Terms of Maintenance
AmtecComputer Corporation Limited
1. Definitions and Interpretation
1.1 In this Agreement the following words and phrases shall, unless the context otherwise requires, have the following meanings:
Annual Service Charge
the sum mentioned in clause 3.2 below as varied in accordance with clause 3.3 below;
the site or sites nominated by the Customer as specified in the Particulars;
the equipment specified in the Particulars or any replacement thereof which is provided under the terms and conditions of this Agreement together with any additions or deletions which may from time to time be agreed in writing between the parties;
the Particulars page on the front of this Agreement which shall be deemed to be incorporated into this Agreement;
the maximum time as provided in the Schedule within which Amtec undertakes to respond to a request for service and which elapses between the time when the need for a service visit is acknowledged and the time of arrival of the engineer at the Customer‘s site;
the Schedule to this Agreement;
the resolution of faults with or directly related to the Equipment.
1.2 Headings are for convenience only and do not affect interpretation. Save where the context otherwise requires, references to clauses are to clauses of this Agreement.
1.3 Unless the context otherwise so requires:
1.3.1 references to Amtec and the Customer include their permitted successors and assigns;
1.3.2 references to statutory provisions include those statutory provisions as amended or re-enacted; and
1.3.3 references to any gender include all genders.
1.4 This Agreement is made on the date and between the parties as specified in the Particulars
2. Provision of Support Services
Amtec agrees to provide and the Customer agrees to accept the Service on the Equipment as set out in clause 4 and the Schedule and as provided for in this Agreement. The terms and conditions set out below apply and prevail over any other previous maintenance or support agreement.
3.1 The initial term of this Agreement shall be one year from the date of commencement of this Agreement. This Agreement shall be automatically renewed for successive one year terms, unless either party gives written notice to the other party of its intention not to renew at least ninety days prior to the expiration of any term of this Agreement.
3.2 The Customer shall pay to Amtec in advance a service charge being the relevant sum or sums specified in the Particulars for the Maintenance Period or, if the Maintenance Period is over 12 months, for the first year of the Maintenance Period.
3.3 Unless otherwise stated in the Particulars, each complete year of this Agreement shall constitute a new period. Not less than 30 days prior to the commencement of a new period Amtec shall advise the Customer of the price, cover and equipment covered for that new period.
3.4 Save for changes made in accordance with clause 3.3 above, changes to this Agreement shall be valid only if agreed in writing by both parties.
4. Amtec’s Responsibilities
4.1 The Service to be provided by Amtec shall be as defined in the Schedule.
4.2 Following a request by the Customer for Service Amtec shall subject to any circumstances beyond its control:
4.2.1 confirm by telephone that the Customer has carried out the procedures necessary to establish that the fault is not external to the Equipment, and if necessary to determine the exact nature of the reported fault and carry out any remedial action required;
4.2.2 interrogate the system via remote access where practicable, and perform diagnostic routines;
4.2.3 attend the Customer’s site and repair or replace the defective Equipment if necessary.
4.3 The Response Time shall be as specified in the Schedule.
4.4 Amtec shall make no charge for labour, materials, carriage or other costs relating to the repair or replacement of the Equipment other than the Annual Service Charge under this Agreement, subject to the provisions of clause 6 below. All replaced parts or units shall be removed and shall become the property of Amtec. Any parts that are replaced but that cannot be removed from site will be charged to the customer.
4.5 In the event of a fault being reported to Amtec which is found to be not present or external to the Equipment, then Amtec reserves the right to make a call-out charge at its then current service rates.
4.6 Amtec shall ensure that its employees agents and subcontractors conform to all reasonable security, safety and works regulations and such reasonable local instructions as may be notified by the Customer whilst on the Customer's site.
5. Customer’s Responsibilities
5.1 The Customer shall pay all sums due as mentioned in clause 6.
5.2 Immediately on reporting a fault the Customer shall supply the contract number for which the service is being requested.
5.3 On arrival of the service engineer at the Customer's site, the Customer shall:
5.3.1 provide free access to the Equipment and shall provide such reasonable facilities for the repair as are required by the service engineer. Such facilities shall include, but are not limited to, access to and use for testing purposes of the Equipment; and
5.3.2 make available a representative of the Customer familiar with the use of the Equipment to be present at the site at all times whilst the Service is being performed.
