Standard terms and conditions

1.     INTERPRETATION

1.1.     Definitions. In these Conditions, the following definitions apply:

Acceptance Tests: the tests (if any) to be carried out on the Deliverables as set out in condition 5 and as described or referred to in the applicable Statement of Work.

Agile: a project delivery approach divided into time Sprints (of 2-4 weeks duration), where the requirements are logged into a prioritised list of tasks called a Product Backlog, and the parties jointly create a Sprint Plan, where each Sprint aims to deliver a pre-agreed number of items from the Backlog, based on the capacity of the services team allocated to each Sprint.

Business Day: a day other than a Saturday, Sunday or a public holiday in England.

Change: as defined in condition 12.1.

Change Request: as defined in condition 12.2.

Charges: the charges payable in respect of the Project Services as set out in the applicable Statement of Work together with any Expenses and any charges arising from the change control procedures as set out in condition 12.

Client: the person or entity that purchases the Project Services from Profound Works as set out in the Statement of Work.

Client Materials: content provided to Profound Works by the Client from time to time for use in providing the Project Services.

Commencement Date: the date specified as such in the Statement of Work or, if earlier, the date upon which Profound Works begins to provide the relevant Project Services to the Client.

Conditions: these terms and conditions, which shall apply to and be deemed incorporated into each Statement of Work.

Data Protection Legislation: as defined in condition 10.1.

Deliverables: the materials, products and any other results of the provision of the Project Services (if any) set out in a Statement of Work.

Expenses: as defined in condition 6.5.

Force Majeure Event: means an event beyond the reasonable control of Profound Works including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Profound Works or any other party), failure or interruption of a utility service, telecommunications network or transport network, act of God, war, riot, civil commotion, act of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get­up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Phase: in relation to a Statement of Work, one of the key phases of work identified in the applicable Statement of Work (if any).

Product Backlog: working to the Agile project framework, a list of features, designs, changes or other activities that is constantly updated and prioritised by a Product Owner to inform the work that needs to be delivered in each Sprint;

Product Owner: working to the Agile project framework, a client-side person responsible for creating, refining and prioritising the Product Backlog through constant communication with client stakeholders and the supplier to ensure all the requirements and the resulting Sprint Plan are prioritised in line with project objectives.

Profound Works: Profound Works Limited registered in England and Wales with company number 9162929 and registered office at 1 Prisma Park, Berrington Way, Basingstoke, RG24 8GT.

Project Services: the consulting, design, marketing, technical development, support and maintenance services, and/or other services to be supplied by Profound Works to the Client, as set out in the applicable Statement of Work.

Statement of Work: a Statement of Work  with the descriptions or specifications for the Project Services agreed in writing by the Client and Profound Works from time to time in accordance with condition 2 including any associated assumptions and dependencies, warranties, service levels and/or limitations or exclusions from service, all as may be amended from time to time via agreed Change Requests.

Sprint: working within an Agile project framework, a period of typically 2-4 weeks duration in which the supplier provides a team of staff appropriately skilled to deliver design, technical or consulting work, and the Sprint tasks to be delivered are sized and allocated based on the priority from the Product Backlog;

1.2.            Construction. In these Conditions, the following rules apply:

1.2.1.     a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2.     a reference to a party includes its successors or permitted assigns;

1.2.3.     a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

1.2.4.     any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.2.5.     a reference to writing or written includes faxes and e-mails.

 

2.     BASIS

2.1     These Conditions govern the relationship of the parties in relation to the Services to be provided by Profound Works to Client under a Statement of Work.

2.2     Each Statement of Work constitutes an offer by the Client to purchase the applicable Project Services in accordance with these Conditions.

2.3     Subject to condition 2.4, Profound Works shall become bound to supply the applicable Project Services to the Client upon signature of the Statement of Work by Profound Works, or (as the case may be) when Profound Works begins the performance of the Project Services pursuant to a Statement of Work at which point and on which date a contract for such Project Services shall come into existence.

2.4.     If the Client is required by its internal processes to issue a purchase order to Profound Works to accompany any Statement of Work, Profound Works shall have no obligation to commence any Project Services until and unless the Client provides the necessary purchase order.

