Master Service Agreement (MSA) Incommsec Ltd
   
1        AGREEMENT:
1.1    This Master Services Agreement (the “Agreement”) is between Incommsec Ltd. (“Incommsec") and the “Customer” as identified herein, for the provision of certain computer network services by Incommsec, its corporate affiliates, and its suppliers. Such services may include Internet access, data backup and recovery, security services, and/or related professional services (the “Services”). This Agreement states the terms and conditions by which Incommsec will deliver and Customer will receive Services. The specific services and/or products to be provided hereunder will be identified in one or more Order Form(s) and described in detail in the Service Description(s) the Incommsec Internet Supplement the Incommsec Telephony Supplement and Statement(s) of Work (if any). Subject to the terms and conditions of this Agreement, and final acceptance by Incommsec, each Order Form (with the attached Service Description Supplement/s and Statement of Work submitted by the Customer) will constitute a separate contract between the parties. The terms of this Agreement shall apply to the sale of Services to Customer for its internal use to its customers and, except as otherwise agreed, to all other services provided by Incommsec to Customer.

2        PAYMENT AND INVOICING:
2.1    Customer will pay Incommsec all fees during the Initial Term and for each Renewal Term according to the prices and terms listed on the applicable Order Form(s). Non Recurring charges including equipment, installation and setup fees will be billed upon execution of the Order Form. Recurring charges will be billed in advance. All other charges, including, but not limited to, any early cancellation charges, accrued interest, late fees and any usage-based charge, including data transfer, disk storage call termination will be billed at the end of the month in which the Services were provided or charge incurred.
2.2    All Services and/or materials not expressly defined in the Service Description shall be provided at Incommsec’s then current rates.
2.3    All invoices will be payable within thirty (30) days of the date of invoice fourteen (14) days with Direct Debit. Delinquent payments on the undisputed portion of an invoice will be subject to a late payment charge at a rate of 1.5% per month, or portion thereof.
2.4    Payment by Standing Order or Direct Debit may be stipulated on the Order Form
2.5    In the event Customer fails to pay Incommsec all undisputed amounts owed Incommsec under this Agreement when due, Customer agrees that upon written notice to Customer, Incommsec may suspend and/or terminate the affected Service under Clause 4. Such interruption or termination will not relieve the Customer of the obligation to pay the amount owed plus interest and early cancellation fees in accordance with Clause 4.1 below.
2.6    Incommsec shall be entitled to increase the Annual Charge upon notice at any time with immediate effect where Incommsec can reasonably demonstrate that such an increase is due to an increased cost of providing the Service solely caused by
2.6.1        A third party supplier price increase and/or
2.6.2        Legal or regulatory change. For the avoidance of doubt, any such increase will not exceed the increased cost incurred by Incommsec in providing the Service. Incommsec will provide reasonable documentary evidence to support such price increase to the Customer, upon request.
2.7    With effect from the expiry of the Initial Term, Incommsec shall be entitled to revise the Annual Charge to reflect Incommsec’s then current standard rates, by giving the Customer not less than thirty (30) days prior written notice.
2.8    The Charges payable under these Terms are exclusive of Value Added Tax which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
2.9    The Customer shall pay charges for professional services under the Statement of Work within 30 days of the performance of such services, or upon the completion or acceptance of such professional services, whichever is the earlier. Incommsec shall notify the Customer in writing when it considers the professional services to have been performed/completed/accepted as appropriate.  Where payment terms are specified in the Statement of Work they shall override this Clause 2.9.
2.10  Any Services provisioned to the Customer subsequent to the Commencement Date in addition to the Services in Schedule One shall be provided in accordance with the Terms of this Agreement. 

3        TERM / RENEWAL:
3.1    The term of this Agreement shall commence as of the date this Agreement is signed by the Customer and accepted by Incommsec (the “Effective Date”) and shall continue in effect for as long as any Service remains in effect. The Initial Term for each Service is stated on the applicable Order Form. The Initial Term begins on the Service Commencement Date (“SCD”) defined in the Service Description of such Service. Each Service will continue automatically for additional terms equal to its Initial Term (“Renewal Term”) unless a different Renewal Term is specified, or a written notice of cancellation is given by either party at least 90 days prior to the end of the then-current term. The Agreement term at any time in effect, including without limitation, the Initial Term, and/or a Renewal Term are referred to herein as the “Term”.

