In this document the following definitions shall apply:

“Agreement” means these Terms and Conditions

"Customer" refers to the entity that is receiving the Professional Services and complying with these Terms and Conditions in procuring the Professional Services from ThirtyNine, whether contracted directly or indirectly through a partner or reseller.

“Parties” means ThirtyNine Cyber and Customer, each a Party and together Parties.

“Professional Services” means consulting engagements, provision of advice or assessments or other professional services as laid out in a Statement of Work.

“Statement of Work” means the description of the Professional Services to be provided by ThirtyNine to the Customer.

“Supplier” means ThirtyNine Cyber Limited a company registered in the United Kingdom under company number 15653214 and whose registered office is at First Floor 1 Des Roches Square, Witan Way, Witney, Oxfordshire, United Kingdom, OX28 4BE.

“Third Party Software” means any proprietary third party software in respect of which the Professional Services are to be provided.

 The Supplier and Customer agree to be bound to this Agreement upon receipt of a Customer purchase order or Customer signed Statement of Works. No other document shall add to, or vary, this Agreement unless explicitly agreed in writing by the Parties. 

1. PROFESSIONAL SERVICES 
   1. The Supplier shall provide the Professional Services described in a Statement of Work pursuant to this Agreement, on a timely basis, subject to availability of qualified personnel and the difficulty and scope of the specified Professional Services. 
   2. The Supplier represents and undertakes to the Customer:
      1. to appoint people to work on the project who have sufficient expertise and experience to meet the requirements of the project in accordance with the agreed Statement of Work;
      2. to be responsible for the acts and omissions of the Supplier Staff and its Sub-Contractors;
      3. that that the performance of the Services shall not in any way infringe any copyright, patent, registered design, trademark rights or any other Intellectual Property of any third party;
      4. that the Services shall be performed with reasonable care and skill and in compliance with all applicable laws, enactments, orders, regulations made known to the Supplier and other similar instruments (including all applicable health and safety legislation); and
      5. that it will use all reasonable efforts to minimise changes to the project team.
   3. The Customer represent and warrants to the Supplier :
      1. to provide the Supplier with appropriate information that is current and correct;
      2. to provide the Supplier with ready access to the Customer’s staff and resources as necessary to deliver the Professional Services; and 
      3. to have, or procure, and maintain all necessary licences in respect of the Third Party Software. Where Supplier provides Services to the Customer in respect of Third Party Software, the Customer will indemnify Supplier from all claims arising from any breach by the Customer of this clause 1.3.3.
   4. The conclusions and recommendations of the Supplier are dependent upon the completeness, currency and accuracy of information provided by the Customer and the knowledge and cooperation of the appropriate personnel selected by the Customer to work with the Supplier. 
   5. The Supplier may assign, reassign and substitute its personnel at any time and may provide the same or similar Services and materials to other Customers or customers. 
   6. Save as provided in clause 1.2, all conditions, warranties, terms and undertakings expressed or implied, statutory or otherwise, in respect of the Supplier’s performance of the Services are hereby excluded.
2. PAYMENT
   1. Unless otherwise agreed, the Supplier will invoice the Customer for the Services monthly in advance. 
   2. The Customer will pay all undisputed fees within 30 days of the date of the invoice.
   3. The Supplier will be entitled to increase the daily rates specified in this Agreement on 1st April each year. 
   4. The Customer shall reimburse the Supplier for all reasonable travelling and subsistence and out of pocket expenses properly incurred in providing the Services. 
   5. If the Supplier’s performance is prevented or delayed by the Customer or its employees, servants, agents or sub-contractors, then the Customer shall reimburse the Supplier for the “waiting” time of its project team and resultant additional costs. 
3. INTELLECTUAL PROPERTY
   1. Any generic concepts, know-how, data-processing techniques, software, schematics or blueprints furnished or developed by the Supplier’s personnel (alone or jointly with the Customer) in connection with Services provided to the Customer will be the exclusive property of the Supplier. 
   2. The Supplier grants to the Customer a nonexclusive, royalty-free licence to use the material furnished under this Agreement solely for internal use by the Customer and its professional advisors.   
4. LIABILITIES
   1. ThirtyNine will not be liable for:
      1. any incidental, indirect, special or consequential damages, including lost profits;
      2. claims, demands or actions against the Customer by any person; 
