CY4NET Limited terms and conditions for the provisions of the 4EA Service

Version 1

1          Definitions

1.1       In these terms and conditions:

'Charges'                   

means the charges in respect of the Service as shown on our website and/or the Order Form and varied from time to time in accordance with clause 18.  In the event of a discrepancy between any Charge as shown on our website and as shown on the Order Form the terms of the Order Form shall be conclusive.

'Commencement Date'  

means the date when our agreement with you is concluded as stated in clause 2.4;

'Order Form               

means the form completed by you online or printed out and sent to us by fax/post or a hardcopy form provided by us showing details of the Service;

'Service'                     

means the service to be provided by us to you, as described in our Order Form  and on the pages of our website relevant to that service. (In the event of a discrepancy between the description of the Service on the website and that on the Order Form, the description on the Order Form shall be conclusive);

'we/us/our'                  

refers to CY4NET Limited, a company incorporated in England & Wales under company number 5229948, and having its registered office at Waterways, Starnthwaite Ghyll, LA8 8JN; and

'you/yours'                  

refers to you, the limited company, limited liability partnership or unincorporated business placing an order for the Service.  You shall not be non-business user of the Service.

2          Your agreement with us

2.1       These terms and conditions, together with the Order Form, any letter from us confirming our acceptance of your order for the Service, and our Acceptable Use Policy constitute the entire agreement between you and us relating to the provision of the Service ("the Agreement"), and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between us in relation to this, and all past courses of dealing or industry custom. No oral explanation or oral information given by any party (including any information given via our customer service, sales or support departments) shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions, and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in these terms and conditions.

2.2       Nothing on the website that these terms and conditions are located on, or anything in these terms and conditions or the Order Form, is intended or shall be interpreted to mean that we are making a legal offer to you to provide the Service.  We are inviting you to make a legal offer to us to purchase the Service.  It is entirely at our discretion to accept or reject the offer to purchase.

2.3       Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgement of order, invoice or other document issued by the Company shall be subject to correction without any liability on the part of the Company.

2.4       The Agreement will commence only when we have accepted your order by sending you a letter confirming this and the Commencement Date shall be the date stated in this letter as being the date when our provision of the Service to you shall begin.

3          Provision of the Service

3.1       In consideration of the prompt payment of the Charges by you, we shall provide the Service to you subject to these terms and conditions, from the Commencement Date until the Agreement is terminated or the Service suspended in accordance with the provisions of the Agreement.

3.2       We grant you a non-exclusive, non-transferable and restricted licence to use the software which forms part of the Service, for the period of the Agreement.

4          Password and account number

4.1       We will issue you with a username and a password which are essential for the secure use if the Service.  As part of the Service you will be able to create other passwords and usernames so that your employees or agents may also use the Service.  You are responsible for keeping all user names and all passwords issued by us and you as part of the Service confidential and you agree to take all necessary steps to keep such username and password information secure and that such username and password information is not disclosed to any unauthorised person.

4.2       You must inform us immediately if you consider that any username and password has been disclosed to an unauthorised person.

4.3       You must inform us immediately if you discover that the Service is being misused and you agree to take all steps necessary or required by us to prevent or stop such use.

4.4       In the event that the integrity/security of the Service is breached whether under circumstances stated in clause 4.2 or 4.3 or any other circumstance, or we consider that there has or that there is likely to be a misuse of the Service we may:

4.4.1        suspend you use of the Service (without prejudice to other remedies that we have); and/or

4.4.2        change any and all usernames and passwords and then notify you that we have done this.

5          Payment

5.1       Unless we agree that you may make payment of the Charges by credit card under clause 5.2, all Charges shall be payable by you monthly in advance on the due date(s) by standing order or cheque as shown in the Order Form.

5.2       You may make payment of the Charges monthly in advance by credit card provided that your payment may be taken automatically up to 10 working days before their due date, to allow for financial and administrative processing. Thus you should give at least 28 full working days notice to us if they do not wish to continue with your account.

5.3       We may at any time vary any of the Charges in accordance with the terms of clause 18.

5.4       All Charges are exclusive of VAT and VAT must be paid by you unless you are exempt from tax and display to us a valid tax exemption certificate.

