1.1 In this agreement unless the context otherwise requires: “Additional Charges” means the charges to be calculated by the Company on a time and materials basis at its then prevailing rates in respect of the provision of Excepted Services pursuant to Clause 6 below. “Commencement Date” means the date set out overleaf upon which this agreement shall commence. “The Company” means Matrix Telecom Maintenance Ltd, a company incorporated in England under number 02546825, whose registered address at the time being Matrix House, Kingsway, Haslingden, Lancashire, BB4 4QJ. “The Customer” means the individual, firm, company or other body named overleaf. “Equipment” means the equipment and description and location of which are shown overleaf. “Force Majeure” means in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out or other industrial action). “Liability” means any liability arising by reason of any representation, or any breach of any implied term or any duty at common law, or under any statue, or under any express terms of this Agreement. “Location” means the location of the Equipment shown in Schedule 1 or any other location agreed from time to time between the parties. “Loss” means, in relation to the Customers, any loss (whether loss or profit or otherwise), damages, costs or other compensation and any legal or other expenses which is or awarded against or incurred by or paid or agreed to be paid in settlement of any claim by the Customer, however the same may arise and whether occasioned by the negligence of the Contractor, its employees or agents or otherwise. “Normal Business Hours” means the hours of 0900 to 1700 on any working Day (excluding Bank and Public holidays) unless otherwise varied in accordance with clause 5.2. “Maintenance Charges” means the aggregate annual charge for the maintenance services calculated in accordance with clause 3.1 below and set out overleaf. “Maintenance Services” means the provision of Preventative Maintenance, Curative Maintenance and Mandatory Engineering Charges as defined in Clause 4 below.
1.2 The headings in this Agreement are for convenience only and shall not affect its interpretation. “Place of Use” means that part of the Customer’s premises at the Site where the Equipment is installed and operated. “Site” means the Customer’s address specified overleaf.
2. Company Undertaking
In consideration of the payment by the Customer from time to time of the maintenance charges in accordance with Clause 3 below the Company undertakes to provide the Maintenance Services in respect of the Equipment upon the terms and conditions of this Agreement.
3. Maintenance Charges
3.1 The annual maintenance charge at the date hereof in respect of each Item of equipment shall be set out overleaf. The aggregate of such annual maintenance charges shall constitute the Maintenance Charges for the purposes of this agreement.
3.2 The Company shall be entitled to vary the Maintenance Charges during the period of the contract for any additional items purchased by the customer.
3.3 The Maintenance Charge will be increased annually to cover the cost of inflation, the percentage increase will be determined by the Company.
3.4 The Maintenance shall include the travel accommodation and substinence expenses of the Company’s employees (including the cost of time spent travelling) incurred in the provision of the Maintenance Services.
3.5 The Maintenance charges shall not include the cost of any Excepted Services.
3.6 The Maintenance Charges shall be levied by the Company annually in advance, with the exception of additional items which will be invoiced in date of purchase. Maintenance charges shall be payable by the Customer on or before date of commencement—with the exception of additionals which is payable on receipt of invoice.
3.7 If the Customer fails to pay on the due date any amount which is payable to the Company pursuant to this Agreement then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
3.7.1 suspend the performance of all or any of its obligations under this agreement until payment is made in full;
3.7.2 to charge the Customer in respect of the late payment of any Maintenance Charges due under this Agreement (as well after as before judgement) at the rate of eight percent per annum above the base rate from time to time of Barclays Bank plc from the due date therefore until payment
3.7.3 appropriate any payment made to the Customer to such of the Services of Goods supplied under any other contract between the Customer and Company, as the Company may think fit (notwithstanding any purported appropriation by the Customer).
4. Maintenance Services
4.1 Maintenance Services shall comprise the provision by the Company of “Preventative Maintenance” “Curative Maintenance” and “Mandatory Engineering Charges” (as respectively defined in clauses 4.2, 4.3 and 4.4 below) in respect of each item of Equipment at the Place of Use.
4.2 Preventative Maintenance shall comprise: the routine inspection and testing (by attendance on Site or remotely) by the Company of each item of Equipment in accordance with the Company’s recommendations therefore; and the carrying out by the Company of such repairs replacement of parts cleaning lubrication or adjustment to each item of Equipment as the company shall judge necessary as a result of said inspection and testing.
4.3 Curative Maintenance shall comprise:
4.3.1 upon receipt of a request from a Customer the inspection testing and diagnosing (by attendance on Site or remotely ) by the Company of any fault reported in an item of Equipment; and
4.3.2 the carrying out by the company of such repairs replacement of parts cleaning lubrication or adjustments as the Company shall judge necessary to remedy the said fault.
4.3.3 Faulty Goods requiring return to the Company must be clearly labelled by the Customer and returned by recorded delivery.
