Maintenance & Systems Support Terms and Conditions Terms of Reference
This Agreement is made between Apex Computing Services Limited referred to as “the Company” and the Customer, hereinafter referred to as the “the Customer”.
For the purposes of this agreement a system may comprise the operating system software and the hardware server platform on which operates and may also include peripheral database software systems, data back-up subsystems, attached network storage devices, local area network infrastructure, wide area network infrastructure, web servers, firewalls etc.
The System Software may comprise the operating system software, the database software, the back-up software, the firewall software etc.
The System Hardware may comprise the file server, the application server, the firewall hardware, the local area network hardware, the data storage hardware, the data back-up hardware, the wide area network hardware etc.
The Support provided may apply to only the System Software or the System Hardware or any combination of the System Software and System Hardware but will not apply to consumable items.
- 1. The Company will provide maintenance service to the Customer normally between 09:00 and 17:00 Monday to Friday excluding public holidays however this may vary at the behest of the company to benefit from low office traffic. The service provided under the terms of this contract does not ensure the uninterrupted operation of the equipment.
- 2. Upon receipt of a request for assistance, the Company will implement their support system. This may comprise telephone support and or dial up support utilising remote access and diagnostics which may be used if this system is installed and or on-site assistance, dependent on the level of support requested. The Company shall use its reasonable endeavours to respond between the hours (09:00 – 17:00 Monday to Friday) of a request and will have absolute right to select the method of delivery of assistance.
- 3. The Customer may have arrange the Company to render maintenance services to keep the equipment in, or restore the equipment both System Hardware and System Software to good working order. The maintenance service may include unscheduled, on-call remedial maintenance.
- 4. Any service requested by the Customer outside the hours detailed in paragraph 1.1 shall be provided by the Company on a reasonable endeavours basis. Any charge for such service will be made in accordance with the rates agreed.
- 5. Requests for maintenance service under this contract cannot be made where:
1) There is a failure by the Customer to incorporate any relevant system fix, mend, repair, patch or modification which may have been provided by the Company with reasonable notice and with adequate definition of status and purpose;
2) Unreasonable failure by the Customer to use currently supported version of the System Software;
3) Failure by the Customer to take any specified avoidance action previously agreed with the Company;
4) If the System is used in a substantially different way from that agreed;
5) When any System malfunction is not attributable solely to the Company’s supplied and supported software;
6) Any acts or omissions of third parties who are not the Company employees, agents or sub-contractors.
- 6. You as the customer shall back up all data stored in the products to be repaired and remove any removable media, such as diskettes, CDs, DVDs, USB Drives or PC Cards before returning or submitting the products for repair or replacement or requesting support. We will always endeavour to safeguard data where possible but we do not accept any liability for data or software which is lost, corrupted, deleted or altered during repair on or offsite.
Customers accept full responsibility for customer software and data – we endeavour to but are not required to advise or remind customers of appropriate backup and other procedures. We will not be liable for any damage caused to other equipment or by goods supplied.
We do not accept responsibility for any damage resulting from viruses or other malicious pieces of software that may have been transmitted during servicing or escaped detection. We have permission from the customer to replace assemblies or components with devices of similar, or better, design and capability. You, the customer understands and accepts that some applications may no longer work properly after a repair, due to the installation of different hardware or software.
- 1. Tasks completed are charged at our specified hourly rate between 0900 to 1700 hours Monday to Friday. Additional hours used during these hours are charged at the same hourly rate. Our hourly rate is charged at time and a half where the service is delivered between the hours of 17:00 to 09:00 Monday to Friday and at weekends including bank holidays and other statutory holidays.
- 2. Our hourly charges will be reviewed annually and the Company will provide the Customer with notification of any increase at least 30 days before the contract renewal date. Any revision of the hourly rates charges shall not become effective until the Customer has agreed them in writing. In the event that no agreement is reached our support will be deemed to terminate at the renewal date with no obligation on either party.
3.0 Care and Use
- 1. The Customer undertakes to provide correct power supply and environmental conditions recommended by the manufacturer or the Company.
- 2. The Customer shall carry out any minor maintenance stipulated, or instructions given by the Company, from time to time and to operate any supplied 3rd party applications in accordance with the manufacturers handbook.
- 3. It is the responsibility of the Customer to ensure that all of its files are adequately duplicated and documented upon acceptance of the system. The Company cannot be held responsible for the loss of or reconstruction of data files lost during performance of the maintenance service.
3.4.1 Indemnity and Insurance
- The Company shall indemnify and keep indemnified the Customer against injury (including death) to any persons or loss of or damage to any property which may arise out of the act, default or negligence of the Company, a Sub-Contractor, their employees or agents in consequence of the Company obligations under the Contract and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.
- The Customer shall indemnify and keep indemnified the Company for the duration of the Contract against injury (including death) to any persons or loss of or damage to any property which may arise out of the act, default or negligence of the Customer or any contractor employed by the Customer (other than the Company or a Sub-Contractor) and against all claims, demands, proceedings, damages, costs charges and expenses whatsoever in respect thereof or in relation thereto.
- Without thereby limiting its responsibilities under Sub-Clause 188.8.131.52 The Company shall insure with a reputable insurance company against all loss of and damage to property and injury to persons (including death) arising out of or in consequence of its obligations under the Contract and against all actions, claims, demands, costs and expenses in respect thereof, save only as is set out in the exceptions in Sub-Clause 184.108.40.206 and clause 3.4.2.
