CYBER WARE LIMTED
Web Services Terms
These Web Services Terms contain the terms and conditions upon which we
provide our services.
We will ask you to agree to these Web Services Terms, and one or more
Statements of Work, before we begin working with you.
1. Definitions and interpretation
1.1 In the Agreement:
Affiliate means a company, firm or individual that Controls, is
Controlled by, or is under common Control with the relevant company, firm
(a) these Web Services Terms;
(b) any Statements of Work agreed between the parties;
(c) the Schedules to these Web Services Terms insofar as applied by a
Statement of Work; and
(d) any amendments to the Agreement from time to time;
Business Day means any week day, other than a bank or public holiday
Business Hours means between 09:00 and 17:30 on a Business Day;
Charges means the amounts payable by the Customer to Cyber Ware
Ltd under or in relation to the Agreement (as set out in the Schedules and
Statements of Work);
Company means Cyber Ware Ltd, a limited company incorporated in
England and Wales (registration number 3160139 ) having its registered
office at Litton House, Saville Road, Westwood, Peterborough PE3 7PR;
Confidential Information means:
(a) any information supplied (whether supplied in writing, orally or
otherwise) by one party to the other party marked as
confidential, described as “confidential” or reasonably understood
to be confidential.
Control means the legal power to control (directly or indirectly) the
management of an entity (and “Controlled” will be construed
Customer means the company, firm or person specified in the
Statement of Work;
Effective Date means the date of execution or acceptance of this
Force Majeure Event means an event, or a series of related events,
that is outside the reasonable control of the party affected including
(a) acts of God, including but not limited to fire, flood, earthquake,
windstorm or other natural disaster;
(b) war, threat of or preparation for war, armed conflict, imposition of
sanctions, embargo, breaking off of diplomatic relations or similar
(c) terrorist attack, civil war, civil commotion or riots;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) voluntary or mandatory compliance with any law (including a
failure to grant any licence or consent needed or any change in
the law or interpretation of the law);
(f) fire, explosion or accidental damage;
(g) extreme adverse weather conditions;
(h) collapse of building structures, failure of plant machinery,
machinery, computers or vehicles;
(i) any labour dispute, including but not limited to strikes, industrial
action or lockouts;
(j) non-performance by suppliers or subcontractors (other than by
companies in the same group as the party seeking to rely on this
(k) interruption, non-performance or failure of utility service(s),
including but not limited to electric power, telecommunications,
gas or water.
(l) Failures of or problems with the internet or a part of the internet,
that are not directly under the control of the supplier.
(m) Hacker attacks, virus or other malicious software attacks or
Intellectual Property Rights means all patents, rights to inventions,
utility models, copyright and related rights, trade marks, service marks,
trade, business and domain names, rights in trade dress or get-up, rights
in goodwill or to sue for passing off, unfair competition rights, rights in
designs, rights in computer software, database right, topography rights,
moral rights, rights in confidential information (including know-how and
trade secrets) and any other intellectual property rights, in each case
whether registered or unregistered and including all applications for and
renewals or extensions of such rights, and all similar or equivalent rights
or forms of protection in any part of the world.
Minimum Term means a minimum period of 1 Year starting on the
Effective Date or where explicitly stated within the attached schedules.
Personal Data has the meaning given to it in the Data Protection Act
Schedules means the schedules attached to the Web Services Terms;
Services means the services provided under the Agreement as specified
in the Schedules and Statements of Work;
Statement of Work means a statement of work signed by each of the
parties specifying the scope of the Services and other matters relating to
Term means the term of the Agreement; and
Year means a period of 365 days (or 366 days if there is a 29 February
during the relevant period) starting on the Effective Date or on any
anniversary of the Effective Date.
1.2 In the Agreement, a reference to a statute or statutory provision includes
a reference to:
(a) that statute or statutory provision as modified, consolidated and/or
re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation
of the Agreement; it follows that a general concept or category utilised in
the Agreement will not be limited by any specific examples or instances
utilised in relation to such a concept or category.
the Minimum Term together with such period as shall continue thereafter
indefinitely unless and until this Agreement is terminated by either party
in accordance with clause13 hereof.
