRUM-CUSSAC.NET which urls may be changed by Drum Cussac from time to time.
“Implementation Fee” means any fees paid for the set-up, configuration, training and on-boarding of a Service
"Intellectual Property Rights” means any patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing-off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Service Commencement Date” means the date Drum Cussac shall begin implementation of the Service under this Agreement, unless otherwise stated in the Order.
"Licensed Material" means the materials licensed in this MSA and Order and included in the service known as GlobalRiskManager (and its respective modules) being the global intelligence, alerting, tracking and e-learning and any other materials and content made available on the GlobalRiskManager Website on a subscription basis via the Client to Authorised Users.
“Material Breach” means a breach that substantially deprives the non-breaching party of the principal benefit of this agreement or that causes the non-breaching party to suffer irreparable or significant harm, such as but not limited to: non-payment of fees, a breach of the restrictions listed in Clause 4 or Intellectual Property Rights listed in Clause 9.
"Modifications" means alterations, additions to, deletions from, manipulations and/or modifications of parts of the data supplied by Drum Cussac in accordance with section 21 of the United Kingdom’s Copyright, Designs and Patents Act 1988.
"Modify" means to alter, add to, delete from, manipulate and/or modify parts of the data.
“Order” means the method through which a Client places a request to receive the Deliverables as described in more detail in Clause 2. Order may include an order form, statement or work, purchase order, service agreement or email providing such email explicitly expresses the commitment to purchase Services and identifies the appropriate Fees, Deliverables and Service Commencement Date (if applicable).
“Relevant Law”: any applicable statutes, statutory instruments, regulations, orders and other legislative provisions in any jurisdiction in which the Services are provided, including any delegated or subordinate legislation and any applicable judgment of a relevant court of law or decision of a tribunal or competent authority which creates binding precedent.
"Secure Authentication” means using either a secure intranet or the public internet under the protection of a password or other security mechanism providing access limited to Authorised Users.
“Secure Network" means a network which is only accessible to Authorised Users by Secure Authentication.
“Services” means the products purchased on any Order, including the Deliverables
2. LICENSE GRANT
2.1 To request a licence to the Licensed Material, Client must complete an Order and/or Service Agreement (which constitutes an Order and this MSA) and return to their appropriate contact at Drum Cussac.
2.2 On acceptance of Client’s Order, Drum Cussac grants to the Client, subject to and in accordance with the terms of the Order and this MSA, a non-exclusive non-transferable, limited licence to access and use the Licensed Material and to allow Authorised Users where applicable to access and use the Licensed Material on the GlobalRiskManager Website via Secure Authentication.
3. PERMITTED USES
3.1 This Agreement permits the Client to:
3.1.1 display, download and print those parts of the Licensed Material which are made available on the GlobalRiskManager Website as downloadable PDF documents;
3.1.2 make and distribute copies of downloadable PDF documents or other outputs from the Licenced Material as may be required for the purpose of using the Licensed Material in accordance with this Agreement;
3.1.3 allow Authorised Users to:
(a) access the Licensed Material by Secure Authentication in order to search, retrieve, display, input data, communicate, view and generally make use of the Licensed Material as permitted on the GlobalRiskManager Website;
(b) electronically save those parts of the Licensed Material which are made available on the GlobalRiskManager Website as downloadable PDF documents;
(c) print out reasonable copies of those parts of the Licensed Material which are made available on the GlobalRiskManager Website as downloadable PDF documents;
(d) incorporate parts of the Licensed Material which are made available on the GlobalRiskManager Website as downloadable PDF documents and or links to other parts of the Licensed Material in printed and electronic packs or presentations to be used in the course of meetings, presentations, training or internal discussions whilst hosted on a Secure Network;
3.2 This Agreement shall be deemed to complement and extend the rights of the Client and Authorised Users under the United Kingdom’s Copyright, Designs and Patents Act 1988 and Copyright (Visually Impaired Persons) Act 2002 and nothing in this Agreement shall constitute a waiver of any statutory rights held by the Client and Authorised Users from time to time under these Acts or any amending legislation.
4. RESTRICTIONS
4.1 Except where this Agreement states otherwise, the Client and Authorised Users may not:
4.1.1 sell, resell, license, sub-license, rent or lease the Services, Licensed Material or Deliverables, and/or Modifications unless Drum Cussac has given the Client or an Authorised User specific prior permission in writing to do so;
4.1.2 access or use the Services for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services or allow access by a direct competitor of Drum Cussac;
4.1.3 reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Services or technologies;
4.1.4 remove, obscure or alter copyright notices, acknowledgments or other means of identification or disclaimers;
4.1.5 alter or adapt the Licensed Material, other than as permitted within the Service (eg, editable Client content or data, people & asset profiles, trips, contact details etc), except to the extent necessary to make it perceptible on a computer screen, or as otherwise allowed under this MSA and any Order;
4.1.6 display or distribute any part of the Licensed Material on any electronic network, including the internet other than by a Secure Network;
4.1.7 use all or any part of the Licensed Material for any Commercial Use or for any purpose other than as intended to ensure the safety and security of the Client, its Affiliates and their respective Authorised Users; and
4.1.8 provide access and/or allow use of the Licensed Material by anyone other than Authorised Users, including attempting to circumvent contractual usage restrictions.
