Maintenance Services;Terms & Conditions
TERMS AND CONDITIONS OF WARRANTY SERVICES
THESE TERMS AND CONDITIONS (ALSO REFERRED TO AS THE “AGREEMENT”) APPLY TO THE CONTRACT, TO THE EXCLUSION OF ANY TERMS THAT THE CUSTOMER SEEKS TO IMPOSE OR INCORPORATE OR WHICH ARE IMPLIED BY TRADE, CUSTOM, PRACTICE OR CAUSE OF DEALING.
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement (unless the Contract requires otherwise)
“Agreement” means this Agreement between the Company and the Customer which incorporates the Contract and its Schedules.
“Bribery Laws” means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery
or corruption and any similar or equivalent legislation in any other relevant jurisdiction.
“Commencement Date” means the date of commencement stated in the Summary of Works.
“Company” means Checkmark IT Limited, registered in England and Wales with company number 09232881 and whose
registered office is 27e Tapton Innovation Centre Brimington Road, Tapton, Chesterfield, Derbyshire, S41 0TZ.
“Confidential Information” means all information that each party provides to the other which is either expressed to be confidential or by its very nature is confidential including but not limited to know how and trade secrets and the contents of this Agreement.
“Contract” means the agreement between the Company and the Customer as designated by the Contract Number.
“Contract Number” means the reference stated in the Summary of Works.
“Coverage Hours” means the hours specified in the Schedules or, if no hours are specified then, the hours of 9:00 a.m. and 5:00 p.m. on Monday to Friday excluding bank holidays.
“Enhancement” or “Upgrade” means the addition to the Equipment of memory, co‐processors, optional cards, manufacturer’s modifications and/or any other changes to the technical specifications or configuration of the Equipment.
“Equipment” means the Equipment explicitly and specifically listed in the Schedules listed in the Contract.
“Fee” means the value of the Contract agreed between the parties as stated in the Summary of Works.
“Fix” means the engineer and the FRU will arrive at the Site Address in accordance with the Coverage Hours and the
Service Level specified in the Schedules.
“FRU” means the field replacement unit for the Equipment; or equivalent if no direct replacement is available.
“Incident” means an unplanned interruption to the normal operation of the Equipment.
“Integration Period” means a period of 14 days after confirmed receipt of a purchase order.
“Intellectual Property Rights” means copyright, patents, know‐how, trade secrets, trademarks, trade names, design rights, rights in get‐up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future;
(e) to which the relevant party is or may be entitled, and in whichever part of the world existing; “NBD”
(f) means next business day, Monday to Friday, 9.00 am to 5.00 pm excluding bank holidays.
“Renewal Date” means the date on which the Term (or any renewal of the Term) expires.
“Response” means an engineer onsite service, the engineer will arrive at the Site Address in accordance with the Coverage Hours and the Service Level specified in the Schedules. The Service Level commences with the Company’s problem diagnosis, and
determination that remedial onsite service is required, and ending when the engineer arrives onsite. The FRU is
dispatched following diagnosis and determination that a FRU is required. All software, firmware, and configuration related
incidents are exempt from this Service Level.
“Schedules” means an explicit and complete list of Equipment at the Site Address and includes the Services and Service Level as listed in the Contract
“Service Commencement Date” means the date from which the Company is under an obligation to provide the Services to the Customer as specified in the Schedules.
“Service Level” means as defined in the Schedules.
“Services” means the services to the Equipment described in and pursuant with the Schedules.
“Site Address” means the address set out in the Schedules being the location where the Equipment is installed and operated.
“Site Preparations Manual” means the manufacturer's initial installation and maintenance manual.
“Summary of Works” means the summary document as put forward by the Company.
“Term” means the period of time during which the Services are to be provided on the terms of this Agreement as listed in the Schedule of Works.
“Updates” means corrections, by‐passes or revisions to the software which add no functionality.
“Upgrades” means any change or enhancement to features or capabilities or performance of the Equipment.
1.2 The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and Schedules are to clauses and Schedules of this Agreement. A person includes a natural person, corporate or
unincorporated body (whether or not having a separate legal personality).
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re‐enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit
the sense of the words preceding them.