4        TERMINATION:
4.1    Cancellation during Initial Term: Customer may cancel any or all of the Service(s), or any component of a Service by providing ninety (90) days prior written notice. In such case, Customer shall pay to Incommsec all charges for the applicable Service provided through the effective date of such cancellation plus a lump sum cancellation charge determined as follows: 100% of the scheduled payments for the Service for each of the months remaining in the Initial Term. The aforementioned provision for a cancellation charge is intended to establish liquidated damages in the event of a cancellation and is not intended as a penalty.
4.2    Incommsec reserves the right to immediately suspend Services to Customer upon the occurrence of any of the following events: (i) Customer fails to pay when due any invoice hereunder; or (ii) Customer violates the terms of Incommsec’s AUP as stated in Clause 7. Incommsec may terminate Services and/or this Agreement if any such events occurs and continues uncured for more than five days after written notice thereof from Incommsec. Such interruption or termination will not relieve the Customer of the obligation to pay the amount owed plus interest and early cancellation fees in accordance with Clause 4.1.
4.3    These Terms may be terminated forthwith by either party on giving notice in writing to the other if the other party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or a bankruptcy petition presented to the court  or shall cease or threaten to cease to carry on business. 
4.4    Any termination under this Clause 4 shall discharge Incommsec from any liability for further performance of the Services but its rights to make any claim for any antecedent breaches shall remain in force.
4.5    Upon termination of this Agreement or any applicable Order, Customer shall relinquish any IP addresses or address blocks assigned to Customer by Incommsec.

5        CONSEQUENCES OF TERMINATION:
5.1    In the expiry or termination of this Agreement the Customer shall:
5.1.1        within 7 (seven) days of the date of any such expiry or termination, cease using and return to Incommsec or otherwise dispose of as Incommsec may instruct all marketing and other materials relating to the Services or to the business of Incommsec which the Customer may have in its possession or under its control;
5.1.2        cease to use the Intellectual Property.
5.2    In the event of Customers not choosing to contract with Incommsec for continued provision of the Services, Incommsec shall provide assistance to the Customer for the Customers migration, subject to the payment of Incommsec’s Professional Services fees.
5.3    The Customer shall have no claim against Incommsec for compensation for loss of Customer rights, loss of goodwill or any similar loss;
5.4    The expiry or termination of this Agreement shall be without prejudice to any other rights or remedies which either Party may be entitled to under this Agreement or at law and shall not affect any rights or liabilities which have already accrued to either of the Parties under this Agreement.

