Remark Group – Maintenance Agreement

1. INTERPRETATION
1.1. The following definitions and rules of interpretation apply in these terms and conditions:
Conditions: these terms and Conditions.
Contract: any contract between Remark Group and the Customer for the provision of the Maintenance Service, incorporating these terms and conditions.
Contracted Hours: 0830 to 1700 Monday to Friday excluding public Bank Holidays in England.
Customer: the person, firm or company who purchases the Maintenance Service from Remark Group.
Equipment: any equipment supplied by Remark Group (including any part or parts of it).
Extended Maintenance Period: a period of one year.
Extended Working Hours: includes evenings, weekends and public Bank Holidays in England.
Initial Maintenance Period: a fixed period of three years commencing on the date of this Contract or such other date as may be specified in writing in the Contract.
Maintenance Service: the technical support, fixes and updates to the Equipment provided by Remark Group as set out in condition 3 of these conditions.
Major Fault: Where more than 80% of the Equipment is unusable or where all incoming lines or operator consoles are inactive.
Minor Fault: Where less than 20% of the Equipment is affected and the Customer is able to make, take and transfer calls.
Premises: the address where the Equipment is located.
Price: the price payable by the Customer to Remark Group for the Maintenance Service set out in the Contract.
Remark Group: a business whose address is at Lake Ridge, 4 Flaxley Road, Kingston Park, Peterborough, Cambridgeshire, PE2 9FT.
1.2. A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3. Words in the singular include the plural and in the plural include the singular.
1.4. A reference to one gender includes a reference to the other gender.
1.5. Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1. The order constitutes an offer by the Customer to purchase Services in accordance with the Contract and these Conditions.
2.2. The order shall only be deemed to be accepted when Remark issues written acceptance if the order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Subject to variation under condition 2.4 these Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4. These terms and conditions apply to all services provided by Remark Group and any variation to these conditions and any representations about the Maintenance Service shall have no effect unless expressly agreed in writing and signed by an authorised representative of Remark Group.
2.5. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Remark Group which is not set out in the Contract. Nothing in this condition shall exclude or limit Remark Group’s liability for fraudulent misrepresentation.
3. MAINTENANCE SERVICE
3.1. Remark Group shall provide the Maintenance Service to the Customer for the Initial Maintenance Period during Normal Working Hours (or Extended Working Hours if agreed between Remark Group and the Customer in writing) at the Premises.
3.2. The term Maintenance Service shall include:
3.2.1. all cabinets, cards and system terminals supplied or installed by Remark Group where failure is due to faulty parts or installation by a Remark Group engineer or goods not supplied or installed by Remark Group being subject to a site survey/acceptance;
3.2.2. all labour and travel costs associated with repair or replacement of parts supplied or installed by Remark Group;
3.2.3. all call out charges associated with repair or replacement of parts supplied or installed by Remark Group during Contracted Hours;
3.2.4. all remote diagnostics or system programming conducted by Remark Group during its Contracted Hours;
3.2.5. all carrier management analysis and associated programming, provided that the chosen carrier is an approved Remark Group supplier.
3.3. The term Maintenance Service shall exclude:
3.3.1. any services provided by Remark Group to the Customer in the Extended Working Hours;
3.3.2. components not supplied or installed by Remark Group, or accepted following Remark Group’s site survey;
3.3.3. accessories and analogue terminals outside of warranty period i.e. fax machines, answering machines CD players etc;
3.3.4. components damaged by accidental damage, vandalism, fire, water or external forces;
3.3.5. labour charges associated with above items or outside of Contracted Hours;
3.3.6. call out charges associated with above items or outside Contracted Hours;
3.3.7. parts and labour which are categorised as moves, changes or upgrades to the system; and
3.3.8. any programming, analysis, management or remedial work required as a result of action or inaction by a non-approved call carrier or reseller.
