Master Service Agreement

Document Number: MSA 2023

1. SCOPE

1.1. Arkafort provides services that include but are not limited to IT Services.

1.2. This Master Service Agreement (hereinafter also referred to as “MSA”) governs the relationship between Arkafort and Client for all Services being offered by Arkafort to Client. This may be read in conjunction with specific Statements of Work (SOW) that regulate the provision of particular services.

1.3. If Client is providing Equipment required by Arkafort to provide any of its Services, Client must ensure that the Equipment complies with the technical and operational specifications specified in writing to it by Arkafort. Arkafort shall use its best endeavors, within commercial reasons, to offer the correct functionality of all Services it provides and aims for 24/7 availability but does not guarantee constant and fault-free provision of any Services.

1.4. Arkafort is responsible for ensuring that any incidents are investigated and corrected to minimize reoccurance.

1.5. Arkafort may recommend the deployment and/or installation and/or updating of software and/or hardware solutions to ensure it meets the industry best practices and to mitigate service failures. With prior consultation and written consent from the Client, Arkafort may monitor the Client’s Infrastructure on a 24/7 basis and any issues may be addressed and escalated as deemed necessary by Arkafort so it meets its commitments to the client.

1.6. Arkafort will make recommendations to Client to address any issues originating from the Client’s IT setup or The Client shall not be bound to implement such recommendations but Arkafort shall be fully indemnified from any losses, expenses, or damages (each a “Loss”) that may be suffered if it is shown that the cause of the Loss is due to the Client’s failure to implement any such recommendation made by Arkafort.

1.7. Client is requested to make use of the 24/7 helpdesk number (+356) 2229-3000, [email protected] or through Arkafort’s chat channels to report without undue delays any incidents, system malfunction and/or request any additional Services.

1.8. Arkafort’s services under this MSA shall be provided by Arkafort or any of its Affiliated Company/Companies or Subcontractors, and this without the need of the consent of Client, with such agreeing to comply to the same obligations set out in this MSA. Arkafort shall remain responsible to Client for the performance of any services provided by Affiliated Company/Companies or Subcontractors in terms of this MSA.

The Parties agree that throughout the provision of its services, Arkafort sells and distributes software and hardware produced/provided by third parties who are not related to Arkafort, such as Microsoft. The provisions of the preceding paragraph shall not apply to “soft-wares as services” and hardware supplied by third parties through Arkafort. In such case, the third party shall be responsible towards the Client and Arkafort cannot in any manner be held responsible for any loss, damage or liability occasioned by any such third party (such as Microsoft).

2. USE OF SERVICE

2.1. Arkafort may change, discontinue, add, modify, re-price or remove features or functionality from any Services, subject to Client’s Arkafort shall notify the Client about the foregoing at least one (1) month in advance. If Client does not respond to the notification stating its acceptance or otherwise but continues to use the Services following any such change, discontinuance, addition, modification, re-pricing or removal of features or functionality, such use will be construed as acceptance of the foregoing by Client.

2.2. If Client is signing this MSA on behalf of an employer, company, or other legal entity, Client represents and warrants that s/he has the legal right and authority to sign this MSA and to bind the employer, company, or other legal entity by this MSA.

2.3. Client binds itself to use the Services in good faith, and in accordance with, and adhere to, the terms and conditions of this MSA, any applicable SOW and the Laws of Malta.

2.4. Arkafort will inform the client in writing upon suspicion of any of the below and reserves the right to terminate the service without the need of any further notice if no response from the client is received thereon, and reserves the right to seek legal action through the courts of Malta if Client:

i. Illegally tampers and misuses any equipment provided by Arkafort to Client;

ii. Attempts and/or succeeds to hack Arkafort’s software and/or Infrastructure;

iii. Attempts and/or succeeds in the reverse engineering of any product provided;

iv. Attempts and/or succeeds in any form of unauthorised access to equipment, products or services provided by Arkafort.

3. BILLING AND PAYMENTS

3.1. Client shall be liable to pay Arkafort the charges that are mutually agreed upon during the negotiation and / or quotation / proposal stage.

3.2. The agreed term for the provision of any service is fixed and payment shall be due by the Client for the entire agreed term, save for instances where termination is occasioned by a material breach of Arkafort’s obligations. The same shall apply in case of suspension of the Service, where suspension is caused or occasioned by the Client.

3.3. Subject to the provisions mutually agreed upon, Arkafort will issue the invoices/s to the Client as mutually agreed upon. Failure to issue invoices shall not constitute an event of default or a breach of the Agreement and shall not affect Arkafort’s right to recover any amount and interest due. Provided that the Client shall only be responsible to make payment upon its receipt of a valid invoice, and always in accordance with the terms agreed upon.