1.5 Words in the singular include the plural, and in the plural include the singular.
2. THE COMPANY’S OBLIGATIONS
The Company shall provide the Services to the Customer during the Term on the terms and conditions of this Agreement as follows:
2.1 The Company requires the Integration Period to process the Customer’s requirements with regards 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 Company shall use reasonable endeavours to provide the Services.
2.2 The Services to be provided to the Customer 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 (which may be refurbished or reconditioned).
2.3 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 all 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.
2.4 The Company shall provide preventative maintenance ‐ which will consist of taking actions which in their opinion are necessary to ensure proper machine operation. Preventative maintenance will be performed at intervals as prescribed by the Company in agreement with the Customer.
2.5 The Company shall provide necessary remedial maintenance service to remedy malfunction of the equipment, including but without prejudice to the foregoing, the replacement of unserviceable parts. When immediate remedial maintenance
of faulty equipment is not possible the Company will use all reasonable endeavours to provide a substitute unit until repair of the original faulty equipment has been affected. The response time by the Company will be within the Coverage Hours
from receiving notification that the equipment is inoperative.
2.6 The Company shall provide all labour and parts which in the opinion of the Company, in agreement with the Customer, are necessary for maintaining the equipment in good operating condition. Only new standard parts or parts of equal quality shall be used in providing maintenance. All parts removed by the Company shall become the property of the Company.
2.7 The Company rate of charge covers all labour and parts, associated with normal use in fair wear and tear of the Equipment during the hours stated. This excludes operator chargeable consumables listed in clause 2.9. The Company reserves the
right however, to make additional reasonable charges to cover abnormal use of the Equipment, used substantially, in excess or outside the hours stated, repairs due to other than fair wear and tear, and service calls occasioned by other than Equipment malfunctions, including such as operator error, accident interruption of electricity supply, storm or flood etc.
2.8 In the event of the Customer requiring the Company to provide the Services to additional Equipment, then such Equipment must be added to the Schedules using the prescribed change process pursuant to clause 12 and any such changes as agreed will be deemed to form part of this Agreement.
2.9 The Services include maintenance of the Equipment which is necessitated as a result of fair wear and tear only. The Company will not be responsible for the repair or replacement of any consumable items. Any repair and/or replacement of the consumable items listed below are excluded from the Services and will be subject to additional charges at the Company’s prevailing rates:
2.9.1 drum cartridge;
2.9.3 toner cartridge;
2.9.5 collector units / bottles;
2.9.6 paper separator belt;
2.9.7 maintenance kits;
2.9.8 ozone filters;
2.9.9 developer kits;
2.9.10 print heads;
2.9.11 fuser units;
2.9.12 print wheels;
2.9.13 ink bottles / ink;
2.9.14 ribbon masks;
2.9.15 transfer belts;
2.9.16 print shields;
2.9.17 ink cartridges;
2.9.18 print bands;
2.9.19 replace batteries with batteries and standby power supplies containing batteries;
2.9.20 cathode ray tubes;
2.9.21 laptop or notebook screens and hinges;
2.9.22 all cables of any type;
2.9.23 server storage, tape, and backup drives;
2.9.24 screws, fittings, and brackets;
2.9.25 monitors, displays or VDUs;
2.9.26 all peripherals ‐ a peripheral is a device attached to a host computer behind the chipset whose primary functionality is dependent upon the host, and can therefore be considered as expanding the hosts capabilities, while not forming part of the system’s core architecture;
2.9.27 terminal / PC accessories such as: screen filters, mouse mats, holsters, monitor arms.
2.10 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.
2.11 All work carried out shall be acknowledged by the Customer by the signature of an individual holding a position of sufficient authority to acknowledge the works.
2.12 In the event of this Agreement being entered into at any time subsequent to the sale or delivery of the Equipment to the Customer by the Company, or where the Customer 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:
2.12.1 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; or
2.12.2 where the Customer 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
2.12.3 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 Customer and, if the Customer requires, the Company shall carry out such repair work. Such inspection and repair work is to be charged to the Customer 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 Customer, and the Company shall not be obliged to provide the Services until theforegoing conditions of this clause
2.12 have been satisfied to the Company’s satisfaction.