2.5.     These Conditions together with the Statement of Work constitute the entire agreement between the parties and supersede all previous agreements, promises, assurances, warranties, representations and understandings between Profound Works and the Client, whether written or oral, in relation to their subject matter. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Profound Works which is not set out in these Conditions or a Statement of Work.

2.6.     Except where the Client is dealing as a consumer (as defined in the Consumer Rights Act 2015), these Conditions apply to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, including but not limited to those implied by sections 3 to 5 and sections 13 to 15 of the Supply of Goods and Services Act 1982. A consumer’s statutory rights are not affected by these Conditions.

2.7.     In the event of a conflict between these Conditions and any terms set out in a Statement of Work, the terms of the Statement of Work shall prevail.

 

3. SUPPLY OF SERVICES

3.1.     Profound Works shall provide the Project Services to the Client in accordance with the applicable Statement of Work in all material respects. All work delivered is on a Time and Materials basis unless otherwise specified in the Statement of Work.

3.2.     Profound Works shall not be required to provide any services not detailed in a Statement of Work or otherwise agreed in accordance with condition 12.

3.3.     When working within the Agile framework, the Client understands that they are purchasing the use of a team of staff for a fixed time period (a Sprint) to deliver a specific pre-agreed number of tasks from a Product Backlog and it is the Client’s responsibility to ensure that the Product Backlog is sufficiently refined, prioritised and maintained to maximise the team for each Sprint while it is available to the Client.

3.4.     The Commencement Date for Project Services shall be specified in the applicable Statement of Work together with details of the projected or agreed duration of any Project Services and options and processes for renewal of any recurring Project Services.

3.5.     Profound Works shall use reasonable endeavours to meet any performance dates for the applicable Project Services specified in the Statement of Work, but such dates shall be estimates only and time shall not be of the essence of any Statement of Work.

3.6.     Profound Works shall not be liable for any failure to meet a performance date specified in a Statement of Work or any other failure to supply the Project Services in accordance with the applicable Statement of Work caused by:

3.6.1.     a Force Majeure Event; or

3.6.2.     the Client’s failure to provide Profound Works with (or provide reasonably requested access to) adequate equipment, staff, systems, information, instructions, other resources in relation to the supply of the Project Services; or

3.6.3.     the Client’s failure to provide any approvals or sign-offs by the required deadlines notified to it by Profound Works; or

3.6.4.     the failure of any other suppliers of the Client to provide necessary input or take necessary actions in relation to the Project Services.

3.7.     Authorised representatives of the parties may agree to meet on regular occasions to discuss progress of the Project Services and Statement of Works at such times and places and by such communication methods as may be mutually agreed. Representatives shall use their reasonable endeavours to accommodate any requests or non-availability of the other party’s representative.

3.8.     Profound Works shall have the right to make any changes to the Project Services which are necessary to comply with any applicable law or regulatory or safety requirement, or which do not materially affect the nature or quality of the Project Services, and Profound Works shall notify the Client in any such event.

3.9.     Save as otherwise set out in these Conditions, Profound Works warrants to the Client that the Services will be provided using reasonable care and skill and in accordance with all applicable law but the Client shall be responsible for ensuring:

3.9.1.     that all Client Materials comply with condition 7 and condition 16.3; and

3.9.2.     that the operation of any system, website, e-commerce or other platform in respect of which Project Services are being provided, together with the content of any associated accompanying information or terms and conditions, complies with all applicable law.

3.10.     For the avoidance of doubt, if the Client wishes to cancel any Statement of Work or any part of one for any reason and Profound Works, acting in its absolute discretion, agrees to such cancellation, it shall be at Profound Works’ sole discretion as to whether the Client shall be entitled to any reduction or reimbursement of any applicable Charges paid or payable in respect of those Project Services.

3.11.     Profound Works shall use reasonable endeavours to liaise with any third party suppliers appointed by the Client in accordance with condition 8 at the Client’s cost.

