The following definitions and rules of interpretation apply in these Conditions.
Account Manager means the assigned point of contact for Managed Services.Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.Charges means the charges payable by the Customer for the supply of the Services in accordance with clause 6.Client Portal means the online portal where the customer can access the ticketing system and the risk management software.Commencement Date has the meaning given in clause 2.2.Conditions means these Terms of Service and any Service Particulars as amended from time to time in accordance with clause 13.5.Contract means the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.Control has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.Customer means the business (person or firm) who purchases Services from the Supplier for business purposes and does not use the Services outside of the course of their business.
Customer Default has the meaning set out in clause 5.2.
Deliverables means the deliverables set out in the Service Particulars produced by the Supplier for the Customer.
Incident Response Communications Lead is the assigned point of contact for Incident Response consultancy specifically.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order Confirmation means the confirmation you will be receiving on purchasing Services from us, detailing what you have purchased and the relevant fees.Project Manager means the assigned point of contact for most consultancy Services.
Service Particulars means the detailed scope of the Services the Supplier will carry out and details of fees, and, for the purposes of these terms, will include an Order Confirmation or Quote for Cyber Essentials as a stand-alone order.
Services means the Services, including any Deliverables, supplied by the Supplier to the Customer as set out in the Service Particulars.
Supplier means CSIQ Limited registered in England and Wales at 71-75, Shelton Street, London, United Kingdom, WC2H 9JQ with company number 12741949.
Supplier Materials has the meaning set out in clause 5.1(g).
- Interpretation:(a) A reference to legislation or a legislative provision:(i) is a reference to it as amended, extended or re-enacted from time to time; and(II) shall include all subordinate legislation made from time to time under that legislation or legislative provision(b) 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.(c) A reference to writing or written includes email and other digital text form to include the Client Portal.
- BASIS OF CONTRACT
- These terms, along with the Service Particulars, form the legal contract between the Supplier and the Customer.
- The Contract will come into existence on the date on which the Customer completes any steps given to confirm acceptance of the Service Particulars, including but not limited to placing an order through the Supplier’s website and receiving an Order Confirmation, signing or confirming written agreement to other Service Particulars, or using the automated quotation calculator and receiving a Quote with which the Customer can make an online purchase (Commencement Date).
- Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by law, trade custom, practice or course of dealing.
- Any Service Particulars given by the Supplier shall not constitute an offer and is only valid for a period of 14 days from its date of issue.
- SUPPLY OF SERVICES
- The Supplier shall supply the Services to the Customer in accordance with the Service Particulars in all material respects.
- The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Service Particulars, but any such dates shall be estimates only, and time shall not be of the essence for the performance of the Services.
- The Supplier reserves the right to amend the Service Particulars if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
- The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
- The Customer may contact the Supplier by writing to [email protected] or calling 03300 430 900, or by communicating with their Project Manager, Account Manager or Incident Response Communications Lead, where one has been assigned.
- The Supplier will communicate with the Customer using the contact details they have provided in the Service Particulars and, where applicable, through the Client Portal.
- CUSTOMER’S OBLIGATIONS
- The Customer shall:(a) ensure that the terms of the Service Particulars and any information it provides is complete and accurate;(b) co-operate with the Supplier in all matters relating to the Services;(c) provide the Supplier, its employees, agents, consultants and subcontractors with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;(e) prepare the Customer’s premises for the supply of the Services, where Services are delivered onsite;(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;(g) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and(h) comply with any additional obligations as set out in the Service Particulars.
- If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
- CHARGES AND PAYMENT
- The Charges for the Services shall be set out in the Service Particulars.
- The Supplier reserves the right to review and adjust the Charges on an annual basis in accordance with vendor increases and inflation.
- The Supplier shall invoice the Customer in accordance with the Service Particulars.
- The Customer shall pay each invoice submitted by the Supplier:(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and(b) in full and in cleared funds to a bank account nominated in writing by the Supplier in the Service Particulars; and(c) time for payment shall be of the essence of the Contract.
