In this Agreement, unless the context otherwise requires, the following expressions have the following meaning:
|The Company:||BCAS Biomedical Services Ltd or its appointed subcontractor where specified in the Agreement.|
|Initial Term:||The agreed minimum period of the contract as specified within the Agreement.|
|Equipment:||The Equipment specified in the Schedule of Equipment and such additions and changes thereto as shall from time to time be agreed in writing between the parties.|
|The Customer:||The person, body, or company named within the Agreement who is the owner or authorised user of the Equipment.|
|Total Annual Cost:||The charge for the Maintenance Service to be provided in accordance with the Schedule of Cover and as specified in the Agreement.|
|The Agreement||The Service Agreement entered into between the Company and the Customer together with these Terms and Conditions.|
|Schedule of Cover:||The Company’s Service Agreement Schedule of Cover which is deemed incorporated in this Agreement and a copy of which has been supplied to the Customer.|
|Schedule of Equipment:||The Company’s Service Agreement Schedule of Equipment which is deemed incorporated in this Agreement and a copy of which has been supplied to the Customer.|
|Maintenance Hours:||The hours of service delivered as set out in the Service Agreement Schedule of Cover, which may be increased by a separate extended hours agreement if not included.|
|Maintenance Service:||The services to be provided by the Company in accordance with the Agreement as set out in Clause 2 below and as specified in the Service Agreement.|
|Commencement Date:||The date specified in the Service Agreement is the date on and from which maintenance cover becomes effective.|
|Location/Site:||The Customer’s premises in which the Equipment is installed.|
During the continuance of this Agreement, the Company shall provide the Maintenance Service set out in the Agreement and read in conjunction with the Schedule of Cover, on the terms set out herein. The following definitions apply for the various types of cover set out in the Schedule of Cover:
2.1Routine maintenance - the Company shall make visits during Maintenance Hours as specified in the Agreement to test, lubricate and/or calibrate the functions of the Equipment and make such adjustments as shall be necessary to keep the Equipment in good working order. If it is expedient in the opinion of the Company, such maintenance may be carried out at the time of corrective maintenance.
2.2Corrective maintenance - Upon receipt of notification from the Customer that the Equipment has failed or is malfunctioning the Company shall, during Maintenance Hours, make such repairs, adjustments and replace such parts of the Equipment as may be necessary to restore the Equipment to its proper operating condition subject to available resources. The type of cover agreed determines whether corrective maintenance includes emergency visits to the Location and/or labour and/or material costs of any repair which is necessary.
2.3Response Time - On receipt of a request for corrective maintenance the Company undertakes to use its reasonable endeavours, where in the opinion of the Company on-site attention is required, to dispatch a suitably qualified Service Technician to the site within 8 Maintenance Hours or within the agreed response time, but such response time is an estimate and shall not be binding on the Company.
2.4All notifications of defects 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 manner as the Company may reasonably require from time to time.
2.5The Company shall ensure that its representatives comply with all safety and security procedures and regulations in force at the Customer’s premises, which is the responsibility of the Customer to bring to the attention of such representatives.
3.1In consideration of the Maintenance Services, the Customer shall pay the Total Annual Cost in advance as specified in the Agreement. This must be received within 7 calendar days prior to commencement of the Agreement. No payment shall be considered made until it is received by the Company. All payments shall be made in the manner specified in the Agreement.
3.2Charges per visit and any other charges apart from the Total Annual Cost will be invoiced upon completion of the task or supply of parts and are payable by the Customer within 30 days of the Invoice date.
3.3Any queries or any dispute regarding an Invoice submitted by the Company must be addressed by the Customer to the Company to the contact details stated on the Invoice within 14 days of the date of the relevant Invoice failing which the Invoice will be deemed accepted by the Customer and that there is no basis for dispute and/or non-payment by the Customer and the Invoice is automatically agreed.
3.4In the case of a query or dispute regarding an Invoice, the Customer shall pay the undisputed part of the account on the appropriate due date notwithstanding the query or dispute.
