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Terms & Conditions

CyberSussed – Terms and Conditions

The Customer’s attention is drawn to the exclusions from and limitations of liability contained in these Terms and Conditions and in particular to the provisions of Clauses 3.3, 4.1, 6.3, 6.4, 11.4, 11.8, 11.9, 12.3, 12.4, 12.6, 12.8, 14.1, 15.2, 16.3, 17.1, 19, and 22 of this Agreement.

The services supplied by CyberSussed are intended to reduce the insecurity of the Customer, but no security service can provide absolute security. CyberSussed believes that the limitations of liability in these Terms and Conditions are a reasonable division of risk as between CyberSussed and the Customer. The security services provided by CyberSussed are not intended to be a substitute for the Customer obtaining appropriate Cyber Security Insurance.

THESE TERMS AND CONDITIONS apply to all supplies made by CyberSussed Limited (incorporated and registered in England and Wales with company number 15423959 whose registered office is at 71-75 Shelton Street, Covent Garden, London, United Kingdom, WC2H 9JQ. (“CyberSussed”)) to you and whether you are a person, partnership, company, or other undertaking (the “Customer”).

BACKGROUND

CyberSussed is a company engaged in the provision of certain security services for computer systems and has agreed to provide specified security services for the Customer’s computer system pursuant to this Agreement.

The Customer wishes to purchase and CyberSussed wishes to supply the specified security services indicated in the Choice of Service to the Customer.

CyberSussed and the Customer have agreed that any future supply of security services and associated services such as configuration by CyberSussed to the Customer will be governed by the provisions of this Agreement and set out in a future Choice of Service.

 

AGREED TERMS

 

Interpretation

1.1 The following definitions apply in these Terms and Conditions, and unless expressly indicated otherwise in a Choice of Service in any Choice of Service:

