1.0 Definitions

1.1 The following definitions and rules of interpretation shall apply to this SOW:

• Clause headings do not form part of and shall not affect the interpretation of this SOW.
• Unless the context otherwise requires:
  • references to Clause and Schedule numbers are to Clauses and Schedules in this SOW so numbered;
  • words in the singular shall include the plural and in the plural shall include the singular;
  • a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
  • a reference to one gender shall include a reference to the other genders;
  • any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and
  • a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
  • A reference to writing or written includes e-mail.
  • If there is any conflict or ambiguity between the clauses of this SOW, and any Schedules the clauses of this SOW shall take precedence unless expressly otherwise stated in the relevant Schedule.

2.0 Scope of Services:

2.1 The Customer hereby engages the Supplier to undertake the Professional Services and to supply the Deliverables described in the Order and the Customer agrees to pay the Supplier for such work in accordance with the terms and conditions of this SOW.

2.2 The Order describes those activities that are in scope for this SOW and those that are out of scope. In-scope activities may be subject to further reasonable instructions given to the Supplier by the Customer and where such instructions are provided for clarification purposes the Supplier shall use reasonable endeavours to act on such instructions accordingly.

2.3 Where the Supplier believes any such further reasonable instructions of the Customer will have a material impact on any aspect this SOW (the Professional Services and/or the Deliverables), the Supplier shall raise this with the Customer as soon as reasonably practicable, and the Parties shall work together (with both Parties acting reasonably) to assess the impact and to agree a suitable way forward, which may include:

1. The Customer withdrawing the additional instruction(s), or
2. The Parties working together to agree a change to this SOW in accordance with clause 11.

2.4 Assumptions:

1. a) The Customer will use reasonable endeavours to ensure that the Supplier’s employees are given access to the Customer systems, facilities and sites (where required) in a timely manner.
2. b) All Professional Services will be carried out by the Supplier during the normal working hours of the Customer, unless otherwise agreed by the Parties. The Professional Services will be delivered remotely. On-site visits are available upon request at an additional cost.
3. c) Where strictly necessary, the Supplier’s employees who are required to, will be supported by the Customer to obtain appropriate security clearance, site and IT access. If the required security clearance is not granted, for any reason, the Customer may terminate this SOW with immediate effect in accordance with clause 8.1.
4. d) The Parties may agree additional assumptions within the Order.

2.5 Dependencies:

1. a) The Supplier shall inform the Customer in writing, with reasonable advance notification, where it has any dependencies on the Customer, or the Customer’s end client, which are required in order for the Supplier to meet its obligations in respect of the Professional Services and/or the Deliverables set out in the Order.
2. b) The Supplier shall ensure that all dependencies shall be agreed with the Customer and documented in the Order.
3. c) Where the Supplier becomes aware of a delay in any of the dependencies described in clause 2.5a) above, it shall notify the Customer of the delay, (in writing), as soon as reasonably practicable and both Parties shall use all reasonable endeavours to mitigate the impact of the delay.
4. d) The Supplier shall be entitled to an extension in time and /or cost where delays in the project plan are caused by circumstances beyond the Supplier’s direct control.

2.6 Pre-Requisites:

Prior to commencement of the Professional Services the Customer shall ensure that it has met the pre-requisites detailed in the Order (if any).

3.0 Charges:

3.1 Except as otherwise agreed in the Order, invoices will be issued monthly in arrears.

3.2 The Customer will be responsible for reimbursing the Supplier for all travel expenses incurred in the performance of this SOW.

3.3 All charges exclude VAT which shall be applied at the prevailing rate.

3.4 In the event of late payment by the Customer, the Supplier reserves the right to pass the unpaid invoice to a collection agency for recovery. In such event the Customer will be responsible for all fees and costs associated with such debt recovery.

4.0 Warranty:

4.1 The Supplier warrants that during the term of this SOW the Professional Services will be performed using reasonable skill and care consistent with applicable good industry practice. As the Customer’s exclusive remedy and the Supplier’s sole liability for breach of the warranty set forth in this clause, the Supplier will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this limited warranty or where such re-performance is not feasible, refund to the Customer the fees paid for the non-conforming portion of the Professional Services.

4.2 The Supplier warrants that the Deliverables provided under this SOW will be completed and delivered in a timely manner and consistent with good industry practice and be fit for ordinary use, of good quality and with no known errors or omissions. In the event that the Customer has any material concerns with respect to the Deliverable(s) it must notify the Supplier within ten (10) Working Days of receipt of such Deliverable and where the Supplier is responsible for the issue raised, the Supplier will promptly correct and/or modify the respective Deliverable and provide the Customer with a revised version of at no additional cost to the Customer.