4.4 Mandatory Engineering Changes shall comprise the implementation if such mandatory alterations adjustments additions or modifications to the Equipment as the company shall from time to time prescribe.
5. Times for Maintenance Services
5.1 Curative Maintenance will be provided upon request by the Customer during Normal Business Hours. The Company will use its reasonable endeavours to respond to a request for Curative Maintenance as soon as is reasonable practicable.
5.2 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.
6. Excepted Services
The Maintenance Services shall not include:
6.1.1 the correction of any fault due to:
126.96.36.199 the Customer’s failure to maintain a suitable environment for the Equipment at the Place of use in accordance with the Company’s written specifications therefore including without limitation failure to maintain a constant power supply air conditioning or humidity control;
188.8.131.52 the customer’s neglect or misuse of the Equipment or its failure to operate the Equipment in accordance with the Company’s instruction manuals or for the purposes for which it was designed;
184.108.40.206 the alteration modification or maintenance of the Equipment by any other party other than the Company without the Company’s prior consent;
220.127.116.11 the transportation or relocation of the Equipment save where the same has been performed by or under the direction of the Company;
18.104.22.168 the use of defective or inappropriate supplies within the Equipment
22.214.171.124 any defect of error in any software used upon or in association with the Equipment;
126.96.36.199 any accident or disaster affecting the Equipment Including without limitation fire, flood, water, lightning, transportation, vandalism or burgalry; or
188.8.131.52 the Customer’s failure inability or refusal to afford the Company’s personnel proper access to the Equipment;
6.1.2 the painting or the refinishing of the Equipment;
6.1.3 the relocation or transportation of the Equipment;
6.1.4 electrical work external to the Equipment;
6.1.5 the provision of supplies for use in association with the Equipment
6.1.6 with the exception of Mandatory Engineering Changes any modification or alteration or attachment to the Equipment or removal of the same.
6.2 The Company shall upon by request by the Customer provide all or any of the Excepted Services referred to in Clause 6.1 above but shall be entitled to charge for the same by levying Additional Charges in the manner described in clause 6.5 below.
6.3 Where the Customer requires the Company to provide Maintenance Services outside Normal Business Hours as defined at Clause 5.1 above, and where the Com pany agrees to do so, the Company will be entitled to levy Additional Charges.
6.4 Without prejudice to clause 6.2 or 6.3 above the Company shall be entitled to levy Additional Charges in the manner described in clause 6.5 below if Maintenance Services are provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Customer’s request to have been unnecessary.
6.5 Additional Charges shall be levied by the Company and shall be payable by the Customer on receipt of an invoice therefore.
7. Spare Parts and Replacements
7.1 The Company shall use reasonable endeavours to supply spare parts and replacement components required to maintain the Equipment in working order and no extra charge will be made for their supply. If the Equipment is damaged otherwise than by fair wear and tear (the Company’s decision as to whether this has occurred is final and binding on the Customer), the Company reserves the right to charge the Customer for supplying the same.
7.2 The Company reserves the right to supply new second-hand or reconditioned replacement parts in the performance of its duties hereunder.
7.3 Spare parts and replacement components supplied by the Company shall become part of the Equipment and any parts and components removed from it shall become the Company’s property, unless otherwise agreed in writing between the parties.
7.4 The customer shall ensure that any equipment to be returned for replacement via postage or courier is packaged securely and returned by recorded delivery at the customers expense. Fault equipment must be returned by the customer and in the company’s possession before any replacement can be delivered.
7.5 If the Company determines that it is necessary to move the Equipment or any part of the Equipment from the Location in order to carry out repairs, and as a consequence a significant part of the Customer’s operations are affected, the Customer shall use reasonable endeavours to supply on loan to the Customer equivalent equipment while the Equipment or the part in question is being repaired.
8. Customer Obligations
8.1 The Customer shall;
8.1.1 at all times keep the Equipment in the environmental conditions recommended by the manufacturer of the Equipment;
8.1.2 not move the Equipment from the Location without obtaining the prior written consent of the company;
8.1.3 use the Equipment only in accordance with such instructions and recommendations relating to the care and operation of the Equipment as may be issued by the manufacturer of the Equipment or as may from time to time be advised in writing by the Company; and
8.1.4 not allow any person other than the Company’s representatives to adjust, maintain, repair, replace or re move any part of the Equipment.
8.2 The Customer shall ensure that that the Company’s representatives have full and free access to the Equipment and to records of its use kept by the Customer to enable the Company to perform its duties.
8.3 The Customer shall provide the Company with such in formation concerning the Equipment, its application, use, location and environment as the Company may reasonably request to enable it to carry out its duties.
8.4 The Customer shall take all steps as may be neces sary to protect the health and safety of the Com pany’s employees agents and subcontractors while on any premises of the Customer.