  • ‘Additional Charges’ means CyberSussed’s charges to be calculated by CyberSussed in accordance with the Standard Rate;
  • ‘Additional Services’ means any services provided by CyberSussed in addition to the services which CyberSussed is bound to provide for the Total Fee;
  • ‘Agreement’ means the agreement based on these Terms and Conditions;
  • ‘Business Day’ means a day (i) other than a Saturday or Sunday or (ii) other than a public holiday in England;
  • ‘Choice of Service’ means all or some of the following services as chosen by the Customer:
    • Cyber security delivered by CyberSussed using or combining relevant 3rd party security services (using a service known as “Essentials Security Stack” which service is more particularly defined at Computer Security Service Specification);
    • Cyber security delivered by CyberSussed using or combining relevant 3rd party security services (using a service known as “Enhanced Security Stack” which service is more particularly defined at Computer Security Service Specification);
    • Cyber security delivered by CyberSussed using or combining relevant 3rd party security services (using a service known as “Complete Security Stack” which service is more particularly defined at Computer Security Service Specification);
    • Password security delivered by CyberSussed (using the service known as “1Password”) which service is more particularly defined at Password Security Service Specification;
    • Email deliverability and anti-spoofing delivered by CyberSussed using Sendmarc’s DMARC platform, which helps to ensure emails are delivered and reduces the possibility that you could be impersonated or spoofed and which service is more particularly defined at Email Deliverability Service Specification;
    • Mobile security delivered by CyberSussed using the services of TrustD Security, which service is more particularly defined at Mobile Device Security Service Specification; We draw your attention to the fact that TrustD, as well as CyberSussed, has access to the monitored data (which doesn’t include any Personal data apart from the email address of the User and the blocked web addresses input by the User).
    • Backup and Recovery 365/Google, delivered by CyberSussed (using the service known as “Axcient”) which service is more particularly defined at Backup and Recovery 365 Service Specification
    • Cyber security training delivered by CyberSussed using the services supplied by 3rd parities, which service is more particularly defined at Cyber Security Training Service Specification
  • ‘Clause’ means a clause of these Terms and Conditions;
  • ‘Commencement Date’ means the date on which the Customer entered into a Choice of Service or otherwise commenced receiving the Managed Supply;
  • ‘Consequential Loss’ means pure economic loss, loss of profit, loss of use of trademarks, loss of business, loss of reputation, and like loss;
  • ‘Customer Data’ means all information or data in whatever form relating to the Customer, Users, or the Customer’s clients and business stored or processed by the Customer in connection with its use of the Managed Supply including any information provided by Users in connection with their access to or use of the Managed Supply (but excluding always data collected directly by CyberSussed in the ordinary course of its business about the Customer and relating to the formation or operation of this Agreement, a Choice of Service or CyberSussed’s relationship with the Customer);
  • ‘Data Controller’ means a data controller as defined in the Data Protection Legislation;
  • ‘Data Processor’ means a data processor as defined in the Data Protection Legislation;
  • ‘Data Protection Legislation’ means the General Data Protection Regulation 2016 and the Data Protection Act 2018 (as amended);
  • ‘Failure’ has the meaning given in Clause 6.3;
  • ‘Intellectual Property Rights’ means a patent, right in a design, copyright, database right, domain name, trademark, and any other intellectual property right whether or not registered or capable of registration and wherever situated in the world;
  • ‘Loss of Data’ means a loss of or corruption to data or programs held or used by or on behalf of the Customer;
  • ‘Malware’ means malware, viruses, trojans, and other forms of harmful computer code;
  • ‘Managed Supply’ means the configuration and provision of the security services to be provided by CyberSussed pursuant to this Agreement or a Choice of Service;
  • ‘Annual Renewal Date’ means the anniversary date on which the Managed Supply commenced, with billing occurring monthly on the same date of each month (provided that where such billing date is the 29th, 30th or 31st in a month, CyberSussed may make such variations as it deems appropriate);
  • ‘Objectionable’ in the context of material or content means material or content that contains Malware or is defamatory, obscene, hateful, profane, which contains racist terminology or is unlawfully pornographic;
  • ‘Party’ means CyberSussed or the Customer;
  • ‘Personal Data’ means such of the Customer Data which is personal data as defined in the Data Protection Legislation;
  • ‘Personal Data Breach’ means a personal data breach as defined in the Data Protection Legislation affecting the Customer Data;
  • ‘Representative’ means the contact within the Customer’s business appointed and authorised by the Customer pursuant to Clause 8 of this Agreement;
  • ‘Proprietary Software’ means software which is used by the Customer but licensed by a Third Party and managed or supplied as part of the Managed Supply;
  • ‘Source Code’ means the source code of software, in the language in which the software was written, together with all related flow charts and technical documents;
  • ‘Standard Rate’ means CyberSussed’s standard rate for time, materials, services, travel, accommodation, and subsistence from time to time prevailing;
  • ‘Standard Support Hours’ means 9:00 a.m. to 5:30 p.m. English time during a Business Day;
  • ‘Stored Data’ means all information or data in whatever form belonging to the Customer, Users, or the Customer’s clients stored or processed by CyberSussed in connection with the provision of the Managed Supply including for the avoidance of doubt where the Managed Supply;
  • ‘Support Services’ means CyberSussed’s software support services as indicated in Clause 12.2, which support services form part of the Managed Supply;
  • ‘Term’ means the period of 12 months unless otherwise agreed in writing by the Parties;
  • ‘Termination Event’ means the following events:
    • the Customer fails to pay any moneys due under this Agreement or a Choice of Service within thirty (30) days of the due date;
    • the Customer breaches a term or condition of this Agreement or a Choice of Service (other than a term or condition requiring payment of moneys as provided for in paragraph (a) above) and (in the case of a breach capable of being remedied) fails to have remedied such breach within thirty (30) days of a written request by CyberSussed so to do;
    • where the Customer (otherwise than for the purposes of amalgamation or reconstruction of a solvent company) convenes a meeting of its creditors or a proposal is made for a voluntary arrangement within part 1 of the Insolvency Act 1986 or a proposal is made for a composition, scheme or arrangement with (or assignment for the benefit of) its creditors or if the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or a trustee, receiver, administrative receiver or a similar officer is appointed in respect of all or a part of the business or assets of the Customer or a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Customer or for the making of an administration order or (where the Customer is established in a country other than the United Kingdom) an event takes place in the territory in which the Customer is established which is similar to any of the foregoing;
    • the Customer ceases to carry on business or threatens so to do;
  • ‘Third Party’ means a person, partnership, company or any other undertaking not being CyberSussed or the Customer;
  • ‘Tie In Licence’ means a licence or maintenance fee which is made through or by CyberSussed or which is organised by CyberSussed on behalf of the Customer upon which the Managed Supply provided by CyberSussed to the Customer is dependent;
  • ‘Tie In Licence Fee’ means any licence fee payable to the licensor of a Tie In Licence;
  • ‘Timely Manner’ means in a timely manner and in any event in accordance with any timetable in a Choice of Service or otherwise agreed between the Parties;
  • ‘Total Fee’ means the total fee indicated as payable for the supply and management of the security services and associated services (if any) identified in the Choice of Service, which fee may consist of a recurring and a non-recurring element;
  • ‘User’ means a user of the Managed Supply, who is granted access to the Managed Supply by or on behalf of the Customer;
  • ‘Variable’ means, in respect of a service within the Choice of Service, the variable by which that service is charged which variable may be, by way of example, the number of Users; the number of licensed mailboxes or the number of licensed personal computers;
  • ‘Year’ means a calendar year commencing on the Commencement Date or an anniversary thereof.

1.2 In these Terms and Conditions:

  • 1.2.1 a reference to a particular law is a reference to that law as it is in force from time to time, taking account of any amendment, extension, application, or re-enactment of it, and includes any subordinate legislation for the time being in force made under it;
  • 1.2.2 words in the singular include the plural and in the plural include the singular;
  • 1.2.3 a reference to one gender includes a reference to all the other genders;
  • 1.2.4 the Clause headings shall not affect the interpretation of this Agreement;
  • 1.2.5 a reference to writing or related expressions includes a reference to email or other means of electronic communication between the Parties;
  • 1.2.6 an obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit, or acquiesce in that thing being done;
  • 1.2.7 references to “including” and “includes” mean respectively “including without limitation” and “includes without limitation”;
  • 1.2.8 where an example is included, the use of the example shall not be interpreted as reducing the interpretation of the general words in respect of which the example is given;
  • 1.2.9 references to “content” include any kind of text, information, image, audio or video material which can be incorporated in a website for access by a visitor to that website;
  • 1.2.10 where any consent is to be given by CyberSussed under this Agreement or pursuant to any Choice of Service, CyberSussed shall be entitled to give or withhold that consent at the absolute discretion of CyberSussed;
  • 1.2.11 save where otherwise indicated, where any discretion or determination is to be exercised by CyberSussed under this Agreement or pursuant to any Choice of Service, CyberSussed shall be entitled to exercise that discretion or determination in the absolute discretion of CyberSussed; and
  • 1.2.12 save where otherwise indicated, where any matter is to be specified by CyberSussed under this Agreement or pursuant to any Choice of Service, CyberSussed shall be entitled to specify that matter in the absolute discretion of CyberSussed.

