Telephone Services Maintenance Contracts: Terms & Conditions
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 In this agreement unless the context otherwise requires:
THE COMPANY means TeleConneXions.
THE CUSTOMER means the individual firm, company or other body named in the schedule overleaf.
BASIC SERVICE means the repair and maintenance service to be provided pursuant to clause 2.1.1
CONSULTANCY SERVICE means the advisory service to be provided pursuant to clause 2.1.2
EQUIPMENT means the equipment the description and location of which are shown in schedule 1.
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)
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 Customer, any loss ( whether loss of profit or otherwise), damages, costs or other compensation, and any legal or other expenses which is or are 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 WORKING HOURS means the hours of 0800 to 1730 on any working day unless otherwise varied in accordance with clause 13.
WORKING DAY means any day other than Saturday or Sunday or a bank or Public holiday unless otherwise varied in accordance with clause 13.
1.2 The headings in this agreement are for convenience only and shall not affect its interpretation.
2. SERVICES TO BE PROVIDED
2.1 During the continuance of this agreement the Company shall provide the Customer with:
2.1.1 a repair and maintenance service for the equipment and
2.1.2 an advisory service relating to the application and use of the equipment.
2.2 The basic service shall consist of :-
2.2.1 Routine maintenance of the equipment at such intervals as the Company may reasonably determine to be necessary in order to keep the equipment in good working order, and
2.2.2 The repair of any defect in or malfunction of the equipment which is discovered by the Company's representative during the course of routine maintenance checks or is reported to the Company by the Customer from time to time.
2.3 Routine maintenance of the equipment shall be carried out by one of the Company's suitably qualified and duly authorised representatives:
2.3.1 attending at the location at such times during Normal Working Hours as may be agreed in advance between the Company and the Customer from time to time; or
2.3.2 Remotely accessing the equipment via an interface to perform diagnostic or programming routines.
2.4 If the Company's representative discovers a defect in or malfunction of the equipment in the course of routine maintenance, the Company's representative will use all reasonable endeavours to repair it at the location, but if that is not reasonably practical (or is not reasonably practical in the time available during Normal Working Hours), the Company's representative will seek to make suitable arrangements with the Customer for:
2.4.1 A further visit to the location during Normal Working Hours for the repair of the defect or malfunction; or
2.4.2 If the equipment is inoperative as a result of the defect or malfunction, its repair at the location outside Normal Working Hours; or
2.4.3 If it is not reasonably practicable for the defect or malfunction to be repaired otherwise, the removal of the equipment ( or where practical, the part of the equipment in question) for the purpose of repair.
2.5 If the Customer reports a defect in or malfunction of the equipment during Normal Working Hours, the Company shall use its best endeavours to ensure that one of the Company's suitably qualified and duly authorised representatives attends at the location during Normal Working Hours, within the time specified in schedule 2; the Company representative will use all reasonable endeavours to repair the defect or malfunction at the location, but if that is not reasonably practicable (or is not reasonably practicable in the time available during Normal Working Hours), the Company's representative will seek to make such arrangements with the Customer as are mentioned in clause 2.4
2.6 For the purpose only of determining the period of time within which the Company's representative makes an attendance pursuant to clause 2.5 any period between the end of Normal Working Hours on one working day and the beginning of Normal Working Hours on the next Working Day shall be disregarded.
2.7 If the Customer reports a defect in or malfunction of the equipment after Normal Working Hours on any day, then unless the Company expressly agrees otherwise, the report shall be deemed to be made at the beginning of Normal Working Hours on the next Working Day and clause 2.5 shall take effect accordingly.
2.8 All reports of defects in or malfunctions of the equipment must be made by telephone, facsimile transmission or in writing, as appropriate by a representative of the Customer and otherwise in such a manner as the Company may reasonably require from time to time.
2.9 Pursuant to the Consultancy Service the Contractor shall:
2.9.1 provide the Customer from time to time in writing with such up to date and accurate information as to the application and use of the equipment as may be available to the Company and as the Company may reasonably determine to be necessary or desirable to be provided; and
2.9.2 use its best endeavours to respond promptly, during Normal Working Hours, by telephone, facsimile transmission or in writing, as appropriate, to any request from the customer for information concerning the application and use of the equipment, or the repair of any defect in or malfunction of the equipment.
2.10 The Company shall not unreasonably withhold its agreement to equipment being moved to any other location within 50 miles of that specified in schedule 1.
