Terms and Conditions for Supply of Goods and Services
CYAN SOLUTIONS TERMS AND CONDITIONS
Thank you for selecting Cyan Solutions Limited (company number 05181855, registered office Wellesley House, 204 London Road, Waterlooville, Hampshire, PO7 7AN) (‘us’ ‘we’ ‘Cyan’ etc.) to provide you with IT services and/or goods.
These are our terms and conditions for any services and / or goods we provide to you and apply to our relationship with you (other than where you have signed our Master Services Agreement, in which case the terms an conditions of that agreement shall apply). The specific services and / or goods you purchase from us are as set out in the relevant Order (defined below).
Your attention is drawn to the limitation of liability and indemnity provisions in clauses 9 and 10.
1.1 In these Conditions the following definitions apply:
Business Day means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
Conditions means Cyan’s terms and conditions set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;
Contract means the agreement between Cyan and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order;
Controller shall have the meaning given in applicable Data Protection Laws from time to time;
Customer means the person who purchases the Deliverables from Cyan and whose details are set out in the Order;
Data Protection Laws means, as binding on either party or the Services:
(a) the GDPR (to the extent it continues to apply to the United Kingdom);
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Subject shall have the meaning in applicable Data Protection Laws from time to time;
Deliverables means the Goods or Services or both as the case may be;
Force Majeure means an event or sequence of events beyond any party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract;
GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679;
Goods means the goods and other physical material set out in the Order and to be supplied by Cyan to the Customer;
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights;
Location means the address(es) for delivery of the Goods and performance of the Services as set out in the Order;
Order means the document setting out the Services, Goods, Deliverables, start date, Price and such other information agreed between the parties, In the event of a conflict between the Order and these Conditions, the terms of the Order shall prevail to resolve the conflict.
Personal Data has the meaning given in the applicable Data Protection Laws from time to time;
Personal Data Breach has the meaning given in the applicable Data Protection Laws from time to time;
Price has the meaning given in clause 3.1;
Processing has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly);
Processor has the meaning given to it in applicable Data Protection Laws from time to time;
Services means the services set out in the Order and to be supplied by Cyan to the Customer;
Specification means the description or specification of the Deliverables set out or referred to in the Order;
2 Application of these Conditions
2.1 These Conditions apply to and form part of the Contract between Cyan and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, Order, confirmation of Order, specification or other document shall form part of the Contract unless agreed by Cyan in writing.
2.3 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Customer.
2.4 Each Order submitted by the Customer to Cyan shall be an offer to purchase the Deliverables subject to these Conditions.
2.5 An Order may be withdrawn or amended by the Customer at any time before acceptance by Cyan. If Cyan is unable to accept an Order, it shall notify the Customer promptly.
2.6 The offer constituted by an Order shall remain in effect and capable of being accepted by Cyan seven (7) Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.
2.7 Cyan may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:
2.7.1 Cyan’s written acceptance of the Order; or
2.7.2 Cyan delivering or performing any part of the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).
2.8 Rejection by Cyan of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9 Cyan may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer.
2.10 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.
3.1 The price for the Deliverables shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with Cyan’s scale of charges in force from time to time (Price).
3.2 The Price is exclusive of VAT.
3.3 The Customer shall pay any applicable VAT to Cyan on receipt of a valid VAT invoice.
4.1 Cyan shall invoice the Customer for the Deliverables at any time after delivery or performance (as the case may be) of the Deliverables (whether in whole or part).
4.2 The Customer shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within thirty (30) days of the date of each invoice; and
4.2.2 to the bank account nominated by Cyan.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date Cyan may, without limiting its other rights, charge interest in accordance with the Late Payment of Commercial Debts (Interest) Act (1998) (as amended).
5 Delivery and performance
5.1 The Goods shall be delivered by Cyan to the Location on the date(s) specified in the Order. The Goods shall be deemed delivered by Cyan only on completion of unloading of the Goods at the Location.
5.2 The Services shall be performed by Cyan at the Location on the date(s) specified in the Order. The Services shall be deemed delivered by Cyan only on completion of the performance of the Services at the Location.
5.3 Cyan may deliver or perform the Deliverables in instalments. Any delay in performance or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.4 Time is not of the essence in relation to the performance or delivery of the Deliverables. Cyan shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are approximate only.
5.5 Cyan shall not be liable for any delay in or failure of performance caused by the Customer’s failure to: (i) make the Location available, (ii) prepare the Location in accordance with Cyan’s reasonable instructions or (iii) provide Cyan with adequate instructions for performance or delivery or otherwise relating to the Deliverables.
6 Risk and title
6.1 Risk in the Goods shall pass to the Customer on delivery.
6.2 Title to the Goods shall pass to the Customer once Cyan has received payment in full and cleared funds for the Goods.
7.1 Cyan shall ensure that all Deliverables supplied comply in all material respects with the Order. Acceptance shall take place when the Customer has indicated in writing to Cyan that it has accepted the Deliverables. The Customer has ten (10) days from delivery or performance to notify Cyan of any issues following which the Deliverables shall be deemed approved.
