MASTER SERVICES AGREEMENT – DATA PRODUCTS

DEFINITIONS
Except to the extent expressly provided otherwise, in this Agreement:

“Agreement” means this Agreement as described in Clause 1.1 including any amendments to this Agreement from time to time;

“Applicable Data Protection Law” means the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and all applicable laws and regulations relating to the processing of the personal data and privacy;

“Business Day” means any weekday other than a bank or public holiday in England;

“Business Hours” means the hours of 09:00 to 18:00 on a Business Day;

“Contract Standard” means any standard concerning performance of the Services which is set out in the Order Form, or the SLA;

“Customer Data” means any of Your data which you provide or which is provided on Your behalf to Us pursuant to the Agreement, either directly or indirectly (including data made available via an API) as further described in the Order Form;

“Customer Licensed Third Party Data” means any data which is licensed to you by a third party that You provide or which is provided on Your behalf to Us pursuant to the Agreement, either directly or indirectly (including data made available via an API) as further described in the Order Form;

“Customer Open Third Party Data” means any publicly available third party data that You provide or which is provided on Your behalf to Us pursuant to the Agreement, either directly or indirectly (including data made available via an API) as further described in the Order Form;

“Data Platform” means Our technology platform that processes Harness Data, Customer Data and Third Party Data;

Data Processing Agreement” means the data processing agreement entered into between the parties which governs Your role as data controller and Our role as data processor with regards to the processing of personal data during the performance of the relevant Services;

“Data Product” means the data product which We will deliver to You pursuant to the Services;

“Data Use” means, in respect of data supplied under the Agreement, the manner in which it may be used by the receiving party. In respect of each relevant type of data, such manner of use is described in the Order Form;

“Effective Date” means the date stated in the Order Form upon which the Agreement will commence;

“Fees” means the fees for the Services as set out in the Order Form and/or The Special Terms as may be varied from time to time in accordance with Clause 13.5;

“Force Majeure” means circumstances beyond reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, “Acts of God” (i.e. fire, flood, earthquake, tornado, etc…), pandemic, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Agreement.

“Harness Data” means all Our data which we provide to You pursuant to the Services (including HPID) either directly or indirectly (including data made available via an API) as further described in the Order Form;

“Harness IPR” means all Intellectual Property Rights in the Data Platform, the Data Products, Harness Data and any other Intellectual Property Rights related in any way whatsoever to the Services (including any modifications thereto which are made during the course of the Services to meet Your specific requirements), with the exception of any Intellectual Property Rights in Customer Data and Third Party Data;

“Harness Licensed Third Party Data” means any data which is licensed to Us by a third party that we provide to You pursuant to the Services either directly or indirectly (including data made available via an API) as further described in the Order Form;

“Harness Open Third Party Data” means any publicly available third party data that We provide to You pursuant to the Services, either directly or indirectly (including data made available via an API) as further described in the Order Form;

“HPID” means the HARNESS Property Identification reference; Our unique reference for identifying a commercial property unit, or addressable object;

“Fixed Term” means the duration of this Agreement following the Effective Date as stated in the Order Form;

“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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 that subsist or will subsist now or in the future in any part of the world;

“Order Form” means an order form which will need to be executed by You and Us in order to commence the provision of the Services;

“Services” means the relevant data services described in Section 1.3 provided by Us to You pursuant to the Agreement;

“Special Terms” means additional terms and conditions which We may enter into with You relating to the Services;

“SLA” means the service level agreement between Us and You which describes the service standards We are required to meet in providing the Services;

“Term” means the term of the Agreement as set out in Clause 2 or as earlier terminated in accordance with Clause 10;

“Third Party Data” means Harness Licensed Third Party Data, Harness Open Third Party Data, Customer Licensed Third Party Data and Customer Open Third Party Data;

“Us” “We” “Our” means HARNESS Data Intelligence Ltd of c/o Mercer & Hole, 21 Lombard Street, London, United Kingdom, EC3V 9AH;

“You” “Your” means the party receiving the Services, as identified in the Order Form.

1. THE AGREEMENT
1.1. In respect of each of the Services that we provide to You a separate Agreement will apply (the “Agreement”). In each case the Agreement sets out the terms and conditions under which We will provide Services to You. In respect of each such Services, the Agreement is comprised of:

(a) The Data Processing Agreement which is located at https://harnessdata.ai/policy/dpa and is hereby incorporated into this document and under which You are referred to as the Data Controller;
(b) Any Special Terms agreed between the parties in respect of such Services;
(c) This Master Services Agreement;
(d) The relevant Order Form; and
(e) The SLA.
1.2. If there is any conflict between any of the provisions of the Data Processing Agreement, the Special Terms, this Master Services Agreement, the Order Form, the SLA the order of precedence shall be as follows: (1) the Data Processing Agreement, (2) the Special Terms, (3) this Master Services Agreement, (4) the Order Form, (5) the SLA.