3.4. Interest at the rate of eight per cent (8%) or at the highest rate permitted by law shall be due on late payments, without the need of any further notice.

3.5. Arkafort may by agreement with the Client introduce an automated payment processing system, whereby Client’s account would be charged automatically for invoices due.

3.6. Arkafort has the right to reasonably alter the invoicing frequency at any time provided that a thirty (30) day prior written notice is given to Client.

3.7. Arkafort shall have the right to seek recovery of those costs (including legal and judicial costs) incurred by it in recovering any payment not received by Arkafort by its due date.

3.8. Payment terms:

– Third party subscriptions and licenses – Due on receipt.

– Hardware – 25% deposit upon confirmation and balance on receipt.

– Services – 30 days.

4. SUSPENSION OR RESTRICTION OF THE SERVICE

4.1. Arkafort may suspend, withdraw, terminate, or restrict any Services in whole or in part, without liability if:

4.1.1. Arkafort establishes that there is a real risk that the Services are being used (or have been used) by Client in violation of this MSA or any applicable services, law, court order, rule, or regulation in any jurisdiction;

Where Arkafort establishes that the Services might be used in violation of this MSA or any applicable SOW, law, court order, rule, or regulation in any jurisdiction, Arkafort shall notify the Client who shall have 48 hours to make its representations. If no representations are received in the said term, or representations made do not reasonably satisfy the concerns raised, Arkafort shall proceed with the suspension/withdrawal/termination/restriction.

4.1.2. Arkafort reasonably believes that suspension of the Services is necessary to protect Arkafort’s Infrastructure.

4.1.3. Client fails to make any payment due as agreed to Arkafort by the due date. Provided that prior to the suspension, withdrawal, or restriction of the Service, Arkafort shall first inform Client in writing (even via email) of the alleged cause for suspension, withdrawal, termination, or restriction and shall afford Client a seven (7) running day cure period within which to remedy such fault.

4.1.4 Arkafort deems it is necessary to suspend the Services in cases where:

4.1.4.1. It is necessary to carry out planned maintenance, repair or upgrade any equipment or facility on any part of its Infrastructure, provided that for the purpose of such works Arkafort would have previously notified the Client. In any event Arkafort shall use its best endeavors to limit its planned maintenance and downtime.

4.1.4.2. Arkafort deems it necessary to carry out unplanned maintenance, repair or upgrade of any equipment or facility on any part of its Infrastructure or protect the integrity of the said Infrastructure.

4.1.5. Arkafort has reasonable and sufficient grounds for the termination of the Service in terms of the applicable grounds for termination listed in this MSA or the applicable SOW.

4.2. Arkafort shall not be liable to Client or any third party for any loss resulting from, or in connection with, a suspension, withdrawal, termination, or restriction of any of the Services made by it in accordance with the terms of this MSA.

4.3. Arkafort’s right to suspend, withdraw, terminate, or restrict the Service or any part thereof shall not in any way prejudice any other right or action available to Arkafort under this MSA or under the Laws of Provided that the exercise of such action shall not constitute a waiver of Arkafort’s right to subsequently terminate this MSA or to exercise any other right.

4.4. If Arkafort limits the Client’s right to access or use any portion or all of the Service:

4.4.1. Client remains responsible for all fees and charges Client has incurred up to the date of such limitation.

4.4.2. Client remains responsible for any applicable fees and charges for any Services to which Client has continued to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date on which Arkafort in any way limits the Client’s rights to access or use any portion or all of the service.

4.5. Client shall not be entitled to claim expenses, loss, or damages against Arkafort for the termination, withdrawal, suspension, or restriction of the Services where this action has been legitimately taken Arkafort in accordance with the terms of this MSA.

5. WARRANTIES

5.1. Arkafort represents, warrants, and covenants to the Client that:

5.1.1. It shall perform the Services in terms of law and in accordance with Good Industry Practice. The term ‘Good Industry Practice’ shall mean, in relation to the performance of any of the Services, performance to the standard of skill, care, prudence and foresight required in the IT services industry.

5.1.2. Client understands and agrees that Arkafort may use software created, supplied, modified, and controlled by third parties and that Arkafort has little or no control on the performance of such.

5.2. Client represents, warrants, and covenants to Arkafort that it shall take all reasonable measures to prevent the use of the Service in such a manner that could cause any interruption of, or interference to, the Arkafort network or the use of any other capacity on the Arkafort Infrastructure.