3.5The Company shall be entitled to increase the premium and/or charge per visit at any time, and from time to time, after the expiry of the period of one year after the Commencement Date to accord with any change in the Company’s standard scale of charges. Any such general increase in the Company’s standard charges will be determined by movement in the average earnings index for Electrical, Electronic & Instrument Engineering as compiled by the UK Central Statistical Office or if such index has been discontinued, such other similar index as may be published officially. Other charges relating to specific model types may be changed as a direct result in material costs affecting the cost of replacement parts.
3.6The manner of implementing the increase in charges referred to in Clause 3.5 shall be:
3.6.1not less than one month before the date of proposed increase in charges the Company shall send to the Customer written notification of the Company’s offer of revised prices as referred to in Clause 3.5
3.6.2in the written notification referred to in Clause 3.6.1 the Company shall invite the Customer to reject the offer, should he so wish, within 14 days.
3.6.3in the event of no rejection being received by the Company from the Customer within the 14 day period referred to in Clause 3.6.2 the offer shall be deemed accepted and the increase in charges is thereby automatically agreed for such period as shall be expressly stated in the written notification referred to in Clause 3.6.1.
3.7Charges are exclusive of VAT, which shall be paid by the Customer at the rate in force at the date of Invoice and in the manner for the time being prescribed by law.
3.8The Company reserves the right at all times to vary the terms and conditions of this Agreement and to suspend or withdraw cover or amend the terms on which cover is offered if any part of the Equipment is moved to another Location or Site or there is any major change in use of any part of the Equipment.
3.9In the event that payment is not made of any sums owed, statutory interest will accrue at 8% above the Bank of England reference rate in force on the date the debt becomes overdue, and at any subsequent rate where the reference rate changes and the debt remains unpaid, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002. Such interest is chargeable throughout the period of non-payment from the due date until payment is made to the Company.
3.10The Company reserves the right to charge the Customer fixed costs in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and costs in accordance with the Late Payment of Commercial Debts Regulations 2002 in the event of non-payment of the Total Annual Cost or any other charges due in accordance with Clauses 3.1 and 3.2 and under the Agreement.
4.1The Maintenance Services exclude any maintenance of the Equipment which is necessitated in the Company’s opinion as a result of any cause other than fair wear and tear or the Company’s neglect or fault and to include but not be limited to:
4.1.1failure or fluctuation of electric power, air conditioning and humidity control, vibration or other environmental conditions.
4.1.2the neglect or fault of the Customer or any third party.
4.1.3any fault in any attachments or associated equipment (whether supplied by the Company or not) which do not form part of the Equipment including any equipment belonging to the Customer.
4.1.4Act of God, fire, lightning, flood, ingress of foreign material affecting the functionality of the Equipment.
4.1.5events of Force Majeure and extending to circumstances beyond the reasonable control of the Company.
4.2The Company will (subject to available resources) at the request and expense of the Customer investigate the cause of any defect or malfunction and repair or replace any part of the Equipment which has failed due to an excepted cause subject to the Customer accepting the Company’s quotation for all costs incurred prior to the commencement of work.
4.3The Maintenance Services do not cover:
4.3.1Repair or renewal of tapes, disk pads, printing ribbons, thermal print heads, batteries, accessories or other consumable parts.
4.3.2Electrical or other environmental work external to the Equipment.
4.3.3Maintenance of any attachments or associated equipment (whether supplied by the Company or not) which do not form part of the Equipment including any equipment belonging to the Customer.
4.3.4Software modifications and upgrades.
4.3.5Verification of Electrical Safety on installed electrical equipment which is deemed to form part of the building and its supplies.
4.3.6Defects or malfunctions arisen as a result of transportation or relocation of the Equipment not performed by or on behalf of the Company.
4.3.7Defects or malfunctions of the Equipment following any modification, adjustment or repair to the Equipment made by a third party without the written consent of the Company.
5.1Any replacement parts provided by the Company hereunder become part of the Equipment and the property of the Customer. Parts removed from the Equipment shall become the property of the Company.
5.2Provisions of this Agreement shall apply to all replacement and renewals of any part or parts of the Equipment made by the Company during the continuance of this Agreement.
OUT OF CONTRACT WORK
The Company may make an additional charge in accordance with its standard charge for the time being in force, for additional work not covered under the Agreement and:
6.1made at the request of the Customer by reason of any fault in the Equipment due to excepted causes.