8.1 Subject to clause 8.4, Cyan warrants that during the term of the Contract, the Deliverables shall:
8.1.1 conform in all material respects to the Specification; and
8.1.2 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13.
8.2 The Customer hereby agrees that its sole remedy in respect of any non-conformance with any warranty given by Cyan in clause 8.1 is that Cyan will remedy such non-conformance (either by itself or through a third party) within a reasonable time. The Customer shall provide all information reasonably requested by Cyan to assist Cyan in resolving such breach.
8.3 Except as set out in this clause 8:
8.3.1 Cyan gives no warranty and makes no representations in relation to the Deliverables; and
8.3.2 shall have no liability for their failure to comply with the warranty in clause 8.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
8.4 Cyan offers no warranty or condition of any kind whatsoever in respect of any Deliverable manufactured by a third party. Cyan hereby assigns to the Customer (to the extent legally assignable) any rights which Cyan may have under any warranties given by any third party products or goods (copies of which will be supplied upon request), and Cyan shall provide reasonable assistance to the Customer for the purpose of enforcing the Customer’s rights under such warranties.
9 Limitation of liability
9.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 9.
9.2 Subject to clauses 9.5 and 9.6, Cyan’s total liability shall be as follows:
9.2.1 for breach of clause 12 (confidentiality): £1,000,000 (one million);
9.2.2 for breach of clause 13 (data protection): £1,000,000 (one million); and
9.2.3 in all other cases, the Price.
9.3 Subject to clauses 9.5 and 9.6, Cyan shall not be liable for consequential, indirect or special losses.
9.4 Subject to clauses 9.5 and 9.6, Cyan shall not be liable for any of the following (whether direct or indirect): loss of profit; loss or corruption of data; loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or loss of goodwill.
9.5 The limitations of liability set out in clauses 9.2 to 9.4 shall not apply in respect of any indemnities given by either party under the Contract.
9.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
9.6.1 death or personal injury caused by negligence;
9.6.2 fraud or fraudulent misrepresentation;
9.6.3 any other losses which cannot be excluded or limited by applicable law.
10 Intellectual property
10.1 All Intellectual Property Rights in or arising out of or in connection with the Deliverables shall be owned by Cyan or its licensors and partners (Service IPR).
10.2 Cyan hereby grants a limited non-assignable non-sub licensable licence for the duration of the Contract to use the Service IPR in order to receive and use the Deliverables under the Contract.
10.3 The above provisions in this clause 10 shall not apply to:
10.3.1 any content provided by the Customer which shall belong to the Customer at all times; or
10.3.2 any Deliverables, or part thereof, that Cyan provides as an intermediary. In which case the terms of the licence granted to the Customer will be dictated by the owner/licensor of the applicable Intellectual Property Rights.
10.4 The Customer hereby grants to Cyan a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided under or in connection with the Contract or for the purpose of providing Services to the Customer.
11.1 The Customer shall indemnify, and keep indemnified, Cyan from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Cyan as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
11.2 The Customer shall indemnify Cyan against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by Cyan in connection with any claim arising from modification or use of materials licensed by the Customer under clause 10.4.
12.1 Each party undertakes that for a period of five (5) years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under the Contract. In any event, each party hereby agrees that it shall treat the other’s Confidential Information with the same degree of care as it employs with regard to its own Confidential Information of a like nature and in any event in accordance with best current commercial security practices, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of the Contract, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this clause. Each party agrees that it shall be liable for any breach of this clause 12.1 by any employee, consultant or professional advisor to whom it has disclosed the other party’s Confidential Information as though it had committed the breach itself.
12.2 The provisions of clause 12.1 shall not apply to:
12.2.1 any information in the public domain otherwise than by breach of the Contract;
12.2.2 information lawfully in the possession of the receiving party thereof before disclosure by the disclosing party, as evidenced by written documents;
12.2.3 information lawfully obtained without restriction from a third party, as evidenced by written documents; and
12.2.4 information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permitted by law.
13 Processing of personal data
13.2 The Customer warrants and undertakes that it has obtained all necessary consents and provided appropriate notices to allow for lawful transfer and processing of any Personal Data by Cyan under or in connection with the Contract.
13.3 Notwithstanding the Personal Data described in clause 13.1, the Customer may, acting as Data Controller be passing Personal Data to Cyan as Data Processor pursuant to this the Contract. Under this clause 13, any capitalised terms not otherwise defined these Conditions shall have the meaning given in Data Protection Laws.