5.5       We reserve the right to charge interest on any amounts due by you to us which are not paid on the relevant due date, from that date until the date of payment (whether before or after decree) on a daily basis at the rate of 4% above the base rate from time to time of Barclays Bank Plc. You shall reimburse us all costs and expenses (including reasonable legal costs) incurred in the collection of any overdue amounts. Interest shall continue to accrue and costs and expenses shall continue to be reimbursed after the termination of the Agreement for any reason.

5.6       All payments must be made in pounds sterling.

5.7       Without prejudice to our other rights and remedies, if any Charge is not paid on or before the due date, we shall be entitled immediately to suspend the provision of the Service to you, in accordance with clause 12.

5.8       If the payment becomes more than 7 days overdue, we reserve the right to find other contact methods for you to try to gain payment, including contacting any e-mail address or telephone number on the website, to avoid downtime for the service.

5.9       If at any time before or during the term of the Agreement, you fail to meet the standard of creditworthiness deemed acceptable by us from time to time, we shall be entitled to do all or any of the following:-

5.9.1    to require you to make such regular instalment payments in advance on account of any future Charges as we deem necessary;

5.9.2    to impose credit limits on you in respect of Charges, and to suspend the Service at any time when such limits are reached until payment in full of such outstanding Charges;

5.9.3    to impose such other restrictions on your right to use the Service as we shall reasonably deem necessary.

5.10     When your account is due for renewal, we will e-mail and post an invoice to the details we have registered for you, we will also send a further reminder if the payment becomes overdue.

5.11     You accept that if your Service has any predefined limits applied to it for storage on the Internet server that we use as part of our provision of the Service to you, you will be liable for any excess charges generated by these limits being exceeded by you, with or without your previous knowledge.

5.12     Any fees that become due as the result of overusage will be held against your account, and are subject to clause 5 and could lead to the Service being terminated or suspended under Clause 12 if the payments are not made.

6          Addresses for Complaints

6.1       You may send us any complaints about the Service:-

6.1.1    by post to PO Box 32, Skipton, BD23 9AT;

6.1.2        by fax; or

6.1.3    by e-mail (in which case you must quote your address details, including your postcode), to simongreen@cy4net.com

7          Service Levels

7.1       Unavailability of the Service shall be measured from the time that you validly inform us that the Service is not available to you.

7.2      Any unavailability of the Service caused by any of the following shall not be included in calculating the availability or unavailability of the Service:

7.2.1    any failure of your equipment, facilities or (where relevant) software;

  7.2.2    any or your acts or omissions or any person or user of the Service authorised by you;

7.2.3    any hacking, spamming, viruses or other hostile computer programmes;

7.2.4    any scheduled or unforeseen critical maintenance of the computer server on which the Service is provided;

7.2.5     any events or circumstances beyond our reasonable control or any events of force majure under clause 15 or any failure of any external telecommunications network.

7.3       We will not be responsible for any loss of information caused by your use of the Service.

7.4       If you exceed the levels of information that you are permitted to store on the computer server that is used to provide the Service we may require you to remove information so that the Service is within the agreed parameters and we reserve the right to remove data at our discretion if you do not comply with our request to remove information.  A softcopy (stored on CD ROM or DVD ROM) of the information that is removed by us will be kept and will be given to you on receipt of our administration fee levied for making a copy of the removed information.

8          Support Services

8.1       We will use reasonable endeavours to respond to any request for support in relation to a recognised emergency fault within and shall make all commercially reasonable attempts to resolve the fault.

8.2       We will use our best endeavours to maintain the Service in the event of a failure of the computer server on which the Service is based.

8.3       As part of the Service, we offer technical advice and support either via e-mail or by our telephone helpline. We reserve the right to establish limitations on the extent of such support, and the hours at which it is available, and you understand that we cannot accept any liability for any loss or damage arising (whether directly or otherwise) out of the giving of such assistance and or advice, except where this is due to our negligence, recklessness or wilful misconduct in the performance of our obligations under the Agreement.

9          Limitation of Liability

9.1       Nothing in these terms and conditions is intended to exclude any provision of the Unfair Contract Terms Act 1977, or of any other legislation designed to ensure that the rights of parties to a contract of the type of the Agreement (i.e. standard terms and conditions which are not individually negotiated) are fairly balanced.

9.2       Subject to clause 9.1, we shall not be liable to you for any loss or damage unless such loss or damage arises as a direct result of our negligence, recklessness or wilful misconduct, or fraud or misrepresentation on our part.

9.3       To the fullest extent permitted by applicable law, we disclaim all liability for our employees or sub-contractors negligence.