6.2made at the request of the Customer but which the Company in its reasonable discretion deems frivolous or unnecessary.
The Agreement shall commence on the Commencement Date and subject to earlier termination as provided in Clause 12 hereof shall continue for not less than the initial term and shall continue thereafter on a year to year basis unless terminated by either party giving to the other written notice of termination not less than three months prior to the renewal date or such other written notice period as agreed and specified in the Service Agreement.
During the continuance of this Agreement the Customer shall:
8.1Ensure that proper environmental conditions are maintained for the Equipment and shall maintain, in good condition, the accommodation of the Equipment, the cables and fittings associated therewith and the electrical supply thereto.
8.2Not make any modifications to the Equipment without the Company’s or OEM’s written consent.
8.3Ensure that at all times the Equipment is used in a normal and proper manner and that the Equipment is only used by competent persons.
8.4Be responsible for the cleanliness of the Equipment and take any necessary action to prevent damage by water or other material which may adversely affect the condition and performance of the Equipment.
8.5Ensure that in no circumstances will the Equipment or any software be interfered with, or repaired, adjusted or maintained by anyone other than the agreed technicians during the operation of this Agreement.
8.6Only such consumable supplies provided by the OEM or such as the Company shall recommend are to be used on the Equipment.
8.7Provide or pay the cost of transport to and from the Company’s premises for all Equipment needing repair and or adjustment which cannot readily be carried in the Company’s normal service vehicle.
8.8Provide the Company with full and safe access to the Equipment for the purpose of this Agreement including adequate working space around the Equipment.
8.9Provide suitable lifting equipment together with unskilled assistance for lifting or moving heavy Equipment. Where Equipment has been removed, take all steps necessary to safeguard the site.
8.10Make available to the Company, free of charge, all facilities and services required by the Company to enable the Company to perform the Maintenance Services, including but not limited to the provision of such telecommunication facilities as are reasonably required by the Company for testing and diagnostic purposes.
8.11Make available to the Company such programs, operating manuals and information as may be necessary to enable the Company to perform its obligations hereunder and if requested by The Company provide staff familiar with The Customer’s programs and operations to co-operate with the Company’s personnel in the diagnosis of any malfunction of the Equipment.
8.12Notify the Company if any or all of the Equipment is moved to another Location or Site or if there are major changes in the use of the Equipment.
8.13The Customer shall advise the Company of any postponement or cancellation of a properly arranged maintenance visit and if so advised with one clear day’s notice then no charge will be made by the Company for postponement. Should the period of notice be less than one clear day’s notice then a charge may result which will be whichever is the greater of the actual cost incurred or a charge of four hours per engineer at the prevailing rate at the time when the visit was to take place.
9.1The Customer shall be entitled to purchase from the Company during the duration of the Agreement at 10% discount (or such other discount as agreed in writing between the parties) off the Company’s list price for the time being in force, any spare part or peripheral attachment on the Company’s price list the supply of which is not covered by the Agreement.
9.2If the Company has recommended to the Customer that particular spares or peripheral attachments should be held in stock by the Customer and such parts or attachments are not available when required (otherwise than due to the fault of the Company) the Company shall be entitled to charge the Customer for all additional expenses and costs incurred by the Company as a consequence of such non-availability.
10.1If the Equipment (or any part thereof) is or is to be connected to the Customer’s telecommunications network then the Customer shall be responsible for obtaining and keeping in force the necessary consent for such connection.
10.2If, after the date hereof, the Customer by exercise of any right it has so to do requires the Equipment to be modified as a condition of the Customer’s continued approval of the Equipment, then the Customer shall allow the Company to make such modifications at the Customer’s expense to the extent that the cost is not recoverable from the Customer.
10.3The Company shall not be liable under this Agreement for any delay, failure, breakdown, damage, loss or injury caused by any requirements of the Customer, and the Company does not warrant the continuation of the consent of the Customer to the connection of the Equipment to the Customer’s telecommunication network.