1.3 In the event of any conflict between the provisions of these Terms and Conditions and the provisions of a Choice of Service, the provisions of these Terms and Conditions shall prevail.

  1. Introduction

2.1 Each Party warrants to the other that it has full power and authority to enter into and perform the obligations imposed upon that Party under this Agreement.

2.2 This Agreement shall commence on the Commencement Date and shall continue for a fixed period of one year (‘Period) and will automatically renew at the end of each term for a further term of one year with the same terms and conditions, until terminated at an earlier date in accordance with the provisions of this Agreement.

2.3 A Choice of Service shall always be regarded as being made subject to and in accordance with the provisions of this Agreement.

2.4 These Terms and Conditions apply to each Choice of Service and to any offer by CyberSussed to supply security services and associated services to the Customer to the exclusion of any other terms and conditions which the Customer seeks to impose or incorporate, or which are implied by trade, custom, or practice. The Customer acknowledges that this Agreement and the Choice of Service shall prevail over any qualification, term, or condition purported to be imposed by the Customer (whether in its sales documentation, invoice, or elsewhere) (and whether purported to be imposed now or at a later point in time) and any previous course of dealing between the Customer and CyberSussed.

2.5 This Agreement and the relevant Choice of Service shall govern the overall relationship of the Parties with respect to the provision of security services and associated services by CyberSussed to the Customer.

  1. Scope of the Managed Supply

3.1 The scope of the Managed Supply and the delivery of security services and associated services (if any) is more particularly set out in a Choice of Service. CyberSussed shall supply the services identified from time to time in the Choice of Service.

3.2 CyberSussed shall, in accordance with this Agreement and a Choice of Service and in return for payment of the Total Fee, develop and deliver the security services and associated services (if any) identified in the relevant Choice of Service.

3.3 All dates supplied by CyberSussed for the configuration and provision of any security services and the Managed Supply shall be treated as being approximate only. CyberSussed shall not be liable for any delay howsoever arising if such dates are not complied with or met. No liability shall accrue to CyberSussed for any delay howsoever arising in the provision of the Managed Supply or the Support Services.

3.4 Subject to Clause 3.3 above, CyberSussed shall use its reasonable endeavours subject to its other contractual commitments from time to time prevailing and to the availability of goods and personnel to comply with any timetable and delivery dates provided by CyberSussed to the Customer.

3.5 For the avoidance of doubt, where the provision of any goods or services (including without limitation any hardware or software) is not expressly included in any Choice of Service, CyberSussed shall be under no obligation to provide those goods or services, although CyberSussed may agree to do so as an Additional Service in accordance with Clause 9, for which CyberSussed shall be entitled to levy Additional Charges.

  1. Customer Responsibilities

4.1 The Customer acknowledges that CyberSussed’s ability to determine the Customer’s requirements for and to provide the Managed Supply is dependent upon the full cooperation of the Customer in a Timely Manner (which the Customer agrees to provide), as well as the accuracy and completeness of the information and data the Customer provides to CyberSussed.

4.2 The Customer shall:

  • 4.2.1 in a Timely Manner provide CyberSussed with access to, and use of, all information, data, and documentation reasonably required by CyberSussed for the performance by CyberSussed of its obligations under this Agreement and the Choice of Service;
  • 4.2.2 deal with all reasonable instructions from CyberSussed in a Timely Manner when requested.
  1. Quote

5.1 For the avoidance of doubt, a Choice of Service may be created by automated means on CyberSussed’s website or be created in a formal quotation document created by CyberSussed.

  1. Warranties

6.1 CyberSussed warrants that it shall perform the Managed Supply and any other services supplied pursuant to or as an adjunct to this Agreement with reasonable care and skill.

6.2 CyberSussed warrants that it shall deliver the Managed Supply in accordance with the relevant Choice of Service in all substantial respects.

6.3 If CyberSussed fails to deliver the Managed Supply in accordance with the relevant Choice of Service in all substantial respects (a “Failure”), CyberSussed’s sole obligation shall be to carry out any work necessary in order to ensure that the Managed Supply does comply with or is in accordance with the relevant Choice of Service in all substantial respects.

6.4 Without prejudice to the provisions of Clause 26.2, the warranty set out in Clause 6.2, shall not apply to the extent that any Failure is caused by any security product, material, or content provided by or any work carried out or any change in the Managed Supply made by the Customer or by a Third Party (including without limitation a Third Party who is a supplier of security services to CyberSussed). In these circumstances, CyberSussed’s sole obligation shall be to use its reasonable endeavours to pass on to the Customer the benefit of any warranty or guarantee given to CyberSussed by the relevant Third Party.

  1. Hardware

7.1 Where implementation services are provided by CyberSussed, the Customer shall in a Timely Manner provide CyberSussed with access to, and use of, the Customer’s computer systems reasonably required by CyberSussed to enable CyberSussed to provide the Managed Supply.

  1. Customer Representative

8.1 Where so requested by CyberSussed, the Customer shall appoint one or more Representatives who shall be authorised to make decisions in connection with this Agreement, the Choice of Service, and the Managed Supply on behalf of the Customer. The said Representative shall act as a point of contact and be responsible for liaising with CyberSussed about the Managed Supply and any ancillary matter.

