Master Services Agreement

2. Structure of this agreement

2.1 This agreement governs each Order Form signed by the parties. Each Order Form incorporates this agreement and, together with it, forms a separate contract.

2.2 If there is a conflict, the order of precedence is: (a) the Order Form; (b) the DPA; (c) the SLA; (d) these Master Services Terms; (e) any Statement of Work. An Order Form varies these terms only where it says expressly that it does so.

2.3 The Customer may add Modules or increase its Committed Volume at any time by signing a supplementary Order Form. Charges for additions are pro-rated to the end of the then-current Term.

2.4 The Customer may not reduce its Committed Volume during a Term except as expressly agreed in writing by Propr.

2.5 Propr may appoint resellers or other partners to market or resell the Service. Where the Customer contracts through a reseller, the commercial terms are those agreed with the reseller, and these terms apply to the Customer's use of the Service.

3. Term and renewal

3.1 This agreement starts on the date of the first Order Form and continues until all Order Forms have expired or been terminated.

3.2 Each Order Form starts on its stated start date and continues for the Initial Term.

3.3 At the end of the Initial Term, and at the end of each renewal period, the Order Form renews automatically for a further 12 months unless either party gives at least 90 days' written notice before the end of the then-current period.

3.4 Charges for each renewal period are the Charges for the preceding period, increased in accordance with clause 10.6.

4. Provision of the Service

4.1 Propr grants the Customer a non-exclusive, non-transferable right for its Authorised Users to access and use the Service during the Term for the Customer's internal business operations, up to the Committed Volume and limited to the Modules stated in the Order Form.

4.2 The Service is provided as a hosted service. The Customer has no right to receive a copy of the Software, and must not copy, adapt, reverse engineer or decompile it, except to the extent permitted by sections 50A to 50C of the Copyright, Designs and Patents Act 1988.

4.3 Propr hosts the Service, and stores Customer Data, in the United Kingdom or the European Economic Area.

4.4 Propr may make changes to the Service from time to time. Propr will give the Customer at least six months' written notice before withdrawing a Module, or making a change that materially reduces the functionality of a Module, unless the change is required by law or is necessary to address a security risk.

4.5 Propr may use subcontractors and third-party suppliers to provide the Service, and remains responsible for their performance of its obligations under this agreement.

5. Service levels and support

5.1 Propr will provide the Service, and will provide support, in accordance with the SLA.

5.2 The response, workaround and fix times in the SLA are targets. They are not guarantees, and failure to meet them is not a breach of this agreement.

5.3 The Customer's only remedies for failure to meet the availability target are those set out in the SLA and the right to terminate under clause 19.3. No service credits are payable.

5.4 Propr may change the SLA on 90 days' written notice, provided the change does not materially reduce the availability target or the support hours during the then-current Term.

6. Professional Services

6.1 Where an Order Form or Statement of Work provides for Professional Services, Propr will provide them with reasonable skill and care, using appropriately qualified personnel.

6.2 Professional Services are provided for a fixed fee unless the Order Form or Statement of Work states that they are charged on a time and materials basis.

6.3 Timescales for Professional Services are estimates. They depend on the Customer performing its obligations under clause 7 and on the Customer providing information, access, systems and decisions when reasonably requested.

6.4 If the Customer requests a change to the scope of Professional Services, Propr will notify the Customer of the effect on the fees and timescales, and no change takes effect until both parties have agreed it in writing.

6.5 All intellectual property rights in deliverables produced as part of Professional Services belong to Propr. The Customer may use them for its internal business operations for as long as it has the right to use the Service.

7. Customer obligations

7.1 The Customer will: (a) use the Service in accordance with this agreement and the Documentation; (b) keep access credentials secure and notify Propr promptly of any suspected unauthorised access; (c) ensure its Authorised Users comply with this agreement, and remain responsible for their acts and omissions; and (d) provide the cooperation, information, access and network connectivity Propr reasonably needs to provide the Service.

7.2 The Customer is responsible for the accuracy, quality and legality of Customer Data, and for having the right to provide it to Propr.

Reliance on routes and outputs

7.3 Routes, schedules, estimated times, sequences and other outputs of the Service are planning aids produced from the data and parameters the Customer provides, and from third-party map, road and traffic data.

7.4 The Customer is responsible for: (a) checking that routes and schedules are suitable for its vehicles, loads and drivers, including vehicle dimensions, weight limits, road restrictions, bridge heights, access restrictions and hazardous goods requirements; (b) compliance with drivers' hours, tachograph, working time, road traffic and health and safety law; (c) all decisions taken by its drivers, who remain responsible at all times for driving safely and lawfully and for deviating from a planned route where circumstances require; and (d) any delivery commitments it makes to its own customers.