1.3. In order for the Agreement to have effect, an Order Form describing the relevant data services which You require (the “Services”) must be executed by both parties. Whilst We will give due consideration to any Order Form submitted, We are not under any obligation to accept it or to provide any reason for rejecting it.

1.4. Upon execution of an Order form we will provide the Services to You.

1.5. This Agreement only applies to Services concerning properties located in the United Kingdom. Any Services concerning properties based in other territories will need to be dealt with in a separate agreement.

2. TERM
2.1. The Agreement shall come into force upon the Effective Date and continue for the Fixed Term.

2.2. The Agreement will terminate at the end of the Fixed Term. Any extension of the Agreement will be subject to the parties executing a new Order Form.

3. HARNESS IPR
3.1. The Intellectual Property Rights in the Harness IPR are, and shall remain, Our exclusive property.

3.2. We grant You a non-exclusive, non-transferable licence to use the Harness IPR for the sole purpose of exercising Your rights pursuant to the Agreement for the duration of the Term.

3.3. We warrant to You that in respect of the Harness IPR licensed to You pursuant to Clause 3.2, we hold all authorities and consents necessary to grant such licence.

3.4. We shall indemnify and hold You harmless from all losses, claims, costs proceedings, damages and expenses (including legal fees) awarded against or incurred or paid by You as a result or in connection with any alleged or actual infringement, of any third party’s Intellectual Property Rights arising out of the use by You of Harness IPR in accordance with the licence granted to You pursuant to Clause 3.2.

3.5. For the avoidance of doubt under no circumstances may You sub-licence, sell or otherwise transfer any of the Data Product or any other part of the Harness IPR to any third party.

3.6. You shall not under any circumstances use the Harness Data for any purpose other than the Data Use.

4. CUSTOMER DATA
4.1. The Intellectual Property Rights in the Customer Data are, and shall remain, Your exclusive property.

4.2. You grant Us a non-exclusive, non-transferable licence to use the Customer Data for the sole purpose of exercising Our obligations pursuant to the Agreement for the duration of the Term.

4.3. You warrant to Us that in respect of the Customer Data licensed to Us pursuant to Clause 4.2, You hold all authorities and consents necessary to grant such licence.

4.4. You shall indemnify and hold Us harmless from all losses, claims, costs proceedings, damages and expenses (including legal fees) awarded against or incurred or paid by Us as a result or in connection with any alleged or actual infringement, of any third party’s Intellectual Property Rights arising out of the use by Us of Customer Data in accordance with the licence granted to Us pursuant to Clause 4.2.

4.5. We will not disclose or publish Customer Data supplied by You or on Your behalf to any third party or any public domain (other than to Our employees, subcontractors and/or agents on a need to know basis) without Your prior written consent.

4.6. The restrictions in Clause 4.5 shall not apply to any Customer Data which duplicates any data which We have independently obtained outside of the scope of this Agreement.

4.7. We will use reasonable endeavours to ensure that Customer Data is not altered in a way as to misrepresent any of the information contained in it. However You acknowledge that Harness will need to cleanse, modify and edit Customer Data for the purposes of providing the Services.

4.8. We shall not under any circumstances use the Customer Data for any purpose other than the Data Use.

5. THIRD PARTY DATA
5.1. With regards to Harness Licensed Third Party Data:

5.1.1. We grant You a non-exclusive, non-transferable sub-licence to use the Harness Licensed Third Party Data for the sole purpose of exercising Your rights pursuant to the Agreement for the duration of the Term.
5.1.2. You shall pay us any applicable royalty fees for use of such Harness Licensed Third Party Data as may be specified in the Order Form, which shall be in addition to your payment of the Fees.
5.2. We warrant to You that:

5.2.1. In respect of the Harness Licensed Third Party Data licensed to You pursuant to Clause 5.1, We hold all necessary authorities and consents necessary to grant such licence; and
5.2.2. Your use of the Harness Open Third Party Data, for the sole purpose of exercising Your rights under this Agreement for the duration of the Term shall not infringe the rights of any third party.
5.3. We shall indemnify and hold You harmless from all losses, claims, costs proceedings, damages and expenses (including legal fees) awarded against or incurred or paid by You as a result or in connection with any alleged or actual infringement, of any third party’s Intellectual Property Rights arising out of (i) the use by You of Harness Licensed Third Party Data in accordance with the licence granted to You pursuant to Clause 5.2.1 and/or (ii) the use by You of Harness Open Third Party Data for the sole purpose of exercising Your rights under the Agreement for the duration of the Term.

