Terms – Cyan IT

Terms & Conditions

The Customer’s attention is particularly drawn to the provisions of clauses 4.6, 5.3, 6.3 and 7.3 (Contract Extended Term), and clause 12. (Limitation on Cyan’s Liability).

1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply: Business Day: a day (other than a Saturday, Sunday or public holiday)
Carrier: the relevant third party telecommunications operator or network service provider.
Charges: the applicable charges payable by the Customer for the supply of any Services and/or Equipment in accordance with clause 9.
Commencement Date: means the date on which Cyan shall start to provide the Service which shall mean in the case of:
(a) Maintenance Services the Installation Date or where Cyan has not contracted with the client to install Equipment in connection with the Maintenance Services the date specified as the Commencement Date for the Maintenance Services;
(b) Fixed Network Services the Handover Date in respect of those Fixed Network Services;
(c) Data Services the relevant Handover Date in respect of those Data Services; and
(d) IT Support Services the date specified as the Commencement Date in the Order Form.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7.
Connection Date: means in the case of the provision of Data Services the date when the Carrier commences the provisioning of Data Services to the Customer on behalf of Cyan.
Contract: the contract between Cyan and the Customer for the supply of any Services and/or goods (including where appropriate Equipment) in accordance with these Conditions, the Order and any Service Specific Conditions.
Contract Date: the date on which a Contract between the Customer and Cyan is formed and comes into existence as determined pursuant to the provisions of clause 2.2.
Customer: the person or firm specified as such in the Order Form who contracts to purchase Services from Cyan.
Customer Default: has the meaning given to it in clause 8.3.
Data Services: the data services to be provided by Cyan to the Customer as described in the Order, together with such other data services that Cyan agrees to supply to the Customer from time to time.
Data Services Contract: where applicable, the Contract for the supply of Data Services. Delivery: has the meaning given to in clause 4.2.
Equipment: the equipment as set out in the Order Form.
Estimated Installation Date: the date on which Cyan estimates that the Equipment will be installed, as advised by Cyan to the Customer.
Extended Term: in relation to:
(a) a Contract for the supply of Fixed Network Services has the meaning
given to it in clause 5.3 or if applicable, clause 5.4; and
(b) a Contract for the supply of Data Services has the meaning given to it in clause 6.3 or if applicable, clause 6.4;
(c) a Contract for the supply of Maintenance Services has the meaning given to it in clause 4.6 or if applicable, clause 4.7; and
(d) a Contract for the supply of the IT Support Services has the meaning given to it in clause 7.3 or if applicable, clause 7.4.
Fixed Network Services: the voice services to be provided by Cyan to the Customer as specified in the Order Form.
Fixed Network Services Contract: where applicable, the Contract for the supply of Fixed Network Services.
Cyan: Cyan Consultancy Ltd registered in England and Wales with company number 10207098 of Eden House, 454 New Hythe Lane, Larkfield Aylesford ME20 7UH.
Handover Date: means
a) in the case of the provision of Fixed Network Services the date when the Fixed Network Services are available for use by the Customer with Cyan as the supplier of the Fixed Network Services.
b) in the case of Data Services the date when the Data Services are available for use by the Customer with Cyan as the supplier of the Data Services.
Hosted Sub Licence: a sub licence granted by Cyan to the Customer for a hosted product for use in connection with Fixed Network Services.
Installation Date: the date on which the Equipment is installed.
Installation Services: the services relating to the installation by Cyan (or its duly authorised agents) of the Equipment (where applicable).
IT Support Services: the IT support services to be provided by Cyan to the Customer as specified in the Order.
IT Support Services Contract: where applicable, the Contract for the supply of IT Support Services.
Maintenance Services: the maintenance services to be provided by Cyan to the Customer as described in the Order, together with such other maintenance services that Cyan agrees to supply to the Customer from time to time.
Maintenance Services Contract: where applicable, the Contract for the supply of Maintenance Services.
Minimum Term: the minimum contract term that applies to the Maintenance Services, the Fixed Network Services, the Data Services and/or the IT Support Services as the case may be shall unless a different minimum term is specified for any such Service in the Service Specific Conditions section of the Order Form be the period of three years commencing on the Commencement Date.
Notes Section: the section of the order form marked “Notes Section”.
OFCOM: the Office of Communications or any equivalent successor body.
Order: the Customer’s order for Services as set out in the Order Form; such Order being subject to these Conditions.
