1 – The Services.
1.1 The Client acknowledges that for the first twenty one days of the Term, beginning on the Service Commencement Date, the Company requires this time to process the Clients’ requirements into the Company’s systems and procure any additional spares and equipment required to enable the Company to provide the Services. During the Integration Period, the Client accepts that the Company shall use its reasonable endeavours to provide the Services.
1.2 The Services to be provided to the Client consists of corrective maintenance in respect of faulty materials in relation to the Equipment and includes all repairs which may be reasonably necessary including the supply and fitting of replacement parts. Those replacement parts may be refurbished or reconditioned parts. An engineer will attend the Site Address within the times specified in the Schedules, after a request made to the Company has been received in respect of an Equipment fault. When replacement parts are fitted the parts removed shall immediately become the property of the Company. The Company reserves the right to use equipment of a similar or higher specification if exact spares are unavailable for any reason.
1.3 In the event of the Client requiring the Company to provide the Services to additional Equipment, then such Equipment must be added to the Schedules using the prescribed change process and any such changes as agreed will be deemed to form part of this Agreement.
1.4 The Services include maintenance of the Equipment which is necessitated as a result of fair wear and tear only. Any repair and/or replacement of the “consumable items” listed under Section 16 of this document (Definitions) are excluded from the Services and will be subject to additional charges at the Company’s quoted rates.
1.5 The Company warrants that it will perform the Services with reasonable skill and care and will exercise that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances.
1.6 The Company will not be responsible for the repair or replacement of any consumable items.
1.7 All work carried out shall be acknowledged by the signature of a person holding position of sufficient authority at the time of signing.
1.8 In the event of this Agreement being entered into at any time subsequent to the sale or delivery of the Equipment to the Client by the Company or where the Client has installed any equipment themselves, then the Company reserves the right to undertake an inspection and produce a satisfactory report by an engineer of the Company on the following conditions:
(a) Should the Company not require an inspection or if the inspection reveals the Equipment to be in working order then this Agreement shall immediately come into force. Where the Client has installed the Equipment any subsequent fault calls that are the result of incorrect set up and configuration of the Equipment will not be covered by this Agreement and any remedial work will be carried out by the Company at the Company’s rates in force at that time; or
(b) If the inspection reveals, in the sole opinion of the Company’s engineer, that the Equipment is in need of repair then the Company shall notify the Client and, if the Client requires, the Company shall carry out such repair work. Such inspection and repair work to be charged to the Client at prevailing rates which may from time to time change and any parts supplied shall be charged based on the then current prices and this agreement shall come into force upon the signature of a duly authorised representative of the Client, and the Company shall not be obliged to provide the Services until the foregoing conditions of this Clause 2.10 have been satisfied to the Company’s satisfaction.
1.9 If there is a failure or deficiency in the supply of the Services by the Company, the Client shall always notify the Company in writing of the same providing sufficient details of the failure or deficiency and the Client shall provide the Company with reasonable opportunity to correct such failure or deficiency.
1.10 Where repairs cannot be effectively conducted at the Site Address, the Company reserves the right to install loan equipment of similar specification whilst repairs are conducted. The Company also reserves the right to remove faulty equipment from the Site Address to carry out further examination or repair.
1.11 If loan equipment is installed, or if faulty equipment is removed from site for further examination and repair, the Company will use reasonable endeavours to ensure that the repair works are completed within 21 days.
1.12 The Company is required, at all times, to comply with the vendor’s rules, regulations, guidelines and definitions; these may be different from the Company’s own.
1.13 For Next Business Day Service Level the cut off for delivery is 4:30pm on the previous day (Monday – Friday, 9:00-17:30). The Company is not responsible for delays due to common couriers.
1.14 Software and firmware are included in the Services when specified in the Schedules; but are exempt from the Service Level and the Client agrees that the Company will be entitled to charge the Client additional charges, at its prevailing rates, for time which in the reasonable opinion of the Company it spends in relation to or on account of any of the following:
(a) Restoration and/or re-establishment of digital data
(b) Installation and configuration of software on new or replacement hardware or devices;
(d) Upgrades and/or updates of any kind;
(e) Unauthorised use of the software;
(f) Inadequate back-up procedures;
(g) Providing Services to the Client in circumstances where any reasonably skilled and competent system administrator would have judged the Clients’ request to have been unnecessary;
(h) providing the Services to the Client where such support would in the Company’s reasonable opinion have been unnecessary if the Client had implemented and installed any Update(s) supplied or offered to the Client;
(i) Providing the Services outside the Coverage Hours; or
(j) Providing any other Services not covered herein.
1.15 Software, firmware, operating system, application, data or configuration file restorations do not constitute part of the Service Level. Reasonable endeavours will be made to restore any software, firmware, operating system, applications, assuming that they are listed in the Schedules and have been made readily available to the Company.
1.16 The Company is not responsible for the security or integrity of any software, firmware, operating system, application, data or configuration file supplied by the Client.
1.17 No representation or warranty is given by the Company with regard to software and firmware that is included in the Services or that any faults will be fixed or that they will be fixed in accordance with the Service Levels.
2 – Assignment and Terms of Reference
2.1 The Company agrees to carry out the Assignment in accordance with the Terms of Reference.
2.2 The Client agrees to cooperate with the Company in the performance of the Company’s services and to give such support, facilities and information as may be reasonably required.
3 – Charges and Payments
3.1 The Client agrees to pay the charges and expenses in accordance with the provisions of the Terms of Engagement.
3.2 All sums due from the Client which are not paid on the due date (without prejudice to the rights of the Company under these terms) shall bear interest from day to day at the same annual rate as is prescribed from time to time pursuant to section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 with a minimum rate of 10% per annum.
3.3 The Company may from time to time increase the hourly rates (if applicable) referred to in the Terms of Engagement by such amount as is reasonable and unless the Client objects to such increased rates within seven days of notification in writing all services shall thereafter be provided at the increased rates notified. If the Client objects to the increased rates, the Client shall remain liable for the existing contractual rate payable in accordance with the terms hereof plus such additional rate as shall be reasonable.
3.4 During any period in which payments from the Client are overdue, the obligations of the Company may be suspended.
3.5 Expenses incurred by the Company and recoverable from the Client hereunder shall be subject to an administration charge of 5% of cost plus VAT payable by the Client.
4 – Confidentiality
The Company undertakes not at any time to divulge or allow to be divulged to any person any confidential information relating to the business or affairs of the Client other than to sub-contractors who have signed an appropriate secrecy undertaking or others where the Client has expressly or impliedly consented to the disclosure.
5 – Delegation
5.1 The Company (if an individual) undertakes to consult with the Client before delegating any of the Company’s obligations hereunder.
5.2 The Company shall have discretion as to which of its employees are assigned to perform its services but shall consult with the Client concerning any significant changes.
6 – Intellectual Property
The Company undertakes not to cause or permit anything which may damage or endanger the intellectual property of the Client or the Client’s title to it or assist or allow others to do so.
7 – Liability and Insurance
7.1 The Company shall not be liable to the Client for loss or damage to the Client’s property unless due to the negligence or other failure of the Company to perform its obligations under this agreement or the general law.
7.2 The Company shall have no liability to the Client for any indirect, special or consequential loss to the Client arising out of or in connection with the provision of any goods or services pursuant to this agreement (except in respect of death or personal injury resulting from negligence) and the total liability of the Company for any other loss of the Client arising pursuant to this agreement in respect of any one event or series of connected events shall not exceed the indemnity cover (if any) arranged pursuant to the Terms of Engagement or if no such cover has been agreed between the Client and the Company the charges payable by the Client in respect of the Company’s services hereunder.