PROFILE TERMS AND CONDITIONS

For the Provision of Support and Maintenance Services

 1. Definitions

a. ‘Profile’ shall mean Profile Technology Services Limited.
b. ‘Customer’ shall mean the Company or legal entity shown on The Agreement, Schedule or Invoice associated with these Terms and Conditions.
c. ‘The Parties’ shall mean Profile Technology Services Limited and The Customer.
d. ‘The IT Infrastructure’ shall mean the computer processors, personal computers, printers, data cabling, hubs, modems, operating systems, databases, back up devices listed in The Schedule associated with The Agreement.
e. ‘The Software’ shall mean the software listed in The Schedule associated with The Agreement.
f. ‘The Services’ shall mean the services to be supplied by Profile to The Customer described in The Agreement.
g. ‘The Commencement Date’ shall mean the date stated against the heading ‘Commencement Date’ in the Agreement.
h. ‘The Minimum Term’ shall mean the length of time stated against the heading ‘Minimum Term’ in The Agreement.
i. ‘The Annual Charge’ shall mean the value calculated and stated against the heading ‘Annual Charge’ in The Agreement.
j. ‘Associates’ shall mean any Party to The Agreement, that Party’s employees, agents, subcontractors or authorised representatives.
k. ‘Information’ shall mean all information contained in The Software and all information conveyed between The Parties pursuant to the entering into and performance of The Agreement.

2. Acceptance of The Agreement

a. The acceptance of this Agreement denoted by the signature of an authorised signatories of each of The Parties will create a contract between Profile and The Customer and will be construed as confirming The Customer’s complete acceptance of these Terms and Conditions except as may otherwise be agreed in writing by both Parties.

3. The Charge

a. The Charge for the services including telephone support provided by Profile is stated on Page One of The Agreement.
b. All charges quoted are exclusive of Valued Added Tax. Value Added Tax or any similar tax which may be imposed from time to time will be applied in accordance with the UK Legislation in force at the Tax Point Date.
c. The Charge is subject to change by Profile at any time on the provision of thirty days’ written Notice to The Customer. The Charge for any period of service which have been pre-paid will be unaffected by the change in charges.

4. Term

a. This Agreement will commence on The Commencement Date and will automatically be renewed on each anniversary.
b. After The Term stated on Page One of this Agreement the Agreement shall continue in effect from year to year thereafter until either Party gives written Notice to the other Party not less than ninety days prior to any anniversary of The Commencement Date.
c. In the event of wishing to remove any item from The Schedule The Customer shall give at least ninety days written Notice prior to any anniversary of The Commencement Date.

5. Payment

a. All charges in respect of The Services are due for payment upon signature of this Agreement and at any anniversary date of The Commencement Date.
b. No Contract Number will be issued by Profile or any Services provided until such payment is received and no Services will be provided whilst a payment is outstanding or overdue in accordance with any agreed credit terms.
c. If any Charge payable under these Terms and Conditions becomes overdue Profile reserves the right to charge interest at a rate of three percent above the Bank Rate in force from time to time on a day to day basis from the Due Date to receipt of the payment by Profile.

6. Telephone Support Service

a. Telephone Support Service shall be provided by Profile for the duration of The Term or part thereof for The Charge specified on Page One of The Agreement or as varied.
b. The Telephone Support Service shall be provided from Monday to Friday 9am. to 5.30pm. Excluding Bank and Public Holidays in England and Wales and any other days which may be added by Royal Proclamation.
c. Telephone Support services may be provided using remote diagnostic facilities over communication lines. Profile reserves the right to specify and approve the type of communication and equipment required by The Customer in order to provide this type of service and to render a charge to The Customer for equipment supplied by Profile.
d. Profile will use best endeavours to ensure prompt Support Services shall be supplied to The Customer.
e. If Profile renders Services for the resolution of malfunctions caused by modification or addition to Software or Hardware by The Customer without the prior written consent of Profile then Profile reserves the right to charge for all time materials and costs incurred in the resolution of the malfunction. Including without limitation service required directly or indirectly to damage caused by accident neglect misuse or operating error.
f. In the event of malfunction caused by The Customers misuse or data corruption caused by the failure of The Customer to maintain adequate regular backups Profile reserves the right to render a charge for all time materials and costs incurred in the provision of recovery services to restore proper operation of the Customers IT systems.
g. Should The Software or data not be fault free or serviceable at Commencement of this Agreement any Services provided by Profile shall be considered as a chargeable service outside the Terms and Conditions of this Agreement.

