Maintenance Agreement Terms and Conditions
1. MAINTENANCE PERIOD AND CHARGE
(a) This Agreement shall start on The Commencement Date specified in section 2 of the Schedule and shall continue for the minimum term of 3 years, or as otherwise specified in section 2, and thereafter from year to year (each year starting on the anniversary of The Commencement Date) until terminated by Notice in writing by either party to the other, such Notice to be a minimum of 90 days prior to the next anniversary of The Commencement Date (referred to hereafter as the “Notice”). Such Notice shall be deemed to be received within a week of being posted by recorded delivery to the last known address of the party to whom it is given. It is recommended to the Customer that acknowledgement of Notice is requested.
(b) The Annual Maintenance Charge for the initial period of 12 months shall be the charge specified in section 2 of the Schedule of this document. For each subsequent year during the continuation of this Agreement the Annual Maintenance Charge shall be fixed according to the Maintainer’s current charges at the beginning of that year for the type and quantity of equipment (“the Equipment”) specified in section 5 of the Schedule. 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.
i. If Notice is given, as defined above, before the expiry of the minimum term shown then payment is due for the sum of the annual amounts up to the expiry date of the minimum term.
ii. If Notice is given, as defined above, after the expiry date of the minimum term shown then payment is due up to the end of the current year of cover.
iii. If Notice is not given, as defined above, and the contract is still before the last year of the minimum term then payment is due for the sum of the annual amounts up to the expiry date of the minimum term.
iv. If Notice is not given, as defined above, and the contract is either in the last year or after the minimum term of the contract then payment is due up to the anniversary of the following year of cover.
v. Where Notice has been given, the Maintainer shall cease to provide service, immediately after the period for which payment has been received.
The Maintainer may from time to time increase its basic charge by an amount exceeding the BEAMA rate and shall give the customer 30 days’ prior written notice of such increase.
2. MAINTENANCE AND REPAIR
(a) During the period of the Agreement, in consideration of the payment of the maintenance charge, the Maintainer shall as soon as is reasonably practicable after notification in accordance with Clause 6 below provide the services of a maintenance engineer to carry out any maintenance of and repairs and replacements to the Equipment that may be reasonably requested by the Customer and shall carry out free of any extra charge any maintenance repairs and replacements (including the provision of any necessary materials and spare parts) as shall be necessary as a result of fair wear and tear arising from the proper operation of the Equipment. Any maintenance repairs or replacements or Customer visits caused other than by fair wear and tear may be carried out at the Customer’s expense at the Maintainer’s current charges. The response time for these faults will be guided by the service level shown in Part 10 of the Schedule and further defined in Clause 2(c). All maintenance, repairs or replacements may be carried out at the premises where the Equipment is installed or elsewhere at the option of the Maintainer. For the avoidance of doubt response is either accessing the system remotely with a view of diagnosing the fault or having an engineer attend site with a view of diagnosing the fault.
(b) This agreement does not cover the following items unless they are specifically detailed in the equipment section in Section 5 of the Schedule:
i. Overhead, underground or external cabling.
ii. Two wire telephone handsets, otherwise known as Pot Phones..
iii. Structured cabling.
iv. On PABX systems, cabling from the telephone system central processing unit to the line-jack unit.
v. Call loggers, voicemail, battery back-up and other additional ancillary equipment including headsets
vi. Cleaning of equipment; Commissioning, Programming or De-Commissioning of the system or part thereof.
vii. Customers LAN/WAN infrastructure (routers, hubs, switches, firewalls.) servers etc. unless stated in contract
(c) Where the Customer requests that the remedial work carried out by the Maintainer is done outside of the contracted hours then the Maintainer may charge at their current charges for this.
(d) Where a fault has been lodged and the Maintainer has responded and no fault exists then this is deemed to be an ‘Abortive Visit’ and Abortive Visits will be charged to the customer at their current charges. Where a fault has been lodged and the maintainer is unable to gain access to the customers premises during the hours contracted then the Maintainer may charge the Customer an abortive visit call out fee.