5.4 The Customer shall not permit any person other than Amtec personnel or persons authorised by Amtec for the purpose to attempt to alter, modify, repair or change the Equipment in any way. Amtec reserves the right both to terminate the Agreement in accordance with clause 3.4 and to charge its then current rates to remedy any alterations, remedies, repairs or changes to the Equipment required to restore the Equipment to its original state prior to the unauthorised modifications.
5.5 If the Equipment is designed or intended for use in a static position and such position is changed by the Customer without prior consent in writing of Amtec (regardless of the distance moved, however small) the Service may in Amtec’s sole discretion be suspended until the Equipment in its changed position has been checked by Amtec and declared by it to be in good working order. The Customer shall inform Amtec of any change in location of the Equipment following which Amtec reserves the right forthwith at its absolute discretion to discontinue Service.
5.6 The Customer shall take all reasonable precautions to ensure the health and safety of Amtec personnel whilst on the Customer’s premises.
5.7 The Equipment must be installed and maintained in a clean Information Technology type environment where the operating temperature is in the range of 5 to 20 degrees centigrade with a humidity less than 80% non condensing. The area must be dust free, dry and not subject to excess vibration or electrical interference, power failures or any other environmental condition likely to cause damage or prejudice the performance of the Equipment. In the event of failure by the Customer to comply with these requirements (and any others notified by Amtec from time to time) Amtec shall be entitled to determine that the Service required is not covered by this Agreement and to charge for the Service at Amtec's then current service rates.
5.8 The Customer shall ensure that all requests for Service are made by authorised personnel and shall provide Amtec with a list of the names of authorised personnel and shall notify Amtec of any changes from time to time.
5.9 The Customer shall be responsible for arranging and installing adequate virus protection software, for obtaining timely updates and for notifying Amtec of such installation and changes from time to time in the configuration or protection obtained. Upon receipt of sufficient notification, Amtec shall use its reasonable endeavours to ensure that the software it will supply is compliant with such virus protection software, but no warranty is given in this regard. In particular, no guarantee can be given that any software supplied by Amtec shall remain compliant with later or different versions of virus protection software which the Customer may obtain. Any costs incurred by Amtec in procuring compliance with the Customer’s software, virus protection software or additional hardware shall be paid by the Customer at Amtec’s then current rates.
6. Prices and Payment
6.1 The Annual Service Charge will be invoiced in advance and shall be payable by the Customer prior to the Agreement commencement and anniversary dates.
6.2 The Customer acknowledges that Amtec is under no obligation to attend if the Service has not been paid for.
6.3 The Customer shall pay for any services performed by Amtec which are not covered by this Agreement at Amtec’s then current service rates within 30 days of invoice both for labour and materials.
6.4 The Customer will be responsible for Value Added Tax on all invoices rendered by Amtec.
7. Exclusions and Limitation of Liability
7.1 Amtec shall have no obligations under this Agreement and the Customer shall fully indemnify Amtec against all losses incurred by Amtec in respect of:
7.1.1 any faults arising from installation which has not been carried out by Amtec or its appointed representative;
7.1.2 any equipment or software which has not been supplied by Amtec or its appointed representative, including for the avoidance of doubt any interruption of service caused by such equipment, software, viruses, or virus protection software;
7.1.3 any Equipment which was defective prior to the effective date of this Agreement;
7.1.4 any Equipment which in the view of Amtec has been subject to unreasonable environmental conditions whether involving any extremes of temperature dust humidity or otherwise or to other unreasonable physical or electrical stress;
7.1.5 any Equipment which in the view of Amtec is located in a place where the working conditions for its personnel are unreasonably unpleasant;
7.1.6 any faults arising from misuse, accident or negligence by the Customer or any other party;
7.1.7 fair wear and tear;
7.1.8 System reconfiguration and/or management; or
7.1.9 any other liability except as expressly provided herein.
7.2 Amtec shall not be liable to the Customer or any third party for any direct or indirect or incidental physical economic or consequential loss or damage including, without limitation, loss of revenue, damages for loss or interruption of service or loss of data or costs incurred arising out of or related to the service provided for in this Agreement (including cost of procurement of a substitute Service) even if Amtec or its servant or agent had knowledge of the possibility or the likelihood of such loss or damages PROVIDED that nothing in this Agreement shall limit Amtec’s liability in negligence for death or personal injury.