5.4. Under no circumstances may You share or use the Harness Licensed Third Party Data licensed to You pursuant to Clause 5.1 or the Harness Third Party Open Data for any purpose other than the Data Use, provided always that nothing shall prevent You from obtaining a separate licence directly from the relevant third party to use the Harness Licensed Third Party Data for Your own purposes.

5.5. You grant Us a non-exclusive, non-transferable sub-licence to use the Customer Licensed Third Party Data for the sole purpose of exercising Our rights pursuant to the Agreement for the duration of the Term.

5.6. You warrant to Us that:

5.6.1. In respect of the Customer Licensed Third Party Data licensed to Us pursuant to Clause 5.5, You hold all necessary authorities and consents necessary to grant such licence; and
5.6.2. We may use or share the Customer Open Third Party Data both for the purposes of fulfilling our obligations under the Agreement and for any other reason whatsoever, and such use or sharing shall not infringe the Intellectual Property Rights of any third party.
5.7. You shall indemnify and hold Us harmless from all losses, claims, costs proceedings, damages and expenses (including legal fees) awarded against or incurred or paid by Us as a result or in connection with any alleged or actual infringement, of any third party’s Intellectual Property Rights arising out of the use by Us of Customer Licensed Third Party Data in accordance with the licence granted to Us pursuant to Clause 5.5 and/or the use by Us of Customer Open Third Party Data for any purpose whatsoever.

5.8. Under no circumstances may We share or use the Customer Licensed Third Party Data licensed to Us pursuant to Clause 5.5 for any purpose other than the Data Use, provided always that nothing shall prevent Us from obtaining a separate licence directly from the relevant third party to use the Customer Licensed Third Party Data for Our own purposes.

5.9. Neither party may seek to rely on the indemnities in Clauses 3.4, 4.4, 5.3 and/or 5.7 where the alleged or actual infringement of the relevant third party’s Intellectual Property Rights arises from the use, sharing or modification of the data in question, by the party seeking to rely on the indemnity, in a manner which is not permitted under this Agreement.

6. SECURITY OF DATA
6.1. Each party warrants:

6.1.1. that in respect of any data which it receives from the other, it will take appropriate technical and organisational measures necessary to protect it from loss or unauthorized access to a level which is reasonable, taking into account the nature of such data and its rights and obligations pursuant to this Agreement; and
6.1.2. that it will take all appropriate technical and organisational measures necessary to ensure that all of its APIs, GUIs, email or any other means by which it sends data to or receives data from the other (whether via the internet or otherwise) are secured against loss of or unauthorized access to such data.
6.1.3. that to the best of its knowledge any data which it provides to the other will be free from viruses, disabling programs and devices.
6.2. Each party will allow the other to audit its compliance with Clauses 6.1.1 and 6.1.2, provided that the auditing party shall provide the other party with at least [1] month’s prior written notice and shall not undertake more than one audit per year. Audits shall be conducted using an independent third party auditor and the costs of the audit shall be borne by the auditing party.

7. CONFIDENTIALITY
7.1. Each party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives of the other party which are of a confidential nature, together with any other information which is expressed to be confidential and which it receives pursuant to this Agreement.

7.2. Without prejudice to the generality of Clause 7.1, You shall not disclose such confidential information of Ours to any company in Your group or to any other third party in which You or any company in Your group has a direct or indirect interest which provides any services which are the same as or similar to any services which We provide.

7.3. Each party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know for the purpose of discharging its obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality equivalent to those set out in this Clause 7. This Clause 7 shall survive termination of the Agreement.

7.4. You may not disclose the terms of the Agreement to any third party. If You enter into negotiations with an alternative provider You must not seek to procure services from such alternative provider by reference to Our Services and/or Harness IPR.

7.5. For the avoidance of doubt the processing of any personal data by Us as data processor or sub-processor shall be governed under the terms and conditions of the Data Processing Agreement and not this Clause 7.

8. DATA PROTECTION
8.1. To the extent that We process any personal data on Your behalf, then any such data processing shall be carried out in accordance with the Data Processing Agreement. The Data Processing Agreement shall form part of the Agreement and all the provisions of the Agreement shall apply to it, unless there is a conflict in which case the relevant provision of the Data Processing Agreement shall take precedence over the conflicting provision.