  1. Change of Choice of Service

9.1 The Customer may change an aspect of the Managed Supply or a Choice of Service by adding or subtracting a service or by increasing or decreasing the relevant Variable for a service at any time provided that where the Term exceeds one month the Customer may not remove an aspect of the Managed Supply or a Choice of Service by subtracting a service or decrease a relevant Variable for a service until a Annual Renewal Date on or after the expiry of the Term.

9.2 Without prejudice to the provisions of Clause 9.1, CyberSussed shall determine the charges on a month by month basis, and calculate the same using the Variable actually consumed by the Customer for that month for each service within the Choice of Service.

  1. Ownership and Licence of Intellectual Property Rights

10.1 The Managed Supply may include the right to use Proprietary Software.

10.2 Notwithstanding any description of the Customer’s rights as or by virtue of a sale (howsoever made and whether made orally or in writing and whether made in this Agreement, a Choice of Service, or in any other document) the Customer’s only right to use the Managed Supply and any software is by virtue of the licence granted by CyberSussed and the owners of the relevant software.

10.3 The Customer acknowledges that all Intellectual Property Rights in or relating to software and to the Managed Supply and all related documentation and work-in-progress are and shall remain the exclusive property of CyberSussed or in the case of Proprietary Software licensed by a Third Party licensor, the exclusive property of such licensor.

10.4 The licence of the Proprietary Software and the Customer’s rights to use the Managed Supply are subject to the following restrictions:

  • 10.4.1 the licence is only for the use of the object code versions of the Proprietary Software;
  • 10.4.2 the Managed Supply shall be used only for the purposes of the Customer’s own internal business and for the benefit of consultants who are engaged in working for the Customer and the Customer’s employees;
  • 10.4.3 the Customer shall not use the Managed Supply or the Proprietary Software for a purpose for which it was not designed;
  • 10.4.4 the Customer shall not assign, sub-licence, charge, or otherwise dispose of or grant rights over or out of the licence hereby granted or the Managed Supply or the Proprietary Software and shall not attempt to do any such thing;
  • 10.4.5 the Customer shall not attempt to ascertain, read or list the source programs or Source Code of the Proprietary Software; and
  • 10.4.6 the Customer shall not decompile or translate the Proprietary Software into any other computer language nor attempt so to do.

10.5 The Customer agrees not to use the Managed Supply, the Proprietary Software or any associated documentation save in accordance with the terms and conditions of this Agreement and the Choice of Service.

10.6 The Customer acknowledges and agrees that none of the acts which are prohibited by the provisions of this Agreement and a Choice of Service (including, without limitation, the prohibitions on copying or adapting the Proprietary Software or any part for the purpose of correcting errors in the Proprietary Software) are necessary for the purposes of the use of the Proprietary Software by the Customer in accordance with its intended purpose or for the purposes of the use of the Proprietary Software in accordance with this licence.

10.7 As a condition precedent to CyberSussed’s provision of the Managed Supply, the Customer accepts all appropriate software licences required to be entered into by the Customer to enable the Customer to use the Proprietary Software comprised within the Managed Supply.

10.8 For the avoidance of doubt, nothing in this Agreement or a Choice of Service shall restrict CyberSussed’s ability to enter into similar agreements with other customers.

  1. Payment Provisions

11.1 The Customer shall pay the sums due for the security services and associated services indicated in a Choice of Service in the manner indicated in that Choice of Service. The Customer shall pay the Total Fee in accordance with this Agreement and the relevant Choice of Service.

11.2 The recurring fees are calculated as indicated in the relevant Choice of Service and in Clause 9.2.

11.3 The recurring fees (which may be based on Variables) payable pursuant to the Choice of Service at any point after the Term may be increased by CyberSussed. CyberSussed shall determine the level of the recurring fees payable after the Term and shall give not less than forty-five (45) days’ notice of any increase in the recurring fees. The Customer shall be entitled to decline to renew this Agreement (and all the Choice of Service) by giving notice to CyberSussed so to do as provided for in Clause 20.2.

11.4 The recurring fees payable pursuant to the Choice of Service, will incur an annual increase of 3%, applied on the month following the anniversary of your first bill, to account for rising costs and inflation. The charge will be applied to all future payments. No notice will be given of the increase in charges. The Customer shall be entitled to decline to renew this Agreement (and all the Choice of Service) by giving notice to CyberSussed so to do as provided for in Clause 20.2.

11.5 For the avoidance of doubt, the recurring fees payable pursuant to the Choice of Service are payable even where it is shown that there is a Failure in the Managed Supply where that Failure has not been notified by the Customer or CyberSussed (including where there is a non-functioning agent or a fault in an agent residing on a licensed personal computer of the Customer).

11.6 All sums payable under this Agreement and the Choice of Service are given exclusive of value-added tax and any other similar tax or sales tax which shall be paid by the Customer in addition at the rate prevailing as at the date of invoice.

11.7 Payment for the Managed Service shall be made in advance on the first working day of each month through Stripe or any other payment platform designated by CyberSussed. Where the Managed Service commences part way through a month, the first payment shall be calculated pro-rata based on the number of days remaining in that month. As a condition precedent to the supply of the Managed Service, the Customer shall provide valid payment details and authorize CyberSussed to process payments through its chosen payment platform.

11.8 CyberSussed shall be entitled to charge simple interest to the Customer on any sums, fees, or other charges payable pursuant to this Agreement or the Choice of Service which are not paid on the due date, and any such interest shall be charged (as well after as before a judgment) at the rate of four percent (4%) per annum above the base rate of Barclays Bank plc from time to time subsisting: such interest to accrue on a daily basis.

