In this Agreement and documents referred to herein the following words and expressions have the following meanings:
“Chargeable Labour Rates” means the rates set out in the proposal under Chargeable Labour Rates during a Working Day and at any time outside a Working Day;
“Chargeable Service” means any service provided to the Customer by inurface media that is not included under the Services;
“Configuration Files” means the electronic files containing software codes required to provide the Services;
“Contract Term” means from the start date to the end date as set out in the SLA;
“Corrective Maintenance” means at the discretion of inurface media either the Repair or replacement of the Equipment Item with the Fault in the Fix Time;
“Coverage” means the indicated status of the cover for an Equipment Item;
“Customer Helpdesk” means the first point of contact for all enquiries and requests for the attention of a Technician where technical requests are logged and routed to the Technical Helpdesk and which will provide reports on the status of the Corrective Maintenance to the Customer;
“Customer Equipment List” means a list of equipment supplied to
inurface media by the Customer prior to the issue of the Equipment
“Equipment Item” means an item in the Equipment Schedule;
“Equipment Schedule” means the list of Equipment Items as agreed between the parties and confirmed by inurface media at the Mobilisation Period End which forms part of the contract between inurface media and the Customer;
“Fault” means a loss of functionality whether whole, partial or otherwise of an Equipment Item where that loss of functionality has been confirmed by a Technician;
“Fix Time” means the time set out in the SLA within which inurface media shall provide Corrective Maintenance;
“Loan Equipment” means any item of equipment which inurface media owns and is temporarily loaned to the Customer to provide similar functionality to the Equipment Item with a Fault;
“Manufacturer Enhanced/Extended Warranty” means where a manufacturer produces an upgrade to an Equipment Item and the Customer places an order for that upgrade with inurface media;
“Mobilisation Period” means a period of 30 days starting on the start date as set out in the SLA and applies to new Agreements and does not apply to existing Agreements renewing on the renewal date;
“Mobilisation Period End” means the date of expiry of the
“On-Site Response Time” means the time set out in the SLA within which a Technician will respond to a Qualified Request and where necessary to attend the Customer’s premises for this purpose;
“On-Site Services Working Day” has the meaning set out in the SLA;
“Preventative Maintenance” means preventative work requested by the Customer to maintain the Equipment Items in good working order and carried out in accordance with the Preventative Maintenance Hours;
“Preventative Maintenance Hours” means the hours set out in the SLA within which Preventative Maintenance will be carried out;
“Remote Response Time” means the time set out in the SLA within which the Technical Helpdesk will respond to a Fault reported by the Customer.
“On-Site Services Working Day” has the meaning set out in the SLA;
“Qualified Request” means a request made by the Customer to inurface media in relation to a Fault, and which the Technical Helpdesk have assessed as qualifying for the Services;
“Remote AVIIT Support” means remote technical support via WebEx or TeamViewer on equipment categorised as AV/IT in the Equipment Schedule, to diagnose configuration issues on IP enabled Equipment Items;
“Repaid’ means the restoration of the original functionality of the Equipment Item following a Fault;
“Services” means the provision of Customer Helpdesk, Technical Helpdesk, Videoconferencing Helpdesk, Preventative Maintenance and Corrective Maintenance;
“SLA” means the service level agreement attached to these terms and conditions as amended from time to time;
“Technical Helpdesk” means a facility to qualify, remotely diagnose and, where possible, effect a Repair;
“Technician” means all inurface media authorised personnel providing the Services to the Customer;
“Useable Life Expectancy” means at the sole discretion and in the sole opinion of inurface media, the assessed period of time for which an Equipment Item will maintain normal levels of functionality and reliability. For the avoidance of doubt inurface media provides the Coverage status for indication purposes only and it is not intended to be an accurate assessment of the life expectancy of any Equipment Item;
“Videoconferencing Helpdesk” means an automated facility made over an “ISDN” or “IP” facility in which the Customer can test that the “videoconferencing system” is functioning correctly; and
“Working Day” means the hours set out in the SLA on a day (other than a Saturday, Sunday or public holiday) when banks in England are open for business.
- Headings in these conditions shall not affect their interpretation.
- References to this Agreement shall be deemed to include the SLA and Equipment Schedule.
- Any obligation in this Agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
- References to statutory provisions include those statutory provisions as amended or re-enacted.
- Words in the singular include the plural and, in the plural, include the singular.
