PRIMARY FRAMEWORK AGREEMENT VERSION 2.11

 

This outsourcing agreement forms the contractual framework for the customer to outsource projects and services to the Vendor Global Enterprise Networks Limited, the GEN Partnership and its companies, hereafter referred to as GEN. This agreement is brought into service either in its own right or within the scope of a Service Level Agreement. 

 

Definitions:

 

Statement of work: Shall include any Service Level Contract, Sales order, Works Order, Support Ticket or Project raised by the customer or in response to a request by the customer. 

 

  1. SCOPE

 

1.1. SERVICES: “Services” means the services to be performed by GEN as set forth in each Statement of Work. Each Statement of Work entered into by the parties shall be covered by this Agreement and shall be made a part of this Agreement; provided, however, the contents of any Statement of Work shall take precedence over any conflicting provision in this Agreement to the extent necessary to resolve any such conflict. GEN shall perform the specified Services during the term provided for in such Statement of Work.

 

1.2. RELATIONSHIP OF THE PARTIES: GEN shall be deemed an independent contractor of the Customer. As between GEN and the Customer, all persons retained by GEN to perform Services for the Customer hereunder shall be employees or contractors of GEN and shall not be employees or contractors of the Customer.

 

1.3. PLACE OF WORK: Customer understands and agrees that some or all of the Services may be performed from, through or using a location outside the United Kingdom, using employees or contractors of GEN.

 

1.4. COMMUNICATION: During the term of this agreement there will likely be substantial communication between the parties. The Customer and GEN agree to use the GEN Ticketing system as the primary method of requesting and monitoring services and issue tracking. The Customer will be granted access to the system so that they may create, review and update tickets. It is understood that the maximum history retention of the ticket system is 1 year. 

 

2. CUSTOMER RESPONSIBILITIES

 

2.1. COOPERATION: The Customer shall cooperate with GEN by providing to GEN such information and documents and access to the Customer's personnel as reasonably required by GEN to perform the Services specified in a Statement of Work.

 

3. FEES AND PAYMENTS

 

3.1. FEES: The fees for GEN's Services will be on the terms and at the rates specified in the applicable Statement of Work.

 

3.2. EXPENSES: Customer shall reimburse GEN for all actual expenses that are reasonably incurred by GEN and GEN personnel in the course of performing the Services hereunder and evidenced by receipts provided to the Customer.

 

3.3. INVOICES: Unless otherwise specified in the applicable Statement of Work, GEN will invoice the Customer monthly, quarterly or annually for the Products supplied, Services furnished and Expenses incurred during the immediately preceding month. Invoices for Services rendered on a time and materials basis will indicate a breakdown and distribution of charges at the rates specified in the applicable Statement of Work. Statements of Work for Services rendered on a fixed fee basis will indicate the basis upon which the fees are due.

 

3.5. PAYMENTS: Unless otherwise stated on the Invoice each invoice shall be due and payable to GEN within thirty (30) calendar days after receipt of such invoice and any past due undisputed amounts shall thereafter accrue interest, until paid, at the maximum interest rate permitted under applicable law.

 

4. OWNERSHIP

 

4.1. CUSTOMER PROPERTIES: As between GEN and the Customer, the Customer will at all times be and remain the sole and exclusive owner of any files, documents or other tangible or intellectual property (“Customer Properties”) provided by the Customer to GEN under this Agreement.

 

4.2. GEN PROPERTIES: Any software, designs, content, methodologies, techniques, processes, inventions, materials, servers, infrastructure components or other deliverables developed in whole or in part by GEN or its contractors, or otherwise provided to Customer in connection with this Agreement (and associated intellectual property rights) shall be the property of GEN (“GEN Properties”). As between GEN and the Customer, GEN shall at all times be and remain the sole and exclusive owner of GEN Properties.