6. TERM AND TERMINATION

6.1. Save for those provisions of this MSA which by their nature shall survive the expiry or termination of this MSA, the provisions of this MSA shall remain valid and applicable throughout the term of provision of services by Arkafort and/or any term stipulated in a relevant SOW. Client’s usage of services provided by Arkafort, Arkafort’s engagement by the Client or Client’s access to this link shall be construed as the Client’s acceptance of the terms and conditions of the MSA.

6.2. Arkafort may terminate the Service and/or this MSA by giving written notice if:

6.2.1. Client is in material breach of this MSA and fails to remedy it within thirty (30) days of receiving written notice from Arkafort describing the nature of the material breach and specifying Arkafort’s intention to terminate this MSA if the breach is not rectified.

6.2.2. Arkafort has reasonable suspicion of fraudulent, unauthorised, improper, or illegal use being made by Client of the Service.

Provided that in such a case, prior to exercising its rights as detailed above, Arkafort shall provide Client with a reasonable and sufficient opportunity to address and rectify such fraudulent activity or improper use.

6.2.3. Arkafort is prohibited from supplying the Service under the Laws of Malta.

6.2.4. Any of the information provided by Client to Arkafort in obtaining the provision of the Service is found to be false, fraudulent, or misleading.

6.2.5. Any Event of Force Majeure continues for more than ninety (90) days.

6.3. Client shall not be entitled to claim expenses, loss, or damages against Arkafort for the termination, withdrawal, suspension, or restriction of the Services where this action has been legitimately taken in accordance with the terms of this MSA.

6.4. Client may terminate this MSA by giving written notice to Arkafort in cases where:

6.4.1. Arkafort is in material breach of this MSA or any obligation incumbent on it at law or in terms of any valid agreement entered into by the Parties and fails to remedy it thirty (30) working days of receiving a written notice from Client describing the nature of the breach and specifying the Client’s intention to terminate this MSA if the breach is not rectified.

Provided that if Arkafort takes effective steps to remedy the breach within this 30-working day term but the breach is not capable of being remedied within 30 working days, such term shall be extended as may be reasonably necessary so that the breach is remedied within a maximum period of sixty (60) working days. This shall not apply in the case where the Client is unable to make use of the Service, in which case termination shall be regulated by the previous paragraph and this proviso shall not apply.

6.4.2. Arkafort is partially or totally prohibited, or in any way restricted from supplying the Service or any part thereof under the Laws of Malta or by court order.

6.4.3. The Event of Force Majeure continues for more than ninety (90) days.

6.5. Either Party may terminate this MSA with immediate effect if the other Party is subject to liquidation, insolvency or bankruptcy procedures, or makes any arrangement or composition with, or assignment for the benefit of its creditors, or if any of the other Party’s assets are the subject of any form of seizure, or if such other Party goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory or if a receiver or administrator is appointed over such other Party’s assets.

6.6. On termination of this MSA:

6.6.1. All amounts owed by Client to Arkafort for the entire term agreed for the provision of the services will become immediately due and payable.

6.6.2. Client shall cease to use the Service with immediate effect.

6.6.3. In the event of any termination or expiry of this MSA, Arkafort shall, at the request of the Client (a) provide all reasonable assistance to transition the Services to the Client or any replacement service provider appointed by the Client and/or (b) shall continue to provide the Services or any part of them requested by the Client for a period of up to 90 days from the termination date subject to the Client’s payment of the applicable Fees (which may be pro-rata or otherwise adjusted to reflect a reduction in the Services). Provided that this shall not apply when termination was occasioned by a Client’s breach.

6.7. Termination of this MSA shall not affect the rights of the Parties, which rights would have accrued prior to the date of termination of this MSA.

6.8. Without prejudice to the exclusions or limitations of liability in Article 8, Arkafort shall not be liable to Client nor to any third party for any loss resulting from or in connection with termination of this MSA in terms of this MSA, including but not limited to, those mentioned in this Article 6.

6.9. Article 10 shall continue in full force and effect notwithstanding termination of this MSA.

6.10. The restriction, withdrawal, suspension, or termination of any Service in term of any SOW shall not affect Services offered under any other SOWs unless so indicated by Arkafort.

7. INDEMNIFICATION

The client agrees to indemnify, defend, and protect Arkafort from and against all lawsuits and costs of every kind arising out of or in relation to any client`s act or omission resulting in loss, damage or expense to Arkafort including reasonable legal fees incurred by Arkafort.

8. LIMITATION OF LIABILITY

The parties agree that should for any reason Arkafort be sued for damages, loss and/or expenses, the maximum amount that Arkafort shall be liable for will be the amount of invoices paid by the Client during the term of the contract reflecting the services affected during the said applicable term. Arkafort shall not, in any case, be liable for any loss of profit or consequential loss.