7. On-Site Support Services

a. All requests for on-site services by The Customer will be responded to by Profile on a best endeavours basis and Profile reserves the right to charge for all time materials and costs incurred. For the sake of clarity Profile reserves the right to decline visiting any site at any time.

8. Software Product Maintenance

b. For Software specified in The Schedule updates made available by the Software originators will be made available to The Customer during The Term of this Agreement if specifically requested by The Customer. Profile reserves the right to render a charge for time materials and costs incurred including media and carriage in applying such updates to The Software on behalf of The Customer.
c. Charges received from the originators by Profile will be charged to The Customer. If on-site services are requested by The Customer or deemed as necessary by Profile will be considered as covered by the provisions of Clause 7. above.
d. Profile reserves the right to withdraw software support and maintenance of any product in the event that The Customer has failed to acquire and install the latest version of the product at the request of Profile. Profile will undertake to inform The Customer in advance of those products for which support services are to be withdrawn. The Customer shall agree to keep current and up-to-date the licences and Annual Maintenance Contracts for all products subject of this Agreement.

9. Third Party Supply

a. Profile is able to supply services to The Customer under The Agreement by the provision of software equipment and services from its Suppliers. Should the supply of such services become unavailable then Profile reserves the right to amend or terminate The Agreement.
b. Profile shall be entitled to carry out any service covered by this Agreement by appointment at its absolute discretion. Profile may also assign to any Third Party any or all of its rights or obligations under this Agreement. All other provisions of The Agreement are to be construed accordingly and in the event of any conflict between such provision and this Clause the latter shall prevail.

10. Customer Responsibilities

a. Environmental and electrical supply conditions shall be maintained by The Customer in accordance with manufacturers recommendations and the recommendations of Profile.
b. Access to equipment documentation and Software for Support Service shall be provided by The Customer who will cooperate with Profile in the diagnosis of IT Infrastructure or Software malfunction.
c. The Customer shall use the Software and equipment in a proper and prudent fashion and shall ensure that only competent and authorised persons are allowed to operate it.
d. Only media and supplies recommended by the manufacturer of any equipment will be used by The Customer.
e. The Customer shall make available to Profile all information concerning its operations as may be necessary for the fulfilment of Profiles obligations under The Agreement.

 11. Patents and Copyrights

a. Copyright subsists in Profiles proprietary Software, Software supplied by Profile under licence from Third Parties and all related documentation whether in printed or magnetic format.
b. The Agreement does not vary the Terms of any Licence entered into by Profile relating to any Software Product and in no circumstances does the use acquisition or maintenance of such Software transfer Copyright to The Customer.

12. Confidentiality

a. All trade and professional secrets or other information supplied by either Party to the other shall be kept confidential and such supply shall not imply any transfer of property.

13. Recruitment

a. The Customer agrees that during the Term of The Agreement and for a period of twelve months after its termination it will not employ or engage any member of Profiles staff without the written consent of Profile.

14. Liability

a. Neither Party shall be liable to failures to perform its obligations under The Agreement if such failures result from force majeure, acts of God, Governmental act, fire, explosion, accident, industrial dispute, or any other cause beyond the control of the Parties.
b. Each Party indemnifies the other Party in respect of direct physical damage to the other Partys property and direct physical injury or death of any of the other Partys servants or agents while on The Customers premises which is established to be the result of negligence of the Other Partys staff or Agents. Liability shall be limited to £500,000 for any one event or series of related events.
c. Profile shall use its best endeavours to provide prompt Support Services but shall not be liable for any delay or failure and shall not be liable for the consequences of any such delay or failure however caused.
d. Profiles liability hereunder shall be limited by its obligations and liabilities in The Agreement. No obligations, warranties, representations, conditions or undertakings whether statutory or otherwise, expressed or implied, shall be deemed to be incorporated in The Agreement save as cannot be excluded by Law.

15. The Agreement

a. This Agreement represents the entire Agreement between the Parties relating to the supply of Support and Maintenance Services on the products listed on The Schedule. Each Party warrants that no representation not attached to this Agreement has been made which has induced the other party to enter into this Agreement. No amendment of these Terms and Conditions is valid unless agreed in writing by an authorised signatory of both parties.
b. Headings are for convenience only and shall not affect the construction of The Terms and Conditions of The Agreement. Any Notice given hereunder shall be given in writing by First Class post delivered to the addresses of the Parties set out on Page One of The Agreement and shall be deemed to be delivered within two days of posting as aforesaid.

16. Assignment

a. The Customer shall not assign The Agreement without the express written permission of Profile. Profile may assign the rights, obligations, burdens and benefits of The Agreement at any time.