2.13 If there is a failure or deficiency in the supply of the Services by the Company, the Customer shall always notify the Company in writing of the same, providing sufficient details of the failure or deficiency, and the Customer shall provide the Company with reasonable opportunity to correct such failure or deficiency.
2.14 Where repairs cannot be effectively conducted at the Site Address, the Company reserves the right to temporarily install loan equipment of similar specification whilst repairs are conducted.
2.15 If loan equipment is installed, the Company will use reasonable endeavours to ensure that the repair works are completed within 21 days.
2.16 The Company is not responsible for delays due to common couriers.
2.17 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 and applications assuming that they are listed in the Schedules and have been made readily available to the Company. The Customer agrees that the Company will be entitled to charge the Customer 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:
2.17.1 data restoration and/or re‐establishment;
2.17.2 installation and configuration of software on new or replacement hardware or devices;
2.17.4 upgrades and/or updates of any kind;
2.17.5 unauthorised use of the software;
2.17.6 inadequate back‐up procedures;
2.17.7 providing Services to the Customer in circumstances where any reasonably skilled and competent system administrator would have judged the Customer’s request to have been unnecessary;
2.17.8 providing the Services to the Customer where such support would in the Company’s reasonable opinion have been unnecessary if the Customer had implemented and installed any Update(s) supplied or offered to the Customer;
2.17.9 providing the Services outside the Coverage Hours; or
2.17.10 providing any other Services not covered herein.
2.18 The Company is required, at all times, to comply with the Customer’s rules, regulations, guidelines and definitions. For NBD Service Level the cut off for delivery is 4.30 pm on the previous day (Monday ‐ Friday, 9.00 am ‐5.30 pm).
2.19 The Company is not responsible for the security or integrity of any software, firmware, operating system, application, data or configuration file supplied by the Customer. 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.
2.20 If in the opinion of the Company the Services that are required by the Customer are:
2.20.1 the result of any misuse or neglect of, or accident to the Equipment; or
2.20.2 due to the Customer not adhering to clause 3; or
2.20.3 other third party hardware related problems the Company reserves the right to charge an additional fee in relation to the provisions of the Services.
2.21 The Company reserves the right to charge an additional fee for a maintenance call to the Equipment that has been moved to a new location and not installed by the Company; if the Company shall reasonably determine that the problem was caused by the transportation or re installation of the system.
2.22 In the event of additional fees becoming due to the Company, those fees will be charged at such rates as the Company shall from time to time specify.
2.23 Where Upgrades or Enhancements are made to the Equipment by the Company they shall be deemed to be included in the definition of “Equipment” and shall become subject to the terms of this Agreement for the remainder of the Term from
the date of the Upgrade or Enhancement.
2.23 shall be defined as Equipment only after a report prepared by an engineer of the Company on the effect of the Upgrade, or Enhancement on the Equipment has been produced and the Company has confirmed it is satisfied with the report; at which point such third party Upgrades or Enhancements shall become subject to the terms of this Agreement. The Company reserves the right to exclude any such third party Upgrades or Enhancements from becoming subject to the terms of this
Agreement at its complete discretion.
2.24 Upgrades and Enhancements made to the Equipment pursuant to clause
2.25 The Fees shall be increased to such sum as the Company shall require to take account of the Upgrade or Enhancement referred to in clauses 2.23 and 2.23.
2.26 The Customer will notify the Company in writing forthwith of any Enhancement or Upgrade made to any equipment or software which is installed by any third party.
2.27 The inspection and report referred to in clause 2.24 shall be charged to the Customer at the rate specified by the Company from time to time and shall be paid in addition to the Fee.
2.28 If the parties agree that an item of electromechanical equipment can no longer be subject to economic maintenance, the Company will submit a refurbishing cost estimate, which will be in addition to the Fee. If such work is authorised by the
Customer within 30 days, the item of equipment will subsequently remain under contract. If such work is not authorised by the Customer, the Company may delete that item from the definition of Equipment with 30 days’ notice, and the Customer will receive a reduction in his monthly charges equivalent to the monthly charges for the equipment so deleted.