4.3 Warranty Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTY SET FORTH HEREIN, THE PROFESSIONAL SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS IS” BASIS, AND THE CUSTOMER’S USE OF THE PROFESSIONAL SERVICES AND DELIVERABLES IS AT ITS OWN RISK.  THE SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

5.0 Acceptance:

5.1 Where Acceptance Tests are agreed between the Parties, the Customer shall carry out such Acceptance Tests promptly and in any event within five (5) Working Days of receipt of the Deliverable(s) and shall provide the Supplier with all relevant documents, reports and data from such Acceptance Tests.

5.2 Where the Deliverable(s) pass the Acceptance Tests the Customer shall confirm Acceptance to the Supplier in writing. Confirmation of Acceptance provided by email is sufficient.

5.3 Where the Deliverable(s) does not pass the particular Acceptance Tests being performed, the Customer will promptly, and in any event within ten (10) Working Days of the Acceptance Test failure, notify the Supplier of such failure. The Supplier shall use reasonable endeavours to correct and/or modify the respective Deliverable and shall submit the revised version of the Deliverable to the Customer for repeat Acceptance Testing in accordance with this Clause 5.

5.4 Where the Customer has not issued a notification of the Acceptance Test failure, nor provided the Supplier with conformation of Acceptance within the timescales stated above, the Deliverable(s) will be deemed accepted.

6.0 Intellectual Property:

6.1 Each Party shall retain all rights, title and interests in and to any Pre-Existing IP.

6.2 The Supplier grants to the Customer a perpetual, non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free license to use the Deliverables (including any Supplier Pre-Existing IP included therein) in connection with this SOW.  Subject to the foregoing, the Supplier shall own all right, title and interest in and to the Deliverables.

6.3 Where the Parties agree in writing that a Deliverable will be created exclusively for the Customer using Customer Confidential Information (“Customer Deliverable”), and the Parties enter into a contract amendment specifically agreeing that ownership shall pass to the Customer, then the Customer will exclusively own the Customer Deliverables and all Intellectual Property Rights therein (save for Intellectual Property Rights in any Supplier Materials).

7.0 Confidentiality & Data Protection:

7.1 Each Party acknowledges that it will have access to certain confidential information of the other Party concerning the other Party’s business, plans, customers, technology, and products, including the terms and conditions of this SOW (“Confidential Information”). Except as expressly authorized in writing by the other Party, neither Party (a) will use or permit the use of Confidential Information in any manner or for any purpose not expressly set forth in this SOW; (b) will disclose, lecture upon, publish, or permit others to disclose, lecture upon, or publish any such Confidential Information to any third party without first obtaining the disclosing Party’s express written consent on a case-by-case basis; (c) will provide access to Confidential Information to personnel unless they have a need to know such information in connection with their work; and (d) will remove any tangible embodiment of any Confidential Information without the other Party’s prior written consent. Notwithstanding the foregoing, it is understood that each Party is free to use information that is generally known in the trade or industry, information that is not gained as a result of a breach of this SOW, and each Party’s own skill, knowledge, know-how, and experience.

7.2 Each Party agrees to comply with the UK’s data protection laws, primarily the Data Protection Act 2018 which essentially incorporates the principles of the European Union’s General Data Protection Regulation (GDPR). Anyone responsible for using personal data must make sure the information is: used fairly, lawfully and transparently, used for specified, explicit purposes, and used in a way that is adequate, relevant and limited to only what is necessary.

8.0 Termination:

8.1 The Customer may terminate any scheduled work in accordance with the following terms:

1. a) Where the work is terminated thirty (30) days before the scheduled Commencement Date – the Supplier will not charge the Customer any amount for the terminated work.
2. b) Where the work is terminated less than thirty (30) days but more than fifteen (15) days before the scheduled Commencement Date – the Supplier will charge the Customer fifty percent (50%) of the fees associated with the terminated elements.
3. c) Where the work is terminated on or less than fifteen (15) days before the scheduled Commencement Date – the Supplier shall be entitled to charge the Customer one hundred percent (100%) of the fees associated with the terminated elements.
4. d) Where the Customer wishes to terminate the work after the Commencement Date – the Customer shall give the Supplier not less than thirty (30) days written notice and the Customer shall pay all fees associated with work already undertaken together with the fees associated with the work that was to be performed during the notice period.

8.2 Either Party has the right to terminate this SOW immediately in the event that the other Party has materially breached this SOW and has failed to cure such breach within thirty (30) days of receipt of written notice by the non-breaching Party, except in the case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from the Supplier that a payment is overdue.

