Master Services Agreement

 
 

 

IT IS AGREED as follows:

 

1.     INTRODUCTION

1.1.  MT is a marketing technology solution provider, specialising in helping marketing professionals make informed decisions on measuring and optimising their multi-channel marketing efforts;

1.2.  The Client wishes to engage MT to prove the services detailed in Schedule 1 ( the “Services”), subject to, and in accordance with, the terms and conditions of this Agreement;

1.3.  MT has agreed to accept such engagement and shall provide the Services to the Client, subject to, and in accordance with, the terms and conditions of this Agreement.

2.           INTERPRETATION

2.1.  Definitions:

2.1.1.     “Data Controller” as defined in Art. 4 of GDPR

2.1.2.     “Data Processor” as defined in Art. 8 of GDPR

2.1.3.     “Personal Data” as defined in Art. 4 of GDPR

2.1.4.     “The Act” the Data Protection Act

2.1.5.     “The Directive” General Data Protection Regulation or GDPR

2.1.6.     “Quote” refers to your formal quote from MT

2.2.  each reference in these terms and conditions to:

2.3.  “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

2.4.  A statute or a provisions of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

2.5.  a Clause or paragraph is a reference to a Clause of these terms and conditions.

 

3.     PROVISION OF SERVICES AND SUPPORT

3.1.  Subject to the terms of this Agreement, MT will use its best and reasonable endeavours to provide the Services in accordance with the Service Level Terms attached hereto as Schedule 2. As part of the registration process, the Client will identify an administrative user name and password for Client’s account.  MT reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

3.2.  Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Schedule 3.

 

4.     ACCESS TO SERVICES AND PERSONAL DATA

4.1.  The Client represents and warrants that they have the authority to enter into the Agreement, to use the Services, and to perform any and all acts as may be necessary under these terms and conditions.

4.2.  In order to use the Services, the Client is required to submit certain Personal Data. By accepting these terms and conditions the Client represents and warrants that

4.2.1.     any information that is submitted is accurate and truthful;

4.2.2.     all such information will be kept accurate and up-to-date; and

4.2.3.     the means by which they identify themselves does not violate any part of these terms and conditions or any applicable laws.

4.3.  MT is only to process Personal Data:

4.3.1.     for the purposes of the Services and not for any other purpose; and

4.3.2.     to the extent and in such manner as is necessary for those purposes.

4.4.  MT shall promptly comply with any request from the Client requiring MT to amend, transfer or delete the Personal Data.

4.5.  MT shall comply at all times with the Act and shall not perform its obligations under this Agreement or any other agreement or arrangement with the Data Controller in such a way as to cause the Data Controller to breach any of its applicable obligations under the Act.

4.6.  MT agrees to comply with any reasonable measures required by the Data Controller to ensure that its obligations under this Agreement are satisfactorily performed in accordance with all applicable legislation from time to time in force and any best practice guidance issued by the ICO

4.7.  Where MT processes Personal Data (whether stored in the form of physical or electronic records) on behalf of the Data Controller it shall:

4.7.1.     not process the Personal Data outside the United Kingdom without the prior written consent of the Data Controller and, where the Data Controller consents to such a transfer, to comply with the obligations of a Data Controller under the Eighth Dada Protection Principle set out in Schedule 1 of the Act by providing an adequate level of protection to any Personal Data that is transferred;

4.7.1.1.          By signing this agreement, the Client consents to Personal Data being processed by MT’s sub-processors listed here, https://www.m-t.io/sub-processors, some of whom may process date outside of the UK.

4.7.2.     not transfer any of the Personal Data provided to it by the Data Controller to any third party without the written consent of the Data Controller;

4.7.3.     process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations to the Data Controller or as is required by law or any regulatory body including but not limited to the ICO;

4.7.4.     implement appropriate technical and organisational measures and take all steps necessary to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, and promptly supply details of such measures as requested from the Data Controller;

4.7.5.     if so requested by the Data Controller (and within the timescales required by the Data Controller) supply details of the technical and organisational systems in place to safeguard the security of the Personal Data held and to prevent unauthorised access

4.7.6.     notify the Data Controller (within two working days) if it receives:

4.7.6.1.          a request from a data subject to have access to that person’s Personal Data; or

4.7.6.2.          a complaint or request relating to the Data Controller’s obligations under the Act;

4.7.7.     provide the Data Controller with full co-operation and assistance in relation to any complaint or request made, including by:

4.7.7.1.          providing the Data Controller with full details of the complaint or request;

4.7.7.2.          complying with a data access request within the relevant timescale set out in the Act and in accordance with the Data Controller’s instructions;

4.7.7.3.          providing the Data Controller with any Personal Data it holds in relation to a data subject (within the timescales required by the Data Controller);

4.7.7.4.          providing the Data Controller with any information requested by the Data Controller;

4.7.8.     notify the Client immediately if it becomes aware of any unauthorised or unlawful processing, loss of, damage to or destruction of any of the Personal Data

4.8.  MT shall be liable for and shall indemnify (and keep indemnified) the Data Controller against each and every action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and disbursements on a solicitor and client basis) and demand incurred by the Data Controller which arise directly or in connection with MT’s data processing activities which are subject this Agreement.

4.9.  All copyright, database right and other intellectual property rights in any Personal Data processed which is subject to this Agreement (including but not limited to any updates, amendments or adaptations to the Personal Data by either the Data Controller or MT) shall belong to the Data Controller. MT is licensed to use such Personal Data under such rights only for the term of, for the purposes of the Services, and in accordance with this Agreement.

4.10.                 MT shall not sub-contract to any third party any of its rights or obligations under this Agreement without the prior written consent of the Data Controller. Where MT, with the written consent of the Data Controller, does sub-contract, it shall do so only by way of a written sub-processing agreement with the subcontractor which imposes the same obligations on the subcontractor as are imposed on MT under this Agreement and which permits both MT as the Data Processor and the Data Controller to enforce those obligations. For the avoidance of doubt, where the sub-contractor does not meet its obligations under any sub-processing agreement, the Data Processor shall remain fully liable to the Data Controller for meeting its obligations under this Agreement.

5.     FEES AND PAYMENTS

5.1.  As consideration for all the services mentioned in article 3 above, Client shall pay MT the fees as defined in your Quote:

5.2.  If Client’s use of the Services exceeds the service capacity or otherwise requires payment of additional fees, the Client shall be billed for such usage and Client agrees to pay the additional fees in 30 days from the end of the service period.

5.3.  All fees quoted excludes applicable taxes.

5.4.  Any commission charges shall include all spend tracked through Marketing Town, irrespective of whether the cost is assigned to the action in Marketing Town.

5.5.  MT reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the renewal term, upon thirty (30) days prior notice to Client (which may be sent by email).

5.6.  If Client believes that MT has billed Client incorrectly, Client must contact MT no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to MT’s customer support department.

5.7.  £50 late payment fees apply on payments overdue by 10 days, £150 late payment fees apply on payments overdue by 20 days, 1.5% of total invoice sum per day from invoice due date apply on payments overdue by 30 and more days.

 

6.     TERM AND TERMINATION

6.1.  Subject to earlier termination as provided below, this Agreement is for the term speficied in your Quote and shall be automatically renewed for additional periods of the same duration, unless either party requests termination at least ninety (90) days prior to the end of the then-current term.

6.2.  In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  Client will pay in full for the Services up to and including the last day on which the Services are provided.

7.     WARRANTY AND DISCLAIMER

MT shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by MT or by third-party providers, or because of other causes beyond MT’s reasonable control.

 

8.     LIMITATION OF LIABILITY

Notwithstanding anything to the contrary, except for bodily injury of a person, MT and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this Agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond MT’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by client to MT for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not MT has been advised of the possibility of such damages.

9.     INTELLECTUAL PROPERTY RIGHTS

The Services and related documentation are copyright works of authorship and are also protected under applicable database laws. Tech Essence Ltd retains ownership of the Services, all subsequent copies of the Services and all intellectual property rights subsisting therein, regardless of the form in which such copies may exist. These Terms and Conditions are not a sale of the original Services or any copies thereof.

10.  USE OF LOGO

Client hereby grants to MT the express right to use Client's company logo in marketing, sales, financial, and public relations materials and other communications solely to identify Client as a MT customer.

11.  NON SOLICITATION

11.1.                 The Client shall, for the Term of this Agreement and for a period of 3 months after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged MT at any time in relation to this Agreement without the express written consent of MT.

11.2.                 The Client shall, for the term of this Agreement and for a period of 3 months after its termination or expiry, solicit or entice away from MT any customer or client where any such solicitation or enticement would cause damage to the business of MT without the express written consent of MT.

12.  SEVERANCE

Whilst every effort has been made to ensure that these terms and conditions adhere strictly with the relevant provisions of the Unfair Contract Terms Act 1977, in the event that any of these terms are found to be unlawful, invalid or otherwise unenforceable, that term is to be deemed severed from these terms and conditions and shall not affect the validity and enforceability of the remaining terms and conditions. This term shall apply only within jurisdictions where a particular term is illegal.

13.  NOTICES

All notices / communications shall be sent to Tech Essence Ltd by post to our premises (Tech Essence Limited3 Waterhouse Square 138 Holborn, London, EC1N 2SW). Such notice will be deemed received: (a) 5 days after posting if sent by registered or certified mail or first class post; (b) when delivered, if delivered personally or sent by express courier service to the address above.

14.  LAW AND JURISDICTION

14.1.                 These terms and conditions, the Agreement and all other aspects of the relationship between the Client and MT shall be governed by and construed in accordance with the Laws of England and Wales.

14.2.                 Any dispute between the Client and MT relating to these terms and conditions, the Agreement and all other aspects of the relationship shall fall within the exclusive jurisdiction of the courts of England and Wales.

SCHEDULE 1

Services

A GDPR ready performance marketing tracking solution hosted under https://console.marketing-town.com, access to which is subject to the terms specific in the Marketing Town Terms of Service (http://tech-essence.com/terms- of-service/).

 

For the avoidance of doubt, should there be any conflicting provisions between the Marketing

Town Terms of Service and this agreement, the provisions of this agreement shall prevail.

 

Fair Usage Policy:

Included in your license, shall be a restriction on the number of actions you can process of no less than 100,000. For clarity, an action is a request to our https://marketing-town.com/action or any similar end-point, considered valid by the settings for the campaign. Additional usage over the included number of actions will be charged at £2/1000 valid actions, or 6% of gross spend, whichever is higher.


Schedule 2

Service Level Terms

Service level agreements:

99.999% uptime per month for action tracker

99% uptime for user interface hosted under console.marketing-town.com


Schedule 3

Support Terms

1.     Support Request Submission

1.1.  Customer Efforts to Fix Errors. Prior to making a request to Tech Essence, Customer will use reasonable efforts to fix any setup, error, bug, malfunction or network connectivity defect without escalation to Tech Essence. Thereafter, a Customer Contact may submit a written request for technical support through the Marketing Town Support portal.

1.2.  Characterisation of Requests. Upon receiving a request, Tech Essence will determine whether the request is a "Service Unusable," "Standard Request" or a "Feature Request." Any such determination made by Tech Essence is final and binding on Customer. Tech Essence reserves the right to change Customer’s priority designation if Tech Essence believes that Customer’s designation is incorrect and will inform Customer of any such change in its response to the support Request. Customer may appeal any such reclassification to Tech Essence’s Support management for review through any available support channel.

1.3.  Procedures for Acknowledgement and Resolution of Requests. When making a Request, Customer will provide all requested diagnostic information and assist Tech Essence Support Personnel as may be required to resolve a Request.

2.     Request Acknowledgement

Tech Essence may respond to a Request by acknowledging receipt of the Request. Customer acknowledges and understands that Tech Essence may be unable to provide answers to, or resolve all, Requests.

3.     Feature Requests

If Tech Essence deems a Request to be a Feature Request, Tech Essence will log such Request for consideration to add to a future update or release of the Services and will consider the matter closed. Tech Essence is under no obligation to respond to or resolve any Feature Request or to include any such Feature Request in any future update or release.

4.     Building Applications

For clarity, Tech Essence will not have any obligation to write or build any Applications or write code to facilitate Applications.

5.     Alpha and Beta.

Although Tech Essence has no obligation to provide access for Alpha or Beta versions, features, or functionality of the Services, we will consider Requests at these development stages on a case-by-case basis.

6.     Accessing Support

Designated Support Contacts. Customer will provide first-level support to Customer End Users. Tech Essence will provide second-level support to Customer only. If Customer wishes to change its Designated Contacts, it will notify Tech Essence via the Marketing Town Support Centre at least 5 Business Days prior to the change. If on the date these updated Guidelines were first posted Customer has more Designated Contacts than are set forth under the applicable Support level under Section 4 below, the current Contacts will continue to be allowed until the expiration of the current license term for the applicable Services under the Agreement.

 

7.     Support Hours and Target Initial Response Times

 Tech Essence will process Requests during the Hours of Operation, unless otherwise indicated in these Guidelines. Any Requests received outside of the Hours of Operation will be logged and processed during the next Business Day. Target initial response times are based on the subscribed support level.

 

8.     General Provisions

8.1.  Maintenance. To ensure optimal performance of the Services, Tech Essence performs periodic Maintenance. In most cases, Maintenance will have limited or no negative impact on the availability and functionality of the Services. If Tech Essence expects planned Maintenance to negatively affect the availability or functionality of the Services, Tech Essence will use commercially reasonable efforts to provide at least 7 days’ advance notice of the Maintenance. In addition, Tech Essence may perform emergency unscheduled Maintenance at any time. If Tech Essence expects such emergency unscheduled Maintenance to negatively affect the availability or functionality of the Services, Tech Essence will use commercially reasonable efforts to provide advance notice of such Maintenance. Maintenance notices noted above will be provided via the Marketing Town Support Centre.

8.2.  Language Support Generally. The parties agree that all support provided by Tech Essence pursuant to these Guidelines will be provided in the English language.

 

9.     Support Levels

9.1.  Classic.

The Classic support level includes the following, and Tech Essence will provide it to all customers under the Agreement: automatic Services upgrades and maintenance updates, support for billing inquiries, access to documentation, white papers, online best practices guides, and community forums.

9.2.  Enhanced.

The Enhanced support level includes all the items in the Classic level plus the following: support requests accepted via the Marketing Town Support Centre for questions about Services functionality, best practice guidance on how to use the Services, and Services errors reports. P1 Priority Support Requests are responded to with a target initial response time of 4 hours and are responded to during Hours of Operation. P2, P3 & P4 Priority Support Requests are responded to with an initial target response time of 8 hours and are responded to during the Hours of Operation.

9.3.  Premium.

The Premium support level includes all the items in the Enhanced level plus the following: phone support during Hours of Operation, consultation on application use, and specific guidance on how to use the Services for Customer's proposed use case. P1 Priority Support Requests are responded to with a target initial response time of 1 hour and are responded to during Hours of Operation. P2 Priority Support Requests are responded to with an initial target response time of 4 hours and are responded to during the Hours of Operation. P3 & P4 Priority Support Requests are responded to with an initial target response time of 8 hours and are responded to during the Hours of Operation.

9.4.  Elite.

The Elite support level includes all the items in the Premium level plus the following: Designated Contacts. P1 Priority Support Requests are responded to with a target initial response time of 1 hour and are responded to with Priority. P2 Priority Support Requests are responded to with a target initial response time of 4 hours and are responded to with priority. P3 & P4 Priority Support Requests are responded to with an initial target response time of 8 hours and are responded to during the Hours of Operation. The Elite support level includes access to Tech Essence technical account management team described in Section 4.5 below.

9.5.  Technical Account Management (additional fees apply).

Customer will receive access to Tech Essence technical account management team to: (a) assist with Customer in developing a strategy with respect to the Services, (b) provide best practice advice regarding implementation and use of the Services, and (c) manage technical support escalations and coordinate with Tech Essence subject matter experts to address technical inquiries related to the Services.

10.  Definitions

10.1.                 "Business Day" means any day during the Hours of Operation.

10.2.                 "Business Hours in Japan" means 09:00 to 17:00 on Monday to Friday Japan Standard Time except for regional holidays documented in the Marketing Town Support Centre.

10.3.                 "Designated Contacts" means administrators or technical employees designated by Customer who can contact Tech Essence for technical support.

10.4.                 "Feature Request" means a Request by a Contact to incorporate a new feature or enhance an existing feature of the Services that is currently not available as part of the existing Services.

10.5.                 Marketing Town Support Centre is currently located at https://support.marketing-town.com/ (or such other URL that may be provided by Marketing Town).

10.6.                 " Tech Essence Support Personnel" mean the Tech Essence representatives responsible for handling technical support requests.

10.7.                 "Hours of Operation" means 17:00 on Sunday to 17:00 on Friday London Time Zone, except for holidays in local time for each region documented in the Tech Essence Support Centre.

10.8.                 "Maintenance" means maintenance work that is performed on hardware or software delivering the Services.

10.9.                 "Request" means a request from a designated Contact to Tech Essence Support Personnel for technical support to resolve a question or problem report regarding the Services.

10.10.             "Services" are defined in the Agreement.

10.11.             "Service Unusable" is any situation where Customer, adhering to published technical guidelines for and documented correct usage of the Services, is unable to access or use the Services for most its Customer End Users for a period of time greater than fifteen (15) minutes.

10.12.             "Standard Request" means a Request made by Customer to Tech Essence that is not a Service Unusable Request or Feature Request.

10.13.             "Priority" means the level of impact a Request is having on Customer’s operations and is used to establish initial target response times.

10.14.             "P1" means Critical Impact – Service Unusable in Production

10.15.             "P2" means High Impact – Service Use Severely Impaired

10.16.             "P3" means Medium Impact – Service Use Partially Impaired

10.17.             "P4" means Low Impact – Service Fully Usable