4.2 This Clause will continue to apply after termination of this Agreement for any reason.
5. RESPONSIBILITIES OF DRUM CUSSAC
5.1 Drum Cussac agrees to use reasonable endeavours to:
5.1.1 make the Licensed Material available to the Client and Authorised Users following acceptance of a Service Agreement or individual Order by both parties and continued availability of the Licensed Material will be dependent upon Client paying the Fee in cleared funds by the date requested of them;
5.1.2 make the Licensed Material available to the Client and Authorised Users 24 hours a day (except when routine maintenance is carried out), and to restore access to the Licensed Material as soon as possible after any interruption or suspension of Services;
5.1.3 provide customer support relating to the Services to Authorised Users by e-mail or over the phone 24 hours a day. Technical support shall be offered between 9.00 am to 5.00 pm on business days UK time. Basic support shall be offered out of hours, from 5.01pm to 8.59am. Drum Cussac will respond to all customer enquiries within 24 hours;
5.1.4 provide such electronic product documentation (for example: user guides) to the Client free of charge as Drum Cussac shall have available. Drum Cussac will allow copies of all such documentation to be made and distributed by the Client to Authorised Users;
5.1.5 provide the Services using the care and skill expected of experts in the industry, in accordance with good industry practice and in accordance with the terms of this MSA;
5.1.6 procure that persons associated with it, its employees or other persons who are performing Services in connection with this MSA shall comply with all Relevant Laws in performing the Services.
6. RESPONSIBILITIES OF CLIENT
6.1 The Client agrees to:
6.1.1 give passwords or other secure access information only to Authorised Users and use all reasonable efforts to ensure that Authorised Users do not give their passwords or other Secure Authentication information to anyone else;
6.1.2 not share Authorised User access between multiple individuals
6.1.3 provide lists of valid IP addresses to Drum Cussac if required and update those lists regularly as agreed by the Parties from time to time;
6.1.4 use all reasonable efforts to ensure that only Authorised Users are permitted access to the Licensed Material and Deliverables;
6.1.5 use all reasonable efforts to ensure that all Authorised Users are made aware of and undertake to abide by the terms of this MSA; and
6.1.6 use all reasonable efforts to work with Drum Cussac to monitor compliance with the terms of this MSA and any Order and notify Drum Cussac immediately and provide full particulars on becoming aware of any of the following:
(a) any unauthorised access to or use of the Licensed Material and Deliverables or unauthorised use of any of Client's password(s); or
(b) any breach by itself or an Authorised User of the terms of this MSA.
As soon as the Client is aware of any breach of the terms of this MSA by itself or an Authorised User, the Client further agrees promptly to fully investigate and initiate procedures in accordance with the Client's standard practice and use all reasonable efforts to ensure that such activity ceases and to prevent any recurrence.
6.2 The Client undertakes to Drum Cussac that the computer system through which the GlobalRiskManager Website and therefore the Licensed Material will be used is configured, and procedures are in place, to prohibit access to the Licensed Material by any person other than an Authorised User, that it shall inform the Authorised Users about the conditions of use of the Licensed Material including using a Secure Authentication process, and that during the term of this MSA, the Clients will make best efforts to bar non-permitted access and to convey appropriate use information to its Authorised Users.
6.3 The Client shall be liable to Drum Cussac for any damages arising from any breach by the Client of this Clause 6.
7. FEE
7.1 The Client will, within the Payment Terms identified within the Order, pay the Fee to Drum Cussac for the rights granted to the Licensed Material and for any Deliverables as stated within the Order for all undisputed amounts.
7.2 Any Services charged on a Day Rate basis shall be charged in half day increments (4 hours), rounded up to the nearest half day.
7.3 Drum Cussac reserves the right to increase Fees at the end of any Initial Term or Successive Period; such charges to be reasonable and agreed in advance with the Client. The notification period of such increase to the Client shall be no less than 21 (twenty-one) days prior to the notification periods for Termination as identified in clause 8 and any renewal of Services, whichever is the latter.
7.4 Without limiting any other right or remedy of Drum Cussac, if the Client fails to make any payment due for an undisputed invoice under the MSA by the due date for payment (Due Date), Drum Cussac shall have the right to charge interest on the overdue amount at the rate of 3% above the Bank of England base rate per annum accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgement. Should an undisputed invoice remain unpaid for a period of more than 60 (sixty) days after its Due Date, subject to notification to the Client, the Supplier may begin debt recovery proceedings against the Client with all associated costs of recovery borne by the Client.