7.3 Any liability of Amtec to the Customer for any claim or claims whatsoever related to the Equipment or the services provided under this Agreement in respect of a particular site whether in contract in tort or otherwise shall not exceed in total the amount actually received by Amtec on account of the annual service charge under this Agreement in respect of that particular Customer’s site to which such claim or claims relate.
7.4 Amtec shall not be liable for any call-out charges incurred by the Customer to a third party.
7.5 Amtec reserves the right to refuse to service any Equipment which is more than eight years old.
7.6 Amtec are not responsible for hardware or engineering replacement costs for consumables including but not limited to; batteries, cache batteries, battery modules.
8.1 Each party shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by notice to the other if the other:
8.1.1 is in material or persistent breach of any of its or its obligations under this Agreement and either that breach is incapable of remedy or it shall have failed to remedy that breach within 90 days after receiving written notice requiring it to do so; or
8.1.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986); or becomes insolvent; or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets; or enters into or proposes any composition or arrangement with its creditors generally; or is subject to any analogous event or proceeding in any applicable jurisdiction.
8.2 Amtec shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by notice
to the Customer, if the Customer:
8.2.1 sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or
8.2.2 disputes the ownership or validity of Amtec’s intellectual property rights.
9. Force Majeure
Amtec shall not be liable to the Customer for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion.
10. Assignment and Sub-Contracting
10.1 The Customer may not assign, sub-license, sub-contract, mortgage or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Amtec.
10.2 Amtec may sub-contract any of its obligations under this Agreement without notice to the Customer provided that it shall remain liable to the Customer for the performance of all such obligations.
11. Confidentiality and Publicity
11.1 The Customer agrees and undertakes that during the term of this Agreement and thereafter it will keep confidential all, and will not use for its own purposes nor without the prior written consent of Amtec disclose to any third party any, information of a confidential nature (including trade secrets and information of commercial value and the technical details of the code in the Software or any of it, and the content of any training) which may become known to the Customer in the course of the Services (“Confidential Information”) unless such information is public knowledge or already known to the Customer at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of the Customer from a third party.
11.2 For the avoidance of doubt, nothing in this Agreement shall prevent Amtec fromreferring in its literature, website and advertising and marketing material or elsewhere to the fact that Amtec supplied the Services, and including details.
11.3 The provisions of this clause 11 shall remain in full force and effect notwithstanding any termination of this Agreement.
12.1 The Customer shall not either on his own account or in conjunction with or on behalf of any person, firm or company and whether directly or indirectly invite solicit or induce any officer, employee, agent or contractor of Amtec involved with any of the Services to terminate their employment or engagement with Amtec, or attempt to do so.
12.2 The restriction in clause 12.1 shall continue in force during the continuance of the Services, supply of Goods, or licence of any intellectual property rights under this Agreement (whichever is the longer) and for a period of six months thereafter.
12.3 The Customer:
12.3.1 agrees that its obligations arising pursuant to clause 12.1 and 12.2 are separate and severable; and
12.3.2 acknowledges that, while such obligations are considered by the Customer to be reasonable in all the circumstances as at the date of the contract under this Agreement, they may by their nature become invalid because of changing circumstances or other unforeseen reasons; and
12.3.3 agrees that if any of the obligations arising pursuant to clauses 12.1 and/or 12.2 shall be judged to be void or ineffective for whatever reason but would be judged to be valid and effective if part of the wording of the relevant undertaking were amended to reduce the extent of the obligation, the relevant obligation shall apply with such modifications as may be necessary to make it valid and effective.
12.4 The obligations under this clause 12 shall survive the expiry or the termination of this Agreement for whatever reason.
13.1 By placing an order with Amtec, the Customer is expressly waiving any printed terms the Customer may have to the extent that they are inconsistent with this Agreement.
13.2 No forbearance or delay by either party in enforcing its rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced.
Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
16. Third Party Rights
No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.
Notices (regarding, for example, termination of or claims under these Terms) shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement. Notices may be sent by first-class mail or facsimile or electronic mail transmission provided that facsimile and electronic mail transmissions are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed facsimile transmissions shall be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above. Unless stated otherwise, the provisions of this clause 17 shall not apply to day-to-day communications relating to the performance of the Service.