- A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality.
- Provision of Services
The provision of the Services shall be subject to the following conditions:
- inurface media shall provide the Services to the Customer for the period of the Contract Term;
- The Services shall not include and be performed in relation to:
- any item of equipment that is not an Equipment Item;
- electrical work external to the Equipment Items;
- projector lamps, batteries, consumable parts or external cables or any other attachment or accessory to the Equipment Items;
- wear and tear of the Equipment Items;
- defects or faults in the Equipment Items arising directly or indirectly as a result of:
- misuse, incorrect use or damage of an Equipment Item;
- faulty construction of the site where the Equipment Item is located;
- failure to maintain the necessary environmental conditions for use of the Equipment Item; or
- any breach of the Customers obligations under this Agreement.
- During the Mobilisation Period, the Services shall not include the replacement of any parts of an Equipment Item or the provision of Loan Equipment. Any such services provided to the Customer. Manufacturer Software Upgrade. For the avoidance of doubt the installation of the upgrade by inurface media is not included in the Services.
- Subject to the manufacturers’ own terms and conditions, the Services include any manufacturer’s extended warranty relating to an Equipment Item.
- Chargeable Services
- Chargeable Services shall be charged at the
Chargeable Labour Rates.
- Where inurface media performs a Chargeable Service, that service shall be provided under the terms of this Agreement.
- inurface media Obligations
- inurface media shall on or before the Mobilisation Period End confirm to the Customer the Equipment Schedule and SLA to be used in connection with this Agreement;
- inurface media shall provide the Services with reasonable skill and care and at all times in accordance with the terms of this Agreement and the SLA to the customer;
- inurface media shall observe all health and safety rules and regulations, and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to inurface media, provided that it shall not be liable if, as a result of such observation, it is in breach of any of its obligations under this Agreement. inurface media shall incur no liability for any delay in performing or failure to perform its obligations under this Agreement as a result of compliance with this clause 4.3.
- inurface media shall repair or replace Equipment Items that have been damaged as a result of inurface media negligence.
- Customer Obligations the Customer shall:
- Co-operate with inurface media in all matters relating to the Services;
- Notify inurface media as soon as possible after any loss of functionality in an Equipment Item occurs;
- Provide inurface media and its Technicians, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by inurface media to allow inurface media to provide the Services;
- Not permit persons other than Technicians to effect any replacement of parts, maintenance, adjustments or repairs to the Equipment Items as are covered under the Services;
- Maintain the Equipment Items in accordance with any recommendations of the manufacturer and/or inurface media; and
- Use each Equipment Item only for such purposes as the manufacturer intended, with only such operating supplies as meet the manufacturer’s recommendations as contained in the relevant manuals issued by the manufacturer.
- Title and Risk
- The title and risk of Equipment Items shall remain with the Customer.
- Where Equipment Items have been lost or damaged after having been removed from the Customer ‘s premises for Repair inurface media shall repair or replace those Items.
- Title and risk of Loan Equipment provided by inurface media shall remain with inurface media when on temporary loan at the Customer’s premises.
- Limitations and Exclusions of Liability
- All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.
- Except as expressly stated in clause 7.4:
- inurface media shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: 126.96.36.199. loss of profits;
- loss of business opportunity;
- loss of goodwill; 188.8.131.52. loss of anticipated savings;
provided that this clause 7.2.1 shall not prevent any other claims for direct financial loss that are not excluded by any of the categories 184.108.40.206 to 220.127.116.11 inclusive of this clause 7.2.1.
- The total liability of inurface media, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed £5,000,000 for any one action.
- inurface media does not exclude or limit any liability it may have to the Customer for death, personal injury caused by negligence or any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by inurface media.
- Charges and Payment
- In consideration of the provision of the Services by inurface media, the Customer shall pay the charges set out under the
Manufacturer’s Enhanced/Extended Warranty on the SLA.
- In consideration of the provision of any Chargeable Services by inurface media to the Customer, the Customer shall pay for the Chargeable Labour Rates.
- The charges set out in the Chargeable Labour Rates of the proposal are exclusive of VAT, which inurface media shall add to its invoices at the appropriate rate.
- The Customer shall pay each invoice submitted to it by inurface media within 30 days of receipt of the invoice.