2.11 The Company shall ensure that its representatives comply with all safety and security regulations in force at the Customers premises which are brought to the attention of such representatives.
3. SPARE PARTS AND REPLACEMENTS
3.1 The Company shall use all reasonable endeavours to supply any spare parts and replacement components required to maintain the equipment in good working order, and no extra charge will be made for their supply. If, however, 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.
3.2 All 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.
3.3 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 Customers operations are affected, the Company shall use all reasonable endeavours to supply on
loan to the Customer equivalent equipment while the equipment or the part
in question is being repaired.
4. SERVICES NOT INCLUDED
4.1 The service shall not apply to any design defect in the equipment, or any defect or malfunction which is due to faulty materials or workmanship in manufacture of which in the Company's opinion has arisen as a result of:
4.1.1 electrical work external to the equipment;
4.1.2 transportation or relocation of the equipment not performed by or on behalf of the Company;
4.1.3 any error or omission relating to the operation of the equipment;
4.1.4 any modification adjustment or repair to the equipment made by a third party without the written consent of the Company;
4.1.5 The subjection to the equipment by the customer to unusual or physical stress, the neglect or misuse of the equipment or any failure or fluctuation of electrical power, air conditioning, humidity control or other environmental controls; or
4.1.6 any other cause (except fair wear and tear) which is not due to the neglect or fault of the Company.
4.2 If on investigation the Company reasonably determines that any defect in or malfunction of the equipment is the result of any of the matters referred to in clause 4.1, the Customer shall be liable for all costs incurred by the Company in investigating the same, determining its cause and carrying out any repairs.
4.3 If any part of the equipment can no longer be maintained in good 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) the Company reserves the right to terminate the Agreement forthwith, by giving written notice to the Customer, 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.
4.4 Except as expressly provided in this Agreement or as agreed between the parties in writing, the Company shall have no obligation to provide any services to the Customer outside Normal Working Hours.
5. CUSTOMER OBLIGATIONS
5.1 The Customer shall:
5.1.1 at all times keep the equipment in the environmental conditions recommended by the manufacturer of the equipment;
5.1.2 subject to clause 2.7 not move the equipment from the location without obtaining the prior written consent of the Company;
5.1.3 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
5.1.4 not allow any person other than the Company's representatives to adjust, maintain, repair, replace or remove any part of the equipment.
5.2 The customer shall ensure that the Company's representatives have full and free access to the equipment and to any records of its use kept by the Customer to enable the Company to perform its duties.
5.3 The Customer shall provide the Company with such information concerning the equipment, its application, use, location and environment as the Company may reasonably request to enable it to carry out its duties.
5.4 The Customer shall take all such steps as may be necessary to ensure the safety of any of the Company's representatives who visit any premises of the Customer.
5.5 The Customer shall provide the Company with access to public telephone lines and any other services to enable the Company to perform its duties.
5.6 The customer will indemnify the Company in respect of any loss or damage arising to apparatus delivered to or installed at the location by the Company's representatives, and undertake to return the said apparatus to the Company on demand.
6. CHARGES
6.1 In consideration of the provision of the service, the Customer shall, subject to receipt of an invoice from the Company, pay to the Company the charges set out in schedule 3:
6.1.1 on the execution of this Agreement, in respect of the initial period of twelve months from the day of commencement; and
6.1.2 on or before the beginning of each subsequent consecutive period of twelve months, in respect of that period.
6.2 In consideration of the provision of the Consultancy Service the customer shall pay to the Company charges calculated at the notified hourly rate for the time spent by the Company's representative in providing the Consultancy Service to the Customer, the Company shall invoice the Customer for the Consultancy Service monthly in arrears or at such intervals as may be agreed from time to time between the parties, and the Customer shall within 30 days after the receipt of each invoice from the Company, pay to the Company the amount shown in the invoice. The Company will advise the Customer of the hourly rate and any alterations in that rate to be used in calculating such charges on the annual invoice for maintenance.
6.3 If the Company's services are requested without any reasonable justification, or by reason of any defect in or malfunction of the equipment due to causes not covered under this Agreement, the Customer shall be liable to pay the Company's standard charges from time to time in force for such services.
6.4 The charges referred to in clause 6.1 shall be increased on each anniversary of this Agreement by a percentage equivalent to the increase (if any) for the twelve months preceding that anniversary shown by the Average Earnings Index for electrical and electronic engineering as published as table 18.10 in the monthly digest of statistics by the Central Statistical Office.