- The liability of the parties under Sub-Clause 220.127.116.11 and 18.104.22.168 as appropriate, shall exclude damage or injury (other than injury including death resulting from negligence) consequent upon design, formula, specification or advice. Except in respect of injury, including death to a person due to negligence for which no limit applies, the liability 22.214.171.124 and 126.96.36.199 as appropriate shall not exceed £1,000,000. This sum shall be the total sum in respect of both these conditions and the conditions for the maintenance of the software.
3.4.2 Consequential Loss
- Save as expressly stated elsewhere in the Contract neither party shall be liable to the other for consequential loss or damage.
- 5 The Customer shall give full access to the equipment to enable the Company to provide the maintenance service.
- 6 The service covers equipment breakdown or malfunction, but not damage caused accidentally, deliberately or through any unauthorised attempt at repair or rectification of a hardware fault, unless such damage shall have been caused by, or on the instruction or, the Company or its Agents.
- 7 The Company, its employees, agents or sub-contractors, shall adhere to any reasonable rules and procedures in respect of codes of conduct, security and health and safety practices notified to the Company by the Customer whilst on the Customer or its Clients premises and to statutory Health and Safety Regulations.
- 1. The Customer can stop using our services at any time.
- 2. The Company may terminate support at any time.
- 1. Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees) insurrection or riots, embargoes, container shortage, wrecks or delays in transportation, inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an ‘Event of Force Majeure’)
- 2. The foregoing terms shall form the entire Maintenance Agreement between the parties. Any modifications to the contract would be by verbal negotiation, then confirmed by written agreement between the Company and the Customer of which a separate document will be issued with the agreed detail changes to the support contract.
- 3. The Customer shall treat as confidential all information obtained from the Company pursuant to this agreement and shall not divulge such information to any person (except to the Customer’s own employees and then only to those employees who need to know same) without the Company’s prior written consent. The Company and any agent of the Company shall treat as confidential all information obtained from the Customer pursuant to this agreement and shall not divulge such information to any person (except to the Company’s own employees and then only to those employees who need to know the same) or use such information in any fashion, without the prior written consent of the Customer.
- 4. Insolvency and Bankruptcy
5.4.1. If the Company shall become insolvent or bankrupt or have a receiving order or administration order made against it or compound with its creditors or being a corporation commence to be wound up not being a members’ voluntary winding up for the purpose or reconstruction or amalgamation, or carry on its business under an administrator or administrative receiver for the benefit of its creditors or any of them, the Customer shall be at liberty to terminate the Contract forthwith by notice in writing to the Company or to the administrative receiver or administrator or liquidator or to any person in whom the Contract may become vested or to give such administrative receiver, administrator, liquidator or other person the option of carrying out the Contract subject to his providing a guarantee for the due and faithful performance of the Contract up to any amount to be agreed. In the event of termination under this Sub-Clause the Customer shall have the right, by prior notice to the Company, to enter its premises for the purpose only of removal of any items of equipment or materials which are clearly marked as being the property of the Customer.
5.4.2. If the Customer shall become insolvent or bankrupt or have a receiving order or administration order made against it or compound with its creditors or being a corporation commence to be wound up not being a members’ voluntary winding up for the purpose of reconstruction or amalgamation, or carry on its business under an administrator or administrative receiver for the benefit of its creditors or any of them, the Company shall be at liberty to terminate the Contract forthwith by notice in writing to the Customer or to the administrative receiver or administrative person in whom the Contract may become vested. In the event of termination under this Sub-Clause the Company shall have the right, by prior notice to the Customer, to enter the Premises for the purpose only of removal of any items of equipment or materials which are clearly marked as being the property of the Company. The exercise of rights under this Clause shall be without prejudice to any rights or obligations of either party.
- 5. Arbitration
5.5.1) Any dispute or difference which may arise between the Customer and the Company in connection with arising out of the contract may, by agreement of both parties, be resolved by arbitration in which event, such dispute or difference shall be referred to a single arbitrator to be agreed between the Customer and the Company.
- 6. Law
5.6.1) Unless otherwise agreed in writing between the parties, the Contract shall be subject to and construed and interpreted in accordance with English Law and shall be subject to the jurisdiction of the Courts of England.
- 7. Contractors Default
1 ) If the Company shall fail to provide the Service or any part thereof with due diligence and expedition, or shall refuse or fail to comply with any reasonable order given to it in writing by the Customer in connection with such default, or shall contravene any provisions of the Contract, the Customer may immediately give notice in writing to the Company to make good such failure or contravention.
2) Should the Company fail to comply with the notice referred to in Sub-Clause (1) either within seven days from receipt of such notice of failure or contravention capable of being made good within that time, or otherwise within such time as may be reasonably necessary for making it good, then without prejudice to any other right it may have under the Contract the Customer may, subject to prior notification to the Company, terminate the Contract forthwith.
6.0 Payment Terms
- 1. Any work completed will be invoiced and be due by the date stated on the invoice.
- 2. Invoices must be paid as per the terms stated on the invoice.
- 3. We reserve the right to suspend our services if payment of any fees is overdue by more than 7 days.
- 4. We reserve the right to charge an administration fee for chasing consistently overdue invoices.
- 5. We reserve the right to charge interest on late paid invoices at the rate of 8% above bank base rates under the Late Payment of Commercial Debts (Interest) Act 1998. We intend to exercise these rights only where it is fair and reasonable to do so.
- 6. Payments of any outstanding invoices will ultimately be the responsibility of the business owners for all sole trades and partnerships. For limited companies and LLP’s this responsibility will fall on the directors who will ultimately be personally, jointly and severally liable.