(e) It is understood that the Maintainer cannot make appointments to carry out remedial work to faults. The Maintainer operate an allocation and scheduling system that prioritise faults according to severity of the fault and the level of cover provided. The Maintainer will endeavour to attend the fault at the earliest opportunity within the cover period. Any estimates relating to the time that engineers will attend either site or remotely are only best indications and must not be taken as firm appointment times. The Maintainer cannot be held responsible for responding to faults at a different time to that estimated.
3. ALTERATIONS TO EQUIPMENT AND EXTENSION WIRING
(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 Maintainer. The Maintainer reserves the right to carry out a Maintenance Acceptance Test (‘MAT’) on this new equipment. The Maintainer may charge at their current charges for this MAT.
(b) Any alterations to Equipment and wiring shall be notified to the Maintainer within 14 working days of the commencement of the works.
(c) The Maintainer may adjust the Annual Maintenance Charge if the Equipment is altered, in accordance with their current level of charges. In this event, the Customer shall either sign a job sheet that details the new configuration; or sign a supplementary contract; or write to the maintainer on their letterhead (that details the new Equipment) in accordance with Clause 1(b) above.
(d) Where insufficient notice is given in accordance with Clause 3 (b) above then the Maintainer may ask for proof of the date of installation relating to any additional equipment and the Maintainer may retrospectively charge for the maintenance of this equipment in line with their current charges.
(e) For the avoidance of doubt if the Customer adds new parts to the Equipment detailed in Part 5 of the Schedule then this may be automatically maintained by the Maintainer, at the Maintainers discretion. The Maintainer may as a consequence invoice the Customer for the maintenance of these new parts.
4. INSPECTION OF INSTALLATION
The maintainer may request to carry out an MAT prior to responding to the first fault that is lodged. The Maintainer may carry out the MAT as a separate visit. If the MAT is passed then faults may be lodged with the maintainer and service will commence. If the MAT is failed then the Maintainer reserve the right to request that any specific remedial action be carried out (at the Customer’s cost) prior to attending to any fault. Where the MAT is failed but where any necessary remedial action can be carried out by the Maintainer then the Maintainer may carry this out and charge this to the Customer at their current charges.
5. CARRIER’S LIABILITY
Where the fault that has been lodged has been a non-system fault, but instead one of the carrier (ie British Telecom or Cable & Wireless etc) then the Maintainer will charge the customer for the call out and any parts used at their current charges. The Maintainer will provide a carrier fault reference that can be used to recharge the cost that the Maintainer has charged, on to the carrier. The Maintainer cannot accept responsibility where the carrier refuses to cover all these costs.
6. THE CUSTOMER’S RESPONSIBILITIES AND LIABILITIES
(a) The Customer shall notify the Maintainer either orally or in writing as soon as possible of any fault in the Equipment or of any work or maintenance that may be necessary. The Maintainer may at its option repair at its current charges faults or damage that has arisen because of the failure of the Customer to notify the Maintainer properly.
(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 Maintainer in relation to the operation and care of the Equipment. The Maintainer 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 Maintainer’s directions.
(c) Should any maintenance, repair, replacement, alteration or addition be made to the Equipment other than by the Maintainer or its authorised installer, the Maintainer may terminate the Agreement with immediate effect by giving the Customer written notice and may retain the annual maintenance charge.
(d) The Customer shall at its expense comply with all statutory requirements, bylaws, 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 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) The Customer shall give the Maintainer and its representative’s unhindered access to the Equipment and shall at its expense make 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) The Customer shall ensure site plans are accessible to the Maintainer on each visit. The Customer shall ensure that all programming performed by a third party is backed up and made available to the maintainer. It is advised that both the site plans and programming diskette are located next to the system.
(g) Where the system allows remote access via a modem, it is the customer’s responsibility to provide a suitable modem in order for the Maintainer to respond adequately to any fault. Where access is deliberately denied via a modem then the Maintainer may uplift the annual maintenance charge up to a further 50%.
(h) The Customer shall maintain an environment suitable to support efficient operation of the Equipment. The Customer is responsible for any damage caused by electrical surges and lightning.