13.4 Cyan, as Processor, shall:
13.4.1 only process such Personal Data for the purposes of performing it obligations under the Contract and on the documented instructions of the Customer. In the event that a legal requirement prevents Cyan from complying with such instructions, Cyan shall, unless such legal requirement prohibits it from doing so, inform the Customer of the relevant legal requirement before carrying out the relevant processing activities;
13.4.2 at all times, ensure that the necessary technical and organisational measures are in place to prevent unauthorised and unlawful processing or disclosure of such Personal Data and such measures shall include taking reasonable steps to ensure the reliability of any of its staff who may have access to Personal Data and ensuring that such staff are subject to appropriate confidentiality undertakings. Cyan shall, save where prohibited by law and as soon as reasonably practical, notify the Customer of any legal obligation which requires the Data Processor to disclose the Personal Data to a third party;
13.4.3 send to the Customer any communications received from individuals in relation to their Personal Data as soon as reasonably practicable. Cyan shall provide reasonable co-operation to the Customer in relation to any individuals exercising their rights under the Data Protection Laws;
13.4.4 provide reasonable assistance to the Customer in relation to its compliance with Data Protection Laws;
13.4.5 take reasonable steps to ensure the confidentiality, integrity, availability and resilience of processing systems and services associated with the processing of such Personal Data;
13.4.6 co-operate with and provide such information as the Customer may reasonably require to enable it to comply with its obligations under Data Protection Laws. Customer shall use all reasonable endeavours to minimise disruption to Cyan in exercising its rights under this sub-clause and shall submit to appropriate undertakings in respect of confidentiality;
13.4.7 notify the Customer without delay of any Personal Data Breach and provide reasonable assistance to the Customer with any investigation into and remediation of a Personal Data Breach. Cyan shall also provide the Customer with reasonable assistance with any notifications made to relevant authorities and / or individuals in relation to a Personal Data Breach;
13.4.8 immediately cease processing the Personal Data and immediately supply or delete the Personal Data in accordance with the Customer’s instructions;
13.4.9 submit to audits and inspections carried out directly upon it by a supervisory authority or the Customer (no more often than once every twelve (12) months), and provide reasonable co-operation with any audits and inspections carried out upon the Customer; and
13.4.10 inform the Customer immediately of any requests that, in its reasonable opinion, would involve infringing Data Protection Laws.
13.5 The Customer agrees that Cyan may appoint sub-processors to Process Personal Data under or in connection with the Contract. To the extent that Cyan engages sub-processors, Cyan will:
13.5.1 provide a formal notification to the Customer prior to engaging a new sub-processor. It will be the Customer’s responsibility to notify Cyan of any objection to the proposed sub-processor engagement. Failure to notify such objection will be considered to indicate acceptance of the proposed sub-processor change;
13.5.2 enter into a written agreement with the sub-processor imposing data protection terms that require the sub-processor to protect such Personal Data to the standard required by Data Protection Laws; and
13.5.3 remain fully liable for all acts or omissions of any sub-processor appointed by Cyan.
13.6 The Customer acknowledges that Cyan may make use of sub-processors based outside the EEA or United Kingdom. To the extent that Cyan transfer any Personal Data outside the EEA or United Kingdom as part of providing the Services, the Customer hereby agrees to such transfer provided that such transfer is made in compliance with applicable Data Protection Laws, including, if required, EU Model Clauses, certification under the EU-US Privacy Shield, or such other international transfer mechanism approved under Data Protection Laws.
13.7 Cyan shall maintain and keep up to date records detailing the location of all Personal Data processed by Cyan together with details of any third parties with whom Cyan has shared any Personal Data.
14 Force Majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from a Force Majeure. The party affected by the Force Majeure shall without undue delay give notice to the unaffected party detailing the circumstances of the Force Majeure, its anticipated impact and duration. The affected party shall use reasonable endeavours to mitigate the effect of the Force Majeure on the performance of its obligations. If the period of delay or non-performance continues for fourteen (14) days by reason of the Force Majeure, the party not affected may terminate this Contract by giving written notice to the affected party.
15.1 Cyan may terminate the Contract at any time by giving notice in writing to the Customer if:
15.1.1 the Customer commits a material breach of the Contract and such breach is not remediable;
15.1.2 the Customer commits a material breach of the Contract which is not remedied within fourteen (14) days of receiving written notice of such breach;
15.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within seven (7) days after Cyan has given notification that the payment is overdue; or
15.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
15.2 Cyan may terminate the Contract at any time by giving notice in writing to the Customer if the Customer has a receiver or administrative receiver appointed over it or any of its undertaking or assets, or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it), or a court of competent jurisdiction shall make an order to that effect, or if it shall become subject to an administration order, or shall enter into any voluntary arrangement with its creditors, or shall cease or threaten to cease to carry on its business, or if any substantially similar event shall take place under the laws of another jurisdiction.
15.3 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of Cyan at any time up to the date of termination.
16.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class recorded delivery post or other next working day delivery service, commercial courier, or email.
16.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.1; if sent by pre-paid first class recorded delivery post, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one business day after transmission.
16.3 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, Cyan.
16.4 The Customer may not assign, transfer, mortgage, charge, subcontract or deal in any manner with all and any of Cyan’s rights under the Contract except with Cyan’s prior written consent.
16.5 Cyan may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
16.6 Cyan shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.
16.7 The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
16.8 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.9 No failure, delay or omission by Cyan in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
16.10 No single or partial exercise of any right, power or remedy provided by law or under the Contract by Cyan shall prevent any future exercise of it or the exercise of any other right, power or remedy by Cyan.
16.11 If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
16.12 No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
16.13 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
16.14 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
16.15 In these Conditions, unless the context requires otherwise: any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions; a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns; a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns; a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established; a reference to a gender includes each other gender; words in the singular include the plural and vice versa; any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time.