7.5 Propr does not warrant that any route is safe, lawful, optimal or achievable, and is not responsible for the accuracy or completeness of third-party map, road or traffic data.

7.6 The Customer must not use the Service to monitor the location or activity of drivers or other individuals unless it has a lawful basis for doing so and has given those individuals the information required by Data Protection Legislation. As between the parties, the Customer is solely responsible for its use of tracking and telemetry functionality and for any employee monitoring it carries out.

8. Acceptable use

8.1 The Customer must not, and must ensure that its Authorised Users do not: (a) use the Service unlawfully, fraudulently or for any harmful purpose; (b) upload malicious code, or any material that is unlawful, defamatory or infringing; (c) attempt to gain unauthorised access to the Service, to Propr's systems or to any other customer's data; (d) probe, scan or penetration test the Service without Propr's prior written consent; (e) reverse engineer, decompile or attempt to derive the source code of the Software, except as permitted by clause 4.2; (f) use the Service to build a competing product or service, or carry out benchmarking for publication without Propr's consent; (g) resell, sublicense or make the Service available to any third party other than its Authorised Users; (h) exceed documented API rate limits or place an unreasonable load on the Service; or (i) share account credentials between individuals.

8.2 Propr may investigate suspected breaches of this clause, and may suspend access under clause 18.

8.3 Propr may update this clause from time to time where necessary to protect the security, integrity or lawful operation of the Service, on notice under clause 24.

9. Mobile applications

9.1 The Service includes a driver application made available through third-party app stores. The Customer must ensure that its Authorised Users install and use it in accordance with this agreement and the applicable app store terms.

9.2 The Customer is responsible for providing compatible devices, mobile connectivity and data plans, and for the cost of them.

9.3 Propr is not responsible for the availability of, or changes made by, any app store or mobile network operator.

10. Charges and payment

10.1 The Customer will pay the Charges stated in the Order Form. Charges for the Committed Volume are invoiced annually in advance unless the Order Form says otherwise.

10.2 Where the Customer's use exceeds the Committed Volume in any month, the excess is charged at the overage rate in the Order Form and invoiced monthly in arrears. Propr's records of usage are conclusive in the absence of manifest error.

10.3 Propr will invoice any Professional Services and set-up fees as stated in the Order Form or Statement of Work.

10.4 The Customer will pay each invoice within 30 days of the date of the invoice, in cleared funds, by bank transfer to the account Propr notifies. Propr may accept payment by credit or debit card, and may charge a surcharge for it to the extent permitted by law.

10.5 All Charges are exclusive of VAT, which the Customer will pay at the applicable rate.

10.6 Propr may increase the Charges by 4% with effect from each anniversary of the start date stated in the Order Form, by notice to the Customer. Any further increase requires the Customer's agreement.

10.7 Charges are non-refundable and are payable regardless of actual usage. The Customer may not withhold or set off any amount.

10.8 If the Customer fails to pay any undisputed amount by its due date, Propr may: (a) charge interest on the overdue amount at 4% per year above the Bank of England base rate from time to time, accruing daily from the due date until payment, both before and after judgment; and (b) after giving 14 days' written notice, suspend the Service under clause 18.

10.9 Clause 10.8(a) does not prevent Propr from claiming interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998, at its election.

10.10 If the Customer disputes an invoice in good faith, it must notify Propr within 15 days of the invoice date, giving reasons, and must pay the undisputed part on time. The parties will use reasonable efforts to resolve the dispute promptly.

11. Intellectual property

11.1 All intellectual property rights in the Service, the Software, the Documentation and any deliverables belong to Propr or its licensors. The Customer receives only the rights expressly granted in this agreement.

11.2 All intellectual property rights in Customer Data belong to the Customer or its licensors. The Customer grants Propr a non-exclusive licence to use, copy, store, transmit and process Customer Data to the extent needed to provide the Service and to perform this agreement.

11.3 If the Customer provides feedback, suggestions or ideas about the Service, Propr may use them without restriction and without any obligation to the Customer.

11.4 The Service incorporates third-party map, road and address data, and open-source components. The Customer will comply with any third-party notices and attribution requirements Propr notifies to it.

12. Customer Data and Aggregated Data

12.1 Propr will maintain appropriate technical and organisational measures to protect Customer Data, and will take backups in accordance with the SLA.

12.2 Propr may create and use Aggregated Data for any purpose connected with its business, including operating, improving, securing and developing the Service and its algorithms, training machine learning models, and producing benchmarking, statistical and industry analyses.

