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Maintenance Support Agreement, Software And Development

Terms and conditions

SECTION I

1.      Terms applicable to all contracts

1.1    The terms & conditions in this and the following sections where appropriate shall be applicable to each contract for maintenance and/or support, Hardware and/or software, and/or Network/Third Party Software, Website design and/or hosting and/or email management entered into between Clarks (“the Company”) and the Customer.

1.2    All quotations given and contracts of maintenance made by the Company shall be deemed to incorporate the terms hereof which shall take the place of any other terms and conditions contained in any purchase order or any other document or communications for the customer.

1.3    No other agreement or understanding of any kind shall form part of or operate as a waiver to this agreement unless expressly accepted by the Company in writing and signed by Raymond Clark and/or Andrew Clark of the Company.

1.4    These terms and conditions and the Contract to which they apply shall, in all respects, apply to any further items of equipment which shall, from time to time, be added to the equipment listed in the maintenance schedule.

2.   Definitions

“The Agreement” shall mean the Agreement for maintenance and/or support, Hardware and/or software, and/or Network/Third Party Software, Website design and/or hosting and/or email management to which these Terms and Conditions apply.
“The Equipment” shall mean The Hardware and/or Software and/or Network/Third Party Software as hereafter defined.
“The Hardware” shall mean the hardware referred to in the “Hardware Schedule” or listed on Clarks invoice in the Agreement.
“The Software” shall mean the software referred to in the “Software Schedule” or listed on Clarks invoice in the Agreement.
“The Network/Third Party Software” shall mean the hardware referred to in the “Network Software/Third Party Schedule” or listed on Clarks invoice in the Agreement.
“The Basic Charge” shall mean the annual charge applicable to the Agreement.
“Standard Charges” shall mean the charges normally made by the Company from time to time.
“Premises” – Equipment locations as stated in the Schedule or on the Clarks invoice.

3.   Period of Supply of Services

The service period of this Agreement shall commence on the date of the commencement specified in the Agreement and shall, subject to the provision of Clause 17 hereof, continue in force for an initial period of one year continuing thereafter until terminated by either party giving the other not less than three months written notice, such notice to take effect at the expiration of the initial period.

4.   Charges

4.1   The Basic charge will be invoiced and payable in accordance with this clause and is a precondition to the Company’s liability hereunder. Any other charges under this Agreement will be invoiced by the Company to the Customer and payment shall be made within 7 days of the date of invoice. Charges are exclusive of VAT and any other like taxes which will be payable by the Customer at the rate ruling at the tax points. In the event that invoices remain unpaid after 7 days the Customer agrees that the Company is entitled to withdraw all services forthwith without prejudice to any pre-existing rights. If subsequently requested to resume servicing of the equipment may at its option request that the equipment be fully overhauled at the User’s entire expense before commencing maintenance of the equipment under this or any other subsequent agreement.

4.2   The Basic Charge will be paid by the Customer to the Company in one instalment as specified on the Schedule or on the Clarks invoice. The payment will include all VAT or other taxes applicable to the entire period of the maintenance and all payments will be in advance of the provision of service.

4.3   N/A

4.4   The Basic Charge is subject to change after each anniversary of the commencement date upon (90) days prior written notice.

4.5   The Standard Charge is subject to change on or about the (1st January) by an amount pro rata to the raise in the Electrical Engineering BEAMA labour cost Index since the last change.

4.6   N/A

4.7   If the Company personnel are called to the Premises and the Company considers in its reasonable opinion that there is no good reason for the requesting such service, the Company will impose Standard Charges for all time and travelling expenses spent by the Company’s personnel as a result of the call and travelling to and from the Premises.

5    Period of Cover

5.1   The Company will respond to Service calls as specified in the Schedules or on the Clarks invoice. Any service which the Company is required to provide at the Customer’s request outside those hours will be invoiced at the Company’s then Standard Charges.

5.2   The Company will use its best endeavours to provide service within the estimated maximum response time shown in the Schedules or on the Clarks invoice.

6   Security

6.1   The Company shall use its best endeavours to keep confidential any information disclosed to it by the Customer relative to the Customer’s business or to the business of any client of the Customer and shall not disclose the same to any third party other than those employees of the Company whose province it is to know the same. Where replaced components carry data, all best endeavours will be taken to delete such data. Where such data is considered by the Customer to be of a confidential nature, then the components will not be passed to the Company for repair but a replacement part will be purchased by the Customer at its expense.

6.2   The Company shall use its best endeavours to ensue that other information whether confidential or otherwise relating to the Customers business or to the business of any client of the Customer which comes to the knowledge of the Company or any of its employees shall be treated as confidential and shall not be disclosed to any third party.

6.3   The Customer shall be solely responsible for the security of confidential information during such times as the Company’s employees, agents or sub-contractors are on the Premises for the purpose of carrying out the Company’s obligations hereunder.

7.   Condition of Equipment

7.1   It is a condition precedent of the Company’s liability under the Agreement that the Equipment shall be in good operational condition on the date it commences to be covered by the Agreement.

7.2   The Company if requested by the Customer to put the Equipment into good condition shall be entitled to make its Standard Charges for any work.

7.3   The Customer warrants that the details as to the date of the original purchase of the Equipment supplied to the Company are correct and it will, on demand, produce to the Company evidence of the original date of purchase in the form of a warrant card or purchase invoice.

8   Assignment of Warranty
N/A

9.   Customer Care

The Customer shall:

9.1   Use the Equipment correctly in accordance with the manufacturer’s operating manuals and with such operating supplies as are in accordance therewith and promptly and regularly carry out all the operator’s maintenance routines (if any) as set out therein;

9.2   Not allow any person other than the Company’s personnel to adjust, repair or maintain the Equipment except for the operator’s maintenance routines (if any) as specified in 9.1 above;

9.3   Constantly maintain the environmental conditions specified in the manufacturer’s manuals where applicable.

10.   Access to Equipment

The Customer shall allow the Company’s personnel to have full and free access to the Equipment at all reasonable times in order to carry out maintenance services which the Company is liable to perform hereunder.

11.   Adequate Facilities

The Customer shall provide adequate facilities to allow The Company’s personnel to perform their tasks.  This includes but is not limited to the provision of ample power supplies, heating and/or air conditioning, adequate security both for the Companies staff and its equipment.

12.   Risk

The Equipment shall at all times be at the risk of the Customer.

13.   The Company’s Liability

13.1  Subject to the provisions of Clause 13.2 the Company’s liability for damage to the property of the Customer or it’s employees shall not exceed the current value of the Equipment in the Agreement.

13.2  The Company shall under no circumstances whatsoever be liable for any loss of data, any loss of business, or loss of profit, or for any consequential loss or damage, arising directly or indirectly from any failure by the Company to perform its obligations hereunder.

13.3  The Customer acknowledges that, save as provided in Clause 13.1 the Company shall not have any liability whatsoever arising from this Agreement to the Customer or any person claiming through or under him whether in contract or tort for any loss or damage howsoever caused.

14.   The Customer Liability

14.1  The Customer shall indemnify the Company in every respect of any claim for loss, damage or injury to any person or property occasioned by or arising from the possession, operation, use or modification of the Equipment, for any breach of Clause 14.2 hereof except and in so far as the Company is liable aforesaid.

14.2  The Customer shall at all times comply with all Health and Safety requirements and with all rules and regulations and other requirements imposed by any competent authority. The Company shall not be liable for any damage to the Equipment or for any losses, costs or expenses whatsoever arising out of any failure by the Customer so to do.

14.3  The Customer shall not during the contract term of or for a period of 6 months from the date of termination of this Agreement howsoever caused employ, solicit, or otherwise endeavour to employ any employees of the Company who have provided services to the Customer unless the Customer has contacted both Raymond Clark and Andrew Clark in writing prior to any offer being made and that both Raymond Clark and Andrew Clark have given their permission in writing for this offer to be put forward to their employee or employees.

15.   Force Majeure

Any failure by the Company to perform any of its obligations hereunder for any cause beyond reasonable control (e.g. adverse weather or traffic conditions) of the Company shall not be deemed to be a breach of the Agreement by the Company.

16   Bankruptcy

If either the Company or the Customer commits an act of bankruptcy or goes or is put into liquidation (other than solely for amalgamation or reconstruction) or if a Receiver is appointed over any part of the Company’s or Customer’s business or if the Company or Customer suffers the seizure of any property for non-payment of any debt, then the other party may regard any such circumstances as grounds for immediately terminating the Agreement without notice.

17.   Termination

17.1  The Company may by giving thirty (30) days notice in writing to the Customer terminate the Agreement (without prejudice to its rights to recover any sum due by the Customer to the Company) if either:

(i)   any payment by the Customer shall be more than seven (7) days in arrears; or
(ii)  the Customer shall commit any other breach of the Agreement and shall not remedy the same within seven (7) days written notice given by the Company to the Customer requiring such remedy.

and on such termination the Company shall have no liability to repay to the Customer any sums paid or any part thereof.

17.2  The Customer may by giving ninety (90) days notice in writing to the Company Terminate the Agreement if:

(i)   The Company shall commit any material breach of the Agreement and shall not remedy the same within thirty (30) days of written notice given to the Company requiring such remedy;
(ii)  The Company shall increase its Basic Charges and these shall not be acceptable to the Customer;

and if the Customer terminates this Agreement under the provisions of 17.2 (i) then a proportionate part of any sums paid by the Customer to the Company which relate to any period following the date of termination shall be repaid by the Company.

18.  Assignment

The benefits and obligations of this Contract shall not be assigned by the Customer without prior written consent of the Company.

19.   Notices

Any notice, request or other communications by either party to the other as provided for herein shall be given in writing and shall be deemed given on the earlier of the dates on which same is:

(a)   Actually received and acknowledged by the addressees;

or

(b)   Three (3) days after postage by registered letter post and sent to the addressee at its address stated in this Agreement or such addresses as may be notified in writing from time to time by one party to the other as an alternative address for service of notices hereunder.

20.   Parts

All parts which have been removed and replaced by spares as well as equipment, test equipment or tools which may be used in the performance of maintenance service under this Agreement shall belong to the Company. All replaced parts shall belong to the Customer.

21.   Proper Law

21.1  This Agreement and these Terms and Conditions shall be subject to and construed in accordance with English Law and both the Company and the Customer agree to accept the jurisdiction of the English Courts.

21.2  The captions, titles and sub-headings to these Terms and Conditions are inserted for convenience only and shall not be considered in interpreting or construing of the provisions hereof.

SECTION II

Additional Terms Applicable to Agreements which include Provision for Maintenance of Hardware

22.   Maintenance Services

22.1  The Maintenance Services to be provided by the Company or its authorised sub-contractors shall comprise:

(i)   Response to service calls requested by personnel of the Customer between 0930 and 1700 hours Monday to Friday, excluding Bank and Public Holidays unless varied in the Schedule or on the Clarks invoice.
(ii)     Repair or replacement (at the option of the Company) of defective parts of the Equipment.
(iii)     At the option of the Company the loan of alternative equipment or exchange with comparable equipment.
(iv)   Preventative Maintenance routines as specified on the Schedule or on the Clarks invoice.

22.2  The Company’s duties under this Agreement do not include:

(i)      The provision of Operator chargeable consumables (e.g. print heads, print bands, “daisywheels”, toner cartridges, batteries etc.);
(ii)     Effecting electrical work external to the Equipment;
(iii)   Changing or altering the Equipment;
(iv)    Providing accessories, supplies or operating manuals (e.g. printer paper, ribbons, toner cartridges etc.);
(v)     Painting or refurbishing the Equipment or furnishing the material therefore;
(vi)   Maintenance of accessories, attachment, machines or other devices not in the Schedule or Clarks invoice of Equipment.
(vii)   Repairing or servicing made necessary whether by misuse or negligence of the Customer, or its employees, agents, contractors or third parties, or by any cause outside the control of the Company;
(viii)   Moving the Equipment to a location other than the Premises shown in the Equipment Schedule or Clarks invoice or moving the Equipment within those Premises and consequential work necessitated by either move (such as, but not limited to, failure to park the heads on the hard disk drive of a computer).
(ix)    Training of operators in any aspect of equipment use.
(x)     The re-installation of customer software other than that directly covered by the Company and specified in the Schedule or on the Clarks invoice.

SECTION III

Additional Terms Applicable to Agreements which include Provision for Software and Development

You should carefully read the following terms and conditions before using or installing software supplied by Clarks Computer Systems Ltd.  Unless you have a different license agreement signed by Clarks Computer Systems Ltd. (“The Company”) your use, distribution, or installation of Clarks Computer Systems Ltd. software indicates your acceptance of these terms and conditions and of the Software License.

If you do not agree to any of the terms and conditions of this License, then do not install, distribute or use software supplied by The Company.

You may access Clarks Computer Systems Ltd. software on a single computer or through a network, provided that you have obtained an individual license for each workstation that will access Clarks Computer Systems Ltd. software through the network.  For instance, if 8 different workstations will access a Clarks Computer Systems Ltd. system on the network, each workstation must have its own license, regardless of whether they use that license at different times or concurrently.

You may not alter or modify the Clarks Computer Systems Ltd. software, nor give anyone permission to do so.

This software, and all accompanying files, data and materials, are distributed “AS IS” and with no warranties of any kind, whether express or implied.  In particular, there is no warranty for virus scanning. Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it.  The user must assume the entire risk of using the program.  This disclaimer of warranty constitutes an essential part of the agreement.

Any liability of The Company will be limited exclusively to refund of purchase price.  In addition, in no event shall The Company, or its principals, shareholders, officers, employees, affiliates, contractors, subsidiaries, or parent organizations, be liable for any incidental, consequential, or punitive damages whatsoever relating to the use of Clarks Computer Systems Ltd. software, or your relationship with The Company.

In addition, in no event does The Company authorize you to use its software in applications or systems where Clarks Computer Systems Ltd. software’s failure to perform can reasonably be expected to result in a significant physical injury, or in loss of life.  Any such use by you is entirely at your own risk, and you agree to hold The Company harmless from any claims or losses relating to such unauthorized use.

All rights of any kind in Clarks Computer Systems Ltd. software which are not expressly granted in this License are entirely and exclusively reserved to and by The Company.  You may not rent, lease, modify, translate, reverse engineer, decompile, disassemble or create derivative works based on Clarks Computer Systems Ltd. software. You may not make access to Clarks Computer Systems Ltd. software available to others in connection with a service bureau, application service provider, or similar business, or use Clarks Computer Systems Ltd. software in a business to provide file compression, decompression, or conversion services to others. There are no third party beneficiaries of any promises, obligations or representations made by The Company herein.