If the Customer fails to pay any of the Total Fee on the due date or does not comply with an obligation imposed upon the Customer under this Agreement or a Choice of Service or where a Termination Event occurs then, without prejudice to any other right or remedy available to CyberSussed, CyberSussed shall be entitled to:

  • 11.8.1 withhold the supply of the Managed Supply and any services to be provided to the Customer by or on behalf of CyberSussed until such payment is made;
  • 11.8.2 suspend the performance of any obligation owed by CyberSussed under this Agreement or a Choice of Service until such payment is made;
  • 11.8.3 require payment in full in advance by the Customer for the provision of the continued Managed Supply and any other services which CyberSussed agrees to supply before supplying the same.

The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any monies owed by the Customer and shall pay all amounts due to CyberSussed under or further to this Agreement or a Choice of Service without making a deduction of any kind.

11.10 Without prejudice to any other right or remedy, CyberSussed can levy reasonable charges on the Customer where the Customer fails to pay any sums, fees, or other charges payable pursuant to this Agreement on the due date.

  1. SUPPORT SERVICES

12.1 Subject to the payment by the Customer to CyberSussed of the Total Fee, CyberSussed shall provide the Customer with the Support Services set out in Clause 12.2

12.2 During the term of this Agreement and in consideration of the fees payable pursuant to this Agreement and the Choice of Service continuing to be paid by the Customer to CyberSussed, CyberSussed shall:

  • 12.2.1 use reasonable endeavours to provide work-arounds in respect of faults appearing in the Managed Supply;
  • 12.2.2 use reasonable endeavours to rectify failures in the Managed Supply;
  • 12.2.3 provide a email help-desk and an email mechanism to assist with the rectification of faults during the Standard Support Hours.

12.3 The obligations contained in Clause 12.2 above shall not apply if any fault or failure is caused by (i) the use of the Managed Supply contrary to CyberSussed’s instructions or for a purpose for which it was not designed, or (ii) the use of any software contrary to the licensor’s instructions or (iii) due to modification or alteration of the Proprietary Software by any person other than the licensor or a contractor or agent duly authorised by the licensor or (iv) the failure or unavailability (including without limitation planned maintenance) of a Third Party computer-related system used by the Customer and with which the Managed Supply is dependent. Where CyberSussed undertakes work towards the investigation or rectification of a fault or failure in such circumstances, CyberSussed shall be entitled to levy Additional Charges on the Customer for the same.

12.4 This Clause 12.4 shall apply to the extent that the Managed Supply is dependent upon any Proprietary Software or any other Third Party software or services including any open source software. Save as provided for in Clauses 12.2 and 12.3, where CyberSussed determines that a fault with the Managed Supply or the Support Services reported by the Customer is due to a fault with or the unavailability of such Third Party software or services (including without limitation planned and unplanned maintenance by the Third Party of that Third Party software or services) (in any such case, a “Third Party Fault”), CyberSussed shall be entitled to levy Additional Charges on the Customer for any work undertaken by CyberSussed associated with that determination and any associated rectification of that Third Party Fault.

12.5 The Customer shall promptly report all faults in the Managed Supply or which are covered by the Support Services of which the Customer becomes aware.

12.6 Notwithstanding the provisions set out elsewhere in this Agreement or a Choice of Service, CyberSussed:

  • 12.6.1 does not warrant that the Customer’s use of the Managed Supply and any software (including the Proprietary Software) will be uninterrupted or error-free;
  • 12.6.2 is not responsible for any delays, delivery failures, downtime, connection speeds, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Managed Supply and any other service provided by CyberSussed that require an internet connection may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities;
  • 12.6.3 is not responsible for the Customer’s internet connectivity, bandwidth, or speed of connection with the internet and the Customer is solely responsible for the same.
  • 12.6.4 is not responsible for supporting the Customer’s own Computer, Tablet, Mobile Phone or Networking equipment, purchased by the client. This exclusion extends to the customer’s own operating systems and any 3rd party supplied software, not provided by CyberSussed.

12.7 Where an upgrade of the Managed Supply is available, CyberSussed shall use reasonable endeavours to make that upgrade available as soon as reasonably practicable. The upgrade may be delivered to a licensed personal computer of the Customer when the same is first logged in to the Managed Supply after CyberSussed has made the upgrade available.

12.8 CyberSussed shall not be responsible for the supply, licence, and continuing compatibility of the Third Party software used by the Customer and residing on the licensed personal computer of the Customer with which the Managed Supply operates, including the relevant operating system software used by the Customer.

12.9 Where any training is to be provided by CyberSussed, that shall be as so specified in a Choice of Service.

  1. Security Measures

CyberSussed provides appropriate technical and organisational measures and procedures regarding the security of the Customer Data. Where the Customer wishes CyberSussed to provide greater measures and procedures than the foregoing, CyberSussed shall, where it is reasonably able to do so and following the Customer’s express written request, provide those greater measures and procedures, for which CyberSussed may levy Additional Charges.

  1. Customer Obligations

14.1 The Customer is solely responsible for:

  • 14.1.1 any device, hardware, or telecommunications facility or link and for keeping the same in good working order;
  • 14.1.2 ensuring that the Managed Supply as described in each Choice of Service meets the needs of the Customer’s business;
  • 14.1.3 procuring and maintaining the network connections and links from its systems to the internet;
  • 14.1.4 the connectivity via the internet to CyberSussed’s suppliers;
  • 14.1.5 rectification of all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to bandwidth, network connections, or telecommunications links; and
  • 14.1.6 rectification of all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to the internet or lack of connectivity with the internet.