7.5 All Fees stated on an Order are exclusive of tax. Taxes shall be charged to the Client in addition to the Fees stated on an Order as applicable, including but not limited to VAT, GST, Withholding Tax or any other tax that should apply at the time of issuance of an invoice.
8. TERM AND TERMINATION
8.1 This MSA will be effective from the date the Service Agreement becomes signed by both Parties, an Order shall be effective from the date the Order is signed by both Parties (if a signature is required on the Order) or an Order is acknowledged and accepted by Drum Cussac (eg, if the Order is placed via email). This MSA will remain in full force and effect for the duration all Orders between Drum Cussac and the Client unless terminated earlier or extended as provided for in this Clause 8.
8.2 After the Initial Term the Order shall automatically renew on an annual basis for Successive Periods of 12 months “Successive Period” unless terminated in accordance with this Clause 8.
8.3 Without limiting its rights or remedies, either Party may terminate an Order on not less than 90 (ninety) days’ notice in writing to expire on the latter of the contract End Date (if stated), end of Initial Term or end of any Successive Period.
8.4 Either Party may terminate this MSA at any time for a Material Breach by serving a written notice on the other identifying the nature of the breach. The termination will become effective thirty days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach forthwith and confirms this by written notice to the other party who shall, acting reasonably and without unnecessary delay, confirm the breach has been satisfactorily remedied.
8.5 Upon termination of this MSA by Drum Cussac due to a Material Breach Drum Cussac shall have the right to immediately cease to authorise online access to the Licensed Material by the Client and Authorised Users and the Client shall immediately pay any License Fees owing to Drum Cussac, but in the event that License Fees have been paid in advance, the Client shall not be entitled to any refund of such License Fees. The Client and its Authorised Users shall not use any of the copies made of the Licensed Material after the date of termination and the Client shall be responsible for destroying all such copies of the Licensed Material and, if so requested by Drum Cussac, shall send a certificate confirming the destruction to Drum Cussac.
8.6 Upon termination of this MSA by the Client due to a Material Breach by Drum Cussac, the Client (i) shall have the right to a pro-rata refund of any Fees paid for any term of the Licensed Material or Deliverables remaining (for example: if the termination occurs at 6 months into the 12 month term, the Client will be reimbursed 50% of the Fees), a refund shall not apply to any Implementation Fees paid where the implementation work has begun and (ii) shall cease to authorise online access to the Licensed Material by the Client and Authorised Users.
8.7 Without limiting its other rights or remedies, either Party may terminate the MSA and any associated Orders with immediate effect by giving written notice to the other Party if: (i) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or (ii) the other Party breaches any Relevant Law.
8.8 Without limiting its other rights or remedies Drum Cussac may suspend or immediately terminate the MSA and any Orders by giving written notice to the Client if (i) the Client fails to pay any undisputed amount due under this MSA or Order within 45 (forty five) days of the due date for payment (ii) the Client becomes, directly or indirectly, engaged, concerned or interested in any business which is in competition with any part of Drum Cussac’s business.
9. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
9.1 The Client acknowledges and agrees that all Intellectual Property Rights in the Licensed Material and Deliverables are the sole and exclusive property of Drum Cussac or are duly licensed to Drum Cussac and that this MSA does not assign or transfer to the Client any right, title or interest except for the right to access and use the Licensed Material and Deliverables in accordance with the terms and conditions of this MSA.
9.2 The Client acknowledges and agrees that Drum Cussac may suspend access to the Licensed Material and Deliverables with notice in the event of any breach or suspected breach of this MSA by the Client or Authorised Users (including any suspected or actual infringement of Drum Cussac’s Intellectual Property Rights) until such time as any issue has been determined and resolved.
9.3 The Client shall indemnify and keep indemnified Drum Cussac in respect of losses or damages (including indirect or consequential losses, loss of profit, loss of revenue and loss of business opportunity) resulting from any use of such Intellectual Property Rights by the Client or any of its officers, employees or agents which exceeds the Permitted Uses granted to the Client under this MSA.
9.4 This Clause 9 will continue to apply after termination of this Agreement for any reason.
10. REPRESENTATION and WARRANTIES
10.1 Drum Cussac warrants to the Client to the best of its knowledge that the Licensed Material and all Intellectual Property Rights therein are owned by or licensed to Drum Cussac and that the Licensed Material used as contemplated in this MSA does not infringe any third party Intellectual Property Rights, subject to Clauses 9.2.
10.2 While Drum Cussac has no reason to believe that there are any inaccuracies or defects in the information contained in the Licensed Material, Drum Cussac makes no representation and gives no warranty express or implied with regard to the information contained in or any part of the Licensed Material including (without limitation) the fitness of such information or part for any purposes whatsoever and Drum Cussac accepts no liability for loss suffered or incurred by the Client or Authorised Users as a result of their reliance on the Licensed Material or Deliverables.