9. FORCE MAJEURE

9.1. For the purposes of this MSA, an Event of Force Majeure shall mean any cause preventing Arkafort from performing any or all of its obligations under this MSA which arise from, or is attributable to, acts, events, omissions or accidents beyond the control of Arkafort including but not limited to acts of God, pandemics, endemics, war (whether declared or not), sabotage, riot, explosion, government controls, restrictions or prohibitions or any other governmental act or omission whether local or national, or any other event beyond Arkafort’s reasonable control.

9.2. If Arkafort fails to perform its obligations under this MSA by an Event of Force Majeure, Arkafort shall forthwith serve notice in writing on the Client specifying the nature and extent of the circumstances giving rise to the Event of Force Majeure and shall, subject to service of such notice, have no liability in respect of the performance of such obligations as are prevented by the Event of Force Majeure during the continuation of such Events.

10. INTELLECTUAL PROPERTY

10.1. Intellectual Property Rights means all present and future rights to or in trademarks, service marks, copyright, design rights, inventions, and other similar rights (whether registered or not and whether capable of registration or not) and, to the extent permitted by law and moral rights.

10.2. Save as otherwise agreed to by the Parties in writing, none of the Parties shall own the Intellectual Property Rights in any materials, documentation or software created or held by or licensed to the other Party.

11. DISPUTE RESOLUTION

11.1. In the event of a dispute between Arkafort and Client arising out of or in connection with this MSA or any respective SOW, either Party may call a meeting of the Parties for the purpose of resolving such dispute within ten (10) Working Days from written notice by either Party.

11.2. The Parties shall endeavor in good faith to resolve disputes arising out of this If the Parties fail to resolve the dispute through negotiation within ten (10) days, the Courts of Malta shall have exclusive jurisdiction to decide any claim relating hereto.

11.3. Court proceedings shall not imply the termination of the MSA or services unless otherwise terminated in terms of the provisions of the MSA or terms agreed upon in writing.

12. WAIVER

12.1. The failure to, or delay in exercising a right or remedy provided by this MSA or by law does not constitute a waiver of such right or remedy or a waiver of other rights or remedies.

12.2. A waiver of a breach of any of these terms and conditions or of a default under this MSA does not constitute a waiver of any other breach or default and shall not affect any other terms and conditions.

12.3. The rights and remedies provided by these terms and conditions are cumulative and (subject as otherwise provided in these terms and conditions) are not exclusive of any rights or remedies provided by law.

13. SEVERABILITY

13.1. This MSA is severable in that if any provision is determined to be illegal, inapplicable, or unenforceable by the court or any other body having a judicial function and with competent jurisdiction, such provision shall be deemed to have been deleted and/or replaced without affecting the remaining provisions of this MSA.

14. LAW

14.1. This MSA shall be governed by and construed in accordance with the Laws of Malta.

15. CONFIDENTIALITY

15.1. For the purposes of this MSA, Confidential Information shall mean all information disclosed by a Party hereto to the other Party, including, but not limited to all commercial, marketing, business, operational, technical, organizational, legal, management and financial information, howsoever recorded and whether provided in writing, verbally, by demonstration or in electronic form, whether or not disclosed before the date hereof, and whether or not the information is marked as “Private and Confidential”. The SOWs shall also be deemed to be Confidential Information. The list of classes of information stipulated in this Clause is not Information not included in this Clause but which, by its very nature requires confidentiality, shall also be Confidential Information, including the terms of this MSA and any SOW.

15.2. The Parties shall take all necessary precautions to ensure that all Confidential Information obtained from each other during the provision of Services is:

i. Treated as confidential.

ii. Given only to such of its staff as is strictly necessary and, on the premise, that the information is confidential.

iii. Not disclosed to third parties (unless required by applicable law or by order of a court or tribunal of competent jurisdiction).

iv. Encrypted in transit in adherence to Arkafort’s encryption policy.

15.3. Client, including its affiliates and/or employees, shall not, in any manner, solicit and/or accept any business from sources that would have become known through the Confidential Information exchanged between the Parties; nor in any manner or form, shall access, contact, make approaches and/or solicit and/or conduct any transaction or communication with such sources, or with any third parties, for the provision of similar services, without the express and specific permission of Arkafort.

Client may not, throughout the term of validity of the MSA and for a period of two (2) years from the termination thereof seek to or attempt to solicit Arkafort’s service providers/freelancers or employees including full and part-timers and/or Arkafort’s clients.