6.5 All charges and other sums payable by the Customer under this Agreement are exclusive of any applicable value added tax, which shall be additionally payable by the Customer together with the charge or the sum in question.
6.6 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:
6.6.1 Suspend the performance of any or all of its obligations under this contract until payment is made in full;
6.6.2 appropriate any payment made by the Customer to such of the services (or the goods supplied under any other contract between the Customer and Company) as the Company may think fit (not withstanding any purported appropriation by the Customer); and
6.6.3 charge the Customer interest (both before and after any judgement) on the amount unpaid at the rate of 5% per annum above National Westminster Bank PLC base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
7. LIABILITY
7.1 The Company shall have no liability to the Customer for any consequential Loss of the Customer arising out of or in connection with the provision of any goods or services pursuant to this Agreement (accept 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 basic service for that year.
8. FORCE MAJEURE
8.1 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.
8.2 Not withstanding any other provisions of this Agreement, neither party shall be deemed to be in breech 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 that obligation shall be extended accordingly.
9. DURATION & TERMINATION
9.1 This Agreement shall come into force on the date of commencement and subject to clause 9.2 and 9.3 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 expiring at the end of that initial period or at the end of any subsequent consecutive period of three months.
9.2 The Company shall be entitled to terminate this Agreement:
9.2.1 In the circumstances and to the extent referred to in clause 4.3; and
9.2.2 forthwith by giving written notice to the customer if any sum payable under this Agreement is not paid on the due date.
9.3 Either party shall be entitled forthwith to terminate this Agreement by written notice to the other if;
9.3.1 that other party commits any continuing or material breach of any of the provisions of this Agreement and, in the case of such a breach which is capable of remedy, fails to remedy the same within 30 days after the receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
9.3.2 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party;
9.3.3 That other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
9.3.4 That other party goes into liquidation (except for the purposes of an amalgamation, reconstruction or other reorganisation and in such manner that the company resulting from the reorganisation effectively agrees to be bound by or assumes the obligations imposed on that party under this Agreement); or
9.3.5 That other party ceases, or threatens to cease, to carry on business.
9.4 For the purpose of clause 9.3.1 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.
9.5 Any waiver by either party of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision.
9.6 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 breach.
9.7 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.
10. NATURE OF AGREEMENT
10.1 The Company shall be entitled to perform any of the obligations 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 Act1985) 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 or omission of the company.
10.2 Subject to the Customers 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.
10.3 Except as provided in clause 10.1 and 10.2, this Agreement 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 sub-contract or otherwise delegate any of its obligations under this Agreement.
10.4 Nothing in this Agreement shall create, or be deemed to create, a partnership between the parties.
10.5 This Agreement contains the entire agreement between the parties with respect to its subject matter, supersedes all previous agreements and understandings between the parties, and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.
10.6 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.
10.7 If any provision of 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.
10.8 This Agreement shall be governed by and construed in all respects in accordance with the laws of England.
11. NOTICES AND SERVICE
11.1 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 pre-paid post to the other party at the address referred to in clause 11.3
11.2 Any notice or other information given by post under clause 11.1 which is not returned to the sender as undelivered shall be deemed to have been given on the fifth day after the envelope containing the same was so posted; and proof that the envelope containing any such notice or information was properly addressed, and sent by pre-paid post, and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given.
11.3 Service of any legal proceedings concerning or arising out of this Agreement shall be effected by causing the same to be delivered to the company secretary of the party to be served at its registered office, or to such other address as may be notified by the party concerned in writing from time to time.
12. ARBITRATION
12.1 Any dispute arising under in connection with this Agreement shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the Chairman for the time being of the Telecommunications Industry Association.
13. ENHANCED SERVICE
13.1 The Company may provide enhanced services in addition to the services listed at clause 2, but only when the Customer has specifically requested an enhanced service and when the particular service requested has been recorded at schedule 4.
13.2 The following description of services will apply:
13.2.1 STANDARD SERVICE As per section 2 with no enhancements.
13.2.2 SPECIAL SERVICE 1 As per section 2 but working day extended to include Saturdays except Bank or Public Holidays.
13.2.3 SPECIAL SERVICE 2 As per section 2 but working day extended to include Saturdays and Sundays.
13.2.4 SPECIAL SERVICE 3 As per section 2 but working day extended to include Saturdays and Sundays and Normal Working Hours extended to
24 hours per day
TeleConneXions: ahead in voice and data communications
