Breathe Master Services Agreement
Background:
Breathe has expertise relating to the design and optimising performance of battery systems.
The Customer wishes to engage Breathe to provide certain services and deliverables as specified in one or more Statements of Work.
Breathe agrees to provide, and the Customer agrees to receive and pay for, the Services and Deliverables on the terms and conditions of this Master Services Agreement.
Terms and Conditions:
Definitions
1.1 In this MSA, the following terms shall have the following meanings:
“Artefact” means a physical deliverable supplied by the Customer to Breathe to enable or support Breathe to provide the Services or deliver the Deliverables;
“Breathe” means Breathe Battery Technologies Limited incorporated in England & Wales under Customer number 11997339 whose registered office is at Office 7, 35-37 Ludgate Hill, London, United Kingdom, EC4M 7JN;
“Breathe Product” means any product marketed by Breathe to its customers from time to time, including software and online services;
“Confidential Information” shall have the meaning given in clause 7.1 below;
“Customer” means the customer who is acquiring Services and/or Deliverables from Breathe as named in the relevant Breathe SoW and/or quotation;
“Customer Materials” means the Artefacts or information provided by the Customer to Breathe to enable or support Breathe to provide the Services or deliver the Deliverables;
“Customer Product” means any specific Customer product named in the relevant SoW;
“Deliverables” means the outputs of the Services;
“Effective Date” means the date on which the Customer notifies Breathe of its acceptance of a SoW to which this MSA applies, including by the Customer returning to Breathe a copy of a quotation referencing the relevant SoW signed by the Customer;
“Fees” means Breathe’s charges as set out in a SoW;
“Intellectual Property Rights” means any copyright and related rights, patents, rights to inventions, registered designs, database rights, design rights, topography rights, trade marks, service marks, trade names and domain names, trade secrets, rights in unpatented know-how, rights of confidence and any other intellectual or industrial property rights of any nature including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“MSA” means this Master Services Agreement;
“Party” means Breathe or the Customer as applicable;
“Product” means a project which is the subject of a SoW;
“Purchase Order” means a purchase order issued by the Customer in respect of a SoW;
“Services” means the services to be provided by Breathe to the Customer pursuant to a SoW;
“Statement of Work” or “SoW” means an agreed statement of work based on the template set out at Annex 1;
“Term” means from the Effective Date until this MSA is terminated; and
“Working Day” means a day that is not a Saturday, Sunday, or UK bank holiday.
Status of this MSA and each SoW
2.1 This MSA sets out the terms and conditions which apply to each SoW.
2.2 Each SoW forms a separate contract between the Parties on the terms and conditions of this MSA together with any additional terms and conditions set out in the relevant SoW.
2.3 In the event of any conflict between the terms and conditions of this MSA and the terms and conditions of any SoW, the terms and conditions of the relevant SoW shall prevail.
2.4 Where the Parties have executed a SoW but have not executed a copy of this MSA, unless otherwise stated in the SoW the terms and conditions of this MSA shall apply to such SoW.
Term and termination
3.1 This MSA shall enter into force from the Effective Date and shall remain in force until terminated pursuant to clause 3.2.
3.2 This MSA or a SoW may be terminated by either Party as follows:
3.2.1 For Convenience: Either Party may terminate this MSA or any SoW on one (1) month’s written notice to the other Party. Where the Customer terminates under this clause 3.2.1, the Customer must pay any sums set out in the relevant SoW(s) as due on such termination.
3.2.2 For Breach: Either Party may terminate this MSA or any SoW upon written notice if the other Party materially breaches any provisions of the MSA or such SoW and fails to remedy that breach within thirty (30) days of written notice of the breach. Either Party may terminate this MSA upon written notice if the other Party materially breaches any provisions of any SoW and fails to remedy that breach within thirty (30) days after written notice of the breach.
3.2.3 For Insolvency: Either Party may immediately terminate this MSA and any SoW upon written notice if the other Party becomes insolvent, enters into voluntary or involuntary bankruptcy, ceases to conduct business, or assigns its interest in this MSA or a SoW to a third party creditor.
3.3 On termination of:
3.3.1 this MSA, each SoW under this MSA shall terminate; and
3.3.2 a SoW: this MSA and each other SoW under this MSA shall continue in force, save as provided above.
Provision of Services and Deliverables
4.1 Breathe will provide the Services to the Customer as set out in the relevant SoW.
4.2 Breathe will deliver the Deliverables to the Customer as set out in the relevant SoW.
4.3 Breathe shall use its reasonable endeavours to meet any timeframes as provided in the relevant SoW. Time is not of the essence as to the delivery of the Services or the Deliverables by Breathe.
4.4 Breathe shall perform the Services and deliver the Deliverables using reasonable skill and care and in accordance with good industry standards.