6        EQUIPMENT:
6.1    All equipment supplied by Incommsec under this Agreement shall remain the property of Incommsec unless such equipment was purchased outright by the Customer.
6.2    If Customer’s Service includes leased equipment, all such hardware and software (together with all documentation) located at the Customer’s premises must be returned to Incommsec upon termination of the Services. Customer will remove such hardware, appropriately package it and return it to Incommsec; freight prepaid, and delete all copies of the software on any systems of Customer. If Customer fails to do the forgoing within thirty (30) days after termination of the Services, Incommsec may: (a) invoice and Customer shall pay to Incommsec within thirty (30) days of the invoice date, the retail replacement value for such hardware and software that is not returned, and/or (b) pursue any other rights and remedies Incommsec may have at law or in equity.
7        ACCEPTABLE USE POLICY (“AUP”):
7.1    Incommsec does not monitor or exercise control over the content of the information transmitted or stored by Customer, and Customer assumes all responsibility for such information.
7.2    The Service may only be used for lawful purposes according to the laws of England and Wales. Sending bulk unsolicited email and violations of system or network security are prohibited. Activities which demonstrably incite denial-of-service attacks (for example the use of “bots” or “flaming” - general anti-social behaviour in online forums etc) are prohibited. Use of the Service for illegal sharing or distribution of software and other intellectual property is prohibited.
7.3    This Policy is designed as a guideline and is not exhaustive in the description of use. 
7.4    Incommsec reserves the right remove any content for any reason, including but not limited to, the Customer’s violation of any conditions of this Acceptable Use Policy. Incommsec's right to remove inappropriate content under this Policy shall not extend to editorial rights over the content. If Incommsec determines at its sole discretion that use of the Services have violated the terms of this Acceptable Use Policy, then without notice, Incommsec may terminate the Service between Incommsec and the Customer. 
7.5    Incommsec Services are not to be used to; 
7.5.1       create or maintain software download or distribution sites or sites created for the purpose of mass distribution of software products. 
7.5.2       create or maintain sites that generate system errors or exceptions that disrupt server performance or cause server-wide outages. This includes overriding or avoiding system settings and restrictions imposed Incommsec.
7.5.3       violate any applicable laws, regulations, or other provisions having the force of law.
7.5.4       Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
7.5.5       employ misleading e-mail addresses or falsify information in any part of any communication.
7.5.6       upload, transmit, disseminate, post, store or post links to any content that:
7.5.6.1       Is prohibited from transmitting or posting by law, or by contractual or fiduciary relationship;
7.5.6.2       Facilitates hacking or unauthorized access or use of data, systems, servers or networks including any attempt to probe, scan or test for vulnerabilities, or to breach security or authentication measures;
7.5.6.3       Falsifies origin by forging TCP/IP packet headers, e-mail headers, or any part of a message header;
7.5.6.4       Interferes with service to any user, system or network by using flooding techniques, overloading a system or a network, staging or broadcasting an attack, or any other means resulting in a crash of a host either deliberately or by negligence;
7.5.6.5       Infringes or contributes to any infringement of any intellectual property, material protected by copyright, trademark, patent, trade secret or proprietary right of any party;
7.5.6.6       Is or may be considered unsolicited or unauthorized advertising, promotional material, junk mail, spam, spamvertisements, make money fast schemes, chain letters, pyramid schemes, or any other form of solicitation;
7.5.6.7       Contains viruses, worms, Trojan horses, time bombs, trap doors, or any other computer code, files, or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
7.5.6.8       Is unlawful, harmful, threatening, abusive, harassing, unlawful, libelous, defamatory, vulgar, obscene, or invasive of privacy;
7.5.6.9       Is of adult nature, pornographic, or harmful to minors;
7.5.6.10     Promotes illegal activity, including providing instructions for illegal activity, or transmitting, disseminating or offering fraudulent goods, services, schemes or promotions, or furnishing false data on any signup form, contract or online application or registration, or the fraudulent use of any information obtained through the use of the Services including use of credit card numbers.
7.5.6.11     Exploits the images of children or discloses personally identifiable information belonging to children.

8        WARRANTIES AND COVENANTS:
8.1    Incommsec warrants that the Service(s) will conform to the applicable Service Description(s) and Service Level Agreement in all material respects.
8.2    Incommsec covenants that the Services will be performed for Customer in a good, diligent and workmanlike manner in accordance with industry standards and applicable laws and governmental regulations. Incommsec will not be responsible for nonconformities arising from inaccurate or incomplete data or information provided by Customer, or for failures or delays arising from lack of cooperation of Customer.
8.3    Customer agrees to reasonably cooperate with Incommsec's performance of Services. Customer further agrees to take any and all actions reasonably necessary to enable Incommsec to perform the Services contemplated herein in an effective and efficient manner.
8.4    Incommsec covenants that its personnel performing the Services, while present at the facilities of Customer will comply with the security and safety policies of Customer that are provided to Incommsec in writing.
8.5    Warranty Disclaimer. Except for the covenants expressly stated in this provided as is. The provisions of this section are exclusive and are in lieu of all other warranties, written or oral, statutory, express or implied, including but not limited to any implied warranty of title, merchantability or fitness for a particular purpose. Customer understands and agrees that the Services provide no warranty or guaranty against intrusions, viruses, Trojan horses, worms, time bombs, bots or other similar harmful or deleterious programming routines affecting Customer's network.

