Equipment Maintenance Agreement TOA
"Equipment means the Equipment listed in Part 1 of the Schedule and shall include all updated or replacement parts and any additional equipment supplied by The Contractor;
"Maintenance Period" means 9.00am to 5.00pm on Monday to Friday excluding public and national holidays;
"the Location" means the site at which the Equipment is installed as specified in Part 2 of the Schedule hereto or such other location to which the Equipment is moved in accordance with this Agreement;
"The Contractor Maintenance Rates" means the rates of charge for services to be carried out by the Contractor as published by the Contractor from time to time.
This Agreement shall commence at the date hereof and shall continue for an initial period of 12 months and thereafter for successive twelve month periods unless or until terminated by not less than 90 days' prior written notice of termination given by either party to the other to expire at the end of the initial period or at the end of any successive twelve month period.
3. Services Provided
During the Maintenance Period or at such other times as the Contractor may nominate, the Contractor will provide the maintenance service as follows:-
3.1 The Contractor shall provide an Equipment maintenance service every four months from the date of this contract and at a time to be agreed between the Contractor and the Customer to provide day to day maintenance and repair of the Equipment as necessary to keep the Equipment in good operating condition.
3.2 If at any time the Equipment becomes inoperative for any reason, the Customer shall notify the Contractor and the Contractor shall at the earliest practicable opportunity, provide remedial maintenance to put the inoperative Equipment in such condition as constitutes good operating condition.
3.3 The Contractor (subject to Clause 4) will use its [best] endeavours to maintain the software programs comprised in the Equipment and undertakes to reinstall any software program which may have been damaged or made unavailable due to hardware failure and to render such technical assistance as may be necessary to secure the satisfactory operation of the computer programs. Upon receipt of the Customer's request for support or rectification of a defect, the Contractor shall (subject to its then current commitments) normally begin work on such support or defect not later than the first working day thereafter and shall diligently continue the work during normal working hours until the work is completed to the reasonable satisfaction of the Customer.
[3.4 The Contractor will not guarantee the performance of any third party software programs which the Contractor has undertaken to reinstall per Clause 3.3.]
4. Customer's Obligations
The Customer will allow the Contractor access to the Equipment and computer programs for investigation purposes, provide adequate working space and facilities for the Contractor staff and will co-operate with them in the diagnosis of the defect or malfunction in the Equipment or computer program.
The Customer shall allow the Contractor the use of any machinery attachments features or other equipment necessary to enable it to provide the maintenance services and shall be responsible for procuring, installing and maintaining all communications media not supplied by the Contractor.
The Customer will not allow any changes or modifications to the computer programs by anyone other than the Contractor staff. If such changes or modifications are carried out the Contractor reserves the right to review this Agreement and adjust accordingly.
The Customer will make freely available to the Contractor all documentation associated with the system, working documents, original program media, current data backup copies and Equipment for the efficient maintenance of the Equipment and the computers programs.
The Customer will undertake to create regular current data backup copies in such a manner as to minimise any potential data loss and to ensure that these are available if required by the Contractor.
The Customer shall take all reasonable precautions to ensure the safety and health of the Contractor personnel while such personnel are at the Customer's premises.
5. Fees and Payment.
5.1 The Client shall pay a Service Fee of £15.00 to the Service Provider on the agreement start date each month throughout the Term in consideration of the Services.
5.2 The Client shall be invoiced separately for any new Hardware that is supplied by the Service Provider. The cost of any such Hardware shall be 10% above that paid by the Service Provider.
5.3 All Invoices will be given to the Client at the time the hardware is installed and must be paid for prior to the Contractor leaving the site.
5.4 All sums specified in this Agreement are exclusive of any value added tax unless expressly stated otherwise.
6. Relocation of Equipment
Equipment moved from the Location to a new location within 50 mile radius of Milton Keynes (not including Greater London) shall continue, at the Contractor's option to be serviced pursuant to this Agreement. The Customer shall give to the Contractor at least 30 days' written notice prior to any relocation of the Equipment.
The Contractor's personnel shall dismantling, pack and transport the Equipment to the new location and reinstall the Equipment at the new Location. The Customer shall be charged for the packing, packaging, transportation and installation of the Equipment at the standard Contractor rates.
7.1a Outside the 4 month service this agreement does not cover a site visit or remote support to rectify software problems other than by hardware failure, these are chargeable at the contractors normal hourly rate.
7.1 The Contractor shall not be obliged to provide the maintenance services or any other services in this Agreement if:
7.1.1 the maintenance service or such other services are required because of the neglect, misuse, transportation or improper programming of the Equipment or because the Equipment has been subjected to failure or fluctuation of the electrical power, abnormal electrical stress, abnormal air conditioning or humidity, fire, vandalism or abnormal physical stress;
7.1.2 the Equipment is maintained or repaired (or attempts are made to maintain or repair the Equipment) by persons other than Contractor personnel without the Contractor's prior written approval;
7.1.3 the Customer fails to perform any of its obligations under the Agreement; or
7.1.4 the Equipment cannot be repaired so as to put it in such condition as in the reasonable opinion of the Contractor, constitutes a maintainable condition.
7.2 Maintenance services under this Agreement do not include:-
7.2.1 the provision of supplies, accessories or media;
7.2.2 the installation, maintenance or removal of any item not furnished by the Contractor;
7.2.3 the painting or refinishing of the Equipment or the supply of materials for that purpose;
7.2.4 electrical work external to the Equipment or the making of specification changes to the equipment.
7.2.5 Malware and Viruses are not covered by this maintenance agreement any and all work resulting from malware and or virus infection is chargeable at the contractor's normal hourly rate.
If written notice is given to the Contractor by the Customer of any alleged defect in the materials or workmanship of replacement parts of the Equipment within 90 days from the date of installation of such parts the Contractor shall at its own expense repair (or at its option replace) any part or parts recognised by the Contractor to be defective (replaced parts becoming the property of the Contractor).
This clause states the Contractor's entire liability in connection with the quality and fitness for any particular purpose of replacement parts of the Equipment of any part thereof.
The Contractor shall not, save for claims relating to personal injury arising from the Contractor's negligence, be liable under or by virtue of this Agreement for consequential loss or damage (including but not limited to loss of data or information or any kind howsoever cause, loss of use, profits or contracts) or subject to the foregoing for any loss damage or injury of any kind whatsoever.
The Contractor's liability in respect of claims by whomsoever made (exclusive of claims for personal injury arising from the Contractor's negligence) under of by virtue of all agreements between the Contractor and the Customer (with out without any other party) shall be subject to a continuing overriding maximum of £5.00 in the aggregate.
The Contractor shall not be liable for any failure or delay in the performance of its obligations under this Agreement for any reason beyond its control.
Any and all notices, documents and other communications relating to this Agreement must be in writing and either delivered personally to or posted by pre-paid, registered or recorded delivery post to the last know address or registered office for the time being or the party to which address and in such letter case it shall be deemed to have been properly given at the time at which it would have been delivered in the ordinary course of post.
The Customer shall not assign any or all of its rights or obligations under this Agreement without prior written consent of the Contractor which shall not be unreasonably withheld. The Contractor may sub-contract to third parties all or any part of the work to be performed hereunder.
11. Governing Law
This Agreement shall be governed and construed in accordance with English Law.
No change, alteration or modification of this Agreement shall be valid unless in writing and signed on behalf of the parties by their respective duly authorised officers.
13. Applicable Law
This Agreement shall be read and construed according to the laws of England and the parties hereto agree to submit to the jurisdiction of the English courts.