17. Breach

a. If The Customer defaults or commits a breach of its obligations under The Agreement and upon receiving written notification from Profile of such default or breach fails to remedy the default or breach within twenty eight days or is involved in any liquidation proceedings or ceases or threatens to cease trading or if serious doubts arise as to its solvency then Profile shall immediately become entitled without prejudice to its other rights to terminate The Agreement forthwith by Notice in writing. Profile shall be entitled to retain all payments by The Customer under The Agreement.

18. Severability

a. If any Clause of The Agreement shall be deemed or held to be unreasonable under the Unfair Contract Terms Act 1977 and such Clause or sub-Clause deemed severable, the remainder of The Agreement shall remain fully effective but read as if such offending Clause were not present.

19. Jurisdiction

a. This Agreement shall be governed by and construed in accordance with English Law.
 

20. Data Protection

a. For the purpose of this clause 20, the following definitions shall apply:
Applicable Law means the national laws of any member of the European Union or by the laws of the European Union applicable to Profile to Process the Personal Data.
Data Protection Legislation means all applicable laws, regulations, directives and codes of practice relating to the processing of personal data and privacy including, but not limited to the Data Protection Act 1998, GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and the Electronic Communications Data Protection Directive (2002/58/EC) including any relevant primary, subordinate or implementing laws, regulations, directives, or codes of practice and any replacement/subsequent European and/or UK legislation, as amended from time to time;
GDPR means the General Data Protection Regulation ((EU)2016/679);
The terms “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data”, “Process”, and “Sensitive Personal Data” (including any Personal Data which falls within the special categories of personal data as set out in Article 9(1) GDPR), shall have the meaning given in the Data Protection Legislation.

b. To the extent that Profile 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 Profile shall be a Data Processor and in any such case the provisions set out in this clause 20 shall apply.

c. This clause 20 is in addition to and does not relieve, remove or replace a party’s obligations under the Data Protection Legislation. Both parties shall comply with all applicable requirements of the Data Protection Legislation.

d. In the event that the Data Protection Legislation changes in a way that this clause is no longer adequate for the purpose of governing lawful data processing exercises, the parties will negotiate in good faith to amend this clause in light of such new legislation.

e. The parties consider the sharing of Personal Data is necessary for the fulfilment of the Profile’s obligations under this Agreement, namely the provision of services, which form the subject matter of this Agreement.

f. The scope of the Processing of Personal Data to be carried out by Profile under this Agreement is set out in the attached data processing schedule. Profile shall not process Personal Data in a way that is incompatible with the purpose of processing described in the attached data processing schedule (Agreed Purpose).

g. Each party shall appoint a single point of contact (SPoC) who will work together to reach an agreement with regards to any issues arising from the sharing of Personal Data under this Agreement. SPoCs are responsible for maintaining a record of individual requests made by Data Subjects as set out under Articles 15, 16, 17, 18, 20, 21 and/or 22 of the GDPR, the decisions made and any information that was exchanged. Records must include copies of the request, details of the data accessed and shared and where relevant, notes of any meeting, correspondence or phone calls relating to the request.

h. The Customer shall:
i. ensure that it is entitled to transfer or provide access to the necessary Personal Data to Profile so that Profile may lawfully use, Process and transfer such Personal Data in order to provide the Services for the duration and purpose of this Agreement;
ii. not transfer any Sensitive Personal Data to Profile without first obtaining the explicit consent of the relevant Data Subjects; and
iii. be responsible for maintaining the accuracy of Personal Data shared under this Agreement. Profile shall promptly comply with any request from The Customer requiring Profile to amend or transfer the Personal Data.

