Enterprise Communication Solutions Ltd
Support and Maintenance Terms and Conditions
1. General
1.1 In these terms and conditions the following words are defined as follows: –
Additional Charges the charges incurred for any services over and above the Maintenance Services, as described in clause 6;
Confidential Information any information relating to the customers business, affairs, customers, employees, suppliers, products, operations or processes or any information which should be understood, by its subject matter, markings or the manner of its disclosure, to be confidential;
Contract the Support and Maintenance agreement to which these Terms are attached;
Contract Year each year of the contract, starting on the Commencement Date and thereafter on its anniversary;
Customer the customer named in the Contract;
Equipment the equipment detailed in the Contract;
Maintenance Services the maintenance services performed on the equipment, as described in clause 3 below;
Maintenance Charge the charges are detailed in clause 6 below;
Maintenance Request the Customers request for Maintenance Services;
Response Time means the time specified as such on the Contract;
Terms these Terms and Conditions, together with any additional terms in the Contract and in the attached Service Support Document;
E.C.S Enterprise Communication Solutions Ltd, F9 Warrington Business Park, Long Lane, Warrington, Cheshire, WA2 8TX
1.2 These Terms constitute the entire agreement between E.C.S and the Customer and supersede all previous arrangements or agreements relating to the same matter. Any waiver, substitution, modification or addition to these Terms must be agreed by E.C.S in writing.
1.3 Headings are for ease of reference and shall not affect the construction of these Terms.
2. Maintenance Period
2.1 These Terms shall commence on the Commencement Date specified on the Contract and will continue for a period of 1 year and thereafter be renewed annually until terminated in accordance with clause 9 below.
3. Scope of Maintenance Services
3.1 E.C.S shall;
3.1.1 respond with the Response Time to any Maintenance Request;
3.1.2 maintain the Equipment and ensure that such Equipment is kept in working order; and
3.1.3 carry out any necessary repairs and replace any component parts of the Equipment caused by everyday wear and tear in normal use.
4 Excluded Items
4.1 External overhead lines, poles and supports, underground and structured cables are specifically excluded from the Contract. E.C.S may, in its absolute discretion, repair any faults in such excluded items at the request of the Customer, on such terms as may be agreed by E.C.S and the Customer and at an Additional Charge.
4.2 Data routers, analogue telephones and LCR programming are also excluded from the Contract
5 Performance and Maintenance Services
5.1 The Response Time shall be specified on the Contract
5.2 Maintenance Services will be provided from 9am to 5pm Monday to Friday, normal business days, unless otherwise specified on the Contract.
6 Charges and Payment Terms
6.1 The Maintenance Charge for the first Contract Year is detailed in the Contract.
6.2 E.C.S may increase the Maintenance Charge at the start of each Contract Year, but shall give the Customer at least 42 days notice of the new Maintenance Charge before the end of the previous contract year.
6.3 Unless otherwise stated on the Contract, payment is due before the commencement of a Contract Year within 30 days of the date of invoice.
6.4 E.C.S may charge interest (before or after judgement) on any payments overdue until payment is received at 2% over the base rate of NatWest Bank Plc from time to time, calculated on a daily basis.
6.5 Where payment is 30 days overdue E.C.S may cancel the Contract. E.C.S may delay enforcing this right to cancel the Contract, but shall not be deemed to have waived such right.
6.6 If the Equipment is modified, enhanced or improved during a Contract Year, E.C.S may increase the Maintenance Charge or charge the Customer an Additional Charge, as appropriate.
6.7 E.C.S shall also charge the Customer an Additional Charge where E.C.S has performed the Maintenance Services and the failure of the Equipment is subsequently found to be caused by any of the following;
6.7.1 any faults in public telephone operator (such as BT & Cable and Wireless) supplied equipment;
6.7.2 any faults in the host or subsidiary PBX (Private Branch Exchange) equipment;
6.7.3 failure or excessive variations in the electricity supply; excessive electrical radiation or radio interference;
6.7.4 unauthorised movement of, interference or tampering with the Equipment by the Customer or any third party;
6.7.5 neglect, incorrect use or misuse of the Equipment;
6.7.6 mis-operation or programming error;
6.7.7 accidental damage or damage caused by lightning flood, fire or other acts of God.