- All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
- If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time but at 4% a year for any period when that base rate is below 0% and will pay any charges permitted by section 5A of the Late Payment of Commercial Debts (Interest) Act 1998, from time to time.
- All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- INTELLECTUAL PROPERTY RIGHTS
- Throughout the course of Services, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sub-licences, to permit the Customer to use the Services and the Client Portal solely for the Customer’s internal business operations.
- All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer), including the methodologies of the Supplier, shall be owned by the Supplier.
- Where any third-party vulnerabilities are identified during the course of an engagement, the Supplier is the sole owner of the information, unless otherwise agreed in writing by the Supplier, and may claim bug bounties and the rewards from vendors at its discretion. No confidential information will be shared at any point during the claim of any bug bounty.
- The Customer undertakes:(a) not to copy, disassemble, decompile, modify, adapt, reverse-engineer, or create derivative works based on the whole or any part of the Services nor attempt to do any such thing;(b) not to frame or mirror any content forming part of the Service, other than on the Customer’s own intranets or otherwise for its own internal business purposes;(i) build a competitive product or Service; or(ii) copy any ideas, features, functions or graphics of the Services.(d) to supervise and control the use of the Services and ensure that the Services are used by the Customer’s employees and representatives in accordance with these terms; and(e) not to provide or otherwise make available the Services in whole or in part in any form to any person other than the Customer’s employees without prior written consent from the Supplier.
- DATA PROTECTION
- LIMITATION OF LIABILITY
- The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
- References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
- Nothing in this clause 9 shall limit the Customer’s payment obligations under the Contract.
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for:(a) death or personal injury caused by negligence;(b) fraud or fraudulent misrepresentation; and(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to clause 9.3 (No limitation in respect of deliberate default) and clause 9.5 (Liabilities which cannot legally be limited), the Supplier’s total liability to the Customer for all loss or damage shall not exceed £5,000,000.
- The caps on the Supplier’s liabilities shall be reduced by:(a) payment of an uncapped liability;(b) amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
- Subject to clause 9.3 (No limitation in respect of deliberate default), clause 9.4 (No limitation of customer’s payment obligations) and clause 9.5 (Liabilities which cannot legally be limited), this clause 9.8 sets out the types of loss that are wholly excluded:(a) loss of profits.(b) loss of sales or business.(c) loss of agreements or contracts.(d) loss of anticipated savings.(e) loss of use or corruption of software, data or information.(f) loss of or damage to goodwill; and(g) indirect or consequential loss.
- The Supplier has given commitments as to the compliance of the Services with the Service Particulars in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
- This clause 9 shall survive termination of the Contract.
- The Customer shall indemnify the Supplier against liability under the Computer Misuse Act 1990 (‘Act’) in connection with any Services ordered by the Customer that could not have reasonably been known by the Supplier to be an offence under the act.
- Each party’s right to terminate the Contract in a no-fault situation by giving notice to the other party will be set out in the Service Particulars.
- Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceases to carry on business;(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion, the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:(a) the Customer fails to pay any amount due under the Contract on the due date for payment;(b) the Customer becomes subject to any of the events listed in clause 11.2(c) or clause 11.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them; and(c) the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 11.2(b).
- CONSEQUENCES OF TERMINATION
- On termination or expiry of the Contract:(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
- Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
- Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
- Assignment and other dealings.(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
- Confidentiality.(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.3(b).(b) Each party may disclose the other party’s confidential information:(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.3; and(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
- Entire Agreement.(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.(b) Each party acknowledges that in entering into the Contract, it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.(c) Nothing in this clause shall limit or exclude any liability for fraud.
- Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Waiver.A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- Severance.If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 13.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Notices.(a) Any notice given to a party under or in connection with the Contract shall be in writing or given through the Client Portal.(b) Any notice shall be deemed to have been received:(i) if delivered by hand, at the time the notice is left at the proper address;(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am] on the second Business Day after posting; or(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt when business hours resume. In this clause 13.8(b)(iii), business hours means 9.00 AM to 5.00 PM Monday to Friday on a Business Day.
- Third Party Rights.(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
- Governing Law.The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
- Jurisdiction.Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.