- If the Customer fails to pay by the due date, inurface media may:
- charge interest on the overdue amount from the due date of payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank Plc accruing on a daily basis and being compounded quarterly until payment is made whether before or after any judgment and the Customer shall pay the interest immediately on demand;
- claim interest under the Late Payment of Commercial
Debts (Interest) Act 1998; and
- suspend the provision of the Services and any Chargeable Service until payment has been made in full.
- Time for payment shall be of the essence in this Agreement.
- Subject to clause 10 all sums payable to inurface media under this Agreement shall become due immediately on its termination.
- inurface media may, without prejudice to any other rights it may have, set off any liability of the Customer to inurface media against any liability of inurface media to the Customer.
- Each party shall keep in strict confidence all documents and all technical, commercial, financial and other information which are of a confidential nature and have been disclosed to the other party in connection with this Agreement, or with the negotiations leading up to it, solely for the purpose of performing this Agreement.
- Each party undertakes not to disclose to any third party, without the previous written consent of the other party, the existence of any term of this Agreement, or the existence of any information about any dispute or disagreement between the parties and to make the confidential information available or disclose them to third parties only so far as it is necessary for the performance of this Agreement.
- The obligations of confidentiality set out above shall not apply to any documents or information which either party can show:
- that at the time of its acquisition was in, or at a later date has come into, the public domain, other that following a breach of this clause;
- that it received independently from a third party with the full right to disclose;
- that it was under a legal or regulatory obligation to make disclosure; and
- that disclosure was necessary to third party professional advisers who shall themselves be under a similar obligation of confidentiality.
- The obligation of confidentiality set out above shall remain in effect after the termination of this Agreement.
- The parties shall ensure that their respective employees and third p parties involved in the performance of this Agreement comply with the conditions of this clause 9.
- Without prejudice to any other rights and remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving written notice to the other 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; or
- the other party is in material breach of this agreement (including a series of persistent minor breaches) and where such material breach has not been remedied within 30 days after being notified of such breach by the party not in breach or where such breach is incapable of remedy; or
- the other party 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.
10.2 Where this Agreement is terminated in accordance with clause 10.1 (where inurface media is the innocent party):
the Customer shall immediately pay inurface media all of inurface media’s outstanding unpaid invoices and interest and, in respect of Services and Chargeable Services supplied but for which no invoice has been submitted, inurface media may submit an invoice, which shall be payable immediately on delivery; and the Customer shall within 14 days return the Loan Equipment. If the Customer fails to do so, then inurface media may and is hereby authorised to enter the Customer’s premises and take possession of the Loan Equipment. Until the Loan Equipment has been returned or repossessed, the Customer shall be solely responsible for the safe keeping of the Loan Equipment.
- Any provision of this Agreement that is found by any court or authority of competent jurisdiction to be invalid, illegal or unenforceable shall, to the extent required, be deemed not to form part of this Agreement and the validity and enforceability of the remaining provisions shall not be affected.
- Any provision of this Agreement that is found invalid, illegal or unenforceable shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- Entire Agreement
- This Agreement and documents referred to herein shall constitute the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
- Each party acknowledges that, in entering into this Agreement and the documents referred to in it, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
- Force Majeure
- inurface media shall have no liability to the Customer under this Agreement if it is prevented from, or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond •its control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of inurface media or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule regulation or direction, accident, breakdown of plant and machinery, fire, flood, storm, or default of suppliers or subcontractors ( U Force Majeure Event”).
- If the Force Majeure Event continues for a continuous period of more than 3 months, either party may terminate this Agreement by giving 30 days’ written notice to the other party. On the expiry of that notice period this Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.
- inurface media may from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or charges for the Services. 14.2. Subject to clause 14.1 any variation of any terms of this Agreement shall be in writing and signed by duly authorised representatives of the parties hereto.
Failure or delay by either party in exercising any right or remedy under this Agreement or by law shall not constitute a waiver of that right or remedy. No single or partial exercise of that right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
- Any notice of other communication required to be given under this Agreement shall be in writing and sent by fax or first-class post to the addresses of the parties as stated in the preamble to this Agreement.
- Notices shall be deemed to be served in the case of by first class post by the second Working Day after the date of posting and in the case of by fax by 5pm on the date of transmission provided that the transmission report was received, and the transmission was legible. In the case of faxes served after 5pm they should be deemed served at 5pm on the next Working Day.
- Third Parties
No term of this Agreement is intended to confer a benefit on, or be enforceable by, any person who is not a party to this Agreement