Order Form: the document which sets out amongst other things the Services which the Customer would like Cyan to provide to it and certain details in respect thereof including when read in conjunction with these Conditions the basis on which the charges for providing the Services will be calculated. The Order Form shall be prepared by Cyan and sent to the Customer for signature by or on behalf of the Customer and returned to Cyan. The Order Form may be prepared, sent, signed or returned either electronically or physically.
Personal Data: has the meaning given to it in the Data Protection Act 1998.
Services: the services to be supplied by Cyan to the Customer being any or all of the Installation Services, Maintenance Services, Fixed Network Services, Data Services and/or IT Support Services, as the case may be, and Service shall be construed accordingly but shall exclude the provision of DNS servers and mail servers Service Specific Conditions: any policies, terms or procedures that apply to and shall be incorporated into the Contract, as specified in the notes section of the Order Form.
Site: the Customer’s place of business as specified in the Order Form where any Services are to be provided or carried out and/or (where applicable) Equipment is to be delivered and any Installation is to take place, as specified in the Order Form.
Small Business Customer: a Customer identified on the Order Form as not being a communications provider and who has 10 or fewer individuals working for that Customer (whether as employees, volunteers or otherwise).
Specification: the description or specification of the relevant Services and/or Equipment provided in writing by Cyan to the Customer as set out in the Order Form.
Tariff: The standard tariff as set out as per the Order Form and as amended or notified to the Customer from time to time.
VOIP: Voice Over Internet Protocol being the use of the internet as the transmission medium for telephone calls by digital means (rather than the traditional telephone system based on copper wires carrying analogue data).
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes e-mails but excludes faxes.
2. BASIS OF CONTRACT
2.1 The sending of the Order Form by Cyan to the customer constitutes an offer by Cyan to the Customer to provide services and/or Equipment in accordance with these conditions, the Order and any service specific conditions (“the Offer”). The Offer may be withdrawn at any point by Cyan prior to it being accepted by the Customer.
2.2 The offer shall be accepted and the Contract shall be formed and come into existence at the point when Cyan receives the Order Form, either electronically or physically, duly signed (either electronically or physically) by or on behalf of the Customer at which point and on which date the Contract shall come into existence (subject where applicable to clauses 4.1, 5.6, 6.6 and 7.5). If Cyan has not received the Order Form duly signed for or on behalf of the Customer within 30 days from the date on which it is sent to by Cyan to the Customer the offer to contract with the Customer shall be deemed to have been withdrawn unless otherwise agreed between Cyan and the Customer.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Cyan which is not set out in the Order Form, the Service Specific Conditions or the terms (or incorporated by reference in any of them).
2.4 Any sales literature whether printed or online, is issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract nor have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. In the event of any conflict between these Conditions and any Service Specific Conditions, the Service Specific Conditions shall prevail. In the event of any conflict between these Conditions, any Service Specific Conditions and the Order Form, the Order Form will prevail in relation to that Service.
2.6 Any quotation given by Cyan shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.7 The Customer warrants to Cyan that it is entering into the Contract for the purpose of its business, trade or profession and not as a consumer.
2.8 Except for Installation Services that shall form part of a Contract for the supply of Equipment, each order for Maintenance Services, Data Services or Fixed Network Services shall be deemed to be a separate Contract (irrespective of whether more than one or all of them are included on the same Order Form).
2.9 To the extent that there is any failure or delay by Cyan to supply one of the Services, that shall not entitle the Customer to terminate the Contract for the supply of any other Service or Services as the case may be (if any).
3. SUPPLY OF SERVICES
3.1 Cyan shall supply the Services to the Customer in accordance with the Contract in all material respects. In the event that the Order Form specifies:
(a) the supply by Cyan to the Customer of Equipment and Installation Services and/or Maintenance Services, clause 4 of these Conditions shall also apply to the Contract;
(b) the supply by Cyan to the Customer of Fixed Network Services, clause 5 of these Conditions shall also apply to the Contract;
(c) the supply by Cyan to the Customer of Data Services, clause 6 of these Conditions shall also apply to the Contract; and
(d) the supply by Cyan to the Customer of IT Support Services, clause 7 of these Conditions shall also apply to the Contract.
3.2 Cyan shall use all reasonable endeavours to deliver any Services on or by any date or dates specified in the Order Form, but any such dates shall be estimates or for guidance only and time shall not be of the essence for the performance of the Services.