 

4.     CLIENT’S OBLIGATIONS

4.1.     The Client shall:

4.1.1.     ensure that the terms of each Statement of Work are complete and accurate and suitable for its requirements prior to signature or commencement of the relevant Project Services;

4.1.2.     appoint an appropriate project manager to manage each Statement of Work and with appropriate authority to bind the Client on all matters relating to that Statement of Work;

4.1.3.     when working within the Agile project framework, appoint an appropriate Product Owner to liaise effectively with client stakeholders, regularly manage and prioritise the Product Backlog throughout the project to ensure momentum for each Sprint;

4.1.4.     co-operate with Profound Works in all matters relating to the Project Services including providing prompt input or approvals where requested by Profound Works;

4.1.5.     provide Profound Works with such information, data and materials as Profound Works may reasonably require to supply the Project Services, and ensure that such information is provided in a timely fashion and is complete and accurate in all material respects;

4.1.6.     appoint such numbers of competent personnel to carry out the Client’s responsibilities under condition 5 including but not limited to carry out user acceptance testing;

4.1.7.     obtain and maintain all necessary licences, permissions and consents (internal and external to the Client) together with any necessary hardware, infrastructure or other items which may be required for the Project Services, before the date on which the Project Services are to start;

4.1.8.     appoint and appropriately manage any third party suppliers, sub-contractors or agents with whom Profound Works is required to co-ordinate in respect of the Project Services;

4.1.9.     comply with any usage restrictions, acceptable use policies, notification procedures or similar arrangements applicable to any particular Project Services and set out in a Statement of Work; and

4.1.10.     follow any agreed communication or other processes reasonably specified by Profound Works in relation to the Client’s interaction with any subcontractors appointed by Profound Works in relation to the delivery of Project Services.

4.2     If Profound Works’ performance of any of its obligations in respect of any Project Services (whether under one or more Statement of Works) is prevented or delayed by any act or omission by the Client (or its other suppliers) or failure by the Client (or its other suppliers) to perform any relevant obligation (Client Default):

4.2.1.     Profound Works shall without limiting its other rights or remedies have the right to suspend performance of those Project Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Profound Works’ performance of any of its obligations;

4.2.2.     Profound Works shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Profound Works’ failure or delay to perform any of its obligations as set out in this condition  4.2; and

4.2.3.     the Client shall reimburse Profound Works on written demand for any additional costs or losses sustained or incurred by Profound Works arising directly or indirectly from the Client Default.

4.3.     In order to protect the legitimate business interests of Profound Words, the Client covenants with Profound Works that it shall not (and shall procure that no member of the Client’s group shall) (except with the prior written consent of Profound Works):

4.3.1.     attempt to solicit or entice away; or

4.3.2.     solicit or entice away,

from the employment or service of Profound Works the services of any Restricted Person other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of Profound Works.

 4.4.     The Client shall be bound by the covenant set out in condition 4.3 during the term of the Statement of Work, and for a period of 12 months after its termination or expiry.

4.5.     For the purposes of this condition 4, a Restricted Person shall mean any firm, company or person employed or engaged by Profound Works during the term of the Statement of Work, who has been engaged in the provision of the Project Services or the management of the Statement of Work either as principal, agent, employee, independent contractor or in any other form of employment or engagement and who could materially damage the interests of Profound Works if they were involved in any capacity in any business concern which competes with Profound Works or its business.

4.6.     If the Client commits any breach of condition 4.3, the Client shall, on demand, pay to Profound Works a sum equal to one year’s basic salary or the annual fee that was payable by Profound Works to the Restricted Person plus the recruitment costs incurred by Profound Works in replacing such person.

 

5.     ACCEPTANCE

5.1.     Once Profound Works has completed a particular Phase (if any) and/ or supplied the Deliverables as set out in a Statement of Work, the Client shall run Acceptance Tests where those are specified as being required in the Statement of Work.

5.2.     The Acceptance Tests shall test compliance of the Phase or Deliverables with the Statement of Work. The form and details of such tests will be agreed between the Parties in the manner set out in the Statement of Work.