12.3 Propr will not publish or disclose Aggregated Data in a form that identifies the Customer, any Authorised User or any individual. Aggregated Data belongs to Propr.

13. Data protection

13.1 Each party will comply with Data Protection Legislation.

13.2 In relation to personal data processed through the Service, the Customer is the controller and Propr is the processor. The DPA sets out the details of the processing and the parties' obligations, and applies to that processing.

13.3 In relation to Aggregated Data, and to Propr's use of contact and account data to administer the relationship, Propr acts as a controller.

13.4 Propr will not transfer personal data outside the United Kingdom or the European Economic Area unless an appropriate safeguard under Data Protection Legislation is in place.

14. Confidentiality

14.1 Each party will keep the other's confidential information confidential, use it only to perform this agreement, and disclose it only to those of its personnel and advisers who need it and who are bound by equivalent obligations.

14.2 These obligations do not apply to information that is public other than through breach of this clause, was known to the recipient free of restriction, is independently developed, or is required to be disclosed by law or a regulator, provided the recipient gives notice where lawful to do so.

14.3 This clause continues for five years after termination. It does not limit either party's obligations in relation to personal data.

15. Warranties and disclaimers

15.1 Each party warrants that it has the authority to enter into this agreement.

15.2 Propr warrants that it will provide the Service with reasonable skill and care, and that the Service will perform materially in accordance with the Documentation. If Propr breaches this warranty, it will use reasonable efforts to correct the non-conformity, and this is the Customer's sole remedy for that breach.

15.3 Propr warrants that it has the right to provide the Service, and that to the best of its knowledge the Service as provided by Propr does not infringe the intellectual property rights of any third party.

15.4 Propr does not warrant that the Service will be uninterrupted or error-free, that it will be free of vulnerabilities, or that it will meet requirements Propr has not expressly agreed in writing.

15.5 Except as expressly stated in this agreement, all warranties, conditions and terms implied by statute or common law are excluded to the fullest extent permitted by law.

16. Customer indemnity

16.1 The Customer will indemnify Propr against all losses, damages, liabilities, costs and expenses (including reasonable legal fees) arising out of or in connection with: (a) Customer Data, including any claim that it infringes a third party's rights or breaches Data Protection Legislation; (b) use of the Service by the Customer or its Authorised Users in breach of this agreement; (c) the Customer's monitoring of drivers or other individuals; and (d) any claim brought by a driver, employee, customer or other third party arising from the Customer's reliance on, or implementation of, any route, schedule or other output of the Service.

16.2 Propr will notify the Customer of any claim under clause 16.1, allow the Customer to conduct the defence and settlement of it provided no admission is made and no settlement is agreed without Propr's consent (not to be unreasonably withheld), and give reasonable assistance at the Customer's cost.

16.3 The Customer's liability under clause 16.1 is not subject to the cap in clause 17.3.

17. Limitation of liability

17.1 Nothing in this agreement limits or excludes liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot lawfully be limited or excluded. Nothing limits the Customer's obligation to pay the Charges.

17.2 Neither party is liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for: loss of profits, revenue, business, anticipated savings, goodwill or reputation; loss or corruption of data, except Propr's obligation to restore from backup under the SLA; wasted expenditure; costs of procuring substitute services; or any indirect or consequential loss.

17.3 Subject to clauses 17.1 and 16.3, each party's total liability arising out of or in connection with this agreement in any 12-month period is limited to the Charges paid or payable by the Customer under the relevant Order Form in the 12 months immediately before the first event giving rise to the liability.

17.4 Propr is not liable for any loss arising from: (a) the Customer's failure to comply with clause 7; (b) the accuracy or completeness of third-party map, road, traffic or address data; (c) use of the Service other than in accordance with the Documentation; or (d) matters excluded under the SLA.

17.5 The Customer acknowledges that the Charges have been calculated on the basis of the allocation of risk in this clause, and that the allocation is reasonable in the circumstances.

17.6 Propr maintains professional indemnity and cyber insurance, and will provide evidence of cover on reasonable request.

18. Suspension

18.1 Propr may suspend the Service, in whole or in part, where: (a) any undisputed amount is more than 14 days overdue and Propr has given 14 days' written notice; (b) Propr reasonably believes the Service is being used in breach of clause 7 or clause 8, or in a way that threatens the security, integrity or availability of the Service or another customer's data; or (c) required by law.

18.2 Propr will give as much notice of suspension as is reasonably practicable and will restore the Service promptly once the cause has been resolved. Charges continue to accrue during any suspension under clause 18.1(a) or (b).