2.29 The Company will not be accountable for:
2.29.1 any failure of the Customer, or any of its employees to comply with the terms of this Agreement, or any user manual or other documentation supplied by the Company ;
2.29.2 visits to premises other than the Site Address;
2.29.3 any use of the Equipment by the Customer in conjunction with any other equipment or any software not previously approved by the Company;
2.29.4 electrical work external to the Equipment;
2.29.5 maintenance of equipment not forming part of the Equipment or of accessories to the Equipment not supplied by the Company;
2.29.6 the attachment or removal of accessories, attachments or other devices by the Customer or a third party;
2.29.7 the supply and fitting of consumable accessories such as ribbons, tapes or disks;
2.29.8 painting, refurbishing or cleaning the exterior of the Equipment;
2.29.9 reconditioning or replacement of the Equipment or parts thereof;
2.29.10 placing the Equipment into proper working condition at the commencement of the Term if the Equipment has not been supplied by the Company;
2.29.11 relocation of the Equipment;
2.29.12 the installation of an operating software upgrade, or any other work in relation to any firmware/software loaded onto the Equipment or used by the Customer in conjunction with the Equipment;
2.29.13 use of inappropriate software in conjunction with the Equipment;
2.29.14 wilful damage to or negligent use of the Equipment;
2.29.15 providing the Services outside the Coverage Hours;
2.29.16 repair of damage which in the Company’s reasonable opinion results from:
18.104.22.168 accident, transportation, neglect or misuse of the Equipment during the course of this Agreement; or
22.214.171.124 modifications to the Equipment made during the course of this Agreement without prior notification to the Company; or
126.96.36.199 unauthorised attempts by or on behalf of the Customer to repair the Equipment, failure or surge of electrical power, or failure of air conditioning or humidity control.
3. CUSTOMER’S OBLIGATIONS
The Customer shall:
3.1 at its own expense provide the Company with full and prompt access to the Equipment to enable the Company to provide the Services.
3.2 The Customer shall give the Company at least 90 days’ notice in writing prior to the removal of any Equipment from the location specified as the Site Address.
3.3 Ensure that where the Customer’s computer system supports more than one unit of any peripheral device (whether in use or not) every peripheral device of that type must be included in or added to the definition “Equipment” of the Contract and the Agreement.
3.4 Ensure that environmental and supply conditions suitable for the equipment are maintained in accordance with the recommendations set out in the Site Preparations Manual, and will keep the Equipment clean, and in good condition
3.5 take care of the Equipment and will operate it in a suitable environment as recommended by the manufacturers of the Equipment.
3.6 operate the Equipment with a suitable stable power supply free from surges and fluctuations as recommended by the manufacturers of the Equipment.
3.7 Not make any alterations to parts fitted, or adjustments made, or repairs carried out to any parts of the Equipment without prior notification to the Company and assurances that the alterations will be compliant with manufacturer guidelines.
Any breach of clause 3.5 and 3.7 will mean that item is excluded from the contract with no refund provided to the Customer.
3.8 Provide the Company (and its agents and subcontractors) with such information, co‐operation, assistance, facilities and computer resources as the Company reasonably requires enabling it to perform the Services. Failure to provide information may result in Services being withheld and/or may lead to the Service Level being considered as reasonable endeavours and outside of this Agreement.
3.9 Allow the Company access to the Equipment for maintenance purposes, provide adequate working space and facilities for staff, and co‐operate with them in the diagnosis of Equipment malfunction.
3.10 Keep and operate the Equipment in a proper manner, ensuring that only competent trained staff are allowed to operate it, and will use media of a type approved by the Company whose approval will not be unreasonably withheld.
3.11 Not move the Equipment nor make any addition, modification or adjustment to it without the prior written consent of the Company (such consent will not be unreasonably withheld), nor allow persons other than the Company’s staff to
adjust, repair or maintain it.
3.12 The Customer will not, during the Term, carry out any repairs or maintenance to the Equipment either itself, or through its agents, servants, or employees. In the event of the Equipment being repaired by the Customer or its agents, servants or
employees, this Agreement shall terminate forthwith and the obligation of the Company under this Agreement shall terminate without prejudice to any claim the Company may have against the Customer in respect of service carried out, or to be
carried out under this Agreement.