4.5 The Customer shall promptly provide such Customer Materials as is reasonably required by Breathe in order to enable Breathe to deliver the Services and provide the Deliverables. The Customer shall meet any other dependencies as set out in the applicable SoW. It is the responsibility of the Customer to ensure the accuracy, comprehensiveness and consistency of the Customer Materials.
4.6 Breathe and the Customer shall each appoint a nominated point of contact in respect of each SoW as set out in the SoW. Such point of contact shall be the initial contact for the day to day management of the Project under the SoW.
4.7 The Deliverables and the Services shall be deemed accepted by the Customer where no issues are raised by the Customer within 10 Working Days of delivery of the relevant Deliverables or Services to the Customer (or payment of the applicable Fees if earlier).
4.8 Where an Artefact is required from the Customer in order for Breathe to deliver the Services, the Customer shall be responsible for all costs and liabilities relating to the provision of the required Artefact to Breathe, including the delivery of and/or return of Artefacts from Breathe. The Customer shall ensure that any Artefact provided to Breathe is appropriately insured against any loss or damage which may occur when the Artefact is in the custody of Breathe. Breathe reserves the right to dispose of any Artefact which is not collected by the Customer within a reasonable timeframe of Breathe notifying the Customer that the Artefact is ready for collection.
Fees
5.1 The Customer shall pay the Fees to Breathe as set out in the SoW.
5.2 The Customer shall promptly provide to Breathe any Purchase Order required by the Customer in respect of a SoW. Breathe reserves the right not to commence work under a SoW until receipt of the relevant Purchase Order in respect of such SoW.
5.3 Breathe shall invoice the Customer when the Fees fall due and shall reference any applicable Purchase Order in its invoices submitted to the Customer. The Customer shall pay the Fees to Breathe within 30 days of the date of the relevant Breathe invoice.
5.4 In the event of any delay in paying any Fees by the due date, and following at least 10 Working Days’ written notice to Customer from Breathe of its intent to exercise its rights under this clause, Breathe shall be entitled: (a) to suspend the provision of Services or delivery of Deliverables to the Customer; and/or (b) to charge interest (calculated on a daily basis) on the overdue payment from the date such payment was due to the date of actual payment at a rate of 4% over the base lending rate of HSBC plc from time to time; and/or (c) to change the terms of payment applicable to the Customer.
5.5 The Fees payable under this MSA and each SoW are exclusive of any tax (which may include VAT) which may be payable on them. In the event that the government of a country imposes any income related taxes on payments of amounts due by the Customer to Breathe and requires the Customer to withhold such tax from such payments, the amounts due to Breathe under this MSA or any SoW shall be deemed to be increased such that the sums remitted to Breathe by the Customer net of such withholding taxes shall be the same sums as would have been remitted to Breathe had the Customer not been required to deduct any taxes from such payments. In addition, in the event of any required withholding, the Customer shall furnish Breathe with tax receipts issued by appropriate tax authorities and provide any other assistance reasonably requested by Breathe in relation to such withholding tax.
5.6 The Customer may not offset any sums due from Breathe to the Customer against any payment due to Breathe under a SoW.
Intellectual Property Rights
6.1 Breathe hereby grants to the Customer a non-exclusive, non-transferable, worldwide, royalty free licence to use any Intellectual Property Rights forming part of the Deliverables solely for the purposes of receiving the Services and using the Deliverables. Where the Deliverables are:
6.1.1 associated with a particular Product, the Deliverables are licensed for use solely in conjunction with such Product and, in the case of a Breathe Product, subject to the Breathe licence terms applicable to Customer’s use of such Breathe Product;
6.1.2 not associated with a particular Product, the Deliverables are licensed for the Customer’s internal use only; and software, the Customer agrees that, except as expressly permitted by any local law, the Customer has no right to:
6.1.2.1 sub-license, loan, translate, distribute, adapt, alter, vary or modify the Deliverables;
6.1.2.2 disassemble, decompile or reverse-engineer the whole or any part of the Deliverables;
6.1.2.3 re-sell the Deliverables or the functionality offered by the Deliverables;
6.1.2.4 provide or otherwise make available the Deliverables or the functionality offered by the Deliverables in whole or in part in any form to any person other than as permitted by the terms of this MSA or the relevant SoW without Breathe’s prior written consent; or
6.1.2.5 receive or access the source code of the Deliverable unless otherwise expressly stated in the SoW.
6.2 Where Customer provides any Customer Materials to Breathe for the purposes of Breathe performing the Services, the Customer hereby grants to Breathe a non-exclusive, worldwide, royalty free licence to use the Intellectual Property Rights in the Customer Materials during the Term solely for the purposes of performing Breathe’s obligations under this MSA or any SoW.