9.4       We shall not be liable for any loss suffered by you or any third party as a result of an unauthorised third party gaining unathorised access to the computer server through which the system operates and as provided to you or corrupting any Software needed to operate or use the Service.  For the avoidance of doubt this clause is meant to exclude all liability for the actions of hackers.

9.5       We shall not be liable for any loss suffered by you or any third caused as a result of any use of the Service by you, your employees or your agents.

9.6       Notwithstanding clause 9.1 all conditions, terms, representations and warranties relating to the Service and not expressly stated in the Agreement are hereby excluded to the fullest extent permitted by law.

9.7       Our total liability to you in respect of any claim by you arising out of or in connection with the provision (or the failure to provide) the Service shall be limited to the amount paid by you for the Service, where a limit can be applied.

9.8       No claim by you against us shall be valid unless you have notified us of the details of the claim within one year of it arising.

9.9       Every provision of this clause 9 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason any of these provisions is held inapplicable or unenforceable in any circumstances, and shall remain in force notwithstanding the expiry or termination of the Agreement.

10        Indemnity

You agree that you shall be liable for, and hereby agree to indemnify us on demand in respect of any and all demands, liabilities, losses, costs and claims (including reasonable legal fees) sustained or incurred by us, our agents, sub contractors, suppliers, our other customers, officers or employees, arising as a result of breach by you, your employees, agents or sub-contractors.

11        Website Content

11.1     We have used reasonable care and skill in compiling the content of our website but make no warranty, express or implied, as to the nature or accuracy of any material on the website and cannot accept liability for any particular material on the website or as a result of any use of or reliance placed upon information contained within the website. The Order Form and any letter from us confirming our acceptance of your order for the Service is conclusive as to the Charges and the description of the Service.

11.2     Although every effort is made to ensure complete accuracy, some prices or details shown on the website may change from time to time, and it is possible that errors will occur. We will use reasonable endeavours to rectify any errors as swiftly as possible.

12        Suspension/Termination

12.1     We reserve the right at any time to suspend the Service or terminate the Agreement without notice to you and without giving you any refund in the event that we, acting reasonably, consider that you have made inappropriate use of the Service .

12.2     Either you or we may terminate the Agreement at any time by giving at least 28 days written notice to the other party. You may also terminate the Agreement in the circumstances described in clauses 18 and 20.

12.3     In addition to our rights under clauses 12.1 and 12.2, we may suspend the Service or terminate the Agreement immediately without notice to you and, in the case of clauses 12.3.1 to 12.3.5 inclusive, without giving you any refund if any of the following occurs:-

12.3.1  we are precluded from providing the Service by law or by the decision of any competent judicial, governmental or regulatory body;

12.3.2  you fail to pay any sum due to us when it falls due, and have not made payment within 7 days of the due date, or you breach any other provision of the Agreement and, if the breach is remediable, fail to remedy the breach within 30 days of written notice from us specifying the nature of the breach, and the steps required to remedy it; or

12.3.3  you commit an unremediable breach of the Agreement. (Without limitation, particular examples of breaches which are for the purposes of the Agreement incapable of remedy include jeopardising or compromising the security or integrity of the computer network that we use in providing the service to you, for example (but without limitation), the posting or transmission of defamatory content through or in connection with the Service);

12.3.4  you become bankrupt or apparently insolvent, are sequestrated, wound up, make a proposal for a voluntary arrangement under the Insolvency Act 1986, cease or threaten to cease to carry on your business, or otherwise are unable to meet your debts as they fall due; or

12.3.5  we decide (acting reasonably) that any event has occurred which adversely affects your ability to pay any sum due to us as and when it falls due, or otherwise to perform your obligations under the Agreement. This includes, without limitation, your credit being declined, or us receiving notice that you have disputed any charges with your credit card company;

12.4     On termination of the Agreement or suspension of the Service in any of the circumstances described in clauses 12.3.1 to 12.3.5 inclusive, we shall be entitled, acting reasonably, to do all or any of the following:-

12.4.1  to delete all such data (but we may, at our discretion, hold such data for such period as we may decide to allow you to collect it at your expense, subject to payment in full of any amounts outstanding and payable to us by you);

12.4.2  to post such notice on your Service in respect of the non-availability of your Service as we think fit;

12.4.3  to take any other action we, acting reasonably, deem appropriate and proportionate to the breach of the Agreement.

