1. The Equipment
This agreement shall on the terms hereinafter appearing apply
to "the equipment" which shall consist of the equipment
specified in the Equipment Schedule attached hereto and such
other equipment which is added to the Equipment Schedule.
If additional equipment is added to the Equipment Schedule
the parties shall both sign a letter setting out details of
the additional equipment and the maintenance charges to be
paid in respect of such additional equipment and attach such
letter to this agreement so that it becomes part of and subject
to the provisions of this agreement.
2. Period
|
| (a) |
The period during which this agreement shall be in force shall
be a period of Twelve (12) months from the date hereof and
unless determined by either party giving not less than Ninety
(90) days prior notice in writing before the end of the said
Twelve (12) months shall continue thereafter from Twelve (12)
months to Twelve (12) months until determined by either party
at any time giving not less than Ninety (90) days notice in
writing to the other. |
| (b) |
A copy of
this agreement showing the current equipment schedule and
coverage options will be sent to the customer Ninety (90)
days prior to the anniversary, for the purpose of adding any
new details including purchase order numbers for the following
year. This is termed a renewal notice. |
| (c)
|
This agreement
is subject to earlier termination under the provisions of
Clauses 7(b) and 10 of this Agreement.
|
3.
Duties of the customer
The
Customer shall: |
| (a)
|
Provide
free of charge for Aurora Technologies maintenance personnel
its employees and authorised representatives reasonable working
space at the Customer's premises which is in line with current
Health & Safety standards. |
| (b)
|
Provide
at the said premises at the customers expense heat, light,
ventilation, electric current and outlets for the use of Aurora
Technologies maintenance personnel, its employees and authorised
representatives, which is in line with current UK Health and
Safety standards. |
| (c)
|
Maintain
site and environmental conditions whilst this agreement remains
in force in accordance with the specifications in respect
of the equipment as set out in the Specification Schedule.
|
| (d) |
Not permit persons other than authorised maintenance personnel
employees or other representatives of Aurora Technologies
to perform maintenance work on the equipment or any of it
other than the operator maintenance work referred to in sub
Clause (e) below. |
| (e)
|
(Carry
out any daily operator maintenance on the equipment as set
out in the instructions provided with the equipment. Maintain
full backup copies of Operating System, Applications and Configuration
Data Bases, including hardcopies. |
| (f)
|
Make
no alterations in or to the equipment. |
| (g) |
Make no attachments to any of the equipment other than attachments
which the equipment is specifically designed to have attached
to it and which have been previously approved in writing by
Aurora Technologies. |
| (h) |
Comply at all times with all reasonable instructions provided
in respect of the equipment and all written directions issued
by Aurora Technologies in respect of the equipment. |
| (i)
|
Report
fault calls in respect of the equipment to other suppliers
who have supplied equipment which is used as part of and in
conjunction with or is connected to any of the equipment. |
| (j)
|
Report
fault calls to Aurora Technologies in a manner and in a form
previously notified to the customer in writing by Aurora Technologies. |
| (k) |
Pay all charges to Aurora Technologies for providing maintenance
services in accordance with Clause 6 hereof promptly on the
due date and in addition pay any costs for installation maintenance
and/or upgrades to the equipment if such costs have not been
provided for in the Equipment Schedule, and have been agreed
prior to the work being carried out. |
| (l) |
If the equipment has not been the subject of a maintenance
agreement from the time when the equipment was delivered pay
Aurora Technologies for labour charges all material costs
and expenses whatsoever incurred by Aurora Technologies in
bringing the equipment up to the recognised standard operating
efficiency as required by Aurora Technologies and any such
payments shall be in addition to the charges payable under
Clause 5 of this agreement and shall be paid within Thirty
(30) days of Aurora Technologies submitting an invoice in
respect of the same. |
| (m) |
Pay to Aurora Technologies the full cost as reasonably determined
by Aurora Technologies of all work whether for maintenance,
modification, repair or replacement to the equipment which
arises directly or indirectly:- |
| |
(i)
|
Through
the operation of the equipment in a manner contrary to that
specified in the instructions relating to the equipment or
as specified in the Specification Schedule. |
| |
(ii)
|
Through the
act fault omission or negligence of the Customer of any agent
servant employee licence invitee subcontractor or any person
under the control of the Customer. |
| |
(iii) |
By any work
or adjustments being made to the equipment by any person other
than the maintenance personnel or other authorised employees
or representatives of Aurora Technologies or persons authorised
by Aurora Technologies. |
| |
(iv) |
From loss
of system configuration which cannot be restored by the Customer
due to lack of backup copies. All site time required to restore
the configuration will be chargeable at the then current rate. |
| |
Such sums to be
paid in full by the Customer within Thirty (30) days of an
invoice in respect thereof being issued by Aurora Technologies.
|
4.