6.3 Nothing in this MSA or any SoW transfers or assigns any Breathe Intellectual Property Rights to Customer, or grants a licence to Customer to use any Breathe Product. Customer shall not be entitled to use or access any Breathe Intellectual Property Rights other than as expressly provided in this MSA or the relevant SoW.
6.4 All Intellectual Property Rights in the Deliverables and all Intellectual Property Rights generated in the course of the provision of the Services, including any know how or learnings obtained by Breathe, shall vest in Breathe.
Confidentiality
7.1 In this clause, “Confidential Information” means all confidential information obtained by either Party relating to this MSA or a SoW which the disclosing Party directly or indirectly discloses, or makes available, to the receiving Party, before, on or after the date of this MSA. This includes: (i) the fact that discussions and negotiations are taking place concerning the MSA or any SoW and the status of those discussions and negotiations; (ii) the existence and terms of this MSA or any SoW; (iii) the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the disclosing Party; (iv) any information, findings, data or analysis derived from Confidential Information; (v) the Deliverables; and (vi) any other information that is identified as being of a confidential or proprietary nature.
7.2 Each Party shall maintain the confidentiality of the other Party’s Confidential Information and shall not, without the prior written consent of the other Party, use, disclose, copy or modify the other party’s Confidential Information (or permit any third-party to do so) other than as strictly necessary for the performance of its rights and obligations under this MSA or any SoW. The provisions of this clause 7.2 shall not apply to any information which: (a) is or comes into the public domain without breach of this MSA or any SoW; or (b) was in the possession of the receiving Party prior to receipt from the disclosing Party without an obligation of confidence as evidenced by appropriate records; or (c) was obtained from a third-party free to divulge such information; or (d) is required to be disclosed by law or by any legal, regulatory or administrative body. If disclosure is requested, the receiving Party shall, unless prohibited by law from so doing, provide the disclosing Party with prompt notice of such request to enable the disclosing party to seek a protective order and shall take such reasonable steps to limit the amount of disclosure.
7.3 On the termination or expiry of any SoW, each Party shall promptly delete or destroy the other Party’s Confidential Information relating to such SoW.
Warranty and Liability
8.1 Each Party warrants that: (a) it has full capacity and authority and all necessary consents to enter into and to perform this MSA and each SoW; (b) this MSA and each SoW is executed by its duly authorised representative and represents a binding commitment on it; and (c) it shall comply with all applicable legislation in the performance of its obligations under this MSA and each SoW.
8.2 Breathe warrants that: (a) it owns or is licensed to use the copyright in any materials forming part of the Deliverables and the Services; and (b) as far as it is aware, the provision of the Services and delivery and use by the Customer of the Deliverables in accordance with this MSA will not infringe the Intellectual Property Rights of any third party.
8.3 Save as expressly provided in this MSA or any SoW, no representations, conditions, warranties or other terms of any kind are given in respect of the Services or Deliverables, and all statutory warranties and conditions are excluded to the fullest extent possible.
8.4 Nothing in this MSA or any SoW shall exclude or restrict the liability of either Party to the other for death or personal injury resulting from the negligent act of one party or for liability for any fraudulent misrepresentation by a Party or any other liability which cannot be restricted or limited by law.
8.5 Subject to Clause 8.4, neither Party shall be liable to the other Party or any third party for any indirect, special or consequential damages arising out of or related to this MSA or any SoW, regardless of the form of action, even if such Party has been advised of the possibility of such damages.
8.6 Subject to clause 8.4, Breathe shall not be liable to Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the MSA and the SoWs for any of the following (whether such losses are direct or indirect):
8.6.1 loss of profits, sales, business, or revenue;
8.6.2 business interruption or loss of use;
8.6.3 loss of anticipated savings;
8.6.4 wasted expenditure;
8.6.5 loss or corruption of data or information; or
8.6.6 loss of business opportunity, goodwill or reputation.
8.7 Subject to Clauses 8.4, 8.5 and 8.6, the total liability of Breathe to the Customer for any loss or damage, costs or expenses whether in contract, tort, negligence, breach of statutory duty or otherwise arising out of or in connection with this MSA or any SoW shall be limited in aggregate to the lower of: (i) the Fees payable under the relevant SoW within the preceding 12 months; or (ii) one hundred thousand pounds sterling (£100,000).
8.8 Any claim made by the Customer under this MSA or any SoW must be made within 24 months of the relevant loss or damage arising.
8.9 The Customer acknowledges and accepts that whilst the Services and/or Deliverables may provide a tool or advice to indicate potential performance parameters of battery products or support the design or selection of a particular form of battery, Breathe do not and cannot offer any warranty or guarantee that real world performance of a battery will be equivalent to that indicated by the Deliverables or the Services. The Customer acknowledges and accepts that the Customer is wholly responsible for determining whether any validation and verification activity conducted by Breathe is sufficient to enable the Customer to proceed in any further activity, specification or decision.