Cyber Ware Ltd will provide to the Customer during the Term the Services
specified in the applicable Statements of Work.
4. Customer obligations
4.1 The Customer will provide Cyber Ware Ltd with all co-operation,
information and documentation reasonably required for the provision of
the Services, and the Customer will be responsible for procuring any third
party co-operation reasonably required for the provision of the Services.
4.2 Save as expressly provided in the Agreement, the Customer will be
responsible for obtaining suitable licences of third party software (such as
email client software) which are required for the full use of the Services.
4.3 It is the Customer’s responsibility to keep any passwords relating to the
Services confidential, and to change such passwords on a regular basis.
The Customer will notify Cyber Ware Ltd immediately if it becomes aware
that a password relating to the Services is or may have been compromised
4.4 The Services are provided to the Customer only, and the Customer must
not resell or otherwise provide or make available the Services to any third
4.5 The Customer further acknowledges that they shall be responsible for
performing the following in a timely manner:
(a) coordination of any decision-making with parties other than Cyber
(b) provision of Customer Content in a form and quality suitable for
reproduction or incorporation into the Deliverables without further
preparation , unless otherwise expressly provided in the Proposal ;
(c) provision of all copy (written materials) intended for incorporation
into the deliverables.
(d) Make known any concerns and provide Cyber Ware Ltd with prompt
and clearly explained written feedback relating to any complaints,
reviews, queries or concerns that it may have relating to agreed
work or services and provide the opportunity to correct any
defects, make enhancements, or carry out re-designs that may be
reasonably requested by the customer.
(e) final proofreading and in the event that Customer has approved
Deliverables but errors, such as, by way of example, not limitation,
typographic errors or misspellings, remain in the finished product,
Customer shall incur the cost of correcting such errors
(f) co-operate in a timely fashion with Cyber Ware Ltd in all
matters relating to the Agreement and appoint a project
manager (Customer’s Project Manager) who shall have the
authority contractually to bind the Customer on matters
relating to the Services. The Customer shall appoint the
Customer Project Manager and notify Cyber Ware Ltd of the
name and contact details of such person in writing upon or in
any event no later than two (2) Business Days after the
(g) The Customer shall use all reasonable endeavours to ensure
that the same person acts as the Customer Project Manager
throughout the term of this agreement, but may replace him
from time to time where reasonably necessary in the
interests of the Customers business, provided that it shall
promptly (within two (2) Business Days of such replacement)
notify Supplier in writing of the identity of such replacement
(h) provide, for Cyber Ware Ltd, its agents, subcontractors,
consultants and employees, in a timely manner data and
other facilities as reasonably required by Cyber Ware Ltd (or
any of the aforementioned).
(i) Cyber Ware Ltd shall not be responsible or in breach of the
terms of this Agreement in respect of any failure to perform
its obligations hereunder (including any of its obligations
under the Service Level Agreements) which results from
Cyber Ware Ltd being unable to given any such access,
materials or feedback when required;
(j) provide, in a timely manner, such In-put Material and other
information, such as written feedback, as Cyber Ware Ltd
may reasonably require, and ensure that it is accurate in all
(k) be responsible (at its own cost) for preparing and
maintaining the relevant copy and information in accordance
with all applicable laws, before and during this agreement.
(l) obtain and maintain all necessary licences and consents and
comply with all relevant legislation (including without
limitation any licence(s), consent(s), or other
authorisation(s) required by the Customer from any In-Put
Material, such as copy, images or artwork.
(m) Carry out interim and final acceptance testing and
written feedback, and or guidance relating to and as required
by Cyber Ware Ltd in order to enable it deliver the service.
(n) Failure to comply with the above may be deemed by Cyber
Ware Ltd to be a material breach of this agreement.