14.2 The Customer shall:

  • 14.2.1 grant CyberSussed all necessary access to such information, data, and internet connectivity as may be required by CyberSussed in order to provide the Managed Supply;
  • 14.2.2 comply with all applicable laws and regulations with respect to its activities under this Agreement and the Choice of Service and follow all lawful and reasonable instructions and directions given by CyberSussed from time to time in relation to the use of the Managed Supply;
  • 14.2.3 ensure that its network and systems comply with the reasonable specifications provided by CyberSussed from time to time;
  • 14.2.4 notify CyberSussed as soon as it becomes aware of the Managed Supply or the Proprietary Software not operating correctly; and
  • 14.2.5 where relevant, co-operate with and provide facilities to CyberSussed as required by CyberSussed so as to enable CyberSussed to perform the Managed Supply and the Support Services remotely.

14.3 Where CyberSussed, or its staff or subcontractors are delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of CyberSussed’s obligations under this Agreement or a Choice of Service by reason of an act or omission of the Customer or any staff, subcontractors, or Users of the Customer, then the Customer shall pay CyberSussed Additional Charges incurred by CyberSussed and any timetable agreed for the performance by CyberSussed of any of its obligations may be extended accordingly by CyberSussed, acting reasonably.

  1. Customer Data and Data Protection

15.1 The Customer shall own all rights, title, and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data and for ensuring that the Customer Data does not contain Objectionable material or content.

15.2 The Customer is independently able to maintain multiple back-ups of the Customer Data and accordingly, the Customer is solely responsible for the number, location, type, and frequency of the back-ups of the Customer Data to be held by the Customer.

15.3 Notwithstanding the provisions of Clause 15.2, CyberSussed will use its reasonable endeavours to ensure that the relevant Third Party supplier of CyberSussed provides the back-up service where CyberSussed has agreed to supply the same as part of the Customer’s Choice of Service.

15.4 In the event of any loss or damage to Customer Data, CyberSussed shall, at the request of the Customer, use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data available to CyberSussed. CyberSussed shall be entitled to levy Additional Charges for so doing.

15.5 Where CyberSussed processes any Personal Data on the Customer’s behalf when performing its obligations under this Agreement or a Choice of Service, the Parties record their intention that the Customer shall be the Data Controller and CyberSussed shall be the Data Processor and in any such case:

  • 15.5.1 the Customer shall ensure that the Customer is entitled, both on its own behalf and on behalf of Users, to transfer the relevant Personal Data to CyberSussed so that CyberSussed may lawfully process and transfer the Personal Data in accordance with this Agreement on the Customer’s behalf;
  • 15.5.2 CyberSussed shall process the Personal Data only in accordance with the terms of this Agreement and any written lawful and reasonable instructions given by the Customer from time to time; and
  • 15.5.3 each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data as required by the Data Protection Legislation.
  1. Managed Supply

16.1 Notwithstanding the provisions of Clause 9, CyberSussed shall be entitled, in its sole discretion, to alter, improve or otherwise modify the Managed Supply at any time provided that any such change shall not be detrimental to the Customer to a significant extent.

Where the Customer informs CyberSussed that the Managed Supply is unavailable, CyberSussed shall, to the extent that CyberSussed is responsible for the unavailability, as soon as reasonably practicable restore the provision of the Managed Supply.

16.3 Where the Managed Supply is unavailable or interrupted through the fault of any Third Party or because of any change in Third Party hardware, software, or systems with which the Managed Supply is reliant or interacts, CyberSussed shall bear no responsibility or liability, but shall at the Customer’s request and expense use CyberSussed’s reasonable endeavours to assist in recovering the availability of the Managed Supply and to restore it to an operable state, as Additional Services for which CyberSussed shall be entitled to levy Additional Charges.

  1. Customer Staff

17.1 CyberSussed reserves the right to refuse to provide the Managed Supply or any Maintenance Services to the Customer, if in CyberSussed’s reasonable opinion any member of staff or subcontractor of the Customer or a User is abusive to CyberSussed’s staff or subcontractors.

  1. Confidentiality

18.1 In this Clause 18, ‘Confidential Information’ means all information, whether technical or commercial (including this Agreement and the Choice of Service and whether disclosed in writing, on disc, orally, or by inspection between the Parties), where the information is:

  • 18.1.1 identified as confidential at the time of disclosure; or
  • 18.1.2 ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

Notwithstanding the above, Confidential Information includes in the case of information belonging to CyberSussed (or, as the case may be the licensor of the Proprietary Software), information as to the operation of the business of CyberSussed and information relating to the Source Code and structure of the Managed Supply and any Proprietary Software.

18.2 Each Party shall protect the Confidential Information of the other Party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

18.3 Confidential Information may be disclosed by the receiving Party to its employees, affiliates, and professional advisers, provided that the receiving Party ensures that the recipient employee, affiliate, or professional adviser is bound in writing to maintain the confidentiality of the Confidential Information received.

