1. Services Provided
1.1 Statement of Work. The Customer may from time to time purchase Professional Services from Maybe* by entering into a Statement of Work. A Statement of Work will specify: (a) the Professional Services, including any Deliverables that Maybe* will provide to the Customer; (b) specifications for the Deliverables; (c) a schedule for completion of the Professional Services and delivery of the Deliverables; (d) the fees and other specific terms under which Maybe* will provide such Professional Services and Deliverables; and (e) any other terms upon which the parties agree. The terms of a Statement of Work will control over any conflicting provisions in the Agreement, including these Professional Services Terms.
1.2 Additions and Changes. The parties may modify a Statement of Work by a written change order signed by both parties. Maybe* will have no obligation to perform any additional Professional Services or changes to the Professional Services until a change order has been agreed upon by the parties.
1.3 Time and Manner of Performance. Subject to the terms and conditions of these Professional Services Terms and the timely payment of all fees and expenses, Maybe* shall use reasonable endeavours to provide the Customer with the Professional Services and Deliverables specified in the Statement of Work by the Completion Time. The manner and means Maybe* uses to perform the Professional Services will be at Maybe*’s discretion and control.
2. Delivery and Acceptance
2.1 Delivery. Delivery of Deliverables will occur upon delivery by electronic or physical means at Maybe*’s election, and risk of loss passes to the Customer upon delivery.
2.2 Acceptance of Certain Deliverables. If payment of a fee is contingent upon acceptance of the Deliverables, then the Customer will have 14 days (beginning upon delivery by Maybe*) to examine such Deliverables and determine whether such conform to the specifications set forth in the Statement of Work. If the Deliverables objectively fail to satisfy the specifications in the Statement of Work, then (a) the Customer will notify Maybe* in writing, specifying the deficiencies and stating the desired changes, and (b) Maybe* shall correct, modify, regenerate or improve the Deliverables so that such meet the specifications, and deliver the corrected Deliverables to the Customer for another acceptance review in accordance with this Section
2.3. If Maybe* is unable to make the Deliverables conform to the specifications in the Statement of Work after the third attempt to do so, the Customer may terminate the Statement of Work under which the Deliverables were provided by giving Maybe* five days written notice of termination. The Deliverables will be deemed accepted if: (i) the Customer fails to provide its written objection within the allotted 30 day time period; (ii) the Customer affirmatively accepts the Deliverables in writing within the allotted 30 day time period; or (iii) the Customer uses the Deliverables after delivery for any reason or in any manner other than acceptance testing.
3. Customer Obligations. The Customer shall provide the following:
3.1 Customer-provided Materials. The Customer agrees to provide at its own expense, reasonable and necessary software, hardware, computers, equipment and facilities required to operate the Deliverables as specified and agreed by the Customer in a Statement of Work or otherwise.
3.2 Access to Facilities. The Customer agrees to provide Maybe* reasonable and necessary access to the Customer facilities in order for Maybe* to perform the Professional Services.
3.3 Co-operation and Assistance. The Customer agrees to provide Maybe* the cooperation and assistance as Maybe* reasonably requests in connection with the Professional Services. Such cooperation and assistance will include, without limitation, providing to Maybe* in a timely manner answers to questions, and technical consultation with respect to the Customer’s operating environment.
4.1 Fees. All fees for the Professional Services rendered are set forth in the applicable Statement of Work. The fees shall be due in accordance with the Statement of Work. Maybe* will issue invoices as per the terms in the proposal that is signed off by the Statement of Work, and all payments must be paid in Pounds Sterling by wire transfer within 30 days of receipt of invoice. Late payments will accrue daily interest from the due date of payment until the actual payment of the overdue amount, whether before or after judgment, at the rate of four percent per annum above HSBC Bank Plc’s base rate from time to time and the Customer shall pay such interest together with the overdue amount.
4.2 Expenses. In addition to the Professional Services fees, Maybe* will invoice the Customer for pre-approved travel and expenses incurred by Maybe* staff in providing the Professional Services pursuant to the Statement of Work on a pass through basis. Expenses incurred by Maybe* personnel in providing the Professional Services, such as expenditures for air and ground transportation, accommodations, subsistence will be charged to and paid by the Customer at actual cost.
5. Term and Termination
5.1 Term. The term of these Professional Services Terms will be in accordance with the Agreement, unless otherwise specified in this Section 5 or the Statement of Work.