5. Use of the Services
5.1 The Customer must not use any of the Services:
(a) to host, store, send, relay or process any:
(i) material which breaches any applicable laws, regulations or
legally binding codes, or infringes any third party
Intellectual Property Rights or other third party rights, or
may give rise to any form of legal action against Cyber Ware
Ltd or the Customer or any third party;
(ii) pornographic or lewd material; or
(iii) messages or communications which are offensive, abusive,
indecent or obscene, are likely to cause annoyance,
inconvenience or anxiety to another internet user, or
constitute spam or bulk unsolicited mail;
(b) for any purpose which is unlawful, fraudulent, or infringes any third
(c) in any way which may put Cyber Ware Ltd in breach of a
contractual or other obligation owed by the Customer to any
internet service provider.
5.2 The Customer must ensure that all materials provided to Cyber Ware Ltd
by or on behalf of the Customer in connection with the Agreement, and
the use of those materials by Cyber Ware Ltd in accordance with the terms
of the Agreement will not infringe any person's Intellectual Property Rights
or other legal rights, will not breach any applicable laws or regulations,
and will not give rise to a cause of action against any person in any
5.3 Where Cyber Ware Ltd reasonably suspects that there has been a breach
of the provisions of this Clause , Cyber Ware Ltd may:
(a) delete or amend the relevant materials; and/or
(b) suspend any or all of the Services and/or the Customer’s access to
any or all Services while it investigates the matter.
5.4 Any breach by the Customer of this Clause  will be deemed to be a
material breach of the Agreement for the purposes of Clause .
6. Charges and payment
6.1 Cyber Ware Ltd will issue invoices for the Charges to the Customer in
accordance with the provisions of the Schedules and Statement(s) of
6.2 The Customer will pay the Charges to Cyber Ware Ltd:
(a) on or before the dates set out in the relevant Schedules or
Statement(s) of Work; or
(b) where no such dates are set out in the relevant Schedules or
Statement(s) of Work, within 30 days of the date of issue of an
invoice in accordance with Clause [6.1].
6.3 All Charges stated in or in relation to the Agreement are stated exclusive
of VAT, unless the context requires otherwise.
6.4 Charges must be paid by debit or credit card, direct debit, bank transfer or
by cheque (using such payment details as are notified by Cyber Ware Ltd
to the Customer from time to time).
6.5 If the Customer does not pay any amount properly due to Cyber Ware Ltd
under or in connection with the Agreement, Cyber Ware Ltd may:
(a) charge the Customer interest on the overdue amount at the rate of
5% per year above the base rate of National Westminster Bank
PLC, from time to time (which interest will accrue daily and be
compounded quarterly); or
(b) claim interest and statutory compensation from the Customer
pursuant to the Late Payment of Commercial Debts (Interest) Act
6.6 Cyber Ware Ltd will:
(a) collect and collate evidence of all expenses passed on to the
Customer through the Charges;
(b) retain such evidence during the Term and for a period of 12 months
following the end of the Term; and
6.7 Cyber Ware Ltd may vary the Charges on and from any anniversary of the
Effective Date by giving to the Customer written notice of the variation.
7.1 The Customer warrants to Cyber Ware Ltd that it has the legal right and
authority to enter into and perform its obligations under the Agreement.ç
7.2 Cyber Ware Ltd warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform
its obligations under the Agreement; and
(b) that it will perform its obligations under the Agreement with
reasonable care and skill.
7.3 All of the parties' obligations in respect of the subject matter of the
Agreement are expressly set out in the terms of the Agreement. To the
maximum extent permitted by applicable law, no other terms concerning
the subject matter of the Agreement will be implied into the Agreement or
any related contract.
The Customer hereby indemnifies and undertakes to keep indemnified
Cyber Ware Ltd against all liabilities, losses, costs, expenses (including
legal expenses and amounts paid upon advice in settlement of any legal
action) arising out of or in connection with any breach by the Customer of
any term of the Agreement.