Duties of Aurora Technologies
In consideration of the Customer
entering into this agreement and agreeing to pay the charges
referred to in Clauses 3(k)(l) and (m) and 5 Aurora Technologies
hereby agrees to provide the following maintenance services: |
| (a) |
Aurora Technologies shall provide an emergency fault call
repair service pursuant to which as soon as possible after
it has received notice from the customer of a fault in the
equipment Aurora Technologies shall send one or more of its
maintenance personnel to the customers premises in accordance
with the hours defined in (e) and (f) below. Provision of
onsite support is dependent on the customer’s chosen
level of support cover as detailed in the charge schedule. |
| (b)
|
When
one or more of Aurora Technologies maintenance personnel attends
at the customer's premises as a result of notice being given
in accordance with (a) above any maintenance deemed necessary
by the maintenance personnel concerned will be carried out
as a preventative maintenance action. This action shall include
a complete inspection and any necessary cleaning lubrication
repair replacement or adjustment of any part to ensure that
the equipment becomes operational again. Such maintenance
does not include rectification of any of the matters referred
to in Clauses 3(k)(l) and (m). |
| (c) |
Liaison with the Customer and/or other suppliers where it
cannot immediately be ascertained whether the fault reported
arises from the equipment or equipment provided by other suppliers.
If it is ascertained that the fault is not due to the equipment
the customer can elect to retain Aurora Technologies in a
consultative capacity in which case Aurora Technologies may
charge for such services in accordance with the provisions
of Clause 5(c). |
| (d) |
Aurora Technologies shall inform the customer of any relevant
information which Aurora Technologies may discover in relation
to the equipment or any other equipment used connection with
the equipment which will facilitate the operation of the same. |
| (e) |
The maintenance service referred to in this Clause covers
only service performed between 9.00 hours and 17.00 hours
Monday to Friday inclusive but excluding Public and Bank Holidays
(which period is herein after referred to as "the standard
shift"). If the Customer requires any maintenance service
for any reason whatsoever outside the standard shift this
shall be subject to an additional charge to be paid by the
Customer in accordance with the provisions of Clause 5(c)
hereof. Extended Coverage may be provided for additional monthly
charge(s). |
| (f) |
In the event of any fault call being placed after 15.00 hours
and prior to 17.00 hours the call will normally be serviced
during the standard shift on the next working day, unless
the equipment is covered by an Extended Cover Contract as
provided for in 4(e) above. If the customer requires that
the maintenance service be provided on the day of the call
Aurora Technologies will if possible provide the same and
a charge will be made at the standard rate in force for any
additional time incurred after 17.00 hours in completing the
repair including travelling time to the customers premises. |
| (g) |
Where the action needed to be taken by Aurora Technologies
in providing the maintenance service is dependent on the customer
or another supplier Aurora Technologies will spend a maximum
period of two (2) hours waiting to work on the equipment and
thereafter Aurora Technologies may in its discretion withdraw
it services. The customer may if he so elects make extra payments
in accordance with Clause 5(c) for waiting hours prior to
the time when Aurora Technologies can begin work to correct
the fault in the equipment. |
| (h)
|
All
parts or units supplied and used by Aurora Technologies in
providing the maintenance service shall normally be chargeable
items. If a unit or part is found to be defective, Aurora
Technologies will advise the customer of the price of a suitable
replacement, the unit or part only being exchanged once the
customer has agreed to the cost. All units and parts will
remain the property of Aurora Technologies until payment has
been received in full, within Thirty (30) days of an invoice
in respect thereof being issued by Aurora Technologies.
|
5.
Charges
In consideration of the maintenance
services to be provided by Aurora Technologies in accordance
with Clause 4 above the customer shall whilst this agreement
is in force pay Aurora Technologies the following: |
(a) |
A maintenance charge the amount of which at the date of this
agreement is as set out in section 2 will be paid monthly,
quarterly, semi annually, or annually as indicated, and within
Thirty (30) days of the receipt of invoice so long as this
agreement remains in force. The charge shall be paid in full
free of any taxation and any other deductions. The charge
payable hereunder referred to does not include Value Added
Tax which shall be charged there on at the appropriate rate
from time to time in force. The Customer may not withhold
the charge for any reason whatsoever and may not exercise
any right of set off lien counterclaim or otherwise against
such charge. |
(b) |
If for any reason whatsoever the charges are not paid on the
due date interest may be charged thereon by Aurora Technologies
at a rate of 3% per month over HSBC plc base lending rate
from time to time in force the interest to accrue from day
to day and to be calculated from the day when the monies are
due to the date of payment of all monies outstanding (both
dates inclusive). |
(c) |
Such further charges as shall be made by Aurora Technologies
for services provided under the provisions of Clause 3(l)
4(m) and 4(c) hereof the amount of such charges to be notified
by Aurora Technologies to the Customer at the time such additional
services are requested and to be paid within Thirty (30) days
of Aurora Technologies submitting an invoice in respect of
the same. |
Aurora
Technologies hereby agrees that the charges set out in the
charge schedule hereto shall not be altered for a period of
Twelve (12) months from the date of this agreement except
in the case of changes in the equipment so scheduled when
the appropriate charge in respect of the changed equipment
shall apply. Prices may be reviewed on the anniversary of
this agreement and the customer notified as in 2(b).
|
| 6.
Rights of Aurora Technologies |
| (a)
|
If
any unauthorised alterations are made to or any unauthorised
attachments are added to the equipment Aurora Technologies
shall have the right in its absolute discretion to suspend
any maintenance work on the equipment until the alterations
and/or the attachments have been rectified or removed to the
satisfaction of Aurora Technologies and the suspension of
such maintenance work by Aurora Technologies shall not affect
the liability of the customer to pay the monthly charges and
any other charges which may be due under the provision of
Clause 5. |
| (b)
|
If
Aurora Technologies agrees to accept any such unauthorised
alterations or attachments or if Aurora Technologies agrees
to any such alteration or attachment being made Aurora Technologies
reserves the right in its absolute discretion to raise additional
charges for any extra work which may be involved in carrying
out the maintenance work referred to in Clause 4. |
| (c) |
Aurora Technologies shall not be liable for and the Customer
hereby agrees at all times whilst this agreement is in force
and thereafter fully and effectively to indemnify Aurora Technologies
in respect of any loss damages or injury caused by the customers
negligence or by failure on the part of the Customer to carry
out any of its obligations under this agreement. Negligence
or failure on the part of any employee agent or other person
under the control of the customer shall for the purpose of
this agreement be deemed to be the negligence or failure of
the customer. |
| (d) |
The destruction of or loss of use of or damage to the equipment
due to any cause arising from the act default or negligence
of the customer shall not terminate this agreement either
in total or in respect of the equipment concerned nor shall
it relieve the customer from its obligation to pay all such
charges in respect of such equipment as set out in Clause
5. |
| (e) |
Aurora Technologies shall not be liable to or be responsible
to the Customer for any loss of the use of the equipment or
any other losses which the Customer may suffer due to the
loss of the equipment whether directly or indirectly and whether
caused through the negligence or omission of Aurora Technologies
or otherwise. |
| (f)
|
The
sole obligation of Aurora Technologies under this agreement
is to provide the maintenance services as set out in Clause
4 and according to Aurora Technologies liability is restricted
to providing such services in accordance with Clause 4 and
Aurora Technologies shall have no other liability whatsoever
to the Customer except as given in Clause 11.
|
| 7.
Force Majeure |
(a) |
Neither party shall be liable to the other for any loss or
damage or expense whatsoever suffered or incurred by either
party due to cause beyond Aurora Technologies or the customer's
control including without prejudice to the generality of the
foregoing expression acts of Government Department cancellation
of any export or import licence or any prohibition or restriction
relating to the equipment acts of war, civil war strikes,
lock outs, labour disputes, riots, civil commotion seizure
requisition, fire, lightning, aircraft crashes, motor vehicle
crashes, shipping collisions, flooding, Acts of God, force
majeure, illegality, breakdown accident, or theft. Aurora
Technologies reserves the right to make appropriate charges
for repair or replacement work resulting from any causes beyond
their control. |
(b) |
In the event of an occurrence as is mentioned in (a) above
continuing for more than Three (3) months either party shall
have the option in its absolute discretion of terminating
this agreement on giving 7 days written notice of termination
to the party within Seven (7) days of the end of the said
Three (3) month period.
|
| 8.