 

5. CONFIDENTIALITY

 

5.1. GENERAL: In the performance of this Agreement or in contemplation thereof, each party and its employees, agents and contractors may have access to confidential information owned or controlled by the other party (hereinafter “Confidential Information”). All Confidential Information supplied by one party to the other which is clearly marked “Confidential” or which is derived therefrom shall remain the exclusive property of the party supplying same. The receiving party shall use a reasonable degree of care, which in any event shall not be less than the same degree of care which the receiving party uses to protect its own Confidential Information, to keep, and have its employees and agents keep, confidential any and all Confidential Information. In keeping therewith, the recipient shall not copy, publish or disclose the Confidential Information to others, or authorise its employees, or agents or anyone else to copy, publish or disclose it to others, without the disclosing party’s written approval, nor shall the receiving party make use of the Confidential Information except for the purposes of executing its obligations hereunder, and shall return the Confidential Information to the disclosing party at its request. The parties agree that GEN Properties and the Customer Properties shall be deemed Confidential Information, as are all documentation, descriptions, and embodiments thereof.

 

5.2. LIMITATIONS ON CONFIDENTIALITY OBLIGATIONS: These nondisclosure obligations will not apply to Confidential Information which: (a) becomes generally known to the public by publication or by any means other than a breach of duty on the party of the recipient hereunder; (b) is information previously known to the recipient; (c) is information independently developed by or for the recipient; or (d) is information released by the owning party without restriction or released pursuant to a judicial or governmental order. If required by order of any government authority, recipient may disclose to such authority the other party’s Confidential Information to the extent required by such order.

 

7. REPRESENTATIONS AND WARRANTIES

 

7.1. REPRESENTATIONS AND WARRANTIES OF CUSTOMER.

 

7.1.1. RIGHTS AND TITLES: The Customer hereby represents and warrants that it has and for the duration of this Agreement shall have all rights required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.

 

7.2. REPRESENTATIONS AND WARRANTIES OF GEN.

 

7.2.1. RIGHTS AND TITLES: GEN hereby represents and warrants that it has and for the duration of this Agreement shall have all rights, titles or interests in GEN Properties and Deliverables required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.

 

7.2.2. SERVICES: GEN further represents and warrants that the Services provided under this Agreement will be of commercially reasonable quality in accordance with any specifications or requirements set forth in a Statement of Work and will be performed in accordance with industry standards. Any claim for breach of GEN's warranties under this Section 7.2.2 must be made, by written notice to GEN, within sixty (60) days following the date of completion of the Services for which the claim is made. GEN shall have a thirty (30) day period following receipt of any such notice in which to cure a breach. Customer’s sole and exclusive remedy for any breach of this Section 7.2.2 shall be for GEN to remedy the Services that are the subject of the written notice.

 

7.2.2.1 IN LIFE SERVICES: GEN during the life of services provided may at its sole discretion choose to move, change, update or upgrade said services providing that either the same or greater level of service is maintained. 

 

7.2.2.2 HOSTED SERVICES: Where hosted services are provided under this agreement, the hardware, software, data and content shall be considered the property of GEN. Access to hosted services by the Customer shall be on the basis of a statement of work. 

 

7.2.2.3 MANAGED SERVICES: Where GEN are contracted into managing services for the Customer it is understood that at all times the management is an exclusive activity. GEN will not ‘share’ management of services with the customer in any way which would dilute the accountability for management of said services. 

 

7.2.2.4 END OF LIFE: During the provision of services GEN may encounter a situation where a service or service medium has reached its end of life as defined by its vendor or judged so by senior staff at GEN. After this point, provision of services will be on a best-efforts basis only. 

 

7.2.3. COMPLIANCE WITH LAW: GEN is and for the duration of this Agreement shall be in compliance with all local, national and international laws, governmental regulations, rules and requirements and binding administrative and court orders (collectively “Laws”) applicable to GEN, including all Laws applicable to its provision of the Services.

 

7.3. NO OTHER WARRANTY: EXCEPT AS PROVIDED IN THIS AGREEMENT, (A) NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF UNINTERRUPTED OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND (B) WITHOUT LIMITING GEN'S OBLIGATION TO DELIVER THE SERVICES AND/OR DELIVERABLES SET FORTH IN A STATEMENT OF WORK, GEN MAKES NO GUARANTEES WITH REGARD TO THE RESULTS OBTAINED FROM THE OPERATION OR USE BY CUSTOMER OF THE CUSTOMER PROPERTIES OR GEN PROPERTIES. THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS MADE FOR THE BENEFIT OF CUSTOMER ONLY.