8.5 The Customer shall provide the Company with access to public telephone lines and any other services to enable the Company to perform the duties.
8.6 The Customer will indemnify the Company in respect of any loss or damage arising to apparatus which is delivered to or installed at the location by the Com pany’s representative, and undertakes to return the said apparatus to the Company on demand.
9.1 The Company shall have no liability to the Customer for any direct or indirect special or consequential Loss of the Customer 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 Customer so arising in any year of this Agreement in respect of any one event or series of connected events shall not exceed the charges payable by the Customer for the Maintenance Service for that year.
10. Force Majeure
10.1 If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
10.2 Notwithstanding any other provision of this Agreement, neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this Agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of the obligation shall be extended accordingly.
11. Duration and Termination
11.1 This Agreement shall come into force on the Commencement Date stated overleaf and, subject to clauses 11.2 and 11.3, shall continue in force for an initial period of five years from that date and thereafter unless or until terminated by either party giving to the other at any time not less than three months’ prior written notice of termination by recorded delivery expiring at the end of that initial period or at the end of any subsequent period of twelve months.
11.1.2 Written notices must be sent by Recorded Delivery.
11.2 Notwithstanding clause 11.1, the Company shall be entitled to terminate this agreement forthwith by notice to the Customer in the following circumstances:
11.2.1 If any of the Equipment can no longer be maintained in working order by the provision of replacement spare parts or the whole of the Equipment is damaged beyond economic repair otherwise than through the Company’s fault (as to whether either of which events has occurred, the Company’s decision shall be final and binding on the Customer) and may terminate in respect of the whole or any part of the Equipment which can no longer be maintained, in which case the Company shall repay to the Customer a fair proportion of any charges for the Company’s services which have been paid in advance by the Customer; or
11.2.2 if any sum payable under this Agreement is not paid on the due date.
11.3 Either party shall be entitled forthwith to terminate this Agreement by written notice to the other if;
11.4 For the purposes of clause 11.3.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of perform ance is not of the essence).
11.5 Any waiver by either party of any provision of this Agree ment shall not be considered as a waiver of any subse quent reach of the same or any other provision.
11.6 The rights to terminate this Agreement given by this clause shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other branch.
11.7 Upon the termination of this Agreement for any reason, subject as otherwise provided in this Agreement, and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement.
11.8 Should the customer wish to terminate the contract prior to to the formal end date then an early termination fee will be charged, this will be calculated by the cost of the annual support fee at the time of termination multiplied by the number of years of the remainder of the term
12. Nature of Agreement
12.1 The Company shall be entitled to perform any of the obligetions undertaken by it and to exercise any of the rights granted to it under this Agreement through any other company which at the relevant time is its holding company or subsidiary (as defined in section 736 of the Companies Act 1985) or the subsidiary of any such holding company and any act or omission of any such company shall for the purposes of this Agreement be deemed to be the act of omission of the Company.
12.2 Subject to the Customer’s consent (which shall not be unreasonably withheld) the Company shall be entitled to carry out its obligations under this Agreement through any agents or sub-contractors appointed by it in its absolute discretion.
12.3 Except as provided in clauses 12.1 and 12.2, this Agree ment is personal to the parties, and neither of them may, without the written consent of the other, assign, mortgage, charge (otherwise than by floating charge) or dispose of any of its rights hereunder, or subcontract or otherwise delegate any of its obligations under this Agreement.
12.4 Nothing in this Agreement shall create, or be deemed to create, a partnership between the parties.
12.5 This Agreement contains the entire agreement between the parties with respect to its subject matters, supersedes all previous agreements and understanding between the parties, and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.
12.6 Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of or rely on any representation warranty or other provision except as expressly provided in this Agreement, and accordingly all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
12.7 If any provision is this Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, the other provisions of this Agreement and the remainder of the affected provisions shall continue to be valid.
12.8 This Agreement shall be governed by and construed in all respects in accordance with the laws of England.
13.1 Any notice or other information required or authorised by this Agreement to be given by either party to the other may be given by hand or sent by recorded delivery to the other party at the address referred to in clause 13.3.
13.2 Any notice or other information given by post under clause 13.3 which is not returned to the sender undelivered shall be deemed to have been given on the fifth day after the envelope containing the same was posted; and proof that the envelope containing any such notice or information was properly addressed, and sent by prepaid post, and that it has not been returned to the sender, shall be sufficient evidence that such notice or information has been duly given.
13.4 Service of any legal proceedings concerning or arising out of this Agreement shall be affected by causing the same to be delivered by the company secretary of he party to be severed at its registered office, or to such other address as may be notified by the party concerned in writing from time to time.
Save in so far as otherwise expressly provided all amounts stated in this Agreement are exclusive of value added tax and any value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefore.