FORM OF AGREEMENT
Maintenance Contract No.DM
An Agreement made this day:
Between Swift Managed Services Limited
AMC House 1st Floor, 12 Cumberland Avenue, Park Royal, London NW10 7QL, United Kingdom
Hereinafter called “Swift” of the one part and of
Hereinafter called “The Customer” of the other part
Subject to the following terms and conditions:
- ENTIRE CONTRACT
This contract represents the entire understanding between the parties and cancels all previous agreements or representations made by either party, whether orally or in writing. This contract can only be amended if the amendment is done in writing and signed by the parties to this contract.
Any notice or invoice under this agreement shall be given by sending the same by pre-paid first class post to the principal place of business of the parties to this contract or to such other address as such party may have notified to the other for the purpose of correspondence. Any notice etc. sent by post Swift should be copied via e-mail to firstname.lastname@example.org
- MAINTENANCE PERIOD
- a) This Agreement shall start on the commencement date as agreed above and shall continue for the minimum term as stated within this Agreement and thereafter from year to year (each year starting on the anniversary of the commencement date) until terminated by notice in writing by either party to the other, such notice to be given not during the first ninety days or at least ninety days prior to the expiration of any complete contractual year.
- b) If notice is given before the expiry of the minimum term shown then payment is due for the sum of the annual amounts up to the expiry date of the minimum term.
- MAINTENANCE COST
The customer shall pay Swift the Maintenance Charge specified within this agreement for the initial annual period. For each subsequent year during the continuation of this Agreement, the Annual Maintenance charge shall be fixed, according to the maintainer’s charge in force at the time, for type and quantity of equipment specified in the schedule of equipment. The maintenance charge may increase in line with annual increase in the Retail Price Index and/or the installation of any additional hardware and or software throughout the contracted period.
- VALUE ADDED TAX
All amounts payable under this contract are liable to V.A.T at the appropriate rate.
- SWIFT’S OBLIGATION
6.1 Swift will use its professional endeavours to execute, without additional charge, 24 hours a day, 7 days a week, 365 days a year, a response time of 4 hours for all faults reported in accordance with this contract. Swift shall carry out repairs and replacements, arising solely from normal use and fair wear and tear and covered by the terms of this contract without additional charge. Swift shall not be responsible for any faults caused by system alteration, negligence, default or misuse by the customer, or the customer’s employees or agents, or by, fluctuating mains voltage nor for any faults of any public telecommunications operator nor for the faults occasioned by the use of consumable or other materials which have not been supplied by Swift, or by any force majeure (as mentioned below) and in such circumstances Swift reserves the right to charge for its labour and material.
6.2 Swift can sub contract at our discretion if and when necessary.
- INDEMNITY AND INSURANCE
7.1 The Contractor shall indemnify and keep indemnified the Customer against injury (including death) to any persons or loss or damage to any property which may arise out of the act, default or negligence of the Contractor, a Sub-Contractor, their employees or agents in consequence of the Contractor’s obligations under the Contract and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.
7.2 The Customer shall indemnify and keep indemnified the Contractor 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 Contractor or a Sub-Contractor) and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.
7.3 Without thereby limiting their responsibilities under Sub-Clauses 7.1 and 7.2 each party 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 7.4.
7.4 The liability of the parties under Sub-Clause 7.1 or 7.2 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 personal injury or death of a person due to negligence for which no limit applies, the liability of the parties under the Contract shall not exceed the annual maintenance charge payable by the customer under the contract.
- FORCE MAJEURE
Swift will not be liable for any loss or damage or any adverse effects which may be suffered by the customer due to any cause beyond the companies reasonable control including, without limitation, any act of God, natural disaster, inclement weather, failure or shortage of power supply, flood, lightning, fire, strike, lock-out, trade dispute, action by highways or other public authorities and operators, military operations, riot and also delay or failure in production or supply by third party of spare parts.
- JURISDICTION CLAUSE
Any claim or incident made against Swift will be brought in England and be subject to the law of England and Wales.