5.3.     Acceptance shall occur when the Phase or Deliverables have passed the Acceptance Tests. Profound Works shall notify the Client when the Phase or Deliverables are ready to be submitted for the Acceptance Tests. The Client shall notify Profound Works with reasonable advance notice of when it intends to run the Acceptance Tests and allow representatives of Profound Works to attend if appropriate (at the Client’s cost). The Client shall promptly provide the results of the Acceptance Tests to Profound Works in writing including any material failures to comply with the Statement of Work.

5.4.     In the event that any material failures to comply with the Statement of Work are identified, Profound Works shall be given a reasonable period of time in which to remedy such failures and resubmit the Phase or Deliverables for testing. Retesting shall follow the same process as set out in this condition 5 for initial testing.

5.5.     If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors, third-party providers or agents for whom Profound Works has no responsibility (Client Defect), the Phase or Deliverables shall be deemed to have passed the Acceptance Tests notwithstanding such Client Defect. Profound Works shall provide assistance reasonably requested by the Client in remedying any Client Defect by supplying additional services or products. The Client shall pay Profound Works in full for all such additional services and products at Profound Works’ then current fees and prices.

5.6.     Acceptance of the Phase or Deliverables shall be deemed to have taken place upon the occurrence of any of the following events:

5.6.1.     the Client accepts the Phase or Deliverables by signing an acceptance certificate in writing (which may include acceptance of the Phase or Deliverables with minor defects);

5.6.2.     in the circumstances set out in condition  5.5;

5.6.3.     the Client uses any part of the Deliverables for any revenue-earning purposes or to provide any services to third parties other than for test purposes or otherwise uses them in a production environment; or

5.6.4.     the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of ten Business Days from the date on which Profound Works notified the Client that the Phase or Deliverables are ready to commence running such Acceptance Tests or retests.

5.7.     For the avoidance of any doubt, Profound Works will only be liable to correct those faults that have been identified by the Client under this condition 5 before the Client has paid the final Charges owing under the Statement of Work. Any faults that the Client may identify after the final Charges have been paid will be deemed to be outside the scope of that Statement of Work and may be corrected by Profound Works under a new Statement of Work and at additional cost.

5.8.     Until Acceptance Tests have been successfully completed for any Phase or Deliverable and acceptance confirmed in accordance with condition 5.6, Profound Works shall not be obliged to carry out any further Project Services unless it agrees otherwise.

 

6.     CHARGES AND PAYMENTS

6.1.     Profound Works shall invoice the Client for the Charges in the amounts and at the intervals as set out in the Statement of Work.

6.2.     Notwithstanding the provisions of condition 6.1, where Profound Works requires the Client to provide information or approve specifications or designs in order to provide the Project Services and the Client fails to do so within a reasonable period of time, Profound Works reserves the right to invoice the Client for the Charges payable for the associated Project Services upon expiry of such reasonable period as Profound Works may decide at its discretion.

6.3.     The Client shall pay each invoice submitted by Profound Works (which may be by Direct Debit or other automated payment method):

6.3.1.     within 28 days of the date of the invoice or as specified otherwise in the Statement of Work or on the invoice itself; and

6.3.2.     in full and in cleared funds in Sterling to a bank account nominated in writing by Profound Works, and

6.3.3.     time for payment shall be of the essence.

6.4.     In the event that the Client disputes, in good faith, any Charges invoiced by Profound Works, the Client shall notify Profound Works of such dispute within five Business Days of date of the respective invoice and the parties shall endeavour to resolve such dispute within ten Business Days following such notification.   Any such dispute shall not affect the Client’s obligation to pay Profound Works the undisputed part of the invoice.  If no notice of a disputed invoice is given with five Business Days of receipt of the respective invoice the Client is deemed to have accepted the invoice in full.

6.5.     The following expenses (the Expenses) shall be payable by the Client in addition to the Charges:

6.5.1.     travel, hotel, computer consumables and other expenses which Profound Works may necessarily and properly incur for the purposes of providing the Project Services, other than expenses of travelling between normal places of residence and the place at which Profound Works carries on its business;

6.5.2.     those incurred by Profound Works that may result from addressing any amendments to the Statement of Work made under condition 12;

6.5.3.     those incurred by Profound Works in the correction of any faults identified during testing in accordance with condition 5 such as, travel, hotel, computer consumables and other expenses which Profound Works may necessarily and properly incur for the purposes of correcting any faults; and

6.5.4.     any other particular costs or expenses detailed in a Statement of Work.