3.3 Cyan shall have the right to make any changes to any Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the relevant Services. Cyan shall notify the Customer of any such change.
3.4 Cyan warrants to the Customer that the relevant Services will be provided using reasonable care and skill, subject to clauses 4, 5, 6 and 7 of these Conditions.
4. TERMS APPLICABLE TO EQUIPMENT, INSTALLATION SERVICES AND MAINTENANCE SERVICES
4.1 Any Order for Equipment is conditional on the availability of such Equipment prior to the Estimated Installation Date. Cyan shall use reasonable endeavours to deliver the Equipment and supply the Installation Services with reasonable care and skill in accordance with
the estimated period for delivery and installation. Installation within such period is not guaranteed and time shall not be of the essence.
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3. 4.
4.2 Delivery of Equipment shall be deemed to take place when the relevant Equipment arrives at the Customer’s Site (prior to unloading or unpacking) as specified in the Order (Delivery) (and Delivered shall be construed accordingly). In relation to Delivery of any Equipment:
(a) the Customer shall be responsible for checking that all details specified in the Order are correct;
(b) if the Customer fails to take Delivery of any Equipment within 10 Business Days of Cyan notifying the Customer that the Equipment is capable of being delivered, the Equipment shall be deemed to have been Delivered in accordance with the Contract and the Equipment shall be at the risk of the Customer and thereafter clause 4.3 shall apply to the Equipment;
(c) if any Equipment is to be Delivered in instalments, any delay in the Delivery of one instalment shall not entitle the Customer to reject the other instalments or to terminate the Contract; and
(d) the risk in any Equipment shall pass to the Customer on Delivery (or deemed Delivery in accordance with clause 4.2(b)) and the Customer shall be responsible for insuring the Equipment from that time.
4.3 Notwithstanding clause 4.2(d), ownership of any Equipment contracted to be purchased by the Customer shall not pass to the Customer until such time as the Customer has paid to Cyan all sums due for the Equipment and the Installation Services. Unless and until ownership of the Equipment passes to the Customer (if at all), the Customer shall:
(a) not remove, deface or obscure any identifying mark on or relating to the Equipment;
(b) maintain (except where Cyan is also at the time supplying Maintenance Services) the Equipment in satisfactory condition and insured it against all risks for its full price from the date of Delivery or deemed Delivery;
(c) not lease, charge or otherwise encumber the Equipment;
(d) not remove the Equipment from the Site without Cyan’s prior written consent;
4.4 If the Equipment is leased or rented to the Customer the Customer shall:-
(a) return the Equipment at the Customer’s cost to Cyan immediately on request at the end of the lease or agreement; and
(b) permit Cyan or its agents to enter any premises of the Customer or of any third party where the Equipment is located in order to recover it.
4.5 If the Customer is in breach of the Contract the Customer shall return the Equipment at the Customer’s cost to Cyan immediately on request and permit Cyan or its agents to enter any premises of the Customer or of any third party where the Equipment is located in order to recover it.
4.6 Subject to clause 2.2, supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing by registered post to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
4.7 If for any reason clause 4.6 is deemed to be unreasonable and unenforceable by way of a final court judgment then this clause 4.7 shall apply. Subject to clause 2.2, supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing by registered post to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
4.8 The Maintenance Services shall only be supplied by Cyan in relation to the Equipment and to any other equipment agreed by Cyan in writing from time to time. Unless agreed otherwise in writing by Cyan, Cyan shall supply
the Maintenance Services in accordance with their Fault Handling Policy and Standard SLA (a copy of which is available at https://cyan-it.co.uk/faulthandling/ as amended from time to time.
4.9 The Maintenance Services shall not include or be deemed to include repair or maintenance to:
(a) equipment that is faulty or has failed due (in whole or in part) to or caused by:
(i) fair wear and tear;
(ii) the Customer’s (including its agents or workers) acts, operating errors, omissions or default;
(iii) failure in air-conditioning or fluctuations in electrical power;
(iv) any failure of equipment or software attached to or integrated to the Equipment where such equipment or software was not supplied by Cyan;
(v) vandalism, fire, theft, water or lightning;
(vi) any defect or error in software loaded on to the Equipment;
(vii) any defect or fault in connection with services supplied to Cyan by any Carrier;
(viii) failure by the Customer (including its agents or workers) to adequately maintain any Equipment or operate it in accordance with the manufacturer’s specifications, guidelines or recommendations; or
(ix) any attempt by the Customer or any third party other than Cyan or its duly authorised agents to repair, reconfigure, re-program or otherwise alter the Equipment or any equipment or cabling attached to it.