9        LIMITATION OF LIABILITY:
9.1    Neither party, nor any supplier of any party, shall be liable to the other party, regardless of the form of action, whether in contract, in tort or otherwise, for any indirect, incidental, consequential, punitive, reliance or special damages, or for any loss of business or prospective business opportunities, profits, savings, information, use or other commercial economic loss, even if advised of the possibility of such damages.  In no event will Incommsec or its suppliers’ liability under or related to this agreement, the services, or any other products or services provided to customer exceed one year’s fees payable under this agreement for the applicable services or for the applicable products.  Customer’s sole remedy with respect to the provision of services or the failure to provide services is as set forth in the service level agreement contained in the applicable service description or absent an SLA, Incommsec's standard service credit policy.
9.2    Incommsec shall not be responsible to the Customer for any loss whatsoever arising out of any reason beyond the control of Incommsec which shall include without prejudice to the generality of the foregoing, any act of God, fire, flood, accident, strike, lockout or stoppage of the Incommsec’s business.
9.3    Incommsec shall not be required to carry out servicing beyond its normal service boundaries. In the event of a fault being reported to Incommsec, which is found to be a fault external to THE GOODS covered, and then Incommsec reserves the right to make reasonable additional charges.
9.4    Incommsec shall have the right to cancel the provision of Maintenance Service if it is prevented from or hindered in providing the service through any circumstances beyond its control including (but not limited to) industrial action, war, fire or prohibition or enactment of any kind, without incurring any liability for any loss or damage whatsoever resulting there from.

10     CONFIDNTIALITY:
10.1  Incommsec and the Customer shall treat as confidential all Confidential Information and shall not divulge such Confidential Information to any person (except to such party’s own employees and then only to those employees who need to know the same) without the other party’s prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this clause.

11     PROPRIETARY RIGHTS AND INFORMATION PROTECTION:
11.1  Incommsec hereby grants Customer a non-exclusive, non-transferable license to use the Services, which may include hardware, software and firmware provided hereunder during the term of this Agreement. All rights with respect to the Services including, but not limited to, intellectual property or similar rights belong exclusively to Incommsec and/or its suppliers. The license set forth in this paragraph shall terminate immediately upon termination of this Agreement.
11.2  Customer shall not or permit others to (a) disassemble, decompile, reverse engineer, modify or prepare derivative works of any software or product used in provision of the Services (b) remove any identification or notices of any proprietary or copyright restrictions from any such product, software, service, documentation or support material, or; (c) copy any product, software, service, documentation or support material except to support the authorized level of use.
11.3  Incommsec and Customer acknowledge that in the course of providing Services, Incommsec may have access to confidential information of Customer. Unless otherwise expressly authorized by the Customer or required by law, Incommsec agrees to hold such information in confidence and not to disclose it to any third party or use it for any purpose other than providing Services to Customer.

12     INDEMNIFICATION:
12.1  Customer shall indemnify, defend and hold harmless Incommsec (including the cost of reasonable attorney’s fees) against: (i) claims for libel, slander, infringement of copyright or unauthorized use of any trademark, trade name or service mark arising out of the content transmitted by the Customer or Customer's end-users over Incommsec’s facilities or equipment; and (ii) all claims of any kind by Customer’s end users, and (iv) all other claims (including, without limitation, claims for damage to any business or property, or injury to, or death of, any person) arising out of any act or omission of Customer, or Customer’s agents or end users, in connection with any service or facilities or equipment provided by Incommsec.

13     DATA PROTECTION:
13.1  The Customer hereby notifies Incommsec that the Resellers material contains personal data as defined in Section 1(1) of the Data Protection Act 1998 (the Resellers Personal Data) and warrants to Incommsec that the Customer has notified under the said Act in respect of the Resellers Personal Data.
13.2  The Customer warrants and undertakes to Incommsec that:
13.2.1     the Resellers Personal Data has been obtained and processed (in so far as the Resellers Personal Data has been processed) lawfully;
13.2.2     the Services will be entirely consistent with and appropriate to the specified and lawful purposes for which the Customer has notified under the said Act in respect of the Resellers Personal Data (the “Notified Purposes”);
13.2.3     the Customer has not hitherto and will not during the continuance of these Terms use or disclose the Resellers Personal Data or any part thereof in a manner incompatible with the Notified Purposes;
13.2.4     the Resellers Personal Data is adequate, relevant and not excessive in relation to the Notified Purposes; and
13.2.5     the Resellers Personal Data is accurate and the Customer shall keep the Resellers Personal Data fully up to date at all times during the continuance of these Terms.
13.2.6     in respect of Customer’s Personal Data it will observe all obligations under the Data protection Act 1998.
13.3  In addition to any indemnity given by the Customer elsewhere in this Agreement, the Customer shall indemnify Incommsec against any loss or damage which Incommsec may sustain or incur as a result of any breach by the Customer of the provisions of this Clause. In performing its Services Incommsec may process (albeit for diagnostic or investigative purposes only) personal data belonging to the Reseller.  Incommsec hereby warrants to the Customer that in such circumstances it will in respect of such personal data observe all the obligations pertaining to a data processor under the Data Protection Act 1998 and will indemnify the Customer against all breaches of the said Act by Incommsec in respect of the Resellers data. Incommsec further warrants that in respect of the Customer’s Personal Data it will observe all obligations under the Data protection Act 1998.