3.4. Remark Group shall use all reasonable endeavours to respond to a Major Fault via remote access within one hour of the Customer reporting the fault to Remark Group or by on-site visit within four working hours.
3.5. Remark Group shall use all reasonable endeavours to respond to a Minor Fault within sixteen working hours.
4. DURATION
4.1. This Contract shall come into force on the Commencement Date.
4.2. The Contract shall continue in force for the Initial Maintenance Period. At the end of the Initial Maintenance Period the Contract shall automatically be renewed for the Extended Maintenance Period unless terminated in writing by either party giving to the other not less than sixty days prior written notice.
5. PRICE
5.1. Unless otherwise agreed by Remark Group in writing, the Price for the Maintenance Service shall be the Price set out in the Contract.
5.2. Remark Group reserves the right to increase the Price in line with inflation or where the Customer changes to a non-approved carrier and any subsidy is lost or where necessary to compensate for exceptional rises in related costs by giving the Customer thirty day’s notice.
5.3. The Price for the Maintenance Service shall be exclusive of any value added tax.
6. PAYMENT
6.1. Subject to condition 5, payment of the price for the Maintenance Service is due in pounds sterling on the last working day of the month.
6.2. Time for payment shall be of the essence.
6.3. No payment shall be deemed to have been received until Remark Group has received cleared funds.
6.4. All payments payable to Remark Group under the Contract shall become due immediately on its termination despite any other provision.
6.5. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Remark Group to the Customer.
6.6. If the Customer fails to make any payment on the due date Remark Group may:
6.6.1. cancel the Contract;
6.6.2. charge the Customer interest on such sum from the due date for payment at the annual rate of 4 % above the base lending rate from time to time of Lloyds TSB Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7. CUSTOMER’S OBLIGATIONS
7.1. The Customer shall take good care of the Equipment and keep it in the environmental conditions recommended by the manufacturer.
7.2. The Customer shall use the Equipment only in accordance with the manufacturer’s instructions or as advised by Remark Group.
7.3. The Customer shall ensure that Remark Group and it’s representatives have full and free access to the Equipment and to any records of its use by the Customer.
7.4. The Customer shall use its best endeavours to ensure the health and safety of Remark Group and its representatives who visit the Premises. Where in the sole opinion of Remark Group such health and safety provision is inadequate Remark Group shall be entitled to suspend or cancel the Maintenance Service.
8. LIMITATION OF LIABILITY
8.1. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 13 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
8.2. Nothing in these conditions excludes or limits the liability of Remark Group:
8.2.1. for death or personal injury caused by Remark Group’s negligence; or
8.2.2. under section 2(3), Consumer Protection Act 1987; or
8.2.3. for any matter which it would be illegal for Remark Group to exclude or attempt to exclude its liability; or
8.2.4. for fraud or fraudulent misrepresentation.
8.3. Subject to conditions 8.1, 8.2 and 8.3:
8.3.1. Remark Group’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price; and
8.3.2. Remark Group shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract
9. CANCELLATION
Either party may cancel the Contract after the Initial Maintenance Period, by giving not less than three months’ notice in writing to the other.
10. ASSIGNMENT
10.1. Remark may assign the Contract or any part of it to any person, firm or company.
10.2. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Remark.
11. FORCE MAJEURE
Remark Group reserves the right to defer the Maintenance Service or to cancel the Contract (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Remark Group including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Customer shall be entitled to give notice in writing to Remark Group to terminate the Contract.
12. GENERAL
12.1. Assignment and other dealings
12.1.1. Remark may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.1.2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
12.2. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.3. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.4. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
12.5. Entire agreement.
12.5.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.5.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
12.6. Third parties rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.7. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
12.8. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
12.9. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
13. COMMUNICATIONS
Any notice required or permitted to be given by either party to the other under the Contract shall be in writing addressed to that other party (in the case of notices to Remark Group) its business address or such other address as may be notified by the Customer to Remark Gro