6.6.     The Client reserves the right to query any Expenses detailed in condition 6.5 and shall not be required to cover any Expenses that are not directly related to Profound Works providing the Project Services or those for which no valid receipts or invoices can be produced or which are outside of any expenses budget agreed by the Client.

6.7.     In the event that Profound Works incurs additional Expenses related to the Project Services that are outside the scope of those detailed in condition 6.5, such Expenses shall not be incurred without the prior written consent of the Client.

6.8.     All amounts payable by the Client are exclusive of amounts in respect of value added tax properly chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made by Profound Works to the Client, the Client shall, on receipt of a valid VAT invoice from Profound Works, pay to Profound Works such additional amounts in respect of VAT as are chargeable on the supply of the Project Services at the same time as payment is due for the supply of the Project Services.

6.9.     Without limiting any other right or remedy of Profound Works, if the Client fails to make any payment due to Profound Works by the due date for payment (Due Date), Profound Works shall have the right to claim interest under The Late Payment of Commercial Debts (Interest) Act 1998 on the overdue amount accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgement, and compounding monthly.

6.10.     The Client shall pay all amounts due in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Profound Works in order to justify withholding payment of any such amount in whole or in part. Profound Works may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Profound Works to the Client.

 

7. INTELLECTUAL PROPERTY RIGHTS

7.1.     All Intellectual Property Rights belonging to a party prior to the execution of a Statement of Work or developed independently of a Statement of Work shall remain vested in that party or its licensors.

7.2.     All Client Materials and the Intellectual Property Rights therein shall remain the property of the Client or its licensors. Profound Works shall use such Client Materials under licence from the Client for the sole purpose of completing the Project Services.

7.3.     The Client warrants that they have obtained all relevant licences, permissions and rights for the use of any Client Materials by Profound Works and in relation to the Project Services that are owned by, or were otherwise created by, a third party.

7.4.     Profound Works shall bear no responsibility for ensuring that Client Materials carry with them the appropriate third party permissions for use and reproduction. The Client shall provide Profound Works with details of any copyright or trade mark notices or other proprietary statements that are to accompany any Client Materials provided.

7.5.     Subject to conditions 7.1, 7.2 and 7.7, all Intellectual Property Rights and all other rights in the Deliverables and the Project Services shall be owned by Profound Works. Profound Works hereby licenses all such Intellectual Property Rights to the Client free of charge (other than the applicable Charges) and on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the final agreed version of the Deliverables and the Project Services as envisaged by the applicable Statement of Work. If Profound Works terminates any Statement of Work under condition 13.1, this licence will automatically terminate unless otherwise agreed by Profound Works (but licences shall not terminate where a Statement of Work simply expires through completion of the associated Project Services).

7.6.     Except as expressly set out in this condition 7, these Conditions do not transfer or grant to Profound Works any right, title or interest in any Intellectual Property Rights belonging to the Client nor transfer or grant to the Client any right, title or interest in any Intellectual Property Rights belonging to Profound Works.

7.7.     The Client acknowledges that, in respect of any third party Intellectual Property Rights used as part of or incorporated into the Project Services, the Client’s use of any such Intellectual Property Rights is conditional on Profound Works obtaining a written licence from the relevant licensor on such terms as will entitle Profound Works to license such rights to the Client. If the Client wishes to obtain a direct licence from the relevant licensor, it shall agree such arrangements with Profound Works in advance of the commencement of any relevant Project Services.

7.8.     The Client shall indemnify and keep indemnified Profound Works against any loss, damages, costs and expenses awarded against or incurred by Profound Works in connection with, or paid or agreed to be paid by Profound Works in settlement of, any claim for infringement of Intellectual Property Rights belonging to any third parties resulting from the use of any Client Materials or designs or other information submitted to Profound Works by the Client save to the extent that Profound Works has not complied with any terms of use for such items notified to Profound Works by the Client in advance in writing.