- CUSTOMER’S OBLIGATION
The customer agrees to use all reasonable care in the operation of the equipment and to indemnify Swift against any loss or damage caused to it by the customer’s negligence
- a) It is a basic requirement of this contract that the customer shall not interfere with:
The installation, except for the replacement of consumable items such as paper rolls or ink ribbons, nor extend it other than by agreement of Swift in writing. In the event of any such unauthorised interference or alteration, Swift reserves its right to cease maintenance forthwith and may make a re-inspection charge before recommencing the maintenance. Attention to any fault arising in the installation as a result of unauthorised interference or extension by the customer’s employees or agents will be charged at current rates, without prejudice to the maintenance charge mentioned above.
- b) The customer agrees to pay Swift on demand any sum paid or payable to the fire authority or police authority in respect of any false alarm or false call received by the authority via the installation unless caused by a fault in the system for which Swift is responsible.
- ALTERATIONS AND CHANGES
The customer hereby undertakes that neither they nor any other person on their behalf shall carry out repairs, adapt, test, make additions or alterations to the installation, except with the written permission of Swift. Swift shall carry out any alterations or extensions to the system, requested by the customer, at the customer’s expense.
- TELECOMMUNICATIONS LINES
It shall be the customer’s responsibility to obtain and maintain its telecommunication lines, licences etc.
- NOTIFICATION OF FAULTS
The customer shall notify Swift immediately if any fault occurs on the system.
Faults to be reported on Telephone Number: 08707481233.
Swift will respond by carrying out remote diagnostic tests where possible to determine the nature of the fault.
- EMERGENCY CALLOUT CHARGES
If Swift Managed Services are contacted outside of the terms stated in this agreement, then a callout charge will be applicable to carry out works remotely or to provide on-site attendance. Calls responded to in these circumstances will be charged to the customer at the callout rates applicable at the time of the call.
- ACCESS TO THE PREMISES
The customer will give Swift access to the premises at all reasonable times for the purpose of carrying out the testing and maintenance of the system. Swift reserves the right to charge when engineers are called to site and access is denied.
- TERMINATION OF CONTRACT
The customer shall have the right forthwith to terminate this contract, without prejudice to any other rights it may have, by notice in writing to Swift. If:
There is any default on the part of Swift in due performance of its obligations under this contract or any other duly signed agreement and Swift fails to remedy the breach within a reasonable period, (provided that the breach is remediable), and at least seven days prior notice of such breach has been given to Swift in writing
Swift shall have the right forthwith to terminate this contract, without prejudice to any other rights it may have, by notice in writing to the customer and to claim for any resulting damages, losses or expenses if:-
- a) The customer fails to make any payment when it becomes due or
- b) There is any default on the part of the customer in due performance of its obligations under this
contract or any other agreement with Swift or its agents and the customer fails to remedy the breach
within a period of seven days, (provided that the breach is remediable) or by
- c) An insolvency voluntary arrangement
However, nothing in this contract shall exclude liability of Swift for death or personal injury resulting from the negligence of Swift or its employees or agents.
Except as expressly mentioned in this contract, Swift shall have no liability to the customer in contract, tort, or otherwise for any loss of business, profits, or anticipated profits, or for any indirect, or consequential loss, whatsoever. This clause and other similar clauses in this contract shall continue to apply, notwithstanding the termination of this contract for any reason, if a bankruptcy petition is presented or a bankruptcy order is made against the customer or if a receiver or trustee is appointed of the customers estate or a voluntary arrangement is approved or an administration order is made or an administrative receiver is appointed of any of the customer’s assets or undertakings or a resolution or petition to wind up the customer is passed or presented or if any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receiver or administrator or to present the winding up petition or make a winding up order.
Swift shall have the absolute right to re-assign this contract. The customer may not reassign without the written consent of Swift which will not be unreasonably withheld.
The failure by either party to exercise or enforce any right conferred by this contract shall not be considered to be a waiver of any such right nor will it operate as a bar to the exercise or enforcement thereof.
- THE RESULT OF TERMINATION
The termination of this agreement for any reason whatsoever shall not affect those terms of this contract, which are of a continuing nature. If the contract is terminated before the expiry of the initial contracted period, due to no fault on Swift’s part, the customer shall pay Swift on demand all sums payable, up to the end of the initial contracted period