3.13 Prepare the premises for installation of the Equipment to be worked on by the Company to the Company’s reasonable satisfaction;
3.14 return faulty Equipment to the Company within seven working days, and in the event the Equipment is not returned within this time period the Company may charge the Customer for that Equipment;
3.15 give prompt attention to any matter raised by the Company relating to Customer’s obligations and the performance of the Services;
3.16 comply with any laws and regulations applying to the Company’s business;
3.17 promptly implement recommendations by the Company in respect of remedial actions; whether prior to or following an incident; and confirm that it owns or will obtain valid licences of all Intellectual Property, commercial off the shelf products or software developed under license which are necessary to grant the Company access to and use of the software for the purpose of fulfilling its obligations under this Agreement.
3.18 to the extent that the Customer does not fulfil its responsibilities under this Agreement, then (without prejudice to the Company’s other rights and remedies), the Customer acknowledges and agrees that:
3.18.1 the Company reserves the right to charge the Customer for resources assigned to performing the Services even if not utilised;
3.18.2 the Company reserves the right to change the scope of the Services, or any timetable for their performance (provided the Company shall consult with the Customer and act reasonably in doing so);
3.18.3 the Company’s Fee and any estimates may be affected; and
3.18.4 the Company will be relieved of its obligations to the Customer under this Agreement to the extent that the Company is prevented from performing the Services in accordance with this Agreement.
3.19 Accept the Company reserves the right to subcontract the maintenance of any part of, or all of the Equipment to third parties.
3.20 Warrants to the Company that the performance of the Services by the Company will not in any way constitute an infringement or other violation of the Intellectual Property rights of any third party.
4. LIMITATION OF LIABILITY
4.1 The extent of the parties’ liability under, or in connection with, the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 4.
4.2 Subject to clauses 4.5 and 4.6, the Company’s total liability shall not exceed the value of the Fee in a given Year.
4.3 Subject to clauses 4.5 and 4.6, the Company shall not be liable for consequential, indirect or special losses.
4.4 Subject to clauses 4.5 and 4.6, the Company shall not be liable for any of the following (whether direct or indirect):
4.4.1 loss of profit;
4.4.2 loss or corruption of data;
4.4.3 loss of use;
4.4.4 loss of production;
4.4.5 loss of contract;
4.4.6 loss of opportunity;
4.4.7 loss of savings, discount or rebate (whether actual or anticipated);
4.4.8 harm to reputation or loss of goodwill.
4.5 The limitations of liability set out in clauses 4.2 to 4.4 shall not apply in respect of any indemnities given by either party under the Contract.
4.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
4.6.1 death or personal injury caused by negligence;
4.6.2 fraud or fraudulent misrepresentation;
4.6.3 any other losses which cannot be excluded or limited by applicable law;
4.6.4 any losses caused by wilful misconduct.
4.7 The Company is not liable for manufacturer’s defects or the resultant use thereof.
4.8 The Company shall have no liability to any end‐user (whether defined in the Schedules or not) with whom the Customer contracts with in connection with any goods or services provided to such end‐user, and the Customer shall indemnify, and keep indemnified, the Company in respect of any claims, demands, liabilities, costs, actions, damages, legal fees and expenses incurred by the Company in respect of any matters arising therefrom.
5. TERM AND TERMINATION
5.1 Subject to the remaining provisions of this clause 5, this Agreement shall commence on the Commencement Date.
5.2 Upon the termination or end of the Contract, this Agreement shall terminate immediately.
5.3 Pursuant to clause 3.2 should the proposed relocation site of the Equipment be unacceptable to the Company for maintenance purposes, the Company reserves the right to terminate this Agreement without any liability to the Customer, with effect from the date of removal of the Equipment.