 

8.     CONFIDENTIALITY

8.1     A party (Receiving Party) shall keep in strict confidence all technical, financial, marketing or commercial know-how, specifications, inventions, data, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under these Conditions and in relation to Statement of Works, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.

8.2.     A Receiving Party may disclose the Disclosing Party’s confidential information to the extent required to be disclosed by law, by any governmental or other regulatory authority or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this condition 8.2, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

8.3.     This condition 8 shall survive termination of all Statement of Works however arising but shall not apply to any information that:

8.3.1.     is or becomes public knowledge other than through any act or omission of the Receiving Party;

8.3.2.     was in the Receiving Party’s lawful possession before the disclosure;

8.3.3.     is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or

8.3.4.     is independently developed by the Receiving Party, which independent development can be shown by written evidence.

 

9. ANTI-BRIBERY COMPLIANCE

9.1.     Both parties shall:

9.1.1.     comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;

9.1.2.     not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and

9.1.3.     immediately notify the other party in writing if a foreign public official becomes an officer or employee. Both parties warrant that it has no foreign public officials as officers or employees at the date of execution by the parties of each Statement of Work.

 

10.     DATA PROTECTION COMPLIANCE

10.1.     Both parties shall, to the extent applicable to the provision of any Project Services and to the extent applicable to their respective role in processing any personal data, comply with relevant data protection and privacy legislation including but not limited to the Data Protection Act 1998, the General Data Protection Regulation (2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (Data Protection Legislation).

10.2.     The parties shall sign such further documents as may be required to ensure compliance with the Data Protection legislation in relation to particular Statement of Works.

10.3.     Without prejudice to the generality of condition 10.1, the Client shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of personal data to Profound Works for the duration and purposes of a Statement of Work.

10.4.     Without prejudice to the generality of condition 10.1, Profound Works shall, in relation to any personal data processed in connection with the performance by Profound Works of its obligations under these Conditions:

10.4.1.     agree with the Client and set out in the Statement of Work the scope, nature and purpose of processing by Profound Works, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation) and categories of data subject;

10.4.2.     process that personal data only on the written instructions of the Client unless Profound Works is required by the laws of any member of the European Union or by the laws of the European Union or other laws applicable to Profound Works to process personal data (Applicable Laws). Where Profound Works is relying on laws of a member of the European Union or European Union law or other laws as the basis for processing personal data, Profound Works shall promptly notify the Client of this before performing the processing required by the applicable laws unless those laws prohibit Profound Works from so notifying the Client;

10.4.3.     ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

10.4.4.     ensure that all personnel who have access to and/or process Personal Data are obliged to keep the personal data confidential;

10.4.5.     not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained or there is another transfer condition available under the Data Protection Legislation that Profound Works can and does rely on;

10.4.6.     assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

10.4.7.     notify the Client without undue delay on becoming aware of a personal data breach;

10.4.8.     at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Statement of Work unless required by applicable law to continue to store the personal data; and

10.4.9.     maintain complete and accurate records and information to demonstrate its compliance with this condition 10 and allow for reasonable audits by the Client or the Client’s designated auditor.

10.5.     The Client consents to Profound Works appointing any designated subcontractors set out in the Statement of Work as third-party processors of personal data under that Statement of Work and/or any other subcontractors used generally by Profound Works to deliver services to its clients. Profound Works shall maintain a list of subcontractors used by it in relation to its services (a copy of which is available upon request) and shall notify its clients generally of any intended change to that list and/or the designated subcontractors set out in the Statement of Work. Profound Works confirms that it has entered into or (as the case may be) will enter into with each third-party processor a written agreement incorporating terms which are substantially similar to those set out in this condition 10.

10.6.     Either party may, at any time on not less than thirty days’ notice, revise this condition 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to the Statement of Work).

 

11.     LIMITATION OF LIABILITY

11.1.     Nothing in these Conditions shall limit or exclude Profound Works’ liability for:

11.1.1.     death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

11.1.2.     fraud or fraudulent misrepresentation;

11.1.3.     breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

11.1.4.     defective products under the Consumer Protection Act 1987; or

11.1.5.     any other liability that Profound Works may not exclude or limit by law, for example, certain liabilities towards consumers.

