The following shall apply unless the context otherwise requires: -
4.1 Remedial Maintenance shall comprise:
4.2 Remedial Maintenance will be provided upon request by the Customer between the hours of 09:00 and 17.00 Monday through Friday (excluding Bank and other Public Holidays). The Company will use its reasonable endeavours to respond to a request for Remedial Maintenance within the hours stated in the Schedule.
4.3 The Company will use reasonable endeavours to maintain the Equipment in effective operating condition, however, where in the Company’s opinion any Equipment (or part) is no longer capable of economic maintenance due to excessive wear and tear or inability of the relevant manufacturer or its agents to provide technical support or spare parts or for any other reason, then the Company may issue a written notice advising the Customer that no further maintenance is feasible on such Equipment and that part of this agreement relating to such equipment shall cease forthwith, such equipment shall be deemed deleted from the schedule and the Customer will be credited with the remaining pro-rata value of the relevant Maintenance Charges for the remaining time period to the end of the Contract.
4.4 Remedial Maintenance shall not include inspecting, testing, diagnosing and remedying a fault within an Excepted Service.
5.1 Preventative Maintenance shall comprise:
5.2 Mandatory Engineering changes (if provided) shall comprise of the implementation of such mandatory alterations, adjustments, additions or modifications to the Equipment as the Company or the manufacturer shall from time to time prescribe.
5.3 Preventative Maintenance and Mandatory Engineering Changes will be provided at such times during normal business hours as shall from time to time be agreed between the Company and the Customer / End user.
6.1 The Company will to its best endeavours respond to faults or errors reported by the Customer within one hour of the initial report of the fault
6.2 The Company may at its own discretion refuse to provide support or may charge for such time as is necessary to remedy any faults or time spent as a result of;
6.3 Should the Sage Accounting Software become unusable through failure or non availability of Software upgrades or through obsolescence, or any other reason outside of the control of the Company, the replacement of the Sage Accounting software is the responsibility of the Customer.
7.1 Maintenance Services do not include:
7.1.1 For the avoidance of doubt, the following outlines some specific items that the Company considers are not within Maintenance Services. If the Customer requires these services there will be Additional Charges for parts and labour at the then prevailing rates.
7.1.2 The Company shall, upon request by the Customer or the End User, use its reasonable endeavours to provide any Excepted Services subject to the Customer paying Additional Charges.
7.2 Maintenance Services shall be deemed to be Excepted Services where the Maintenance Services are provided in circumstances where any reasonably skilled and competent end user would have judged the Customer’s request to have been unnecessary.
The Customer undertakes to the Company throughout the term of this agreement to procure/provide:-
9.1 The Company warrants and undertakes to the Customer;
9.2 The Company does not warrant that the Maintenance Services (or the Additional Services) will cause the Equipment to operate without interruption or error.
9.3 Subject to the foregoing and Clause 9, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of the performance by the Company of the Maintenance Services or Additional Services hereunder are thereby excluded.
10.1 This Clause 10 sets out the Company’s entire liability (including any liability for the acts and omissions of the employees, agents or sub-contractors) to the Customer in respect of:
10.2 Any act or omission on the part of the Company or its employees, agents or sub-contractors falling within Clause 10.1 shall for the purposes of Clause 10 are known as “Event of Default”
10.3 The Company’s liability to the Customer shall not be limited for:-
Death or injury from its own or that of its employees’, agents or sub-contractors’ negligence; and
10.4 The Company shall accept liability to the Customer in respect of loss and/or damage to the (hardware) property to the Customer resulting from the negligence of the Company or its employee, agents or sub-contractors.
10.5 Subject to Clause 10.3, the Company shall not be liable to the Customer in respect of any Event of Default for loss or reinstatement of data, loss of profit, goodwill or any type of special indirect or consequential loss (including loss or reinstatement of data, or damage suffered by the Customer as a result of an action brought by the End User or any other third party even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
10.6 The Customer agrees to afford the Company not less than 45 days in which to remedy any Event of Default hereunder.
10.7 Except in the case of an Event of Default arising under Clause 10.3 the Company shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon the Company within six months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
10.8 Nothing in Clause 10 shall confer any right or remedy upon the Customer to which it would not otherwise be entitled.
11.1 The Customer warrants and undertakes to the Company that it or the End User is the owner of the Equipment (or where the Equipment is leased or hire purchased, that the End User has consented to this Agreement) and that the Customer has full power and authority to enter into this Agreement and that the End User permits and consents to the Company performing the Maintenance Services and any Additional Services.
11.2 The Customer undertakes to indemnify and hold harmless the Company against any loss or damage that the Company may suffer as a result of a breach by the Customer or End User of Clause 10.1 or 7.
This Agreement shall Commence on the Commencement Date and remain in force for the agreed minimum term as set out in the Schedule and shall continue until terminated by either party in accordance with the provisions of Clause 14.
The Customer shall immediately communicate to the Company the identity of the person(s) or the department within its undertakings and of the End Users at the Sites who shall act as the sole contact point and channel of communication for the provision by the Company of the Maintenance Services. The Customer shall forthwith inform the Company of any change in the identity of any such person(s) or department.
14.1 This agreement may only be terminated;
14.1.1 After the minimum term set out in the Schedule: by either party giving 90 days written notice
Prior to an anniversary of the Commencement Date;
14.1.2 Forthwith by the Company if the Customer fails to pay Maintenance Charges or any Additional Charges due within 30 days of the date of payment.
14.1.3 Forthwith by either party if the other commits any material breach of any term of this Agreement (other than for non-payment of Maintenance or Additional Charges) and which (in the case of a breach capable of being remedied) shall not have been remedied within 45 days of a written request by the other party to remedy the same;
14.1.4 Forthwith by either party if the other convenes a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other Composite scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, administrator or similar officer is appointed in respect of all or any part of the business or assets of the other party or if 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 or
14.1.5 By 75 days written notice by Customer following the date of notice of increase in Maintenance Charges under Clause 3.1. Any support or site attendance carried out during this period will be charged in accordance with Clause 3.6 if the support or site attendance falls outside of the contract period agreed.
14.2 The termination rights under this Agreement are without prejudice to the other rights and remedies available to the parties. Any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
15.1 Each of the parties undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or entering into of this Agreement save that which is or becomes;
In addition, either party may disclose the other party’s Confidential Information in the event and to the extent required by court order as otherwise required by law, provided that the party required to make any such disclosure notifies the other party promptly upon learning of the possibility of any such requirement and provides the other party a reasonable opportunity (and co-operates with the other party) to contester limit the scope of such required disclosure.
15.2 Each of the parties undertakes to the other to take all such steps as shall from time to time is necessary to ensure compliance with the provisions of Clause 15.1 by its employees agents or sub-contractors.
16. Employment or Engagement of the Company Staff
The Customer shall not directly or indirectly during not at any time within twelve months after the termination of an Agreement:
16.1 Solicit or entice away any of the Company employee’s or attempt to solicit or entice away or employ any of the Company Employee’s who are directly associated with the performance of this Agreement.
16.2 Retain, engage or in any other way whatsoever have the benefit of the Services of the Company employee who is directly associated with the performance of this Agreement other than pursuant to the terms of this Agreement and/or Agreement Schedule executed with the Company.
16.3 If any restrictions contained in Clause 16 shall be judged by any Court or authority of competent jurisdiction to be void or unenforceable but would be valid if part of the wording thereof was deleted and/or the period thereof was reduced, the said restrictions shall apply within the jurisdiction
17.1 Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including but not limited to fire, strikes (of its own or other employees), insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
17.2 Each of the parties agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
17.3 If a default due to an event of Force Majeure shall continue for more than four weeks, then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
The waiver by either party of a breach of default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver or any breach or default by the other party.
Any notice, request, instruction or other document to be given shall be delivered or sent by first class post or by facsimile (such facsimile notice to be confirmed by letter posted within 12 hours) to the address of the other party set out in this Agreement (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile) upon the expiration of 12 hours after dispatch.
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or un-enforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or un-enforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or enforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unforeseeable provision.
The Company shall not be liable to the Customer for loss or damage arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of this Agreement other than those representations, agreements, statements and undertakings confirmed by a Director of the Company in Writing or expressly incorporated or referred to in this Agreement.
This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties.
Other than the assignment of this Agreement to another wholly owned subsidiary in the parent group, neither party shall be entitled to assign this Agreement for all or any of their rights and obligations hereunder without the prior written consent of the other (such consent not to be unreasonably withheld). Any attempted or purported assignment without such required consent shall be void.
Save insofar as otherwise expressly provided herein all amounts are expressed exclusive of Value Added Tax arising in respect of any supply provided in furtherance of this agreement, and shall on the issue of a valid tax invoice be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable thereof.
Headings to clauses are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
This Agreement shall be governed by and construed in accordance with English Law and the parties hereto agree to submit to the non-exclusive jurisdiction of the English Courts.