18.4 The obligations set out in this Clause 18 shall not apply to Confidential Information which the receiving Party can demonstrate:

  • 18.4.1 is or has become publicly known other than through breach of this Clause 18;
  • 18.4.2 was in possession of the receiving Party prior to disclosure by the other Party;
  • 18.4.3 was received by the receiving Party from a Third Party who has full right of disclosure; or
  • 18.4.4 is required to be disclosed by a governmental authority or regulatory body, provided that the Party subject to such requirement to disclose gives the other Party written notice of the requirement as soon as reasonably possible.
  1. Limitation of Remedies and Liability

19.1 Save as expressly provided in this Agreement or a Choice of Service to the contrary, all terms, conditions, and warranties imposed on CyberSussed and implied by statute, common law, or otherwise howsoever arising and relating to the Managed Supply, the Support Services, or any other services supplied pursuant to this Agreement or a Choice of Service are excluded to the maximum extent permissible by law.

19.2 CyberSussed’s charges to the Customer are determined on the basis of the exclusions from and limitations of liability contained in this Agreement and the Choice of Service. The Customer expressly agrees that these exclusions and limitations are reasonable because of (amongst other matters) the possibility that otherwise the amount of damages awardable to the Customer for a breach by CyberSussed of this Agreement or a Choice of Service may be disproportionately greater than the price of the Managed Supply.

CyberSussed is willing to arrange for additional insurance cover to enable CyberSussed to take on the burden of additional liability to the Customer provided that the Customer pays CyberSussed a commensurately higher price for the Managed Supply. If the Customer wishes CyberSussed to obtain a quotation for such additional insurance cover the Customer shall notify CyberSussed accordingly prior to this Agreement or the relevant Choice of Service being entered into.

19.3 The following provisions in this Clause 19 set out CyberSussed’s entire liability (including any liability for the acts and omissions of its employees, agents, or sub-contractors) to the Customer in respect of:

  • 19.3.1 a breach of CyberSussed’s contractual obligations;
  • 19.3.2 a tortious act or omission for which CyberSussed is liable; or
  • 19.3.3 an action arising out of a misrepresentation by or on behalf of CyberSussed;

arising in connection with the performance or contemplated performance of this Agreement or a Choice of Service or out of an act done or omission made as a consequence of the entry into by CyberSussed of this Agreement or a Choice of Service.

19.4 The maximum aggregate liability of CyberSussed to the Customer for all claims arising in connection with this Agreement in each Year whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited to 125% of the total sum of the Annual Fees paid during the Year in which the claim arose.

19.5 CyberSussed shall in no circumstances be liable to the Customer for any Consequential Loss, howsoever arising. CyberSussed shall in no circumstances be liable to the Customer for any wasted expenditure, howsoever arising.

19.6 CyberSussed shall in no circumstances be liable to the Customer for any indirect loss, howsoever arising.

19.7 Save in respect of a breach of the provisions of Clause 15.3, CyberSussed shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data, howsoever arising.

19.8 The Customer shall only be entitled to bring a claim against CyberSussed where the Customer issues legal proceedings against CyberSussed within the period of twenty-four (24) months commencing on the date upon which the Customer ought reasonably to have known of its entitlement to bring such a claim.

19.9 The exclusions from and limitations of liability referred to in this Clause 19 do not apply so as to exclude or limit CyberSussed’s liability to the Customer for:

  • 19.9.1 death or personal injury resulting from the negligence of CyberSussed, its employees, agents, or sub-contractors;
  • 19.9.2 breach of CyberSussed’s implied undertaking (if any) as to title or the warranty (if any) as to quiet possession implied by law or statute;
  • 19.9.3 damage for which CyberSussed is liable to the Customer under part I of the Consumer Protection Act 1987 where the Customer acts as a consumer pursuant to that Act;
  • 19.9.4 fraud;

save that nothing in this Clause 19 shall confer a right or remedy upon the Customer to which the Customer would not otherwise be entitled.

19.10 The exclusions from and limitations of liability set out in this Clause 19 shall be considered severably. The invalidity or unenforceability of any part of this Clause 19 shall not affect the validity or enforceability of any other part of this Clause 19.

  1. Termination

20.1 CyberSussed shall be entitled to terminate such or all of the Choice of Service as +

CyberSussed may specify at any time by giving not less than thirty (30) days’ notice so to do.

20.2 The Customer shall be entitled to terminate this Agreement together with all Choice of Service at any time by giving not less than one month’s notice so to do: provided always that such notice shall be expressed to take effect on an Annual Renewal Date and provided further that where the Term exceeds one month the Customer may not terminate this Agreement until an Annual Renewal Date on or after the expiry of the Term.

20.3 Where a Termination Event occurs, CyberSussed may by written notice given to the Customer at any time thereafter, terminate this Agreement (together with such or all of the Choice of Service as CyberSussed may specify).

  1. Consequences of Termination

21.1 Any termination of this Agreement or a Choice of Service shall be without prejudice to the rights, duties, and remedies of either Party accrued prior to termination or to the rights, duties, and remedies of either Party in respect of a non-terminating Choice of Service (including the right for CyberSussed to be paid for any work done to the date of termination on a quantum meruit basis).

21.2 The following provisions shall survive any termination, however arising, of this Agreement: Clauses 1, 2, 4, 5.8, 6.3, 6.4, 8, 10, 11, 14, 15.1, 15.2, 17 to 31 (inclusive).

21.3 On any termination of this Agreement or any relevant Choice of Service, however arising, (i) CyberSussed shall use reasonable efforts to terminate any Tie In Licence on the earliest date on which CyberSussed is reasonably able to do so without a penalty and (ii) the Customer shall be immediately liable to pay CyberSussed for the balance of any Tie In Licence Fees for the use of the Tie In Licence payable until such date. For the avoidance of doubt, such obligation to pay shall subsist irrespective of whether the Customer intends to continue to use the Tie In Licence.