11.1Notwithstanding anything else contained herein, this Agreement may be terminated:
11.1.1By the Company serving notice on the Customer terminating the Agreement forthwith in the event that either the Customer fails to pay any sum due under the terms of this Agreement (or the appropriate part thereof if payable by instalments) on or before the due date, or in the event of failure by the Customer to remedy any breach of contract generally, in which case the Company shall be relieved from all obligations hereunder. In the absence of such notice the Agreement shall continue for its full term.
11.1.2By the Company forthwith on giving notice in writing to the Customer if any part or all of the Equipment can no longer be maintained in good working order by the provision of the 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 or both events has occurred the Company’s decision shall be final and binding on the Customer).
11.1.3By the Customer forthwith on giving notice in writing to the Company if all Equipment is lost, stolen or destroyed beyond economic repair provided that the Company is given the opportunity to repair or replace such equipment at no expense to the Company, or replaced with equipment purchased from the Company.
11.1.4By either party forthwith by written notice to the other if:
18.104.22.168an encumbrancer take possession or a receiver is appointed over of the property or assets of that other party;
22.214.171.124that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
126.96.36.199that other party goes into liquidation (except for the purposes of an amalgamation reconstruction or other reorganisations and in such manner that the company resulting from the reorganisations effectively agrees to be bound by or to assume the obligations imposed on that other party under this Agreement).
11.2Inclusion of any particular item of Equipment in this Agreement is subject to such item being found to be satisfactory on first inspection by the Company. By giving notice in writing to the Customer within 30 days of the first inspection/service of any such item, the Company may exclude the item from the Agreement. In such event, that part of any premium paid in respect of the excluded item will be refundable to the Customer.
11.3Early termination by the Customer before the expiry date of the initial term may in its discretion be accepted by the Company subject to the Customer paying a compensation charge equivalent to six months of the Total Annual Cost as at the time of termination.
11.4On termination of this Agreement the Company is relieved from all its obligations hereunder and the Customer remains obliged to pay all sums due to the date of termination including any charges for early termination.
11.5Any waiver by the Company of a breach of any provision of this Agreement shall not be considered as waiver of any subsequent breach of the same or any other provision.
11.6The 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.
12.1The Customer shall not be liable for any delay in performing any of its obligations hereunder (save payment of monies due) if such delay is caused by circumstances beyond the reasonable control of the Customer.
12.2The Company does not accept liability for delay, howsoever it arises.
12.3The Company will indemnify the Customer against direct damage or injury to the Customer’s property or person (to include it’s personnel) or that of others occurring while the Company’s personnel are working on the Site to the extent caused by the negligence of the Company, its sub-contractors or agents, but not otherwise, by making good such damage to property or compensating for personnel injured provided that the Company’s liability for damage to the Customer’s property (including damage caused by breach of contract, tort or breach of statutory duty) shall not exceed £100,000.
12.4Neither the Company nor its sub-contractors, their respective servants or agents, shall be liable to the Customer by way of indemnity or by reason of breach of contract or statutory duty or by reason of tort (including but not limited to negligence) for any loss of profit, loss of use, loss of production, loss of contracts, any financial or economic loss, any indirect or consequential loss or damage that may be suffered by the Customer or by any third party.
NATURE OF AGREEMENT
13.1This 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.
13.2This 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.
13.3Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of or relying on any representation, warranty or other provision except as otherwise expressly provided in the 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.
13.4If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, the other provisions of this Agreement and the remainder of the affected provisions shall continue to be valid.
This Agreement shall be governed by and construed in all respects in accordance with the laws of England and Wales. In the event of a dispute arising out of or relating to this Agreement, the parties shall first seek amicable settlement of that dispute by mediation between themselves. In the event that the dispute is not settled by mediation accordingly within 14 days or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration which is deemed to be incorporated by reference into this Clause. Any arbitration shall be administered by the LCIA with one arbitrator and the place of arbitration shall be in London. The language of arbitration proceedings shall be English.
CONTRACT (RIGHTS OF THE THIRD PARTIES) ACT 1999
Unless otherwise expressly stated, a person who is not a third party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
16.1Our policy is one of continuous development and we therefore reserve the right to change this document without notice.
16.2This version of Terms and Conditions supersedes any previous Version.