Confidentiality |
(a) |
The Customer hereby undertakes to keep secret and confidential
whilst this agreement is in force any commercial or business
information trade secrets or know-how concerning Aurora Technologies
or the equipment which may come to its knowledge and the Customer
who gains such secret or confidential information shall enter
into a direct covenant with Aurora Technologies to be bound
by the terms of this sub Clause. |
(b) |
Aurora Technologies hereby agrees to keep secret and confidential
whilst this agreement is in force and thereafter business
information trade secrets or know how concerning the Customer.
|
9.
Assignment
Neither
party shall assign transfer charge or make over or purport to
assign transfer charge or make over any of its obligations hereunder
without written consent of the other.
|
10.
Termination
Either
party hereto shall have the right at any time by giving notice
in writing to the other party to terminate the agreement forthwith
in any of the following events:
|
| (a) |
If the other commits
a breach of any of the terms or conditions of this agreement
provided that if the breach in question is one which can be
effectively remedied then the said notice shall not be effective
to terminate this agreement unless the breach complained of
is not effectively remedied within Thirty (30) days of the date
of such notice of termination. |
| (b) |
In the case of the
Customer if it shall make default in the payment of any sum
hereunder and such defaults shall continue for more than Sixty
(60) days. |
| (c) |
In the case of the
Customer being a Company if it enters into liquidation whether
compulsory or voluntary or compounds with its creditors or takes
or suffers any similar action in consequence of a debt or if
a Receiver or Manager is appointed over the Customers assets
or a sale reconstruction or amalgamation of the Customer is
effected resulting in a change in the effective control of the
Customer and if the Customer is a person or firm if the person
or any partner of the firm commits an act of bankruptcy is made
or declares himself bankrupt or compounds with or makes any
arrangement with his creditors and in the case of Aurora Technologies
if it enters into liquidation compulsorily or compounds with
its creditors to take or suffer any similar action in consequence
of a debt or if a Receiver/Manager is appointed over its assets.
|
| 11.
Indemnity and Insurance |
| (a) |
Aurora Technologies shall indemnify the Customer against injury
(including death) to any person or loss of or damage to any
property which arises out of the act or default of any Aurora
Technologies employee or agent or by any reason of defective
design or workmanship in Aurora Technologies products. Aurora
Technologies liability for loss of or damage to property shall
in no event exceed £2m for each occurrence giving rise
to such liability provided always that such limitation shall
not serve to limit or restrict Aurora Technologies liability
for death or personal injury hereunder. |
| (b) |
Aurora Technologies shall not be liable to the customer for
: |
| |
(i) |
Damage to
the equipment or injury to persons resulting from improper
use, unauthorised modification or handling of the equipment
by the Customer, his employees or agents. |
| |
(ii) |
Any loss
of profit or contract or other consequential losses contingent
upon the said damage or injury.
|
| 12.
Entire Agreement |
| (a)
|
This
agreement constitutes the entire agreement between the parties
hereto and the parties hereby covenant with each other that
there are no understandings representations warranties or
obligations of any kind except as are referred to herein. |
| (b)
|
This
agreement supersedes and cancels all previous agreements and
working arrangements whether oral or written express or implied
between the parties in respect of maintenance services to
be provided by Aurora Technologies in respect of the equipment.
|
13.
Waiver
The waiver by either party to exercise or enforce any rights
conferred hereunder shall not be deemed to be a waiver of
any such right nor operate so as to bar the exercise or enforcement
thereof at any time or times thereafter.
14. Application of
English Law
This agreement shall be governed and construed in all respects
in accordance with English Law and the parties hereby submit
to the non exclusive jurisdiction of the English Courts.
15. Service of Notice
Any notice required to be given hereunder shall be in writing
and shall be sufficiently given if delivered or sent by first
class post facsimile electronic mail or by telex to the address
for the time being of the party which at the date of this
agreement is the address shown on the first page of this agreement
and any notice shall be deemed to be given if delivered by
hand at the time of delivery and if sent by first class post
or facsimile 48 hours after the same shall have been posted
and if given by electronic mail or telex 24 hours after the
issue of the electronic mail or telex and any notice given
by electronic mail or telex shall be confirmed by letter as
soon as possible thereafter. If either party changes its address
from the address shown on the first page of this agreement
it will give the other party 7 days notice of such change
of address and if such notice is not given notice served at
the last known address will be deemed to be good service for
the purposes of this agreement. |