(b) ancillary items, including but not limited to, answer-phones, analogue and digital phones or devices, call loggers, payphones, computers, servers, uninterruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, any cabling and/or consumables unless otherwise agreed in writing;
(c) the maintenance or repair of any extension wiring, any Equipment not at the Site, or of anything other than the Equipment; or
(d) the reprogramming of the Equipment to provide improved or modified services or facilities.
4.10 In the event that Cyan carries out Maintenance Services to any Equipment which has, in its reasonable opinion failed or become faulty due (wholly or partially) to any of the circumstances described in clause 4.9, Cyan shall be entitled to charge additional fees for such services calculated in accordance with clause 9.5.
4.11 In carrying out the Maintenance Services Cyan shall not (subject to clause 12) be liable for the loss of any data or information stored on the Equipment or any other equipment that may be affected by the carrying out of the Maintenance Services and the Customer shall ensure that appropriate backups of all data and information are maintained.
4.12 In rectifying any fault to Equipment it may be necessary for Cyan to reset the Equipment’s software. In such cases, Cyan shall not be responsible for resetting or reloading equipment programming and user profiles.
4.13 The Maintenance Services are limited to the provision and repair of the Equipment by Cyan on a like for like basis, which may include Cyan supplying reconditioned parts for Equipment and reconditioned Equipment. Any Equipment that is removed or replaced and any parts that are removed or installed in Equipment in the carrying out of the Maintenance Services shall become or shall remain (as the case may be) the property of Cyan.
4.14 Subject to clause 12, Cyan shall not be liable for any delay in the performance of the Maintenance Services where such delay is attributable to no or poor or delayed availability of spare parts for any item of Equipment.
4.15 If the Customer terminates a Contract (in whole or in part) for Maintenance Services before the end of any applicable Minimum Term or Extended Term, the Customer shall pay to Cyan all charges that would
have accrued during the period from the expiry of the Customer’s notice to terminate (or where no notice is given the date of indication by the Customer of an intention to no longer be bound by the Contract (in whole or in part)) to the end of the Minimum Term or Extended Term (as the case may be).
5. TERMS APPLICABLE TO FIXED NETWORK SERVICES
5.1 Subject to clause 2.2 and clause 5.5, the supply of the Fixed Network Services shall commence on the Commencement Date and shall continue for the Minimum Term.
5.2 If the Commencement Date for the provision of Fixed Network Services has not occurred prior to the first anniversary of the Contract Date for the Fixed Network Services then the Contract in respect thereof shall be deemed to have terminated unless otherwise agreed between Cyan and the Customer. The rights of the parties that have accrued prior to such termination shall not be affected by such termination.
5.3 Subject to clause 5.5, the Fixed Network Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing by registered post to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term to terminate the Fixed Network Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
5.4 In the event that clause 5.3 is deemed to be unreasonable and unenforceable by way of a final court judgment then this clause 5.4 shall apply. Subject to clause 5.5, the Fixed Network Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing by registered post to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term to terminate the Fixed Network Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
5.5 Where the Customer is a Small Business Customer, the Customer may terminate the Fixed Network Services Contract by giving not less than 90 days notice in writing by registered post to Cyan, such notice to expire no earlier than the end of the Minimum Term.
5.6 The provision of any Fixed Network Services by Cyan under a Fixed Network Services Contract is conditional on:
(a) Cyan carrying out such surveys as it deems necessary to satisfy itself that that it is possible for it to supply the Fixed Network Services;
(b) the installation of the lines over which the Fixed Network Services are to be provided and such lines being fully operational; and
(c) the Customer providing to Cyan to its satisfaction accurate information and data to enable Cyan to calculate the Charges and to carry out a site survey.
5.7 Cyan warrants to the Customer that Fixed Network Services will be provided using reasonable care and skill. The Customer agrees that Cyan cannot guarantee that the Fixed Network Services will work without interruption and will be fault or error free. Any interruption, fault or error with the Fixed Network Services must be notified to Cyan in accordance with clause 5.8.
