Growth Master Services Agreement

VeUP – Master Services Agreement (MSA)

Introduction
1. VeUP Services
  VeUP offers a curated suite of services, including, but not limited to, AWS Resell, Professional Services, and Managed Services (the “VeUP Services”). More information can be found at https://veup.com/solutions/
  For AWS Services, VeUP acts only as an authorised reseller. AWS (and not VeUP) is the service provider of the AWS Services and AWS alone is responsible for their performance, availability and security.
2. Service Specific Terms
  The specific terms relating to the VeUP Services provided to the Client are set out in separate signed agreements, order confirmations or statements of work agreed between the Client and VeUP (each an “Order Form”). Capitalised terms in this Agreement will have the same meaning as defined in the Order Form, unless separately defined in this Agreement.

This Agreement will apply to each Order Form
This Agreement sets out the general terms and conditions that apply to each Order Form. Each Order Form will form part of this Agreement and will not form a separate contract between VeUP and the Client.

Duration
1. Contract Term
  This Agreement will begin on the first Start Date set out in an Order Form between VeUP and the Client and, subject to clause 2.3, will continue in perpetuity unless and until all Order Forms between VeUP and the Client have come to the end of their specified Contract Term(s) or have been terminated in line with the Termination Rights.

Minimum Term: If the Order Form specifies a minimum term (“Minimum Term”), neither of VeUP nor the Client can terminate this Agreement before the end of the Minimum Term, unless clause 2.3 applies.

Termination rights
Either party may terminate this agreement if any of the termination events specified in clause 12 (Termination) occur. Otherwise, neither party can terminate this agreement before the end of the Contract Term. For the avoidance of doubt, neither party can terminate this agreement for convenience.

Requesting VeUP Services
1. Requesting VeUP Services
  The Client may request VeUP Services by email.
2. Acceptance of Request.
  VeUP is not bound by any request until
  (a) VeUP issues a written order confirmation, or
  (b) both parties sign the Order Form (the “Effective Date”).
  VeUP may decline or require additional information before acceptance.

If VeUP cannot accept the request
If VeUP is unable to accept a prepaid request, VeUP will refund any amount the Client has paid for Services not performed.

VeUP Responsibilities
1. Providing the VeUP Services
  VeUP will use reasonable endeavours to provide the VeUP Services to the Client in accordance with an Order Form in all material respects. VeUP will provide the VeUP Services using reasonable care and skill, in a professional and workmanlike manner, following industry standards, and in strict compliance with all applicable laws and regulations.

Time for performance
VeUP will use reasonable endeavours to meet any performance dates and/or milestones specified in the Order Form, but any such dates are estimates only and time will not be of the essence of this Agreement or the Order Form.

Client Responsibilities
1. Cooperation
  It is the Client’s responsibility to cooperate with VeUP in all matters relating to the VeUP Services and provide VeUP with such information and materials VeUP may reasonably require in order to provide the VeUP Services and ensure that they are complete and accurate.
2. VeUP rights if Client does not fulfil their responsibilities
  If VeUP’s ability to perform the VeUP Services is affected by the Client’s failure to fulfil any obligation in clause 5, VeUP will have the right to suspend performance of the VeUP Services until the Client remedies the default. VeUP will not be responsible for any costs or losses the Client may incur arising directly or indirectly from VeUP’s failure or delay to perform the VeUP Services
3. Compliance with AWS terms & conditions and policies
  This Agreement relates to the VeUP Services only. Separate terms and conditions will apply to the AWS Services the Client purchases from AWS (“AWS End User Agreement”) and the Client agrees to comply with the AWS End User Agreement in all respects. It is the Client’s responsibility to familiarise themselves with the relevant AWS End User Agreement applicable to the specific AWS Services they have selected. VeUP is not responsible for any costs or losses the Client may incur arising directly or indirectly from VeUP’s failure or delay to comply with the AWS End User Agreement. The Client hereby represents and warrants that they have reviewed and agree to comply with the AWS Customer Agreement. The Client further acknowledges and agrees that the AWS Customer Agreement may be updated by AWS from time to time and acknowledges that the Client shall be bound by, and comply with, any such AWS Customer Agreement as updated from time to time. Breach of such terms shall be considered a breach of this Agreement.
4. Client AWS account activity
  The Client is responsible for their AWS account activity, including all charges incurred for AWS Services provisioned to their AWS account(s). The Client is responsible for managing access rights to their AWS account(s) and for keeping the account(s) and password(s) secure. VeUP are not responsible for errors in provisioning or de-provisioning AWS Services on Client AWS account(s).

Suspension of AWS account
As an authorised reseller, VeUP is required in some cases to suspend Client AWS Account(s) under the agreement between VeUP and AWS (including without limitation if the Client has not complied with the AWS End User Agreement). VeUP may also suspend the Client’s AWS account(s) if any of the termination events specified in clause 12 (Termination) occur. VeUP will not be responsible for any costs or losses the Client may incur arising directly or indirectly from VeUP’s failure or delay to perform the VeUP Services or from the Client’s account having been suspended.