5.4 Without prejudice to any other right or remedy contained in this Agreement or otherwise, the Company may terminate this Agreement immediately without liability to the Customer:
5.4.1 in the event of the non‐payment by the Customer of any sums due to the Company on the due date for payment pursuant to this Agreement; or
5.4.2 if the provisions contained in clause 3 are materially breached; or
5.4.3 if the Customer shall be liquidated, wound up, or have a petition for winding up presented against it, or have its assets sequestrated, or pass a resolution for winding up, or summon a meeting to pass any such resolution, or have a receiver or administrator appointed, or if the Customer shall convene a meeting of his or its creditors or execute a deed of trust or assignment in favour of, or enter into or attempt to enter into any arrangement or composition with his or its creditors, or if any steps should be taken to levy a distress, or if a distress should be levied or threatened to be levied on any goods, of or in the possession of the Customer of rent rates or taxes, or if any steps should be taken by a judgement creditor of the Customer to levy execution, or other legal process upon the goods of or in the possession of the Customer; or
5.4.4 the Customer commits a material breach of any of the material terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days; or
5.4.5 the Customer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention, or ability to give effect to the terms of this Agreement; or
5.4.6 the Customer suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
5.4.7 an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the Customer; or
5.4.8 a floating charge holder over the assets of the Customer has become entitled to appoint, or has appointed, an administrative receiver; or
5.4.9 a person becomes entitled to appoint a receiver over the assets of the Customer, or a receiver is appointed over the assets of the Customer; or
5.4.10 the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
5.5 The termination of this Agreement (whether under this clause or otherwise) shall not relieve either party of any obligation already incurred under this Agreement and failure by the Company in any one or more instances to terminate this
Agreement on account of any default or breach by the Customer shall not constitute a waiver of the same or of any default or breach.
5.6 Notwithstanding any other provision of this Agreement, the Company reserves the right to terminate this Agreement, for any reason or no reason, at any time with 30 days’ notice without liability to the Customer or any other party.
5.7 Upon the termination or expiry of this Agreement, however caused:
5.7.1 the Customer shall pay all Fees and other charges payable (including the Fees set out in the schedules in their entirety and whether or not invoiced) forthwith without deduction or set off any such amounts; and
5.7.2 termination or expiry shall not affect any accrued rights or liabilities of either party at the date of termination or expiry.
5.8 The Company may terminate the Contract any time by giving not less than four weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
6. CONFIDENTIALITY AND USE OF INFORMATION
6.1 The Customer shall keep in strict confidence all technical or commercial intelligence, information, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the
Company, its employees, agents, consultants or subcontractors and any other confidential information concerning the Company’s business or its products which the Customer may obtain.
6.2 The Customer may disclose such information:
6.2.1 to its employees, officers, representatives, advisers, agents or Subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract and the
6.2.2 as may be required by law, court order or any governmental or regulatory authority.
6.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 6.
6.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract and the Agreement.
6.5 All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Customer (including the Company’s Equipment) shall, at all times, be and remain as between the Company and the Customer the exclusive property of the Company, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with
the Company’s written instructions or authorisation.
6.6 Each party shall, on written request, either return or destroy the other’s Confidential Information in its possession, except that each party shall be entitled to keep copies or records for archive purposes (and such copies shall continue to be Confidential Information).
In the event of the Customer booking time and materials installation work but subsequently cancelling the same (whether temporarily or indefinitely) then the following cancellation charges shall immediately become due and payable by the
Customer to the Company:
Cancellation within 24 hours of work commencing 75% of invoice value
Cancellation within 96 hours of work commencing 50% of invoice value
Cancellation exceeding 96 hours of work commencing 25% of invoice value
8. FORCE MAJEURE
8.1 A party, shall not be in breach of this Agreement, nor liable for any failure or delay in performance of any obligations under this Agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control
(“Force Majeure Event”), including but not limited to any of the following:
8.1.1 acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
8.1.2 war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
8.1.3 terrorist attack, civil war, civil commotion or riots;
8.1.4 nuclear, chemical or biological contamination or sonic boom;
8.1.5 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);
8.1.6 fire, explosion or accidental damage;
8.1.7 loss at sea;
8.1.8 adverse weather conditions;
8.1.9 collapse of building structures, failure of plant machinery, , computers or vehicles;
8.1.10 any labour dispute, including but not limited to strikes, industrial action or lockouts;
8.1.11 non‐performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
8.1.12 interruption or failure of utility service, including but not limited to electric power, gas or water.
8.2 The corresponding obligations of the other party will be suspended to the same extent.
8.3 Any party that is subject to a Force Majeure Event shall not be in breach of this Agreement provided that:
8.3.1 it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance; and
8.3.2 it has used reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this Agreement in any way that is reasonably practicable, and to resume the performance of its obligations as soon as reasonably possible.