8.10 Breathe shall indemnify the Customer against all liabilities, costs, expenses, damages and losses suffered or incurred by the Customer arising directly out of a third party claim resulting from any breach by Breathe of its warranty in clause 8.2. The indemnity obligation of Breathe under this clause 8.10 shall be subject to: (i) Customer giving Breathe prompt written notice of such claim when Customer is notified of such claim; (ii) Customer giving Breathe control of the defence and settlement of such claim; (iii) Customer not prejudicing Breathe’s defence and settlement of such claim; and (iv) Customer promptly providing Breathe with all assistance and information in relation to such claim as Breathe may reasonably require.
Change control
9.1 No variation of this MSA or any SoW shall be effective unless it is in writing and signed by or on behalf of both Parties.
9.2 Where either Party wishes to amend a SoW, such Party shall submit a change request in writing to the other Party. Breathe shall assess the impact of the proposed change and provide an updated timeline and cost for the relevant project to the Customer. Where the change is agreed, the change to the SoW shall be documented in writing and signed on behalf of both Parties. Breathe reserves the right to cease work under a SoW where a change requested by Breathe cannot be agreed.
General provisions
10.1 This MSA and each SoW and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. However, Breathe may enforce the Customer’s obligation of confidence in the courts of any jurisdiction having competence to issue an injunction directly enforceable against the Customer.
10.2 This MSA and the SoWs embody the entire understanding of the Parties with respect to the subject matter of them and merges all prior discussions between them, and neither of the Parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter hereof other than as expressly provided in this MSA or a SoW. In the event of any conflict between the terms and conditions of this MSA or a SoW and a Purchase Order, the terms and conditions in this MSA or SoW shall prevail.
10.3 The headings of the Clauses are inserted for convenience only and are not intended to be a part of or to affect the interpretation of this MSA.
10.4 The failure of either Party to enforce the provisions of this MSA or any SoW, or the failure to require performance by the other Party of any of the provisions of this MSA or any SoW, shall in no way be constituted to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision.
10.5 If any provision of this MSA or any SoW is found by a court or competent authority to be invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and the remainder of this MSA or the relevant SoW shall continue in effect so long as it still expresses the substantial intent of the Parties. If it no longer expresses the substantial intent of the Parties, the Parties will in good faith negotiate a satisfactory alternative to such provision; if, after reasonable efforts, such alternative cannot be found, this MSA or the relevant SoW as applicable shall either be fully renegotiated or terminated.
10.6 The Parties acknowledge that no agency or partnership relationship is created by this MSA or any SoW. Neither Party nor any of its agents or employees shall make any warranties or representations on behalf of the other Party to customers or to any other third party, or assume or create any other obligation of any kind, whether express or implied, on behalf of such other Party.
10.7 The Customer may not assign this MSA or any SoW or its rights or delegate its duties or obligations thereunder without Breathe’s prior written consent. Any such assignment, delegation or other transfer in contravention of this provision shall be null and void. Breathe may sub-contract its obligations under this MSA or any SoW. This MSA and each SoW shall inure to the benefit of and be binding upon the respective successors and permitted assigns, if any, of the Parties thereto.
10.8 Any notice to be given under this MSA or any SoW shall be given in writing and shall be delivered by personal delivery or commercial courier. Notices shall be sent to the address set forth in the relevant SoW or such other address as either Party may specify in writing. Either Party may change its address for receipt of notice by notice to the other party in accordance with this Clause.
10.9 A person who is not a party under this MSA or the relevant SoW has no right to enforce any term of this MSA or the relevant SoW.
10.10 Neither Party shall be deemed in default of any of its obligations under this MSA or any SoW if and to the extent that performance of such obligation is prevented or delayed as a result of any act of God, fire, casualty, flood, war, strike, terrorism, lock-out, failure of public utilities, injunction or any act, exercise or intervention of governmental authority, epidemic, insurrection or similar cause beyond the control of the Party invoking this provision (“Force Majeure Event”), provided that such Force Majeure Event is not caused by the act or omission of the affected Party and such Party has used all reasonable endeavours to avoid or minimise the same and has given prompt written notice of the same to the other Party. Upon the occurrence of Force Majeure Event, the time for performance shall be extended for the period of delay or inability to perform due to such occurrence, provided that if any Force Majeure Event results in delayed performance or non-performance of an obligation under this MSA or any SoW for a period exceeding two (2) months, the Party not invoking this provision shall have the right to terminate this Agreement immediately by written notice to the other Party.