9. Limitations of liability
9.1 Nothing in the Agreement will exclude or limit the liability of either party
(a) death or personal injury caused by that party's negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability which may not be excluded or limited under
9.2 Subject to Clause [9.1], Cyber Ware Ltd's liability under or in connection
with the Agreement or any collateral contract, whether in contract or tort
(including negligence), will be limited as follows:
(a) Cyber Ware Ltd will not be liable for any:
(i) loss of profits, income or anticipated savings,
(ii) loss or corruption of any data, database or software,
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity, or
(v) indirect, special or consequential loss or damage;
(b) Cyber Ware Ltd will not be liable for any losses arising out of a
Force Majeure Event; and
(c) Cyber Ware Ltd’s liability in relation to any event or series of
related events will in no circumstances exceed the greater of:
(i) £100,000.00 ; and
(ii) the total amount paid (or, if greater, payable) by the
Customer to Cyber Ware Ltd under the Agreement during
the 12 month period immediately preceding the event or
series of events.
10. Data protection
10.1 The Customer warrants that it has the legal right to disclose all Personal
Data that it does in fact disclose to Cyber Ware Ltd under the Agreement,
and that the processing of that Personal Data by Cyber Ware Ltd for the
purposes of and in accordance with the terms of the Agreement will not
breach any applicable laws (including the Data Protection Act 1998).
10.2 Cyber Ware Ltd warrants that:
(a) it will act only on instructions from the Customer in relation to the
processing of any Personal Data performed by Cyber Ware Ltd on
behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and
organisational) against unlawful or unauthorised processing of
Personal Data and against loss or corruption of Personal Data
processed by Cyber Ware Ltd on behalf of the Customer.
11.1 Each party will keep confidential the Confidential Information of the other
party, and will not disclose that Confidential Information except as
expressly permitted by this Clause .
11.2 Each party will protect the confidentiality of the Confidential Information of
the other party using at least reasonable security measures.
11.3 The Confidential Information of a party may be disclosed by the other
party to its employees and professional advisers, provided that each
recipient is legally bound to protect the confidentiality of the Confidential
11.4 These obligations of confidentiality will not apply to Confidential
(a) has been published or is known to the public (other than as a result
of a breach of the Agreement);
(b) is known to the receiving party, and can be shown by the receiving
party to have been known to it, before disclosure by the other
(c) is required to be disclosed by law, or by an order (binding upon the
relevant party) of a competent governmental authority, regulatory
body or stock exchange.
Neither party will make any public disclosure relating to the Agreement
(including press releases, public announcements and marketing materials)
without the prior written consent of the other party.
13.1 Either party may terminate the Agreement at any time by giving at least
30 days' written notice to the other party expiring at any time after the
(a) the end of the Minimum Term; and
(b) the end of any minimum period specified in any Schedule or
Statement of Work.
13.2 Either party may terminate the Agreement immediately by giving written
notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy
the breach within 90 days of receipt of a written notice
requiring it to do so; or
(b) persistently breaches the terms of the Agreement.
13.3 Either party may terminate the Agreement immediately by giving written
notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any
arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver,
trustee, manager or similar is appointed over any of the assets of
the other party;
(c) an order is made for the winding up of the other party, or the other
party passes a resolution for its winding up (other than for the
purpose of a solvent company reorganisation where the resulting
entity will assume all the obligations of the other party under the
(d) (where that other party is an individual) that other party dies, or as
a result of illness or incapacity becomes incapable of managing his
or her own affairs, or is the subject of a bankruptcy petition or
14. Effects of termination
14.1 Termination of the Agreement will not affect either party's accrued rights
(including accrued rights to be paid) as at the date of termination.
14.2 Subject to Clause [14.1], upon termination all the provisions of the
Agreement will cease to have effect, save that:
(a) the following provisions of the Agreement will survive and continue
to have effect (in accordance with their terms or otherwise
indefinitely): Clauses [1, 6.5, 6.6, 6.7, 8, 9, 11, 14, 15 and 17];
(b) the provisions of the Schedules and Statements of Work expressed
to survive and continue to have effect will do so (in accordance
with their terms of otherwise indefinitely).