8.4 If the Force Majeure Event prevails for a continuous period of more than two months, either party may terminate this Agreement by giving seven days’ written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.
9.1 For the purposes of this clause 9 the expressions '“adequate procedures”' and '“associated with”' shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
9.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
9.2.1 all of that party’s personnel;
9.2.2 all others associated with that party; and
9.2.3 all of that party’s sub‐contractors; involved in performing the Contract so comply.
9.3 Without limitation to clause 9.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such payment to be made or received on its behalf, either in the United Kingdom or
elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
9.4 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 9.
10. DATA PROTECTION
10.1 Each party shall for the duration of this Agreement comply with the provisions of the Data Protection Act 2018, the General Data Protection Regulation and any similar or analogous laws, regulatory requirements or codes of practice (the ‘Data Protection
Legislation’) governing the use, storage or transmission of your Protected Personal Data (for clarity, this is Personal Data provided by you pursuant to the performance of this Agreement by the parties) and shall not do, or permit anything to be done which might cause, or otherwise result in breach of the same. For clarity this clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
10.2 The Customer acknowledges that as defined in the Data Protection Legislation, it is a Data Processor. The Company acknowledges that it is a Data Sub‐Processor of any Protected Personal Data provided to it by the Customer, or obtained by it as part of its obligations, under this Agreement. For clarity Data Subject, Data Controller and Personal Data have the meanings as defined in the Data Protection Legislation. In its capacity as Data Sub‐Processor, the Customer and Company both undertake to keep such Protected Personal Data secure and to use best endeavours to ensure that the Customer is not in breach of its obligations under the current, or any future Data Protection Legislation to the Data Controller (who for clarity are the end‐users of the Customer) .
10.3 Without limitation to clauses 10.1 and 10.2, the Company undertakes:
10.3.1 to ensure a level of security appropriate to the nature of the Protected Personal Data to be protected, and the harm that might result from any unauthorised or unlawful processing or accidental loss, destruction of, or damage to any such Protected Personal Data;
10.3.2 to ensure the Company’s employees and subcontractors who have access to Protected Personal Data comply with this clause 10 and any restrictions in this Agreement;
10.3.3 the Company shall not enlist a subcontractor without the prior specific or general written confirmation from the Customer. The Company shall additionally give the Customer written notice of the appointment of any new
10.3.4 to hold all necessary and appropriate consents and notices in place to enable lawful transfer of the Protected Personal Data for the duration and purposes of this Agreement.
10.4 Without limitation to clauses 10.1 and 10.2, the Company shall, in relation to any Protected Personal Data processed in connection with the performance by the Company of its obligations under this Agreement:
10.4.1 process that Protected Personal Data only on the written instructions of the Customer (or a Data Controller), unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company to process Protected Personal Data (the ‘Applicable Laws’). Where the Company is relying on laws of a member of the
European Union or European Union law as the basis for processing Protected Personal Data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws; unless those Applicable Laws prohibit the Company from so notifying the Customer;
10.4.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Protected Personal Data and against accidental loss or destruction of, or damage to, Protected Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or
damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Protected Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability
of and access to Protected Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
10.4.3 ensure that all personnel who have access to and/or process Protected Personal Data are obliged to keep the Protected Personal Data confidential;
10.4.4 not transfer any Protected Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Company or the Customer has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Company complies with its obligations under the Data Protection Legislation by providing a fully comprehensive level of protection to any Protected Personal Data that is transferred; and
(iv) the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Protected Personal Data;
10.4.5 assist the Customer, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.4.6 notify the Customer without undue delay on becoming aware of any breach of the Protected Personal Data;
10.4.7 at the written direction of the Customer, delete or return Protected Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to store the Protected Personal Data; and
10.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 10 during the term of this Agreement and for up to 5 years after its expiry or termination.
10.5 The Company shall wholly indemnify and hold harmless the Customer for any loss which the Customer suffers as a result of the Company’s failure to comply with its obligations under this clause 10. For clarity, this indemnity provision shall not exclude the right of the Customer to any indemnity granted in favour of the Customer under the Agreement.