5.2 Statements of Work. Unless otherwise specified therein, a Statement of Work is effective as of the last date it is executed by a party, and (unless terminated in accordance with Section 5.3) will remain in effect until the Professional Services specified in such Statement of Work are complete.
5.3 Termination. Subject to payment in full of all Professional Services fees payable to Maybe*, the Customer may terminate any or all Statements of Work at any time by giving Maybe* 30 days advance written notice.
5.4 Effects of Termination. Upon termination of a Statement of Work, Maybe* shall cease to provide any Professional Services under such Statement of Work. The Customer will pay, in accordance with Section 4.1 or the Statement of Work, as applicable, any outstanding fees or expenses related to such Statement of Work up to the date of termination.
6. Proprietary Rights
6.1 Deliverables and Customer-provided Materials. Unless otherwise specified in a Statement of Work, the Deliverables (including any Training materials and all software), and all Intellectual Property Rights therein, are and will remain the exclusive property of Maybe* or its suppliers, regardless of whether the Customer or the Customer’s employees or agents contribute to the conception or join in the development of the Deliverables. Maybe* also owns all copies of the Deliverables and any modifications, upgrades, updates and derivatives thereto. The Customer and its suppliers own or have any and all right, title and interest in and to proprietary the Customer-provided materials. Subject to the terms and conditions of this Agreement, Maybe* hereby grants to the Customer a non-exclusive, non-sublicensable, non-transferable, perpetual license to use the Deliverables, in accordance with this Agreement and the Statement of Work, solely in connection with the Licensed Product.
6.2 Proprietary Rights Notices. Neither party will remove, alter, obscure or destroy any proprietary notices (including copyright notices) of the other or the other’s suppliers. To the extent either party may copy software containing such proprietary notices, such party will reproduce these notices as they appear in the original.
7 Limitation of Liability.
7.1 Exclusion of Liability. Neither party will be liable under any circumstances whatsoever to the other party (or any person claiming under or through it, which in case of the customer includes the affiliates and permitted contractors). Whether in contract, tort (including negligence), breach of statutory duty, or otherwise for: (a) Any loss of profits: (b) Any loss or corruption of data (c) Any loss or corruption of computer software or systems: (d) Any loss or damage to equipment: (e) Any loss of contract or business opportunity: (f) Any business interruption: (g) Any loss of savings (whether actual or anticipated): (h) Any harm to reputation or loss of goodwill: or (i) Indirect, incidental, special, consequential loss.
7.2 Liability Cap. Subject to Sections 7.1 neither party’s total cumulative liability, whether in contract, tort (including negligence) or otherwise, and including all liabilities under indemnities hereunder, will exceed an amount equivalent to 100 percent of fees payable by the customer for the services giving rise to such liability.
8..1. Notices. All notices and communications must be in writing and should be either delivered by hand, sent by electronic mail, sent by pre-paid courier or registered post addressed to the other party at the address set out in the Statement of Works. Unless there is evidence that it was received earlier, such notice or document shall be deemed to have been served:
8.1.1. if delivered by courier, when left at the address referred to above; or
8.1.2. if sent by post to an address within the country of postage, 2 Business Days after posting it; or
8.1.3. if sent by post to an address outside the country of postage, 5 Business Days after posting it
8.2. Force Majeure: Neither party shall be liable to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by an act of God, fire, earthquake, strike, civil commotion, act of government or any other event which is beyond the reasonable control of that party (including, but not limited to, failure of a utility service or telecommunications network), provided that the party affected by such an event notifies the other party as soon as reasonably practicable after such an event has occurred.
9.. Data Protection
9.1. The parties confirm that depending on the circumstances in respect of Personal Data:
9.1.1. in some instances the Supplier will be the Controller and the Customer will be the Processor;
9.1.2. in some instances the Customer will be the Controller and the Supplier will be the Processor; and
9.1.3. in some circumstances both parties will be Controllers.
9.2. Each party shall comply with its obligations as a Controller under the Data Protection Laws.
9.3. Each party, when processing personal data in respect of which the other party or its customer is Controller (Controller Personal Data), agrees that:
9.3.1. the other party (or its customer) is the Controller; and
9.3.2. it is the Processor.
For the remainder of this clause 9 the terms Controller and Processor shall be construed in that context including in situations where the activity between the parties is at processor/sub-processor level where the processor shall be referred to as the Controller in these terms and the sub-processor will be referred to as the Processor.