 

8. LIMITATION OF LIABILITY

 

8.1. GEN'S OR CUSTOMER'S LIABILITY FOR ANY REASON (EXCLUDING THE CUSTOMER'S LIABILITY FOR PAYMENT OF GEN'S SERVICES FEES) AND UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL TIMES AND IN THE AGGREGATE BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO GEN UNDER THE APPLICABLE STATEMENT OF WORK DURING THE PREVIOUS SIX (6) MONTHS.

 

8.2. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

9. TERM AND TERMINATION

 

9.1. TERM: The term of this Agreement shall commence on the Effective Order Date and persist until terminated in writing in accordance with this Section 9.

 

9.2. TERMINATION: This Agreement may be terminated (a) by either party if the other party defaults in the performance of any of its material obligations (or repeatedly defaults in the performance of any of its other obligations) under this Agreement (i) upon at least thirty (30) days' notice to the breaching party if such default is capable of being cured and the breaching party does not cure such default within thirty (30) days from the non-breaching party's default notice or (ii) immediately upon notice to the breaching party if such default is not capable of being cured, and (b) by either party upon notice received 90 days prior to the end of the then current term; provided that this Agreement shall not be terminated under this clause (b) with respect to all outstanding Statements of Work until such Statements of Work expire or are completed or terminated in accordance with their terms, including any notice requirements provided therein. Customer' obligation to make payment for Services performed by GEN prior to termination shall survive any termination of this Agreement.

 

9.3 RETURN OF CUSTOMER PROPERTIES: Upon the expiration or termination of a Statement of Work (a) any and all licenses granted to GEN to perform Services under such Statement of Work, shall automatically terminate, and (b) GEN shall deliver to Customer, in the manner requested by Customer all of the Customer Properties (including all Deliverables, whether completed or in-progress) relating to such Statement of Work in the form then in use.

 

10. GENERAL

 

10.1. COMPLETE AGREEMENT: This Agreement, including any Statements of Work hereunder, is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument executed by authorised representatives of the parties. The pre-printed terms and conditions of any purchase order or other ordering document issued by either party in connection with this Agreement shall not be binding on the other party and shall not be deemed to modify this Agreement.

 

10.2. NO WAIVER: No failure to exercise, and no delay in exercising, on the part of either party, any right, power or privilege hereunder will operate as a waiver thereof, nor will any party's exercise of any right, power or privilege hereunder preclude further exercise of the same right or the exercise of any other right hereunder.

 

10.3. ENFORCEABILITY: If any part of this Agreement shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.

 

10.4. FORCE MAJEURE: Either party shall be excused from performance and shall not be liable for any delay in whole or in part, to the extent caused by the occurrence of any events beyond the reasonable control either of the excused party or its subcontractors or suppliers, for as long as such event continues and the excused party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means.

 

10.5. NOTICES: Any notice required or permitted hereunder to the parties hereto will be deemed to have been duly given only if in writing to the address of the receiving party by any reasonable method which results in a signed receipt, by hand delivery with signed receipt or via secure electronic messaging service. Any notice shall be deemed delivered on the date of actual delivery.

 

10.6. GOVERNING LAW, JURISDICTION AND VENUE: This Agreement shall be deemed to have been made in, and shall be construed pursuant to English law.

 

10.7. ASSIGNMENT: Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without the need to obtain consent of the other party, to a successor in interest to substantially all of the business of that party to which this Agreement relates. An assignee of either party authorised hereunder shall be bound by the terms of this Agreement and shall have all of the rights and obligations of the assigning party set forth in this Agreement.

 

10.8. SUBCONTRACTING: GEN shall have the right to subcontract some or all of the Services specified in a Statement of Work to an individual or entity. No subcontracting shall release GEN from its responsibility for its obligations under this Agreement. GEN shall be responsible for the work and activities of each of its contractors, including compliance with the terms of this Agreement. GEN shall enter into confidentiality agreements with any contractors with provisions at least as restrictive as the provisions of Section 5 of this Agreement.