Definitions

Support Services

• The Company will provide the Customer with Support Services in respect of the Products on the following terms and conditions which shall constitute the entire support contract between the Company and the Customer.
• The Manufacturer will respond promptly to reasonable requests for Support Services and in accordance with the Support Agreement.

Exclusions from Support Services

• The Support Services will not extend to:
  • peripheral items and consumables; or
  • items which in the Company’s opinion can no longer be subject to economical maintenance; or
  • defects resulting, in the Manufacturer’s reasonable opinion, from misuse or neglect of or accident to the Products or failure to follow the instructions or advice of the Company or the Products’ manufacturer; or
  • visits in addition to those specified in the Support Agreement.

Support Charges

• Support Charges are payable [monthly] in advance on or before the Commencement Date.
• Additional Services (including emergency visits outside the hours specified in the Support Agreement and the cost of replacement parts not covered by a parts warranty given by the Company) will be the subject of extra charges reasonably demanded by the Company and payable in [30] days of the date of the Company’s invoice.
• The Company may:
  • adjust its Support Charges by giving written notice not later than [30] days before any anniversary of the Commencement Date; and
  • if the Customer does not pay the adjusted Support Charges on the due date terminate the contract immediately and without notice.
• The Customer’s charges are payable without any deductions or withholding of any kind but with the addition of VAT.

Customer’s obligations

• To facilitate the provision by the Company of Support Services the Customer shall:
  • keep and operate the Products in a proper and prudent manner and ensure that only competent trained employees are allowed to operate it;
  • use the Products in a suitable environment with proper power supplies and in accordance with instructions and advice of the Company and/or Products manufactured from time to time;
  • not move the Products or make any addition, modification or adjustment to it without the Company’s prior written consent;
  • maintain and make available to the Company records of the operation, maintenance and any malfunction of the Products;
  • provide at such times as the Company reasonably requires and at no cost to the Company all documentation, software, materials held by the Customer and services necessary for the maintenance and testing of the Products, access to the Products; and
  • provide the Company with full access to the Products within normal business hours.

Data Protection

• Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
• The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Provider is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Schedule 1 sets out the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
• Without prejudice to the generality of clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement.
• Without prejudice to the generality of clause 1, the Provider shall, in relation to any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:
  • process that Personal Data only on the written instructions of the Customer unless the Provider is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Provider to process Personal Data (Applicable Laws). Where the Provider is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Provider shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Customer;
  • ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
  • ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
  • not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
    • the Customer or the Provider has provided appropriate safeguards in relation to the transfer;
    • the data subject has enforceable rights and effective legal remedies;
    • the Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
    • the Provider complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
  • assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  • notify the Customer without undue delay on becoming aware of a Personal Data breach;
  • at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
  • maintain complete and accurate records and information to demonstrate its compliance with this clause 6.
• The Customer consents to the Provider appointing such necessary third-party processors as notified from time to time as third-party processors of Personal Data under this agreement. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 6. As between the Customer and the Provider, the Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6].
• Details of the Company’s processing of Personal Data are contained in the Company’s Privacy Notice which can be located on the Company’s website.
• Either party may, at any time on not less than 30 days’ notice, revise this clause 6 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

Liability

• The Company shall use its reasonable endeavours to keep the Products in efficient operating condition but shall have no liability at all for any loss or damage of any kind arising from any stoppage, breakdown or failure of the Products however occasioned and the Company agrees that in the event that they are unable to remedy an issue within [72] hours that the Support Charges shall be suspended until such time as the Products are operational.
• The Company shall have no liability for any damage to the Customer’s property except for death or personal injury occasioned by the Company’s negligence.
• Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation, whatsoever (whether caused by the negligence of the Customer, its employees or agents or otherwise) which arise out of or in connection with the Support Services or by the reliance on the Support Services, and the entire liability of the Company under or in connection with this Agreement shall not exceed the [20] times the [monthly] Support Charge, except as expressly provided in this Agreement.

Replacement parts

• Where the Company replaces any parts belonging to the Customer, during the performance of its obligation under this Agreement, such replacement parts shall be the property of the Customer.
• Any parts removed by the Company for replacement under the provision of the Support Services, shall become the property of the Company on their removal.

Force majeure

• If the performance of this agreement or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the party obliged to perform it, the party so affected (upon giving prompt notice to the other party) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use all its reasonable endeavours to avoid or remove the causes of non-performance and shall continue performance under this agreement with the utmost despatch whenever such causes are removed or diminished.

Commencement and term of Agreement

• This agreement starts on the Commencement Date and shall remain in force for the duration of the Agreement or until it is terminated on any anniversary after the [fifth] year of the Commencement Date by either party giving not less than [three (3)] months’ prior written notice to the other.

Termination

• Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this agreement and/or the Support Services with immediate effect by giving written notice to the other party if:
  • the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than [14] days after being notified in writing to make such payment;
  • the other party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of [30] days after being notified in writing to do so;
  • the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
  • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
  • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
  • the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
  • a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
  • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 1.4UPDATE FC to clause 11.1.10 (inclusive); or
  • the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
• For the purposes of clause 1.2UPDATE FC, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
• The Supplier may, without prejudice to its other rights or remedies, terminate this agreement immediately by notice to the Customer if the Customer:
  • undergoes a change of Control [which does not result in Control passing to a company that, immediately before the change in question, was an Affiliate of the Customer];
  • sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or
  • disputes the ownership or validity of the Supplier’s Intellectual Property Rights.

Effect of termination

• Other than as set out in this agreement, neither party shall have any further obligation to the other under this agreement after its termination.
• Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement, including clause 1, clause 6, clause 7shall remain in full force and effect.
• Termination of this agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
• Notwithstanding its obligations in this clause 12UPDATE FC, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
• On termination of this agreement for any reason, the Customer’s right to receive the Services shall cease automatically.

Assignment

• The Company reserves the right to assign this Agreement and to sub-contract all or any of its obligations.
• This agreement is personal to the Customer who may not without the Company’s prior written consent:
  • assign or dispose of it;
  • part with any interest in it; or
  • grant any lease or licence or charge or delegate any of the rights conferred by it.

Third party rights

• No person other than the Company, any person to whom the Company assigns this Agreement and the Customer shall acquire any enforceable rights under or in connection with this agreement.

No Partnership or Agency

• Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
• Each party confirms it is acting on its own behalf and not for the benefit of any other person.

Variation

• No variation or amendment of this agreement or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both parties.

Notices

• Any demand or notice given under this deed shall be in writing and may be served:
  • personally,
  • by registered or recorded delivery mail,
  • by facsimile transmission (confirmed by post), or
  • by any other means which any party specifies by notice to the others.
• Each party’s address for the service of notice shall be its above mentioned address or such other address as it specifies by notice to the others.
• A notice shall be deemed to have been served:
  • if it was served in person, at the time of service,
  • if it was served by post, 24 hours after it was posted, and
  • if it was served by facsimile transmission, at the time of transmission.
• Dispute Resolution
  • If any dispute arises in connection with this agreement, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 [working] days of notice of the dispute, the mediator will be nominated by.
• Governing law
  • This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).