10.3 In no circumstances will Drum Cussac be liable to the Client for any loss resulting from a cause over which Drum Cussac does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorised access, theft, or operator errors.
10.4 The Client agrees to notify Drum Cussac immediately and provide full particulars in the event that it becomes aware of any actual or threatened claims by any third party in connection with any works contained in the Licensed Material or Deliverables and do all things reasonably required to assist Drum Cussac in such claims. It is expressly agreed that upon such notification, or if Drum Cussac becomes aware of such a claim from other sources, Drum Cussac may remove such work(s) from the Licensed Material providing any such work is replaced by content of an equal or greater quality than the work being removed. Failure to report knowledge of any actual or threatened claim by any third party shall be deemed a Material Breach of this MSA.
10.5 Except as provided for in Clause 6.3, Clause 9.3 and Clause 10.1 neither Party will be liable to the other in contract, negligence or otherwise for:
10.5.1 any special, indirect, incidental, punitive or consequential damages;
10.5.2 loss of direct or indirect profits, business, contracts, revenue or anticipated savings; or
10.5.3 for any increased costs or expenses.
10.6 No Party limits its liability for:
10.6.1 death or personal injury to the extent it results from its negligence, or of its employees or agents in the course of their engagement;
10.6.2 its own fraud or that of its employees or agents in the course of their engagement; and
10.6.3 any breach of Intellectual Property Rights
10.7 Other than as set forth in this Clause 10 neither Parties liability to the other Party whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the MSA shall in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, be limited to the equivalent of the total Fees paid by the Client to Drum Cussac under the MSA in that period in respect of the Service giving rise to the liability in question.
11. FORCE MAJEURE
11.1 Either Parties failure to perform any term or condition of this MSA as a result of circumstances beyond the control of the relevant Party (including without limitation, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities ("Force Majeure") shall not be deemed to be, or to give rise to, a breach of this MSA.
11.2 If either Party to this MSA is prevented or delayed in the performance of any of its obligations under this MSA by Force Majeure and if such party gives written notice thereof to the other party specifying the matters constituting Force Majeure together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, then the party in question shall be excused the performance or the punctual performance as the case may be as from the date of such notice for so long as such cause of prevention or delay shall continue.
12. ASSIGNMENT
12.1 Except as permitted for under this MSA, neither this MSA nor any of the rights and obligations under it may be assigned by the Client without obtaining the prior written consent of Drum Cussac, such consent shall not unreasonably be withheld or delayed. In any permitted assignment by Client, the Client shall procure and ensure that the assignee shall assume all rights and obligations of the Client under this MSA and agrees to be bound to all the terms of this MSA.
13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1 In relation to the operation of this MSA and as between each other, the Parties shall conduct themselves in good faith.
13.2 This MSA 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. 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 MSA or its subject matter or formation (including non-contractual disputes or claims).
13.3 Any disagreement about the operation of this MSA shall be settled by the matter being promptly referred to a senior executive from each of the Parties, authorised to agree a solution. The senior executives shall have 30 days from the raising of the disagreement to discuss and resolve the matter. If the senior executives cannot resolve the matter it shall be referred for resolution to an arbitrator from the London Court of International Arbitration agreed by the Parties. The expert shall act as an amicable mediator and each of the Parties shall in good faith co-operate with his reasonable requests. If the expert is unable to mediate a resolution within 60 days of his appointment, either of the Parties may resort to formal legal action.
14. NOTICES
14.1 All notices required to be given under this MSA shall be given in writing in English and sent by courier, email or special delivery to the relevant addressee at its address set out below, or to such other address as may be notified from time to time under this MSA, and all such notices shall be deemed to have been received three (3) days after the date of posting in the case of special delivery or dispatch in the case of courier:
if to the Client: the address contained with the Order or as specified by the Client.
if to Drum Cussac: Drum Cussac
26-32 Oxford Road, Bournemouth, Dorset. BH8 8EZ. United Kindgom
Attention: Craig Sweet/Rosemary Baker
15. GENERAL
15.1 This MSA, its Schedules and all applicable Orders constitute the entire agreement between the Parties relating to the Deliverables and supersede all prior communications, understandings and agreements (whether written or oral) relating to its subject matter and may not be amended or modified except by agreement of both parties in writing.
15.2 The provisions of this MSA are separable and, if any provision or part-provision of this MSA is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. 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 MSA.
15.3 The rights of the Parties arising under this MSA shall not be waived except in writing. Any waiver of any of a Parties rights under this MSA or of any breach of this MSA by the other Party shall not be construed as a waiver of any other rights or of any other or further breach. Failure by either Party to exercise or enforce any rights conferred upon it by this MSA shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.