5.8 The Customer shall notify Cyan of any interruption, fault or error with the Fixed Network Services in accordance with Cyan’ Fault Handling Policy: https://cyan-it.co.uk/faulthandling as amended from time to time. Cyan shall use reasonable endeavours to correct or cure any interruption, fault or error with the Fixed Network Services in accordance with Cyan’s Fault Handling Policy, save that time shall not be of the essence.
5.9 Notwithstanding any other provision of these Conditions, Cyan shall not be liable to the Customer in contract, tort (including negligence) or otherwise for any acts or omissions of Carriers that may (wholly or partially) cause, impact or result in any interruption, fault error with or withdrawal of (temporarily or permanently) the Fixed Network Services.
5.10 All and any telephone numbers allocated to the Customer in connection with the Fixed Network Services may be withdrawn by OFCOM and accordingly Cyan does not warrant or represent that such telephone numbers can be provided to the Customer. The Customer acknowledges and agrees that any telephone numbers allocated to it are
allocated on the basis of a licence and the Customer agrees not to sell or transfer any telephone number provided to it (except where the Customer has a right to port that telephone number).
5.11 In relation to the use of the Fixed Network Services the Customer agrees:
(a) to ensure that the Fixed Network Services are not used to make offensive, indecent, menacing, nuisance or hoax calls;
(b) not to use the Fixed Network Services in any way that may, in Cyan’s reasonable opinion, damage its reputation;
(c) not to contravene any laws, regulations or codes of conduct that may, from time to time, be applicable to the use or supply of the Fixed Network Services;
(d) to implement and maintain appropriate security and control over its networks, equipment and business to prevent fraud and to prevent calls being generated by third parties;
(e) to maintain adequately all equipment utilised in connection with the Fixed Network Services and ensure its compatibility in terms of technical specification;
(f) not to use nor permit the Fixed Network Services to be used in any way that would constitute or contribute to the commission of any crime, tort, fraud or other unlawful activity;
(g) not to allow any unauthorised use of the Fixed Network Services and to take all reasonable security measures to prevent such use;
(h) not to sell or resell the Fixed Network Services in whole or in part;
(i) not to misuse the Fixed Network Services in any way, including without limitation causing the volume of calls made to the telephone numbers allocated to the Customer to significantly exceed that which can be answered by the Customer where this would cause congestion to a network;
(j) that Cyan may publish details of the Customer’s name, address and telephone number(s) in the Directory Enquiries Service, unless the Customer expressly confirms to Cyan in writing that it would like a special entry to be made, for which Cyan may make an additional charge;
(k) that to the extent the Fixed Network Services contain VOIP services, clause 6.12 shall also apply save that references in that clause to Data Services shall be deemed to be references to Fixed Network Services; and
(l) in order to protect the Customer against unauthorised transfer of Fixed Network Services, in the event that the Customer fails to contact Cyan not less than 48 hours prior to any transfer date in accordance with Cyan’s Customer Transfer Preference Policy, Cyan may cancel any order made with a third party supplier.
5.12 Any equipment installed or supplied by Cyan to the Customer in connection with the Fixed Network Services (including but not limited to handsets) shall, except for equipment purchased by the Customer under clause 4, at all times remain the property of Cyan. Clause 4.3 shall apply to such equipment as if it were deemed to be Equipment. The Customer shall return such equipment to Cyan immediately on request and shall be liable for costs, losses, damages and expenses incurred by Cyan for the repair, recovery and replacement of such equipment.
5.13 Upon termination of the Fixed Network Services Contract (for whatever reason), the Customer shall return any handsets installed or supplied by Cyan to the Customer in connection with the Fixed Network Services at the Customer’s cost. If such handsets are not returned within seven days following the termination of the Fixed Network Services Contract, Cyan reserves the right to charge the Customer a fee in respect of each handset, as specified in the Tariff.
5.14 Cyan shall be entitled to make additional charges in the event that the Customer supplies inaccurate or misleading information to Cyan or if the results of any survey reveal additional construction work is required in order for Cyan to supply the relevant Fixed Network Services.
5.15 Where the transfer of lines and services of another supplier occurs, then the provision of any and all relevant existing services supplied to the
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5. 6.
Customer by such supplier will automatically transfer to Cyan and will be charged for by Cyan in accordance with the Tariff.
5.16 The Customer acknowledges and accepts that it is liable for any charges (including without limitation any early termination charges) made by third party suppliers for any transfer of lines and services or otherwise, unless it is clearly stated on the Order Form that Cyan will pay for such charges in which case Cyan will pay for such charges but limited to those specifically as set out on the Order Form.