      3. any loss or claim arising out of or in connection with the End User’s implementation of any conclusions or recommendations contained in reports provided to the End User; 
      4. loss of or damage to the Customer data from any cause; or 
      5. any claims, demands, or losses relating to or arising out of use of third party products or services not supplied by the Supplier. The Supplier entire liability and the Customer’s exclusive remedy for any other damages, whether arising in contract or tort, will with the exception of death or injury resulting from its or its agents or subcontractor’s negligence shall not exceed the charges paid to ThirtyNine under this Contract. 
   2. ThirtyNine and the End User agree that the indemnities and limitation of liability contained in this Contract have been discussed, negotiated and agreed between the parties and satisfy the requirement of reasonableness within the meaning of sub-section 2(2) and Section 11 of the Unfair Contract Terms Act 1977.
5. CONFIDENTIALITY
   1. Each party undertakes to keep and treat as confidential and not to disclose to any third party any information relating to the business or trade secrets of the other, nor make use of such information for any purpose whatsoever except for the purposes of this Agreement.
   2. The obligations in Clause 5.1shall not extend to information which is:
      1. published or otherwise generally available to the public, other than by breach of this Agreement;
      2. rightfully in the possession of both Parties and was rightfully in their possession prior to negotiations leading to this Agreement; or
      3. received by one Party from a party not acting in breach of any written agreement with the other Party.
   3. This clause 5 shall survive any termination of this Agreement.
6. DATA PROTECTION
   1. The Supplier will act in accordance with the Data Protection Act 2018. In this clause 6, “personal data”, “data controller”, “data processor” and “process” shall have the meaning given to them in the Data Protection Act 2018.
   2. If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Supplier shall be a data processor and in any such case:
      1. The Supplier shall process the personal data in accordance with the Customer’s instructions from time to time and shall not process the personal data for any purpose other than those expressly agreed by the Customer;
      2. the Customer acknowledges and agrees that the personal data may be transferred or stored outside the UK, EEA or the country where the Customer and the users are located in order to carry out the Professional Services and the Supplier’s other obligations under this Agreement;
      3. the Customer shall ensure that they are entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
      4. the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
      5. each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7. DISPUTES
   1. The Customer and the Supplier shall attempt in good faith to negotiate a settlement of any dispute between them arising out of or in connection with this Agreement within ten (10) Working Days of either Party notifying the other of the dispute and such efforts shall involve the escalation of the dispute to the Customer’s representative and the Supplier’s representative.
   2. If the dispute cannot be resolved by the Parties pursuant to this Clause, the Parties shall refer it to mediation unless either Party considers that the dispute is not suitable for resolution by mediation.  
   3. If the dispute cannot be resolved by mediation the Parties may pursue formal Court proceedings. 
   4. The obligations of the Parties under this Agreement shall not be suspended, cease or be delayed by the reference of a dispute to mediation or arbitration pursuant to this Clause and the Supplier and Supplier’s Staff shall continue to comply fully with the requirements of this Agreement at all times.
   5. Where the Customer is dissatisfied with the performance, behaviour or attendance of any of the Supplier’s Staff or Sub-Contractors, the Supplier shall upon receipt of written notice from Customer specifying valid and reasonable grounds for dissatisfaction withdraw the person concerned and provide suitable replacement personnel as soon as reasonably possible.
8. FORCE MAJEURE
   1. The Supplier shall not be liable to the Customer for any delay in or failure to perform the Services because of a Force Majeure Event. "Force Majeure Event" means any event affecting the performance by the Supplier of its obligations arising from any act, events, omissions, happenings or non-happenings beyond its reasonable control.
9. GENERAL
   1. During the term of the Statement of Work, and for twelve (12) months after its expiry or termination, the Customer will not solicit or seek to induce to leave the employment of the Supplier any person who was, during the performance of the Professional Services, an employee of the Supplier.
   2. This Agreement and/or any non-contractual obligations or matters arising out of or in connection with it, shall be governed by and construed in accordance with the laws of England and Wales and, without prejudice to the dispute resolution procedures set out in clause 7, each Party agrees to submit to the exclusive jurisdiction of the courts of England and Wales and for all disputes to be conducted within England and Wales.