21.4 The Customer’s licence to use the Managed Supply and all associated licences shall terminate forthwith upon any termination however arising of this Agreement or the relevant Choice of Service under which the Managed Supply is supplied.

  1. Force Majeure

22.1 Any delay in or failure of performance of any obligation by either Party (save an obligation in respect of the payment of monies) shall not constitute a breach of such obligation but only to the extent that such a delay or failure is caused by an event which is not within the reasonable control of the Party otherwise in default and which such Party is unable to prevent or to circumvent by the exercise of reasonable diligence including without limitation an event such as a war, riot, civil commotion, fire, flood, earthquake, epidemic, inability or delay in obtaining supplies of adequate or suitable materials, strike, lock-out or other industrial action or trade dispute (whether or not involving the workforce or a part of the workforce of the Party otherwise in default).

22.2 The Party otherwise in default shall (a) take and continue to take all reasonable steps to circumvent and mitigate the effect of such event and to reduce any delay in the performance of such obligation and (b) give notice to the other Party of such event as soon as reasonably practicable.

  1. Notices

23.1 All notices between the Parties relating to this Agreement or a Choice of Service shall be in writing and may be sent by pre-paid first-class post, express air mail, or by email.

23.2 All such notices shall be deemed to have been served:

  • 23.2.1 if sent by pre-paid first-class post, two Business Days after posting (exclusive of the day of posting);
  • 23.2.2 if sent by pre-paid air mail post shall be deemed to be served on the seventh day following the day of posting; or
  • 23.2.3 if sent by email on a Business Day prior to 5.00 p.m., at the time of error-free transmission and if after 5.00 p.m. on the next Business Day after error-free transmission.

23.3 Any notice for CyberSussed may be addressed to its registered office at the relevant time or to the following email address: accounts@cybersussed.com . Any notice to the Customer may be addressed in the case of a company, sole trader, or partnership to its registered office, principal place of business, or its address stated in this Agreement or to the email address which has been used by the Customer for most of its prior email correspondence with CyberSussed (or such other address or email as may have been notified in writing by the Customer expressly for such purpose from time to time).

  1. Publicity

Notwithstanding the provisions of Clause 18, CyberSussed may, acting reasonably, publicise the existence of this Agreement or a Choice of Service.

  1. Dispute Resolution Procedure

25.1 If a dispute arises out of or in connection with this Agreement or a Choice of Service or the performance, validity, or enforceability of it (a “Dispute”) then the Parties shall follow the dispute resolution procedure set out in this Clause 25.

25.2 Either Party shall give to the other written notice of the Dispute, setting out its nature and reasonable particulars (a “Dispute Notice”), together with reasonable supporting documentation. On service of the Dispute Notice, a director of CyberSussed and the Representative shall attempt in good faith to resolve the Dispute.

25.3 If the persons appointed in accordance with Clause 25.2 are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to a director of CyberSussed and a director of the Customer in an attempt in good faith to resolve it.

25.4 If the persons appointed in accordance with Clause 25.3 are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, either Party shall be entitled to take such further steps as it considers appropriate to resolve the Dispute, including the initiation of court proceedings.

  1. Assignment and Sub-Contracting

26.1 Neither Party may assign or transfer any of its rights or obligations under this Agreement or a Choice of Service without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. CyberSussed shall be free to assign the whole of this Agreement or a Choice of Service as part of the transfer of the whole or a substantial part of its business.

26.2 CyberSussed shall be free to sub-contract its rights and obligations under this Agreement or a Choice of Service as it in its discretion sees fit, subject to any appointed sub-contractor entering into provisions relating to confidentiality and data protection with CyberSussed which are no less onerous than the provisions set out in this Agreement and the relevant Choice of Service. CyberSussed shall be liable to the Customer for the acts and omissions of its sub-contractors.

  1. Entire Agreement

27.1 This Agreement together with the Choice of Service and any other documents referred to in them constitutes the entire agreement between the Parties regarding its subject matter and supersedes and replaces any and all prior agreements, understandings, or arrangements between the Parties, whether oral or in writing, with respect to the same.

27.2 The Parties acknowledge that in entering into this Agreement and the Choice of Service they have not relied upon any representations other than those reduced to writing in this Agreement or the Choice of Service. The provisions of this Clause 27.2 shall not apply to any fraudulent misrepresentation.

  1. Third Party Rights

A Third Party who is not a Party to this Agreement or a Choice of Service shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement or a Choice of Service.

  1. Variation and Waiver

29.1 No amendment of this Agreement or a Choice of Service shall be binding unless executed in writing and signed by an authorised representative of CyberSussed and by an authorised representative of the Customer.

29.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

29.3 Save in respect of a waiver recorded in writing, the failure of either Party at any time to enforce a provision of this Agreement shall not be deemed a waiver of such provision or of any other provision of this Agreement or of such Party’s right thereafter to enforce that or any provision of this Agreement.

  1. Severance

30.1 The illegality, invalidity, or unenforceability of any Clause of this Agreement will not affect the legality, validity, or enforceability of the remainder. If any such Clause is found by any competent court or authority to be illegal, invalid, or unenforceable, the Parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid, or unenforceable.

  1. Governing Law and Jurisdiction

31.1 This Agreement and all the Choice of Service and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.

31.2 The Parties irrevocably agree that the Courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement and all the Choice of Service or its subject matter or formation (including non-contractual disputes or claims howsoever arising).

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