11.2.     Subject to condition 11.1:

11.2.1.     Profound Works shall under no circumstances whatsoever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

11.2.1.1.     loss of profits;

11.2.1.2.     loss of business;

11.2.1.3.     depletion of goodwill or similar losses;

11.2.1.4.     loss of anticipated savings;

11.2.1.5.     loss or corruption of data or information;

11.2.1.6.     loss of use; or

11.2.1.7.     any indirect or consequential loss arising under or in connection with any Statement of Work; and

11.2.2.     Profound Works’ total liability to the Client in respect of all other losses arising under or in connection with any single Statement of Work, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 50% of the Charges to be paid to Profound Works for that specific Statement of Work.

11.3.     This condition 11 shall survive termination of all Statement of Works.

 

12.     CHANGE CONTROL PROCEDURE

12.1.     Profound Works and the Client shall discuss any change to a Statement of Work or project requirement (Change) proposed by the other and such discussion shall result in either:

12.1.1.     a written request for a Change by the Client; or

12.1.2.     a written recommendation for a Change by Profound Works,

12.1.3.     a Product Backlog amendment (when working within an Agile project framework) such that the pre-agreed Sprint or Sprint Plan, including any costs and team size or make-up, is amended by mutual agreement based on the reprioritisation, re-estimation, addition or removal of any Product Backlog tasks

or, if neither the Client nor Profound Works wishes to submit a request or recommendation, the proposal for the Change will not proceed.

12.2.     Where a written request for a Change is received from the Client, Profound Works shall, unless otherwise agreed, submit a change request (Change Request) to the Client within the period agreed between them or, if no such period is agreed, within five Business Days from the date of receipt of such request for a Change.

12.3.     A written recommendation for a Change by Profound Works shall be submitted as a Change Request direct to the Client at the time of such recommendation.

12.4.     Unless the change control is executed as part of the Agile approach to Product Backlog management (12.1.3), then each Change Request shall contain:

12.4.1.     the title of the Change;

12.4.2.     the originator and the date of the request or recommendation for the Change;

12.4.3.     the reason for the Change;

12.4.4.     the full details of the Change, including any specifications and user facilities;

12.4.5.     the price, if any, of or associated with the Change;

12.4.6.     a timetable for implementation, together with any proposals for acceptance of the Change;

12.4.7.     the impact, if any, of the Change on other aspects of a Statement of Work, including:

12.4.7.1.     the Charges;

12.4.7.2.     the existing Project Services;

12.4.7.3.     the Statement of Work; and

12.4.7.4.     staff resources;

12.4.7.8.     the date of expiry of validity of the Change Request (which shall not be less than five Business Days after receipt by the Client); and

12.4.7.9.     provision for signature of the Change Request by an authorised representative of the Client and one authorised representative of Profound Works.

12.5.     Unless the change control is executed as part of the Agile approach to Product Backlog management (12.1.3) then, for each Change Request submitted, the Client shall, within the period of validity of the Change Request as set out in condition  12.4.8:

12.5.1.     allocate a sequential number to the Change Request;

12.5.2.     evaluate the Change Request , and as appropriate either:

12.5.3.     if approved, arrange for two copies of the approved Change Request to be signed for and on behalf of the Client and Profound Works. The signing of the Change Request or the written confirmation of it shall signify acceptance of a Change by both the Client and Profound Works.

12.6.     Once signed by the Client and Profound Works, or mutually agreed within the Product Backlog working in an Agile project framework, the Change shall be immediately effective and the Client and Profound Works shall perform their respective obligations on the basis of the agreed amendment.