5.17 The Customer accepts and acknowledges that Cyan will prior to the Handover Date have spent a significant amount of time and incurred expense in preparation for the provision of the Fixed Network Services to the Customer. In the event that the Customer terminates the Contract for Fixed Network Services prior to the Handover Date it shall pay to Cyan
£500 plus vat. This clause 5.17 shall not apply where the Customer is a Small Business Customer. Where the Customer is a Small Business Customer, the Customer may terminate a Contract for Fixed Network Services at any time prior to commencement of the supply of such Services.
5.18 The following provisions of this clause 5.18 shall apply in the event that after the Handover Date the Customer terminates the Contract for Fixed Network Services in breach of contract prior to the expiry of the Minimum Term or the Extended Terms as the case may be.
(a) In this clause 5.18 Remainder of the Term means (where the Customer terminates or is deemed to have terminated the Contract in breach of contract) the period that the Contract would have had left to run if the Customer had instead terminated it at the earliest following opportunity without being in breach of contract.
(b) Save where the Customer has contracted for the supply of line rental only, a Customer agrees that it shall not on lines contracted to be billed by Cyan use those lines for calls charged for by another supplier. If in breach of this clause the Customer does use lines supplied by Cyan for the carriage of calls charged for by another supplier the Customer shall be deemed to be in breach of the Contract for the supply of Fixed Network Services and at Cyan’s option the Customer shall be deemed to have terminated the Contract for Fixed Network Services in breach of contract and the provisions of this clause 5.18 shall apply.
(c) If in breach of contract the Customer terminates a Contract for Fixed Network Services before the end of the Minimum Term or where applicable the end of an Extended Term (as the case may be), the Customer shall be liable to pay to Cyan an amount calculated in the following manner:-
(i) (by reference to line rental) the sum that it would have paid to Cyan for the rental of the lines for the Remainder of the Term calculated at the rate then applying at the time of termination; plus
(ii) (by reference to call charges) either the sum of £500 or if greater the average of the monthly charges for calls incurred by the Customer for the six whole months prior to the termination of the Contract multiplied by the period of the Remainder of the Term (expressed in months)
5.19 The Customer agrees not to use in connection with the Fixed Network Service provided by Cyan any telephone number that the Customer does not have the legitimate right to use. In this regard the Customer shall not “present out” any telephone number that it does not have the right to use; such as a telephone number of a competitor.
5.20 Where Cyan grants to the Customer a Hosted Sub Licence it shall terminate at the point when Cyan ceases to provide to the Customer the Fixed Network Services in respect of which the Hosted Sub Licence was granted and the Hosted Sub Licence and all rights in the Hosted Sub Licence shall revert to and be owned in their entirety by Cyan.
6. TERMS APPLICABLE TO DATA SERVICES
6.1 Subject to clause 6.6, the supply of the Data Services shall commence on the Commencement Date and shall continue for the Minimum Term.
6.2 Subject to the remaining provisions of this clause if the Commencement Date for the provision of Data Services has not occurred prior to the first anniversary of the Contract Date for the Data Services then the Contract in respect thereof shall be deemed to have terminated. Cyan may by giving written notice to the Customer extend the period referred to in this clause by six months if the reason why the Commencement Date has not occurred is outside of the control of Cyan. Further, the period may be extended in by such period as Cyan and the Customer agree. The rights
of the parties that have accrued prior to such termination shall not be affected by such termination.
6.3 Subject to clause 6.5 the Data Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days by registered post before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Data Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
6.4 If for any reason clause 6.3 is deemed to be unreasonable and unenforceable by way of a final court judgment then this clause 6.4 shall apply. Subject to clause 6.5 the Data Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. Either party may give notice in writing to the other party no later than 90 days by registered post before the end of the Minimum Term or of the end of the relevant Extended Term, to terminate the Data Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.
6.5 Where the Customer is a Small Business Customer, the Customer may terminate the Data Services Contract by giving not less that 90 days notice in writing by registered post to Cyan, such notice to expire no earlier than the end of the Minimum Term.
6.6 The provision of any Data Services by Cyan under a Data Services Contract is conditional on:
(a) Cyan carrying out such surveys as it considers necessary to satisfy itself that that it is feasible for it to supply the Data Services and Cyan being satisfied with the results of such surveys;
(b) Cyan not being prevented by circumstances and factors outside of its control from being able to supply the Data Services. Examples of such circumstance and factors include (without limit) the infrastructure not being able to support the Data Services, the Customer not obtaining the necessary permission from third parties such as a landlord to install the necessary infrastructure, or a public body such as a local authority or highways authority withholding consent to the installation of the infrastructure where such consent is required;
(c) the installation of the lines over which the Data Services are to be provided and such lines being fully operational; and
(d) the Customer providing to Cyan to its satisfaction accurate information and data to enable Cyan to calculate the Charges and to carry out or commission a site survey.
6.7 Cyan warrants to the Customer that Data Services will be provided using reasonable care and skill. The Customer agrees that Cyan cannot guarantee that the Data Services will work without interruption and will be fault or error free. Any interruption, fault or error with the Data Services must be notified to Cyan in accordance with clause 6.8.
6.8 The Customer shall notify Cyan of any interruption, fault or error with the Data Services in accordance with Cyan’s Fault Handling Policy https://cyan-it.co.uk/faulthandling (as amended from time to time. Cyan shall use reasonable endeavours to correct or cure any interruption, fault or error with the Data Services in accordance with Cyan’s Fault Handling Policy, save that time shall not be of the essence.
6.9 Notwithstanding any other provision of these Conditions, Cyan shall not be liable to the Customer in contract, tort (including negligence) or otherwise for any acts or omissions of suppliers that may (wholly or partially) cause, impact or result in any interruption, fault or error with, or withdrawal of (temporarily or permanently), the Data Services.
6.10 In relation to the use of the Data Services the Customer agrees and where appropriate accepts:
(a) to comply with the obligations in clauses 5.11(a) to 5.11(i) (inclusive) as if references in those clause to Fixed Network Services were references to Data Services;
(b) not to misuse the Data Services in any way, including sending or receiving data in such a manner or volume so as to exceed agreed usage limits or so as to adversely affect the network, Cyan or its other customers;
(c) that the speed of any Data Services or connection depends on a
number of factors beyond Cyan’s control (including external factors and physical factors) (such as local availability, the distance from the exchange and peak traffic volume) and that Cyan does not warrant or represent that the Customer’s connection(s) will produce the maximum advertised speed;
(d) that except where stated otherwise in the Order Form, the Data Services do not include the supply by Cyan of lines, modems and other equipment that might be required by the Customer to utilise the Services nor advice on these unless Cyan is specifically engaged to do so under a separate contract which shall be in addition to the provision of Data Services under the Data Services Contract;
(e) to comply with Cyan’ Fair Use Policy https://cyan-it.co.uk/fairuse (as amended from time to time;
(f) provide suitable space and environment at the Site for the equipment used in the provision of the Data Services (such as sufficient cooled space on a rack) and to do so in a timely manner. Compliance by the Customer with this clause shall be entirely at the Customers cost.
(g) In respect of any router supplied by or on behalf of Cyan for a managed internet Ethernet circuit unless otherwise specifically agreed with Cyan:-
(i) the router will be provided in a routed IP configuration and its sole purpose is to create an interface for the Customer to plug equipment into and it is not to be used for any other purpose;
(ii) the router is the demarcation point at which the responsibility for the provision of Data Services by Cyan ends;
(iii) access to the command interface of the router (which would be required to configure the router) will not be provided to the Customer, nor will other functions that the router may be capable be enabled such as wireless connectivity and firewall functionality;
(iv) Cyan is not responsible for configuration of the router other than to an IP configuration; and
(v) Cyan shall not be responsible for installing firewalls or plugging in the router and if the Customer requires firewalls the Customer shall be responsible for processing their installation.
(h) In respect of a router supplied by or on behalf of Cyan for an internet broadband service it will be provided in a NAT (Network Address Translation) configuration with DHCP Scope enabled unless otherwise agreed.
6.11 Cyan is under a duty to all of its customers to preserve network integrity and capacity and avoid degradation. The Customer agrees that:
(a) if in Cyan’s reasonable opinion the Customer’s use of Data Services is adversely affecting, or may adversely affect, integrity and capacity of networks, Cyan may take such steps as it deems appropriate to manage the Customer’s Data Services;
(b) Cyan and/or the Carrier may take such steps as it deems necessary to stop emails that appear to be bulk emails or which appear to be of an unsolicited nature from entering networks and this may including blocking access to or delivery of any such emails; and
(c) Cyan and/or the Carrier may operate virus screen technology which may result in the deletion or alteration of emails or their attachments.