7. Customer Obligations
7.1 The Customer shall;
7.1.1.1 pay the Maintenance Charge on the Commencement Date and thereafter at the start of each Contract Year;
7.1.1.2 pay any Additional Charges incurred in accordance with clause 6;
7.1.1.3 provide a suitable environment for the proper operation of the Equipment;
7.1.1.4 notify E.C.S immediately of any fault or defect in the Equipment;
7.1.1.5 give E.C.S and its agents unhindered access to the Equipment.
7.2 If the Customer moves, interferes or tampers with the Equipment or allows a third party to move, interfere or tamper with the Equipment in any way E.C.S may, at its absolute discretion, either;
7.2.1.1 refuse to carry out any repairs or work required to rectify any damage caused by such moving, interference or tampering; or
7.2.1.2 carry out such repairs or work at an Additional Charge to the Customer.
7.3 Where E.C.S leaves any additional Equipment or materials on the Customers premises (as required for certain Maintenance Services packages) the Customer shall not move, interfere or tamper with such additional Equipment or materials and shall afford E.C.S full access during working hours and upon reasonable notice.
8. Limitation of Liability
8.1 This clause provides for the entire liability of E.C.S whether in contract, tort (including negligence), misrepresentation (unless fraudulent), strict liability or other liability for the acts or defaults of its employees, agents or sub-contractors.
8.2 E.C.S accepts no liability whatsoever and howsoever arising for any special, indirect or consequential loss including or limited to, loss of profits, goodwill, contracts, anticipated savings, increased cost of working or third party claims, even if E.C.S knew or was informed of the possibility of the same.
8.3 E.C.S’s liability for loss or damage to the physical property of the Customer caused by E.C.S’s negligence shall not exceed £10, 000, 000.
8.4 Except as stated above E.C.S’s entire liability to the Customer shall not exceed the price from the Customer in respect of the Contract.
8.5 No provision in these Terms shall limit or exclude E.C.S’s liability for death or personal injury resulting from E.C.S’s negligence.
9. Termination
9.1 Either party may terminate the Contract by giving to the other party at least 90 days written notice before the end of a Contract Year.
9.2 E.C.S may terminate the Contract immediately if any of the following occurs:
9.2.1 the Customer is in material breach of these Terms and, where capable of remedy, has not remedied the breach within 30days of receipt of notice from E.C.S requiring such remedy;
9.2.2 a liquidator, administrative receiver, administrator or receiver is appointed in respect of the whole or a material part of the assets and/or undertaking of the Customer or the Customer enters into an arrangement with its creditors or becomes unable to pay its debts or ceases to trade.
10. Force Majeure
10.1 If events or circumstances beyond E.C.S’s reasonable control prevent it from performing its obligations, E.C.S shall give the Customer notice and shall be relieved of performing its obligations for as long as it is affected.
11. Assignment
11.1.1 The Customer shall not assign any rights or liabilities under these Terms without the prior written approval of E.C.S.
11.1.1.1 The Customer shall use reasonable endeavours to produce that any assignee enters into a new agreement with E.C.S relating to the Maintenance Services.
12. Confidentiality
12.1 E.C.S agrees that it shall not (except as authorised or required by its obligations) reveal to any person and shall keep with complete secrecy all Confidential Information and shall only use such Confidential Information for the performance of the Maintenance Services.
12.2 This restriction shall not apply to Confidential Information, which is already in the public domain.
13. Law and Jurisdiction
13.1 The Contract and these Terms shall be governed by the law of England and Wales. Any disputes arising in connection with the Contract or these Terms shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