(i) If the Customer fails to observe the provisions of this Agreement, the Maintainer may terminate it with immediate effect by giving the Customer written notice and may retain the annual maintenance charge.
(j) The Maintainer shall not be liable for any costs, or consequential losses or consequential costs relating to telephone calls or any malicious acts resulting from these telephone calls made in a malicious or otherwise manner, made through the telephone system either from within the customer’s premises or via an external source getting access and where appropriate dialling out.
7. LIMITATION OF LIABILITY
(a) The Maintainer will indemnify the Customer:
i. (where the United Kingdom Unfair Contract Terms Act 1977 applies to this Agreement) against liability for personal injury or death directly attributable to the negligence of the Maintainer; 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 Maintainer in connection with the Maintainer’s maintenance of the Equipment.
(b)The Maintainer’s total liability, other than that referred to Clause 7(a)(i), to the Customer under the indemnities contained in this Clause 7 shall not exceed ten times the annual maintenance charge for one or more related claims arising in any one twelve month period.
(c) Subject to the provisions of this Clause 7 the Maintainer 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 of otherwise) in connection with the Maintainer’s maintenance of the Equipment or otherwise.
(d)The Customer acknowledges that the price of the services reflects the limitations contained in this Clause 7. The Customer shall effect insurance cover in respect of all risks relating to the services which are not covered by this Agreement or the liabilities accepted under this Clause 7.
(f) The Maintainer does not accept any responsibility for system faults caused by either telephone area code changes or as a result of the millennium date or any legislative changes.
8. ENGLISH LAW
(a) This Agreement shall in all respects be governed by English law. The parties hereby irrevocably submit to the non exclusive jurisdiction of the English courts.
(b) Any proceedings arising out of or in connection with this agreement may be brought in any court of competent jurisdiction in London.
(c) The submission by the parties to such jurisdiction shall not limit the right of the Maintainer to commence any proceedings arising out of this Agreement in any other jurisdiction it may consider appropriate.
(d) Any notice of proceedings or other notices in connection with or which would give effect to any such proceedings may without prejudice to any other method of service be served on any party in accordance with clause 1(a) above.
(e) In the event that the Customer is resident outside England its address for service in England shall be such service nominated in this Agreement and any time limits in any proceedings shall not be extended by virtue only, of the foreign residence of the Customer.
The construction of this Agreement is not to be affected by any heading. Reference to the plural shall include the singular and vice versa.
This Agreement constitutes the entire agreement between the parties and there are no agreements or understandings between them other than those set out herein.
Any variation to this Agreement shall only be binding if it is recorded in a document signed by an authorised representative of the Maintainer.
Failure by the Maintainer to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
(e) Any express or implied waiver by the Maintainer of any term of condition of this Agreement or of any breach or default by the Customer may be terminated by the Maintainer at any time. No such waiver shall constitute a continuing waiver nor shall it prevent the Maintainer from acting upon that or any subsequent breach or default of from enforcing any term or condition of this Agreement.
(f) Force Majeure
The Maintainer shall not be liable in any way for loss, damage or delay consequent upon any circumstances beyond its reasonable control.
(g) Assignment and Transfer
The Customer may not assign the benefit of this Agreement of transfer, delegate or sub-contract any of its duties or obligations without the prior written consent of the Maintainer. The Maintainer may assign the benefits and obligations of this Agreement without the prior consent of the Customer.
Where Talking Business have provided a PC platform for software applications i.e. soft consoles and/or voicemails etc. purely for the purposes of maintenance, and not sold as part of the solution, they shall remain the property of Talking Business and as such reserve the right to recover these platforms should the customer no longer require the services of Talking Business.
If the dealer/installer pays any part of this contract, he is acting as agent on behalf of the customer.
10. PAYMENT TERMS
Payment for the maintenance cover is due before the period of cover commences. Payment for the maintenance of any additional equipment or for chargeable work is due by return. Failure to pay any outstanding invoices that are due may result in maintenance being suspended. Suspension may remain in place until payment is received. Suspension does not effect the accrued rights of the Maintainer.