10.6 As between the Company and the Customer, the Customer shall not reasonably withhold authority for third party contractors to process any Protected Personal Data (as defined in the Data Protection Legislation) provided that the third party contractor’s agreement with the Company is:
10.6.1 on terms identical to these set out in this Agreement; and
10.6.2 terminated automatically on termination of this Agreement.
10.7 the parties may propose at any time, and on not less than 30 working days’ notice and the other party shall not unreasonably object to, revisions to this clause 10.
10.8 The Company shall comply with any of the Customer’s instructions in relation to the collection, processing and disposal of any Protected Personal Data.
10.9 The Company agrees to provide evidence to the Customer that it may reasonably request and upon being given sufficient notice, to demonstrate the Company’s compliance with the current Data Protection Legislation.
11.1 Any notice or other document to be given by delivering the same by hand or by sending the same pre‐paid registered post, facsimile or telex to the address of the relevant party set out in this Agreement or to such other address as such party may
have notified in writing to the address as such party may have notified in writing to the other. Any notice delivered by hand shall be deemed delivered the same working day and any notice sent by post shall be deemed in the absence of evidence of earlier receipt to have been delivered two working days after despatch, and in proving the fact of dispatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and posted. Any notice sent by facsimile shall be deemed to have been delivered on the first working day following its dispatch.
The working day shall be construed as Monday to Friday 9.00 am to 5.00 pm, excluding Public and Bank holidays.
11.2 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 11.1 and shall be effective:
11.2.1 on the date specified in the notice as being the date of such change; or
11.2.2 if no date is so specified, 5 Business Days after the notice is deemed to be received.
12. CHANGE CONTROL
12.1 If either party requests a change to the scope or execution of the Services, they shall within a reasonable time, provide a written estimate to the other party of:
12.1.1 the likely time required to implement the change;
12.1.2 any necessary variations to the Company’s charges arising from the change;
12.1.3 the likely effect of the change on the Service Levels; and
12.1.4 any other impact of the change on this Agreement.
12.2 If the Customer wishes the Company to proceed with the change, the Company has no obligation to do so unless, and until the parties have agreed the necessary variations to its charges, the Services, the relevant Service Levels and any other
relevant terms of this Agreement are to take account of the change and this Agreement has been varied in accordance with clause 13.2.
12.3 Notwithstanding clause 13.6, the Company may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the
nature, scope of, or the charges for the Services. If the Company requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
13.1 The parties agree that the Contract (and any documents entered into pursuant to it) constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing
or oral in respect of its subject matter.
13.2 Each party acknowledges that it has not entered into the Contract (or any documents entered into pursuant to it) in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the
Contract (or any documents entered into pursuant to it). No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
13.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
13.4 This Agreement shall not be assigned or transferred in any manner by the Customer without the prior written consent of the Company and any such assignment or transfer shall not excuse either party from liability for the due performance and
observance of any provision expressed herein on their part to be observed or performed up to the date of assignment or transfer. The consent of the Company shall not be unreasonably withheld. The Company shall be entitled to assign or
transfer the benefit of the Agreement.
13.5 The Customer hereby waives all, and any existing and future claims and rights of set off against any payment due hereunder and agrees to pay the Fees and other amounts due hereunder regardless of any equitable set off or cross claim the
Customer may have against the Company.
13.6 The Agreement between the Company and the Customer may only be amended, or supplemented in writing executed jointly by an authorised representative of the Customer and an authorised representative of the Company.
13.7 The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision had been omitted.
13.8 No term of this Agreement is intended expressly or by implication or other inference to purport to confer a benefit or right of action upon any third party. No such third party (whether or not in existence at the date of this Agreement) is
named or described herein. The Contracts (Rights of Third Parties) Act 1999 is expressly excluded to the fullest extent permitted by law.
13.9 All disputes are to be settled by arbitration in London (in English) under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such rules.
13.10 This Agreement shall be governed and construed in accordance with the Laws of England and the parties submit to the jurisdiction of the English Courts.
13.11 No variation of this Agreement shall be binding unless expressly agreeing in writing and executed by a duly authorised signatory on behalf of each party.
THIS AGREEMENT has been entered into on the start date of the term.