1. MAINTENANCE PERIOD AND CHARGE
This Agreement shall commence on the date specified over leaf for a minimum period of 3 years and upon expiry of the minimum term will automatically continue from year to year unless and until terminated by ninety days prior written notice given by either party to expire on any anniversary of this Agreement.
2. MAINTENANCE AND REPAIR
incovo system maintenance will use all reasonable endeavours to respond within 8 working hours to a request for maintenance service received during incovo maintenance normal working hours (9am to 5pm excluding weekends and bank and public holidays) by arranging for a service engineer to make a site visit to inspect and/or repair the system. Any maintenance repairs or replacements or Customer visits caused other than fair wear and tear arising from the proper operation of the Equipment or telecommunications network may be carried out at the Customers expense at the Company’s current charges. All maintenance repairs or replacements may be carried out at the premises where the Equipment is installed or elsewhere at the option of the Company. Where the Customer has opted for service out with Standard Contract i.e. extended hours and or quicker response no service is included for the 1st and 2nd January and 25th and 26th December unless specifically agreed in writing by the Customer Service Manager of the Company. This letter of Agreement to be additional to the Customer Service Manager’s acceptance signature on the contract. Two wire devices are not covered under this Agreement unless specifically agreed in writing by the Customer Services Manager of the Company.
3. ALTERATIONS TO EQUIPMENT AND EXTENSION WIRING
a a) All alterations to apparatus and extensions to wiring (including removal and reinstallation to a new site) shall be carried out by an installer authorised by the Company.
b b) Any alterations to Equipment and wiring shall be notified to the Company within 14 working days of commencement of works.
c c) The Company will adjust the annual maintenance charge if the equipment is altered.
d d) Where equipment is added to the initial configuration the Company shall adjust the fee for the maintenance Agreement to provide the cover on the additional equipment. This shall be at the Company’s rates for maintenance at the time of the upgrade
4. THE CUSTOMER’S RESPONSIBILITIES AND LIABILITIES
a a) The Customer shall notify the Company either orally, in writing or by fax or e-mail as soon as possible of any fault in the Equipment or of any work or maintenance that may be necessary. The Company may at its option repair at its current charges, faults or damage that have arisen because of failure of the Customer to notify the Company promptly.
b b) The Customer shall not allow the equipment to be moved, interfered with or tampered with and shall at all times comply with all reasonable advice given by the Company in relation to the operation and care of the Equipment. The Company may at its option repair at its current charges faults or damage that have been caused by such moving. Interference or tampering, or by any failure by the Customer to comply with the Company’s directions.
c c) Should any maintenance, repair or replacement alteration or addition be made to the Equipment other than by the Company or it’s authorised installer, the Company may terminate the Agreement with immediate effect by giving the Customer written notice and will retain the Annual Maintenance Charge. In this event all sums due to the Company under the terms of this Agreement shall be payable in full upon demand.
d d) The Company shall at its expense comply with all statutory requirements, byelaws, obligations, regulations, recommendations or instructions relating to the use or testing of the Equipment. The Customer shall obtain and pay for any such licences, way leaves suitable for private wires, jack sockets or any other items necessary for the operation of the Equipment. Suitable electric supplies where needed shall be provided and maintained by the Customer at its expense.
e e) The Customer shall give the Company and its representatives unhindered access to the Equipment and shall at it’s expense makes available mains electric supply and any other facilities and co-operation as may be necessary for the proper and prompt maintenance or repair of the Equipment under this Agreement.
f. f) The Customer shall maintain an environment and a clean supply of electricity suitable to support the efficient operation of the Equipment.
g g) If the Customer fails to observe the provisions of this Agreement, the Company may terminate it with immediate effect by giving the Customer written notice and will retain the Annual Maintenance Charge. In this event all sums due to the Company under the terms of this Agreement shall be payable in full upon demand.
5. LIMITATION OF LIABILITY
a a) The Company will indemnify the Customer:
( i) (Where the United Kingdom Unfair Contract Terms Act 1977 applied to this Agreement) against liability for personal injury or death directly attributable to the negligence of the Company:
And
( ii) against physical damage (but not loss of any data) caused to the Customer’s tangible property directly arising from the negligence of the Company in connection with the Company’s maintenance of this Equipment.
b b) The Company’s total liability to the Customer under the indemnities contained in this paragraph 5 shall not exceed ten times the Annual Maintenance Charge for one or more related claims arising in any one twelve month period.
c c) Subject to the provisions of this paragraph 5 the Company shall not be liable to the Customer for any loss, expense or damage of any kind (direct, indirect or consequential and whether arising from negligence or otherwise) in connection with the Company’s maintenance of the Equipment or otherwise.
d d) The Customer acknowledges that it is its responsibility to effect insurance cover in respect of all risks relating to the maintenance of the Equipment not covered by the indemnity in this paragraph 5.
e e) The Company reserves the right to cease to support a piece of equipment under the contract where those pieces of equipment is/has become unsupportable. (Examples of unsupportable include but are not limited to excessive failure and continued failure after rebuild)
6. PAYMENT OF MAINTENANCE CHARGES
a a) The Annual Maintenance Charge for the initial period of 12 months shall be the charge specified on the front page of this document (“the front”) For each subsequent year during the continuation of this Agreement the Annual Maintenance Charge may be increased by up to 10% over the percentage increase In RPI for the month ending 2 months prior to the anniversary of the Contract.
b b) The Annual Maintenance Charge for each year during which this Agreement continues shall be paid before the date on which that year begins together with any applicable VAT or other tax.
c c) All invoices shall be settled in full by the anniversary date of the Contract.
7. GENERAL
a) Scots Law
Scots Law shall in all respects govern this Agreement. The parties hereby irrevocably submit to the non-exclusive jurisdiction of the Scottish courts.
b b) Construction
The construction of this Agreement is not to be affected by any heeding Reference to the plural shall include the singular and vice versa.
c c) Entire Agreement
This Agreement constitutes the entire Agreement between the parties and there are no Agreements or understanding between them other than those set out herein.
d d) Variation
Any variation to this Agreement shall only be binding if it is recorded in a document signed by Customer Service Manager of the Company.
e e) Waiver
Failure by the Company to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
f. f) Any express or implied waiver by the Company of any term or condition of this Agreement or of any breech or default by the Customer may be terminated by the Company at any time. No such waiver shall constitute a continuing waiver nor shall it prevent the Company from acting upon that or any subsequent breach or default or from enforcing any term or condition of this Agreement.
g g) Force Majeure
The Company shall not be liable in any way for loss, damage or delay consequent upon any circumstances beyond its reasonable control.
h h) Assignment and Transfer
The Customer may not assign the benefit of this Agreement or transfer, delegate or sub-contract any of its duties or obligations without the prior written consent of the Company. The Company may assign this Contract to a third party.