AWS suspension of Client account
AWS may suspend Client’s right to access or use any portion or all of the AWS Services immediately upon notice to VeUP. If VeUP receives such notice from AWS, VeUP will notify Client as soon as reasonably practical giving, where possible, reasons for the suspension.

Charges and Payment
1. The fees and charges for the VeUP Services will be set out in the relevant Order Form or order confirmation (“Fees”). The Client agrees to pay the Fees to VeUP in consideration of VeUP providing the VeUP Services to the Client.
2. Client is responsible for paying any additional fees incurred from third-parties due to chosen payment options, e.g. Bank Transfer charges.

VeUP will invoice the Client for the Fees at the intervals specified in the relevant Order Form or order confirmation. If no intervals are specified, VeUP will invoice the Client monthly in arrears based on the Services provided during that period.”

The Client agrees to pay each invoice within 30 days of receipt unless otherwise agreed in the relevant Order Form or order confirmation. Any disputed fees must be brought to VeUP’s attention within ten (10) business days of the invoice date, otherwise all Fees are deemed accepted.

Estimates are not binding
VeUP may provide the Client with an estimate as to what the Fees may be in any given period. Estimates are non-binding.

Interest on late payments
Without prejudice to any other right or remedy that VeUP may have, if the Client fails to pay any sum due under this Agreement on the due date:
1. The Client will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 1.5% per month (or the highest rate permitted by law, if less) on all late payments; and
2. VeUP may suspend part or all of the VeUP Services until payment has been made in full. If VeUP suspends Reseller Services to the Client, the Client remains responsible for all fees incurred during the period of suspension.

Invoice currency
All fees are invoiced in the currency specified in the Order Form and must be settled in that currency.
For AWS Resell, where the Invoice Currency is not USD, VeUP will apply the Exchange Rate as follows:
the mid-market rate from xe.com from the 1^st of the month in which VeUP invoice, +4%.
If any change to the Invoice currency is required, this must be agreed in writing between the Client and VeUP.

VAT on payments
All amounts payable by the Client under this Agreement are exclusive of any applicable value-added tax (VAT) or equivalent sales taxes. Where VAT is applicable, it shall be added to the invoice at the prevailing rate and shall be payable by the Client in addition to the stated amounts.

Recovery Costs
If the Client fails to pay any amount properly due under this Agreement by the due date, the Client shall, on demand, reimburse VeUP for all reasonable costs and expenses (including without limitation, legal fees on an indemnity basis, court fees, and any commissions, success fees or charged levied by third party debt-collection agencies or enforcement officers) actually incurred by VeUP in seeking to recover such overdue sums. This obligation is in addition to, and not in substitution for, any interest or fixed sums recoverable.

Intellectual Property Rights
1. All intellectual property rights in or arising out of or in connection with the VeUP Services (other than intellectual property rights in any materials provided by the Client) will be owned by VeUP.
2. VeUP agrees to grant the Client a fully paid-up, worldwide, non-exclusive, royalty-free licence during the Contract Term to copy the deliverables specified in the Order Form (if any) for the purpose of receiving and using the VeUP Services and such deliverables in the Client’s business. The Client may not sub-license, assign or otherwise transfer the rights granted in this clause.

Personal Data
1. VeUP will use any personal information the Client provides to VeUP to:
  1. provide the VeUP Services;
  2. process Client payment for the VeUP Services; and
  3. inform Client about similar products or services that VeUP provides, but the Client may unsubscribe from VeUP’s email list at any time by contacting VeUP.
2. VeUP will process Client’s personal information in accordance with VeUP’s privacy policy available at https://veup.com/privacy, the terms of which are incorporated into this Agreement.

Confidentiality
1. Each party agrees that they will not at any time during the Contract Term, and for a period of five years after termination of the Agreement, disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 9.2.

Either party may disclose the other’s confidential information:
1. to VeUP or Client employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising either party’s respective rights or carrying out either party’s respective obligations under the Contract. Each party will ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 9; and

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority
The parties may only use each other’s confidential information for the purpose of fulfilling their respective obligations under this Agreement.

Indemnity
1. Indemnification
  Client agrees to indemnify VeUP from and against any losses and liabilities relating to any action AWS may take against VeUP concerning:
  1. Client use of the AWS Services (including any activities under Client AWS account(s) including use by Client employees and personnel or other authorised or unauthorised users);
  2. Client breach of the AWS Customer Agreement or violation of any applicable law; or
  3. any dispute between Client and VeUP, including without limitation any billing dispute which may result in VeUP failing to pay the AWS Fees to AWS when they are due.

Limitation of liability
1. No limitation of the Client’s payment obligations
  Nothing in this clause 11 will limit the Client’s payment obligations under this Agreement including under the indemnity in clause 10:

Liabilities which cannot legally be limited
Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
1. death or personal injury caused by negligence;
2. fraud or fraudulent misrepresentation; and
3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
Financial cap on VeUP liability
Subject to clause 11.2 (liabilities which cannot legally be limited), VeUP’s total liability to the Client will be limited to the fees related to the scope of service agreed.

Some types of losses are excluded
Subject to clause 11.2, this clause 11.4 specifies the types of losses that are excluded:
1. loss of profits;
2. loss of sales or business;
3. loss of agreements or contracts;
4. loss of anticipated savings;
5. loss of use or corruption of software, data or information;
6. loss of or damage to goodwill;
7. indirect or consequential loss;
8. any AWS Fees or other amounts charged by AWS (including penalties, surcharges or overage charges).

Notification of claims
Unless the Client notifies VeUP that they intend to make a claim in respect of an event within the notice period, VeUP will have no liability for that event. The notice period for an event will start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and will expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

Special terms in Order Form
Nothing in this Agreement limits or affects the exclusions and limitations agreed and specified in any Order Form.

Scope of this clause
References to liability in this clause 11 (Limitation of liability) include every kind of liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

Limitation clause after termination
This clause 11 (Limitation of liability) will continue to apply after termination of this Agreement or order confirmation.

Termination
1. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of any term of this Agreement (including Client’s obligation to pay the Fees) and fails to remedy that breach within 14 days of being notified in writing to do so;
  2. 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
  3. the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
  4. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party;
  5. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party;
  6. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1.3 to clause 12.1.5 (inclusive);
  7. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
  8. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
2. VeUP may terminate this Agreement with immediate effect by giving written notice to the Client if

(a) AWS terminates the agreement between VeUP and AWS pursuant to which VeUP is authorized to resell the AWS Services;

(b) AWS ceases to provide the AWS Services or;
(c) VeUP receives notice from AWS related to a termination of Client’s AWS Account, Client violation of the AWS Customer Agreement or any other terms imposed by AWS.

On termination or expiry of this agreement the Client will immediately pay to VeUP all of VeUP’s outstanding invoices and interest (where applicable)t and, in respect of the VeUP Services supplied but for which no invoice has been submitted, VeUP may submit an invoice, which will be payable immediately on receipt.

Events outside VeUP’s control
1. Neither party will be liable or responsible for any failure or delay in the performance of their obligations that is caused by any act or event beyond their reasonable control (“Force Majeure Event”). If a Force Majeure Event takes place that affects the performance of the parties’ obligations:
  1. the affected party will contact the other party as soon as reasonably possible; and
  2. obligations under the Agreement will be suspended and the time for performance of obligations will be extended for the duration of the Force Majeure Event. A new date for performance of the Services will be arranged between the parties after the Force Majeure Event is over.
2. Either party may terminate this Agreement by written notice if a Force Majeure Event continues for more than 30 days. If the Client terminates under this clause:

(a) VeUP will refund any Fees the Client has paid for Services not yet performed, excluding

(i) reasonable costs VeUP has actually incurred up to the date of termination; and
(ii) any AWS Fees or other third-party pass through charges that cannot be recovered; and

(b) VeUP will use commercially reasonable efforts to mitigate any non-cancellable third-party costs.

General
1. References to VeUP include its affiliates
  References to “VeUP”, “we”, “our” and “ours” in this Agreement include any of VeUP’s group companies and affiliated entities. That means that, even if the Client signs an Order Form with a particular VeUP entity, the Client may be invoiced by another VeUP entity and the Client is responsible for paying such invoices in accordance with the agreed payment terms.
2. Assignment and transfer
  1. VeUP may assign or transfer VeUP’s rights and obligations under the Agreement to another entity but will always notify the Client in writing if this happens.

The Client may only assign or transfer their rights or obligations under the Agreement to another person if VeUP agrees in writing.
Variation
Any variation of this Agreement or an Order Form only has effect if it is in writing and signed by the Client and VeUP or VeUP’s respective authorised representatives.
Notices
1. When VeUP refers to “in writing” in these Terms, this includes email.

Any notice or communication given under or in connection with this Agreement must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, or email.

A notice or other communication is deemed to have been received:
- if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
- if sent by email, at 9.00 am the next working day after transmission.

The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
Waiver
If VeUP do not insist that the Client performs any of their obligations under this Agreement or an Order Form, or VeUP do not enforce VeUP’s rights against the Client, or VeUP delay in doing so, that will not mean that VeUP have waived VeUP’s rights against the Client or that the Client do not have to comply with those obligations. If VeUP do waive any rights, VeUP will only do so in writing, and that will not mean that VeUP will automatically waive any right related to any later default by the Client.
Severance
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of this Agreement.
Third party rights
This Agreement is between the Client and VeUP. No other person (other than VeUP’s group companies and affiliated entities) has any rights to enforce any of its terms.
Governing law and jurisdiction
This Agreement and each Order Form is governed by English law and both parties each irrevocably agree to submit all disputes arising out of or in connection with it to the exclusive jurisdiction of the English courts.