9.4. If, as a consequence of the Supplier’s provision of the services, a party considers that the relationship between them no longer corresponds to the intention of the parties, then it shall notify the other party and the parties shall discuss and agree in good faith such steps that may be required to confirm the parties’ intention.
9.5. The Processor shall comply with the obligations imposed on it by the Data Protection Laws with regard to Controller Personal Data processed by it in connection with the performance of the Services when acting as Processor.
9.6. The Processor shall ensure that where the services require the processing of Controller Personal Data, the description of the services includes the subject matter and duration of the processing; the nature and purpose of the processing; a description of the type(s) of Controller Personal Data processed; and a description of the categories of the data subjects comprised within the Controller Personal Data referred to in this clause. The information referred to in this clause will be reviewed annually to ensure the information is up-to-date and relevant.
9.7. The Processor shall:
9.7.1. only process Controller Personal Data in accordance with the documented instructions of the Controller including transfers of Controller Personal Data outside the European Economic Area, unless required to do so by EU Law to which the Processor is subject, in which event the Processor shall inform the Controller of such legal requirement unless prohibited from doing so by EU Law on important grounds of public interest;
9.7.2. immediately inform the Controller if, in the Processor’s opinion, an instruction given by the Controller to the Processor under clause 8.6 infringes Data Protection Laws;
9.7.3. ensure that any persons authorised by it to process the Controller Personal Data are subject to an obligation of confidentiality;
9.7.4. implement appropriate technical and organisational measures to ensure that the Controller Personal Data is subject to a level of security appropriate to the risks arising from its processing by the Processor or its sub-processors; and
9.7.5. notify the Controller without undue delay and no later than 24 hours after becoming aware of a personal data breach (as defined in the GDPR).
9.8. Taking into account the nature of the processing the Processor shall assist the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising a data subject’s rights under the GDPR.
9.9. Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller with regard to the Controller’s compliance with its obligations set out in Articles 32 – 36 of the GDPR.
9.10. Upon termination of the services that required the processing of Controller Personal Data (in whole or in part) the Processor shall, at the election of the Controller, deliver up or destroy such Controller Personal Data which is in the possession of, or under the control of, the Processor unless EU law requires the Processor to store such Controller Personal Data.
9.11. The Processor shall, at the written request of the Controller, provide the Controller with all information necessary to demonstrate a party’s compliance with its obligations under this clause and shall allow for and contribute to audits and inspections conducted by or on behalf of the Controller.
9.12. Where required to do so by the GDPR, the Processor shall maintain written records of its processing of the Controller Personal Data in accordance with the requirements set out in Data Protection Laws and shall make such records available to a supervisory authority on request.
9.13. The Controller shall ensure that:
9.13.1. the supply to the Processor of Controller Personal Data by or on behalf of the Controller for the purposes of processing undertaken by the Processor and its permitted sub-processors where such processing is authorised by the Controller shall comply with the Data Protection Laws; and
9.13.2. the instructions given by the Controller to the Processor by operation of this clause
9.12 shall comply with the Data Protection Laws.
9.14. Where the Processor is obliged to provide assistance to the Controller, or to third parties at the request of the Controller (including submission to an audit or inspection and/or the provision of information), such assistance shall be provided at the sole cost and expense of the Controller, save where such assistance directly arises from the Processor’s breach of its obligations under this Contract, in which event the costs of such assistance shall be borne by the Processor.
9.15. Notwithstanding any other provision of this Contract, the Processor shall be entitled to sub-contract any part of the services requiring the processing of Controller Personal Data, provided that the Processor shall notify the Controller in writing of its intention to engage such sub-contractor. Such notice shall give details of the identity of such sub-contractor and the services to be supplied by it. The Controller shall be deemed to have approved the engagement of the sub-contractor if it has not served a notice in writing on the Processor objecting (acting reasonably) to such appointment within 7 days of the date that the notice is deemed to be received by the Controller.
9.16. The Processor shall ensure that any sub-contracts it enters into shall be on the same terms to those set out in this Contract and in particular it shall ensure the sub-processor provides sufficient guarantees to implement appropriate technical and organisational measures in order that any processing of Controller personal data is performed in accordance with the GDPR.
9.17. Where, in accordance with the provisions Article 82(3) of the GDPR, both parties are responsible for the act, or omission to act, resulting in the payment of losses by a party or both parties, then a party shall only be liable for that part of such losses which is in proportion to its respective responsibility.