 

13.     TERMINATION

13.1.     Without limiting its other rights or remedies, each party may terminate a Statement of Work with immediate effect by giving written notice to the other party if:

13.1.1.     the other party commits a material breach of any Condition which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period  of twenty Business Days after being notified in writing to do so;

13.1.2.     the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

13.1.3.     the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

13.1.4.     a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) including where the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

13.1.5.     the other party (being an individual) is the subject of a bankruptcy petition or order;

13.1.6.     a creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;

13.1.7.     an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

13.1.8.     a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

13.1.9.     a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

13.1.10.     any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition  13.1.2 to condition 13.1.11 (inclusive);

13.1.11.     the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or

13.1.12.     the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

13.2.     Without limiting its other rights or remedies, Profound Works shall have the right to suspend the supply of Project Services under any Statement of Work or any other agreement between the Client and Profound Works if:

13.2.1.     the Client fails to pay any amount due to Profound Works on the due date for payment; or

13.2.2.     the Client becomes subject to any of the events listed in condition 13.1.2 to condition 13.1.11, or Profound Works reasonably believes that the Client is about to become subject to any of them.

 

14.     CONSEQUENCES OF TERMINATION

14.1.     On termination of a Statement of Work for any reason:

14.1.1.     all sums payable to Profound Works shall become immediately due and payable whether or not an invoice has yet been submitted to the Client, and the Client shall immediately pay to Profound Works all of Profound Works’ outstanding unpaid invoices and interest and, in respect of Project Services supplied but for which no invoice has yet been submitted, Profound Works shall submit an invoice, which shall be payable by the Client immediately on receipt;

14.1.2.     the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach which existed at or before the date of termination or expiry;

14.1.3.     conditions which expressly or by implication have effect after termination shall continue in full force and effect;

14.1.4.     the provisions of condition 7.5 shall apply in respect of any licences granted to the Client; and

14.1.5.     Profound Works shall return any Client Materials to the Client.

 

15.     INSURANCE

Until the expiry of the Statement of Work and for three years thereafter, Profound Works shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the provision of Project Services.

 

16.     GENERAL

16.1.     Force Majeure:

16.1.1.     Profound Works shall not be liable to the Client as a result of any delay or failure to perform its obligations under any Statement of Work as a result of a Force Majeure Event.

16.1.2.     If the Force Majeure Event prevents Profound Works from providing any of the Statement of Work for more than eight weeks, either party shall, without limiting its other rights or remedies, have the right to terminate the effected Statement of Work(s) immediately by giving written notice to the other party.

16.2.     Assignment and Subcontracting:

16.2.1.     Profound Works may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under any Statement of Work and may subcontract or delegate in any manner any or all of its obligations under any Statement of Work to any third party.

16.2.2.     The Client may not at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under any Statement of Work without the prior written consent of Profound Works (such consent not to be unreasonably withheld or delayed).

16.3.     Inappropriate Client Materials

16.3.1.     The Client shall ensure that the Client Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).

16.3.2.     The Client shall indemnify Profound Works against all damages, losses and expenses arising as a result of any action or claim that the Client Materials constitute Inappropriate Content.

16.4.     Authorship / Development Credit:

Profound Works may, where agreed by the Client or set out in the applicable Statement of Work, include the client name in any promotional material or mutually agreed case study.

16.5.     Notices:

16.5.1.     All notices under these Conditions shall be in writing.

16.5.2.     Notices shall be deemed to have been duly given:

16.5.2.1.     when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient;

16.5.2.2.     when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated;

16.5.2.3.     on the fifth Business Day following mailing, if mailed first class, postage prepaid; or

16.5.2.4.     on the tenth Business Day following mailing, if mailed by airmail, postage prepaid.

16.5.3.     In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other party.

16.6.     Variation and Waiver:

16.6.1.     A variation of these Conditions shall be in writing and signed by or on behalf of both parties.

16.6.2.    A waiver of any right under these Conditions is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

16.6.3.     Unless specifically provided otherwise, rights arising under these Conditions are cumulative and do not exclude rights provided by law.

16.7.     Severance:

The parties agree that, in the event that one or more of these Conditions is found to be unlawful, invalid or otherwise unenforceable, those Conditions shall be deemed severed from the remainder. The remainder of these Conditions shall be valid and enforceable.

16.8.     No Partnership:

Nothing in these Conditions is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

16.9.     Third Parties:

A person who is not a party to these Conditions or any Statement of Work shall not have any rights under or in connection with it.

16.10.     Governing Law and Jurisdiction:

These Conditions and all Statement of Works, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales if a dispute or claim cannot be resolved by informal means between the parties.

 

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