14.3 If the Agreement is terminated under Clause [13.1], or by the Customer
under Clause [13.2] or [13.3] (but not in any other case) the Customer
will be entitled to a refund of any Charges paid by the Customer to Cyber
Ware Ltd in respect of any Services which were to be performed after the
date of effective termination, and will be released from any obligation to
pay such Charges to Cyber Ware Ltd (such amount to be calculated by
Cyber Ware Ltd using any reasonable methodology).
14.4 Save as provided in Clause [14.3], the Customer will not be entitled to any
refund of Charges on termination, and will not be released from any
obligation to pay Charges to Cyber Ware Ltd.
Neither party will, without the other party's prior written consent, during
the Term or for a period of 6 months after the end of the Term, directly or
indirectly, either for itself, himself, herself or for any other person, firm or
(a) solicit the business of any person, firm, company or otherwise who
is or was a client, customer, supplier, sub-contractor or agent of the
other party; or
(b) engage, employ or otherwise solicit for employment any employee
or contractor of the other party involved in the performance of the
16.1 Any notice given under the Agreement must be in writing (whether or not
described as “written notice” in the Agreement) and must be delivered
personally, sent by pre-paid first class post, or sent by fax, for the
attention of the relevant person, and to the relevant address, fax number
given in the applicable Statement of Work (or as notified by one party to
the other in accordance with this Clause).
16.2 A notice will be deemed to have been received at the relevant time set out
below (or where such time is not within Business Hours, when Business
Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by first class post, 48 hours after posting;
(c) where the notice is sent by fax at the time of the transmission
(providing the sending party retains written evidence of the
17.1 No breach of any provision of the Agreement will be waived except with
the express written consent of the party not in breach.
17.2 If a Clause of the Agreement is determined by any court or other
competent authority to be unlawful and/or unenforceable, the other
Clauses of the Agreement will continue in effect. If any unlawful and/or
unenforceable Clause would be lawful or enforceable if part of it were
deleted, that part will be deemed to be deleted, and the rest of the Clause
will continue in effect (unless that would contradict the clear intention of
the parties, in which case the entirety of the relevant Clause will be
deemed to be deleted).
17.3 Nothing in the Agreement will constitute a partnership, agency relationship
or contract of employment between the parties.
17.4 The Agreement may not be varied except by a written document signed by
or on behalf of each of the parties.
17.5 Cyber Ware Ltd may freely assign Its rights and obligations under the
Agreement without the Customer’s consent to any Affiliate of the assigning
party or any successor to all or substantial part of the business of the
assigning party from time to time. Save as expressly provided in this
Clause or elsewhere in the Agreement.
17.6 Cyber Ware Ltd may subcontract any of its obligations under the
Agreement to any third party.
17.7 Each party agrees to execute (and arrange for the execution of) any
documents and do (and arrange for the doing of) any things reasonably
within that party’s power, which are necessary to enable the parties to
exercise their rights and fulfil their obligations under the Agreement.
17.8 The Agreement is made for the benefit of the parties, and is not intended
to benefit any third party or be enforceable by any third party. The rights
of the parties to terminate, rescind, or agree any amendment, waiver,
variation or settlement under or relating to the Agreement are not subject
to the consent of any third party.
17.9 Subject to Clause [9.1]:
(a) the Agreement will constitute the entire agreement between the
parties in relation to the subject matter of the Agreement, and
supersedes all previous agreements, arrangements and
understandings between the parties in respect of that subject
(b) neither party will have any remedy in respect of any
misrepresentation (whether written or oral) made to it upon which
it relied in entering into the Agreement; and
(c) neither party will have any liability other than pursuant to the
express terms of the Agreement.
17.10 The Agreement will be governed by and construed in accordance with the
laws of England and Wales; and the courts of England will have exclusive
jurisdiction to adjudicate any dispute arising under or in connection with