i. Profile shall:
i. maintain and make available to The Customer sufficient records and information to demonstrate its compliance with the obligations laid down in the Data Protection Legislation and this clause and allow for and contribute to audits, including inspections, conducted by The Customer or another auditor mandated by The Customer;
ii. Process the Personal Data only in accordance with written instructions given by The Customer, unless Profile is required by Applicable Law to Process the Personal Data. Where Profile is relying on Applicable Law as the basis for Processing Personal Data, it shall promptly notify The Customer of the same before performing such Processing unless the Applicable Law prohibits Profile from notifying The Customer;
iii. promptly inform The Customer in the event that Profile reasonably believes that The Customer’s instructions breach the Data Protection Legislation;
iv. ensure that it has in place appropriate technical and organisational measures 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 such unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the Personal 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);
v. taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing, provide The Customer with full co-operation and assistance in ensuring compliance with the obligations laid down in the Data Protection Legislation concerning the security of Processing including the implementation of appropriate technical and organisational measures to ensure a level of security appropriate to that risk;
vi. treat the Personal Data as strictly confidential and ensure that access to the Personal Data is limited to those employees who need access to the Personal Data to enable Profile to fulfil its rights and obligations under this Agreement and that such employees are obliged to keep the Personal Data confidential;
vii. not transfer any Personal Data outside of the European Economic Area without first entering into a variation to this Agreement to deal with such transfer and to ensure that appropriate safeguards are put in place;
viii. promptly inform The Customer of any complaints, requests or enquiries received from Data Subjects under the Data Protection Legislation, including but not limited to requests Articles 15, 16, 17, 18, 20, 21 and/or 22 of the GDPR, and shall provide The Customer with full co-operation and assistance in relation to such complaints, requests or enquiry;
ix. assist The Customer 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;
x. notify The Customer without undue delay, and in any event within 24 hours, upon becoming aware of a personal data breach (the accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, or any other unlawful form of Processing) and co-operate fully with The Customer to the extent required with regard to the notification of the data breach to the relevant Supervisory Authority and the communication of the data breach to the affected Data Subject(s);
xi. assist The Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which The Customer reasonably considers to be required by articles 35 or 36 of the GDPR;
xii. not retain or Process Personal Data for longer than is necessary to carry out the Agreed Purpose and, at the written direction of The Customer, delete or return Personal Data and copies thereof to The Customer on termination of this Agreement unless required by Applicable Law to store the Personal Data; and
xiii. at The Customer’s request, provide to The Customer a copy of all Personal Data held by it in connection with this Agreement, in the format and on the media reasonably specified by The Customer.

j. The Customer hereby authorises Profile to appoint subcontractors to carry out processing of Personal Data pursuant to this Agreement in accordance with this clause and any restrictions contained within this Agreement (Sub-processors).

k. Profile may continue to use those Sub-processors already engaged by Profile as at the date of this Agreement, subject to Profile in each case as soon as practicable meeting the obligations set out in clause 20(l) below.

l. Profile shall give The Customer prior written notice of the appointment of any new Sub-processor including full details of the Processing to be undertaken by the Sub-processor. If within 30 days of receipt of that notice, The Customer notifies Profile in writing of any objections to that proposed appointment Profile shall not appoint any Sub-processor until reasonable steps have been taken to address the objections raised by The Customer.

m. With respect to each Sub-processor, Profile shall:
i. Before the Sub-processor first Processes any Personal Data on behalf of the customer, carry out adequate due diligence to ensure that the Sub-processor is capable of providing the level of protection for Personal Data required by this clause 20;
ii. Ensure that the arrangement between Profile and the Sub-processor is governed by a written contract including terms which offer at least the same level of protection for Personal data as those set out in this clause 20 and which meet the requirements of the GDPR; and
iii. Provide to The Customer upon request a copy of any such agreement with the Sub-processor.

n. The parties shall review the effectiveness of this clause 20 every 12 months, having consideration to the Agreed Purpose. The review of the effectiveness of this Addendum will involve:
i. assessing whether the purposes for which the Personal Data is being Processed are still the ones listed in the attached data processing schedule;
ii. assessing whether the Personal Data is still as listed in the attached data processing schedule;
iii. assessing whether the Data Protection Legislation insofar as it governs data quality, retention, and Data Subjects' rights are being complied with; and
iv. assessing whether personal data breaches have been handled in accordance with this agreement and the Data Protection Legislation.

DATA PROCESSING SCHEDULE

Profile SPoC: Tracy Hodges

Nature of Processing: The Personal Data will be subject to the following basic Processing activities:
The personal data will be held in our CRM and ERP applications and used for legitimate business and marketing purposes to fulfil our IT Service Agreements.

Purpose of Processing: Profile shall Process Personal Data only for the purpose of providing the Services including:
Ordering our Products & Services; Contacting us; Support Services; Advertising, Marketing & PR; Administration.

 Duration of Processing (including applicable time limits for deletion): We will retain your personal data for as long as is necessary to fulfil the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements. For example we will retain details of your customer order, including your personal data, for a period of 7 years to enable us to deal with any follow-up communications from you or to ensure that we are in possession of all relevant papers in the event of a legal claim relating to the contract between us.

 Types of Personal Data:
● First and last name
● Title
● Position
● Employer
● Contact information (company, email, phone, physical business address)

For the avoidance of doubt, no Sensitive Personal Data will be shared or Processed under this Agreement.

Category of data subjects: The categories of Data Subjects will be:
• Prospects, customers, business partners and vendors of The Customer (who are natural persons);
• Employees or contact persons of The Customer’s prospects, customers, business partners and vendors; and
• Employees, agents, advisors, freelancers of The Customer (who are natural persons)