8.3 Within thirty (30) days of termination or expiration of this SOW or upon either Party’s request at any other time, the receiving Party will deliver to the disclosing Party all property together with all copies thereof, including any Confidential Information and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.

8.4 All rights and obligations which by their nature or by their express terms extend beyond the expiration or termination of this SOW, shall survive the expiration or termination of this SOW.

9.0 Limitation of Liability:

9.1 Both Parties accept unlimited liability for: death or personal injury caused by its negligence; or fraud or fraudulent misrepresentation; or breach of the other Party’s Intellectual Property Rights; or any other act or omission for which liability cannot be limited by law.

9.2 The Supplier excludes all liabilities, costs, expenses, damages and losses suffered or incurred by the Customer arising out of or in connection with any fraudulent use of the Professional Services or Deliverables by the Customer or its agents, employees or any third party.

9.3 Subject to clause 9.1 both Party’s entire liability to the other in respect of all losses arising out of or in connection with the performance or non-performance under this SOW in respect of all claims, losses or damages, whether arising from tort (including negligence), breach of contract or otherwise under or in connection with this SOW shall in no event in any year exceed 125% of the sums actually paid by the Customer in the previous twelve (12) month period for the particular Professional Services giving rise to the cause of action.

9.4 Subject to clause 9.1 and in respect of payment of the sums by the Customer, neither Party shall be liable to the other Party, whether in contract, tort (including negligence) or otherwise for loss of revenue, loss of profit, loss of goodwill, loss of reputation, loss of anticipated savings, loss of business, loss, corruption or destruction of data, loss of contracts or any indirect, special or consequential loss or damage.

10.0 Independent Contractor:

10.1 The Supplier and the Customer are independent contractors, and this SOW will not establish any relationship of partnership, joint venture, employment, franchise or agency between the Supplier and the Customer.  Neither the Supplier nor the Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

11.0 Change Control:

11.1 Any changes to the scope of work defined within this SOW must be submitted as a formal change request, detailing the proposed modification, impact on timeline and cost, and require written approval from both Parties before implementation.

12.0 General:

12.1 Governing Law. This SOW shall be governed by the laws of England and Wales and the Parties herby submit to the jurisdiction of the English courts.

10.2 Force Majeure. Neither Party will be liable, except as specified in this clause, for any failure to perform, delay in performing or imperfect performance of any obligation under this SOW, except for failure to pay the fees, to the extent that such failure, delay or imperfect performance is caused by a Force Majeure Event.

10.3 Severability. If any provision of this SOW is, for any reason, held to be invalid or unenforceable, the other provisions of this SOW will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

10.4 No Assignment. This SOW, and the Party’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by either Party without the other’s prior written consent (such consent not to be unreasonably withheld or delayed), save that the Supplier may assign or novate this SOW and/or any of its rights or interests hereunder, or delegate any of its obligations hereunder, to a successor pursuant to a merger, consolidation or sale, or to an entity which acquires all or substantially all of the Supplier’s assets or business. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this SOW will be binding upon assignees.

10.5 Notices. Any notice to be served under this SOW shall be in writing and delivered by hand or by pre-paid ordinary first-class post to the other Party at the address shown on the front page of this SOW or any other address notified in writing by one Party to the other.

10.6 Waiver. Any waiver or failure to enforce any provision of this SOW on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.7 Anti-Bribery. Both Parties shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.

10.8 Health & Safety. The Supplier agrees to observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises, to the extent the same are reasonable and notified to the Supplier in advance.

10.9 Entire Agreement. This SOW together with the attached Order (together with any variations and/or amendments) constitutes the entire understanding between the Parties concerning the subject matter hereof and supersedes all prior or contemporaneous discussions, agreements and representations, whether oral or written and whether or not made by the Customer and the Supplier. Neither Party places any reliance on any representation, warranty or other statement relating to the subject matter of this SOW save as expressly set out in this SOW.

10.10 Non-Solicitation. During the continuance of this SOW and for a period of six (6) months after its expiry or termination neither Party shall directly or indirectly solicit or attempt to solicit, without the prior written consent of the other Party, personnel employed or engaged in the provision or receipt of the  any relevant Professional Services as at the date of such solicitation or attempted solicitation, or who have been so employed or engaged during the preceding six (6) months. For the purposes of this clause, “solicit” means an approach by a Party or a third party on its behalf to an individual with a view to employ or engage or procure the employment or engagement of such person as an employee, director, officer or independent contractor or consultant, other than by way of general advertising.