14     INTERPRETATION IN THESE TERMS:
14.1  reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
14.2  words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporated; and (in each case) vice versa;
14.3  any reference to Incommsec or the Customer in these Terms includes a reference to their successors in title and permitted assigns;
14.4  the headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of these Terms.
14.5  any reference to a clause means a clause in this Agreement unless the contrary is stated.
14.6  references to “written” (e.g. written consent or written notice) shall include by email.

15     GENERAL:
15.1  Either party may assign or transfer this Agreement to another company within their Group without requirement for prior consent from the other Party. Customer shall not otherwise assign or transfer this Agreement in whole or in part without the prior written consent of Incommsec, which shall not be unreasonably withheld. Any act in derogation of the foregoing shall be null and void. No such assignment shall relieve the Customer of its obligations under this Agreement.
15.2  Incommsec may perform any of the obligations undertaken by it and to exercise any of the rights granted to it under these Terms through any other company which at the relevant time is its holding company or subsidiary (as defined by section 1159 of the Companies Act 2006) or the subsidiary of any such holding company, and any act or omission of any such company shall for the purposes of these Terms be deemed to be the act or omission of Incommsec.
15.3  Incommsec may identify Customer as its customer and use Customer's name in marketing materials and sales presentations. Such material is subject to the prior review and approval of Customer.
15.4  Neither party shall be responsible for performance of its obligations hereunder where delayed or hindered by war, riots, embargoes, strikes or other occurrences beyond the party's control. Each party shall notify the other party in the event of any of the foregoing occurrences. Should such occurrence continue for more than sixty (60) days, the adversely affected party may cancel this Agreement for the affected Services with no further liability other than charges prorated to the date of such occurrence.
15.5  This Agreement supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any purchase order submitted. This Agreement may not be modified except by written amendment by the parties.
15.6  This Agreement shall be governed by the laws of England and Wales.
15.7  All notices shall be in writing. Notice to Incommsec shall be sent to: Incommsec Ltd, 788-790 Finchley Road, London, NW11 7TJ. Notice to the Customer shall be sent to the Administrative Contact set forth on the Order Form. Either party may change its address by giving notice to the other.
15.8  Credit Approval: The commencement, re-commencement and ongoing provision of Services may be contingent upon continuing credit approval by Incommsec and Customer may be required to submit a deposit.
15.9  The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
15.10       Customer will not export, re-export, transfer, or make available, whether directly or indirectly any Service, any related technology, or any direct product of either to anyone outside the UK in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the UK Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
15.11       Each party shall be responsible for assessing its own need for property, casualty and liability insurance and shall obtain such insurance covering its risks as it sees fit. Each party shall bear the risk of loss and damage with respect to its own equipment and agrees not to make any claims against the other, or assign any such claims to third parties, for any property loss or damage.
15.12       No variation to the provisions of these Terms or Schedules shall be of any effect unless made in writing and agreed and signed by or on behalf of Incommsec and the Customer.

16     SIGNATURE:

S I G N E D   A N D   A G R E E D   B Y   C U S T O M E R
Signature of a Service Order Form (SOF) will be considered acceptance of these terms and conditions. For a copy to be sent to you ask your account manager.

Full Legal Name of Customer__________________________________________________________
Customer company registered no.______________________________________________________
By (Authorized Customer Signature)____________________________________________________
Name and Title (printed)______________________________________________________________
Date______________________________________________________________________________

S I G N E D   A N D   A G R E E D   B Y   I N C O M M S E C
Full Legal Name of Company ______Incommsec Limited__________________________________
Incommsec company registered no.__7351167___________________________________________
By (Authorized Customer Signature)____________________________________________________
Name and Title (printed)____Mr Michael Q. Hainsworth, Director______________________________
Date______/_____/201  _____________________________________________________________