12.5     On termination of the Agreement for any reason, any licence granted to you under clause 3.2 shall automatically terminate.

12.6     We may temporarily suspend the Service for the purpose of repair, maintenance or improvement of any of our facilities and the facilities of 3^rd party providers which are necessary to provide the Service, subject to us giving you as much notice as is reasonably practicable in the circumstances, and restoring the Service as soon as reasonably practicable after such temporary suspension.

12.7     We shall investigate any suspected or alleged breach of the Agreement, and make an additional charge for all reasonable costs incurred due to investigating and dealing with the misuse and/or blocking access to any components of the Service. Without limitation, you expressly authorise us to use your personal data and other account information in connection with any such investigation, including by disclosing it to any third party whom we consider has a legitimate interest in any such investigation or its outcome.

13        Intellectual Property Rights

You shall obtain any and all necessary consents, licences and clearances to enable to enable you to use the Service lawfully.

14        Data

14.1     Subject to 12.7, in the event of an investigation such as is described there, we hereby undertake not to disclose your personal data to any 3^rd Party and such personal data shall be held securely and in compliance with all other respects with the Data Protection Act 1998. We reserve the right to monitor your use of the Service, although you acknowledge that we have no duty to do so other than to provide the security and support services under these terms and conditions.

14.2     All of the information/data that you generate using the Service will belong to you.  You may request a hardcopy (printed) or softcopy (disk) at any time during your use of the Service.  We reserve the right to charge a small administration fee for this.

15        Force Majeure

15.1     We shall not be in breach of the Agreement or otherwise liable to you in any manner whatsoever for any failure or delay in performing our obligations under the Agreement due to force majeure.

15.2     In these terms and conditions "force majeure" shall include, but is not limited to, such causes beyond our control, and without our fault or negligence, as are occasioned by: any third party being unable to provide goods or services to us; acts of God; war or national emergency; acts of civil or military authority; acts of terrorism; riot; civil disturbance; malicious damage; compliance with any law or governmental order, rule, regulation or direction; acts or order of any government agency or official thereof; accident; transport contingencies; shortage of facilities, fuel, energy, labour or materials; fire; explosion; flood; or storm.

16        Notices

16.1     Any notice to be given in accordance with these terms and conditions by us to you may be sent by either e-mail, fax or recorded delivery, and:-

16.1.1  if sent by e-mail shall, unless the contrary is proved, be deemed to be received on the day it was sent;

16.1.2  if sent by fax shall be deemed to be served on receipt of an error-free transmission report; or

16.1.3  if sent by recorded delivery shall be deemed to be served two days following the date of posting.

16.2     Any notice to be given in accordance with these terms and conditions by you to us shall be in English and may be sent by either e-mail, fax or recorded delivery. You should not assume that any such notice has been received by us until we send you confirmation of receipt.

16.3     Notices sent to us shall be sent to CY4NET Limited at PO Box 32, Skipton, BD23 9AT. We shall send any notice to you to the address which you state to us on your Order Form, and it is your responsibility to notify us of any change to that address.

17        Waiver

Any failure by us to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.

18        Variation

We reserve the right to amend the provisions of the Agreement at any time. If we do so, we shall display a notice on our website for a period of thirty days prior to the amendment coming into effect, informing you of the amendment and the date on which it is to come into force, and will notify you by e-mail if the amendment affects the type of Service to which you subscribe. Your continued use of the Service after any such amendment has come into effect shall be deemed to be your binding acceptance of such amendment. If you are a Consumer you will have the right to end this Agreement by written notice at any time up to the date on which the amendment comes into force.

19        Severability

If any of the provisions of the Agreement is found by any court or other competent authority to be void or unenforceable, such provision shall be deemed to be deleted from the Agreement and the remaining provisions of the Agreement shall continue in full force and effect. Notwithstanding the foregoing, we and you shall thereupon negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision so found to be void or unenforceable.

20        Transfer of rights and obligations

You may not assign or otherwise transfer any of your rights or obligations under the Agreement to any other person. We reserve the right to assign or sub-contract any or all of our rights and obligations under the Agreement to any person, but if we do so you may terminate the Agreement in accordance with clause 12. We shall give you reasonable notice in writing of our intention to assign the Agreement.

21        Law And Jurisdiction

            The Agreement shall be governed by and construed in accordance with the laws of England and Wales and you hereby submit to the non-exclusive jurisdiction of the English courts.