Should Client, or any of its affiliates and/or employees which the Client shall be responsible for, directly or indirectly be in breach of this Clause, it shall be liable to pay Arkafort the sum of seven thousand and five hundred Euro (€7,500) by way of pre-liquidated damages for each and every occurrence. Such penalty shall not be subject to abatement by any Court or Tribunal.

15.4. The Parties shall maintain complete confidentiality regarding each other’s business and/or their companies, associate firms and/or affiliates and may only disclose to third parties such information as may already be available in the public domain. Provided that where it is agreed that certain Confidential Information be disclosed, such agreement shall be formalized in writing.

15.5. The Parties shall not, in any way, circumvent the terms of this MSA and/or attempt to circumvent the terms of this MSA, in any direct and/or indirect manner.

15.6. The receiving party shall:

i. Use the Confidential Information only for the Services and any other Purpose/s set out in this MSA/applicable document regulating the relationship of the Parties (including SOW).

ii. Hold and maintain Confidential Information in strict confidence using the same degree of care (but not less than reasonable care) that they use with respect to comparable, highly confidential information relating to their own business.

iii. Not release, use, sell, transcribe, transfer, publish, disclose, copy (whether by machine or by hand), display, reproduce, reverse, engineer, decompile or dissemble, or otherwise deal with the Confidential Information in any manner whatsoever (except as and to the extent that may be required by applicable law or by order of a court or tribunal of competent jurisdiction).

16. DATA PROTECTION

16.1. Client shall abide by, and be solely responsible for, its collection, storing and processing of Data including its data and any of its clients’ data. Furthermore, each Party shall ensure that it is not in breach of the General Data Protection Regulation (Regulation (EU) 2016/679 GDPR) or any enactment of legislation replacing it, with respect to the collection, processing, transfer, and storage of any personal data that may become necessary in the provision of the Services.

16.2. Client understands and agrees that Arkafort shall not be responsible for carrying out Client’s regular back-up. Should Client want Arkafort to perform its daily backup, such services shall be provided upon request and shall bear a separate fee in terms of a separate SOW.

16.3. Arkafort shall not provide third parties with any information regarding Client unless obliged to do so in terms of law or by court order, or upon Client’s specific instructions, authority, or consent. Arkafort only collects and stores data, information and documents that are believed to be relevant and necessary and for which it has legitimate grounds to do so at law.

16.4. Arkafort may record telephone conversations to offer additional security or resolve complaints.

16.5. Personal data, whether sensitive or otherwise, communicated to Arkafort by Client from time to time may be recorded in a database and processed for the scope of providing the Services in terms of this MSA.

16.6. It is expressly agreed that Client’s personal data may be disclosed to or exchanged by Arkafort’s employees, subsidiaries, associates, and third-party agents contracted by Arkafort in furtherance of its Access to such personal data, information, and documents as aforesaid will be restricted to those who have a need to act or process such information to comply with their duties. Arkafort shall ensure that the mentioned individuals are fully aware of their responsibilities in respect of the Client’s personal data and acknowledge that they are bound to hold the personal data in confidence.

16.7. Client agrees to notify Arkafort, and any Company/Firm involved in the execution of this MSA immediately in writing if such data has changed.

16.8. The Parties bind themselves to process the Data exchanged in accordance with the Data Protection Act and applicable legislation including but not limited to the GDPR.

16.9. When processing Client’s personal data, Arkafort shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, considering the nature, scope, context, and purposes of processing as referred to in Article 32 (1) of the GDPR.

16.10. Upon discovering any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, the Client’s personal data (a “Data Security Breach”), Arkafort shall notify Client without undue delay, and in any case within thirty-six (36) hours from the moment Arkafort becomes aware. Arkafort accepts and undertakes to work with Client in good faith to meet any of its obligations to report or inform the concerned data subjects of the Personal Data Breach. Arkafort shall moreover co-operate with Client and take such reasonable steps as are directed by Client to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.

16.11. Should Client be in breach of any term of this MSA, Arkafort shall have the right to pass on any information or references contained herein to any third party for the purpose of enforcing any right or remedy competent to it at law or in terms of this MSA or any applicable SOW.

17. ENTIRE AGREEMENT

17.1. Save in the case of a fraudulent misrepresentation, this MSA constitutes the entire agreement and understanding of the Parties and supersedes any previous agreement or understanding between the Parties relating to the subject matter of this MSA.

17.2. This MSA does not constitute any type of partnership or agency between the Parties.

17.3. Additional conditions amending and/or supplementing the terms and conditions set out in this MSA shall be agreed by both Parties in writing and shall only become applicable upon signature of both Parties.