18. Entire Agreement
18.1 This Agreement and the documents annexed hereto or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
18.2 All brochures, catalogues and other promotional materials are to be treated as illustrative only. Their contents form no part of any contract between Amtec and the Customer should not rely on them in entering into any contract with Amtec. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Amtec shall be subject to correction without any liability on the part of Amtec.
18.3 Amtec's employees or agents are not authorised to make any representations concerning the Goods and/or Software unless confirmed by Amtec in writing. In entering into this Agreement the Customer acknowledges that it does not rely on, and irrevocably waives any claim it may have for damages for or right to rescind this Agreement for any such representations which are not so confirmed (unless such representations were fraudulently made).
18.4 Any advice or recommendation given by Amtec or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods and/or Software which is not confirmed in writing by Amtec is followed or acted upon entirely at the Customer's own risk and, accordingly, Amtec shall not be liable for any such advice or recommendation which is not so confirmed.
18.5 Nothing in this Agreement affects or limits Amtec’s liability for fraudulent misrepresentation.
19. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.
Details of On Site Support/Maintenance
1. Amtec will perform routine preventative maintenance checks and carry out adjustments as necessary to the Equipment periodically either as:
1.1 stipulated for each item of Equipment in the Particulars, or
1.2 simultaneously with a call made by Amtec pursuant to paragraph 2 of this Schedule at the discretion of Amtec; or
1.3 determined appropriate by Amtec.
2. Amtec will provide an on-call service for the repair of faults in the Equipment between the hours defined in the Particulars (hereinafter called “stipulated hours”) and will respond to calls by the Customer within those hours.
3. The Customer agrees that Amtec may carry out the Services outside the stipulated hours upon Equipment which is not required for the Customer’s operational purposes.
4. Amtec may (with agreement of the Customer) decide that full laboratory recalibration of the Equipment is appropriate (which should not occur more than once a year) and Amtec may remove the Equipment in question from the Customer’s site for such purposes for a period not normally exceeding 10 (ten) days.
5. Amtec may (with agreement of the Customer) decide that major repair of the Equipment is appropriate and remove the Equipment from the Customer’s site. For such major repair Amtec shall be responsible for the temporary loan of a system and the cost of transport and insurance incurred in the removal and return of the Equipment pursuant to paragraphs 4 and 5 of this Schedule (subject to clause 7 of this Agreement).
6. The duty of Amtec to maintain the Equipment under this Agreement may at the option of Amtec be suspended in regard to any item of the Equipment or part thereof in need of recalibration or major repair which Amtec wishes to remove in accordance with paragraphs 4 and 5 of this Schedule until the particular item of Equipment or part thereof is so removed.
7. Amtec will at its own expense replace whenever necessary any parts of the Equipment which are faulty provided that:
7.1 in the case of those parts having a limited operational life expectancy as set out in the Particulars the relevant life expectancy has not expired since the part was supplied or installed, or
7.2 the part is not a non-maintainable part which parts are set out in the Particulars.
Upon Amtec replacing parts not in the circumstances of paragraphs 7.1 and 7.2 above, the Customer will pay to Amtec a charge in consideration thereof together with the cost of the part, upon demand.
8. The parties agree that all parts changed (whether at the expense of Amtec or the Customer) which themselves have a limited life expectancy shall be recorded in writing (on the Particulars where possible) which records shall be signed by or on behalf of Amtec and the Customer failing which the replaced parts shall not be covered by the provisions of this Agreement.
9. Customer expressly acknowledges that Amtec is under no responsibility to carry our major comprehensive overhauls of the Equipment and any such overhaul is the responsibility of the Customer and will only be carried out by Amtec subject to separate negotiation and agreement.
10. Amtec Accredited Maintenance for Sun product: Definition is, third party Sun maintenance/support by an independent maintenance provider with qualified engineers across the range of Unix client technologies.
11. Hardware modifications may include changes required to correct deficiencies or provide minor enhancements. No new feature or functionality upgrades will be included. Amtec will install appropriate hardware maintenance releases sufficient to remedy a fault but not to provide improvement by upgrade.
12. In the event of an upgrade or enhancement being required on-site this will be charged at the current time and material rates charged by Amtec with a four hour minimum charge for labour and any extra software or hardware as quoted.