8.2. You warrant that Your sharing of any personal data with Us shall be in accordance with all Applicable Data Protection Law and that You have in place all necessary consents and authorisations to share such personal data with Us.

9. LIMITATIONS AND EXCLUSIONS OF LIABILITY
9.1. Nothing in the Agreement will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation; or
(c) limit or exclude any liabilities in any way that is not permitted under applicable law.
9.2. The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:

(a) are subject to Clause 9.1 and Clause 9.6; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
9.3. Neither party shall be in breach of the Agreement nor liable for delay in performing or failure to perform any of its obligations under the Agreement if such a delay or failure results from Force Majeure.

9.4. Neither party will be liable to other in respect of any special, indirect or consequential loss or damage including loss of profits, revenue, use loss of opportunities.

9.5. The liability of either party to the other under the Agreement in respect of any event or series of related events shall not exceed an amount which is equivalent to the total Fees payable by You to Us pursuant to the Agreement in respect of the Services provided in the twelve months prior to the event (or first of the series of events) in question.

9.6. The limitations and exclusions of liability set out in Clause 9.4 and Clause 9.5 shall not apply in respect of any breach of Clause 7 or any of Your obligations concerning payment for the Services.

 

10. TERMINATION
10.1. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of the Agreement. For the avoidance of doubt any breach of Clause 3.5, Clause 4.5, Clause 5.4, Clause 5.8, Clause 7, Clause 8.2 and/or Clause 14 shall be a material breach of the Agreement.

10.2. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement).
10.3. You may terminate the Agreement by giving Us written notice following any failure by Us to meet the same Contract Standard three times in three consecutive months, where in each case We fail to rectify such failure within fifteen working days.

11. EFFECTS OF TERMINATION
11.1. Upon the termination of the Agreement, all of the provisions of the Agreement shall cease to have effect, save that the following provisions of the Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 3.4, 3.5, 4.4, 4.5, 5.3, 5.4, 5.7, 5.8, 7, 9 and 11.2.

11.2. Upon termination of the Agreement, You will pay all sums due to Us at the date of such termination. We will not make any partial or full refunds for Services You have paid for prior to termination, or are due to Us from any notice period that applies.

11.3. Upon termination of the Agreement any licence granted pursuant to Clause 3.2, Clause 4.2, Clause 5.1 and Clause 5.5 shall immediately terminate.

11.4. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

12. NOTICES
12.1. Any notice from one party to the other party under the Agreement must be given by one of the following methods:

(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or
(c) sent by email, in which case the notice will be deemed to be received upon confirmation by the other party, either by way of submission of delivery receipt or by responding to the email, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
12.2. The parties’ contact details for notices under this Clause 12 are as follows:

(a) in the case of notices sent by You to Us pursuant to Clauses 12.1.(a) or 12.1.(b), Our address, as written in the ‘Definitions’ section above;
(b) in the case of notices sent to by You to Us via email: team@harnessproperty.com; and
(c) in the case of notices sent by Us to You, Your address (or email address as the case may be) as written in the Order Form.
12.3. The addressee and contact details set out in Clause 12.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 12.

13. GENERAL
13.1. Both parties will comply and with all laws, statutes and other regulatory and compliance standards which relate to any of the activities contemplated under the Agreement.

13.2. No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.

13.3. If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

13.4. Subject to Clause 13.5, the Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

13.5. We may vary the Fees (including any royalty fees) by giving You 30 days written notice. Such variation will only occur in the event that the cost to Us of supplying the Services to You increases and We need to pass those increases on to You.

13.6. You may not without Our prior written consent assign, transfer, charge, license or otherwise deal in or dispose of any of Your contractual rights or obligations under the Agreement.

13.7. We may not without Your prior written consent assign, transfer, charge, license or otherwise deal in or dispose of any of Our contractual obligations under the Agreement, provided always that Your consent will not be required in order for Us to sub-contract any of Our contractual obligations.

13.8. This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

13.9. Subject to Clause 9.1.(b), this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous Agreements, arrangements and understandings between the parties in respect of that subject matter.

13.10. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.

13.11. This Agreement shall be governed by and construed in accordance with English law.

13.12. The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

14. PAYMENT TERMS
You shall pay all Fees in accordance with our payment terms, details of which are set out in the Order Form.

15. INTERPRETATION
15.1. In this Agreement, a reference to a law, statute or statutory provision includes a reference to:

(a) that law, statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
15.2. In this Agreement words “include”, “includes”, “including” and “included” will be construed without limitation.