19. Termination

19.1 Either party may terminate this agreement or any Order Form immediately by written notice if the other: (a) commits a material breach which is irremediable, or which it fails to remedy within 30 days of written notice; or (b) becomes insolvent, has an administrator, receiver or liquidator appointed, enters into a company voluntary arrangement, or ceases or threatens to cease to carry on business.

19.2 Propr may terminate immediately on written notice if the Customer undergoes a change of control in favour of a competitor of Propr.

19.3 The Customer may terminate the affected Order Form on 30 days' written notice if Propr fails to meet the availability target in the SLA in three consecutive months, or in three months in any rolling six-month period, provided notice is given within 30 days of the third failure.

19.4 Neither party may terminate for convenience during a Term. Either party may prevent renewal by giving notice under clause 3.3.

20. Consequences of termination

20.1 On termination or expiry: (a) all rights to access and use the Service end; (b) the Customer will pay all Charges due to the end of the then-current Term, which become immediately payable; and (c) each party will return or destroy the other's confidential information, subject to clause 20.2.

20.2 For 30 days after termination or expiry, Propr will make Customer Data available for export by the Customer in a structured, commonly used, machine-readable format. Propr may charge on a time and materials basis for any assisted migration or non-standard extract the Customer requests.

20.3 After that 30-day period, Propr may delete Customer Data, and will do so within 90 days, except to the extent it is required by law to retain it or it forms part of Aggregated Data.

20.4 Termination does not affect any accrued rights or remedies. Clauses 1, 10 (in respect of accrued amounts), 11, 12, 14, 15.5, 16, 17, 20, 21, 26 and 28 survive termination.

21. Non-solicitation

21.1 During the Term and for 12 months afterwards, neither party will solicit for employment or engagement any employee of the other who has been materially involved in the provision or receipt of the Service, without the other's written consent. This does not prevent either party from employing someone who responds to a general recruitment advertisement not targeted at the other's staff.

22. Publicity

22.1 Neither party may use the other's name, logo or trade marks in publicity or marketing without the other's prior written consent, which the parties will not unreasonably withhold in the case of a factual reference to the existence of the relationship.

23. Force majeure

23.1 Neither party is liable for failure or delay in performing its obligations, other than payment, caused by an event beyond its reasonable control, including failures of telecommunications or internet services, power failures, acts of government, industrial action, epidemic and natural disaster. The affected party will notify the other and use reasonable efforts to resume performance. If the event continues for more than 60 days, either party may terminate the affected Order Form on 30 days' written notice.

24. Changes to these terms

24.1 Propr may update these Master Services Terms from time to time on 60 days' written notice, provided the update does not materially reduce the Service or materially increase the Customer's obligations during the then-current Term. Continued use of the Service after the notice period takes effect constitutes acceptance.

24.2 Any other variation must be in writing and signed by both parties.

25. Notices

25.1 Notices must be in writing and sent to the addresses in the Order Form, by hand, by pre-paid first-class post or by email to the address stated for notices. Notices are deemed received: if delivered by hand, on signature; if posted, at 9.00am on the second business day after posting; if emailed, at the time of transmission, or at 9.00am on the next business day if sent outside business hours.

25.2 Notices of termination or of a claim may not be given by email alone.

26. General

26.1 The Customer may not assign, transfer or subcontract any of its rights or obligations without Propr's prior written consent. Propr may assign or transfer this agreement to a group company or in connection with a merger, acquisition or sale of assets.

26.2 This agreement, the Order Form, the SLA, the DPA and any Statement of Work constitute the entire agreement between the parties and supersede all previous agreements, representations and understandings. Neither party relies on any statement not set out in this agreement, but nothing limits liability for fraudulent misrepresentation.

26.3 Nothing in this agreement creates a partnership, joint venture or agency.

26.4 No failure or delay in exercising a right operates as a waiver of it.

26.5 If any provision is found to be invalid or unenforceable, it is to be modified to the minimum extent necessary, and the remainder of the agreement is unaffected.

26.6 A person who is not a party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term.

26.7 This agreement may be executed in counterparts, including by electronic signature.

27. Disputes

27.1 If a dispute arises, the parties will first escalate it to a senior representative of each party, who will meet within 14 days to try to resolve it. This does not prevent either party from seeking injunctive relief or pursuing a debt claim at any time.

28. Governing law and jurisdiction

28.1 This agreement, and any dispute arising out of or in connection with it, is governed by the law of England and Wales.

28.2 The courts of England and Wales have exclusive jurisdiction.