6.12 Where the Data Services involve the supply of VOIP services, then it is agreed that the following shall apply and the Customer accepts that:
(a) the Customer’s ability to make emergency calls and their priority treatment cannot be guaranteed and that any suspension or interruption of the VOIP service may result in the Customer being unable to make emergency calls;
(b) the VOIP services are generally not considered to be as reliable as calls made over conventional telephone lines and Customers are advised to maintain the ability to make telephone calls other than as through a VOIP system, such as by maintaining a conventional telephone line;
(c) the Customer acknowledges that the VOIP service may sometimes be limited, unavailable or interrupted due to events beyond Cyan’s control, such as those specified in clause 15.1 (force majeure); and
(d) the VOIP services may not offer all of the features or resilience that the Customer may expect from a conventional telephone line.
6.13 Other than Equipment purchased by the Customer, any equipment installed or supplied by Cyan to the Customer in connection with the Data Services (including but not limited to routers) shall at all times remain the property of Cyan. The provisions of clauses 4.3 (a) to (d) shall apply to all such equipment. The Customer shall return such equipment to Cyan immediately on request or cessation of the provision of Data Services and the Customer shall be liable for all costs, losses, damages and expenses incurred by Cyan for the repair, recovery and replacement of such equipment.
6.14 Upon termination of the Data Services Contract (for whatever reason), the Customer shall return any routers installed or supplied by Cyan to the Customer in connection with the Data Services at the Customer’s cost. If such routers are not returned within seven days following the termination of the Data Services Contract, Cyan reserves the right to charge the Customer a fee in respect of each router, as specified in the Tariff.
6.15 Where the Customer wishes to transfer the provision of any lines or services from another supplier to Cyan, the Customer shall:
(a) provide to Cyan such accurate information as is required by Cyan to enable the migration from the current supplier; and
(b) be responsible for all costs, charges and penalties that may arise as a result of or in connection with such transfer.
6.16 The Customer acknowledges and accepts that it is liable for all cancellation or termination payments and charges (including without limitation any early termination charges) levied by a previous supplier for the transfer of the provision of services and lines to Cyan unless it is stated on the Order Form that Cyan will be responsible for the payment of such Charges.
6.17 The Customer accepts and acknowledges that Cyan will prior to the Connection Date have spent a significant amount of time and incurred expense in preparation for the provision of the Data Services to the Customer. In the event that the Customer terminates the Contract prior to the Connection Date it shall pay to Cyan: (a) £500 plus VAT in respect of the time spent by Cyan in preparation for the provision of the Data Services to the Customer; and (b) an amount equal to the direct expenses (plus VAT) incurred by Cyan to its supplier(s) in the preparation of Data Services to the Customer limited to £[2,000]. This clause 6.17 shall not apply where the Customer is a Small Business Customer.
6.18 Where the Customer is a Small Business Customer, the Customer may terminate a Contract for Data Services at any time prior to commencement of the supply of such Data Services.
6.19 The following provisions of this clause 6.19 shall apply in the event that after the Connection Date the Customer terminates the Contract for Data Services in breach of contract prior to the expiry of the Minimum Term or the Extended Terms as the case may be.
(a) In this clause 6.19 Remainder of the Term means (where the Customer terminates or is deemed to have terminated the Contract in breach of contract) the period that the Contract would have had left to run if the Customer had instead terminated it at the earliest following opportunity without being in breach of contract. Where the Customer terminates the Contract for Data Services in breach of contract after the Connection Date but before the Handover Date then the Remainder of the Term shall be deemed to have commenced on the Connection Date.
(b) The Customer acknowledges and accepts that to enable Cyan to provide the Data Services to the Customer, Cyan will enter into a contract for a fixed term with its supplier at the Connection Date. As is common with such contracts Cyan may remain liable to its supplier whether or not the Contract for Data Services with the Customer terminates prior to the end of the Minimum Term or the Extended Term as the case may be.
(c) In the event that the Customer is in breach of contract by terminating the Contract for Data Services otherwise than in accordance with clause
6.3 or 6.4 if applicable (and/or 6.5 where the Customer is a Small Business Customer) before the end of the Minimum Term or where applicable the end of an Extended Term (as the case may be) the Customer shall pay to Cyan (subject to the provisions of clause (d)) as liquidated damages an amount equal to the sum that the Customer would have been liable