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First Corporate Soluions Ltd

Terms & Conditions for Contract Customers

Parties:
1              FIRST CORPORATE SOLUTIONS LIMITED (registered number 05794276) of 79a Wilmslow Road , Handforth, Cheshire SK9 3EN (the ‘Company’); and
2              The ‘Customer’ whose details are set out in the Schedule.

Recital
The Company has agreed to provide to the Customer certain services in respect of the maintenance of the computer hardware equipment listed in the Schedule upon the terms and conditions of this agreement.
Operative provisions:

1. Definitions

1.1 In this agreement unless the context otherwise requires:

                ‘ADDITIONAL CHARGES’ means the charges to be calculated by the Company on a time and materials basis at its then prevailing rates in respect of the provision of Excepted Services pursuant to clause 6.2 below
                ‘COMMENCEMENT DATE’ means the date set out in the Schedule upon which this agreement shall commence
                ‘EQUIPMENT’ means the items of computer equipment set out in the Schedule
                ‘EXCEPTED SERVICES’ means those services referred to in clause 6 below which do not fall within Maintenance Services
                ‘INITIAL PERIOD’ means the period of 1 month commencing on the Commencement Date
                ‘INITIAL REVIEW PERIOD’ the period commencing on the Commencement Date and ending on the third calendar month after the Commencement Date or other such period agreed between the Company and the Customer;
                ‘MAINTENANCE SERVICES’ means the provision of services for the maintenance of the Equipment by the Company to the Customer
                ‘PLACE OF USE’ means that part of the Customer’s premises at the Site where the Equipment is installed and operated
                ‘SERVICE CHARGE’ means the monthly charge as set out in the Schedule payable in respect of the Maintenance Services by the Customer to the Company on the Commencement Date and on the anniversary of the Commencement Date each calendar month thereafter
                ‘SITE’ means the Customer’s address specified in the Schedule

2. Company’s undertaking

2.1 In consideration of the payment by the Customer from time to time of the Service Charge in accordance with the provisions of clause 3 below the Company undertakes to provide the Maintenance Services in respect of the Equipment upon the terms and conditions of this agreement.

2.2 In consideration of the payment by the Customer for goods and equipment the Company undertakes to provide, all goods remain the property of the Company until payment is received in full. If there is default on the payment we retain the right of our employee or agent to enter the premises where the goods are stored and repossess the goods.

2.3 In consideration of the payment by the Customer for goods and equipment the Company undertakes to provide, payment for account customers is strictly 30 days and interest maybe charged upon this in accordance with clause 24.2.

3. Service Charge

3.1 The Service Charge in respect of Equipment and the Maintenance Services is set out in the Schedule.

3.2 The Service Charge shall include the labour costs relating to the Equipment, travel, accommodation (if necessary), and subsistence expenses of the Company’s employees (including the cost of time spent travelling) incurred in the provision of the Maintenance Services.

3.3 The Service Charge shall not include the cost of any Excepted Services and repairs to any peripheral equipment under the control or ownership of the Customer (including but not limited to monitors, printers and scanners) and any other equipment not set out in the Schedule.

3.4 The Service Charge shall be payable by the Customer monthly in advance.

3.5 The Company shall have no liability or obligation to the Customer to provide the Maintenance Services in the event that the Service Charge is not paid by the Customer on time and in accordance with clause 3.4 above. 

3.6 During the Initial Review Period, the Company reserves the right to review and reasonably vary the level of Service Charge. Thereafter the Company shall be entitled to vary the Service Charge not more than once in every successive period of [6/12/18] months upon giving not less than 30 days prior written notice of increase to the Customer.

4. Maintenance Services

4.1 Maintenance Services shall comprise the following:

4.1.1 upon receipt of a request from a Customer the inspection testing and diagnosing (by attendance on Site or remotely) by the Company of any fault reported in an item of Equipment; and

4.1.2 the carrying out by the Company of such repairs replacement of parts cleaning or adjustment as the Company shall judge necessary to remedy the said fault.

4.1.3 in the event of hard disk failure in the Equipment, the replacement by the Company of the hard disk but limited and subject to clause 6.1 and 4.1.4

4.1.4 The customers’ data and safety of this is the responsibility of the customer and at no time does the company accept responsibility for this data or loss of this data.

4.1.5 Backups and any procedures to check that backups are working must be put in place by the customer and the company is not responsible for the checking of successful data backups.

4.1.6 in the event that it is deemed necessary by the Company to remove the Equipment or any part thereof for the purposes of repair of service, the Company shall, subject to availability, provide temporary loan equipment or component parts to the Company for use during such period of repair or service.

4.1.7 Where pro active services are being carried out they aim to be done on a monthly basis, although the date of this work may vary due to completion of any found issues that require resolution. 

4.1.8 Confirmation of backups via the company is an additional service and does not transfer any responsibility for the backup to the company. Backups to be confirmed by the company require the customer to have industry compliant backup software with options for the emailing of logs to the company.

5. Times for Maintenance Services

5.1 Maintenance will be provided upon request by the Customer between the hours of 9 am and 5.00 pm Monday through Friday inclusive (excluding bank and other public holidays). The Company will use its reasonable endeavours to respond to a request for Maintenance Services within 8 hours of receipt of the same and upon accepted acknowledgement that the Equipment is not functioning properly.

6. Excepted services

6.1 The Maintenance Services shall not include:

6.1.1 the correction of any fault due to:

6.1.1.1 the Customer’s failure to maintain a suitable environment for the Equipment at the Place of Use;

6.1.1.2 the Customer’s neglect or misuse of the Equipment or its failure to operate the Equipment in  accordance with the instruction manuals or for the purposes for which it was designed;

6.1.1.3 the alteration modification or maintenance of the Equipment by any party other than the Company without the Company’s prior consent;

6.1.1.4 the transportation or relocation of the Equipment save where the same has been performed by or under the direction of the Company;

6.1.1.5 the use of defective or inappropriate supplies with the Equipment;

6.1.1.6 any defect or error in any software used upon or in association with the Equipment;

6.1.1.7 any accident or disaster affecting the Equipment including without limitation fire, flood, water, wind, lightning, transportation, vandalism or burglary; or

6.1.1.8 the Customer’s failure inability or refusal to afford the Company’s personnel proper access to the Equipment;

6.1.2 the relocation or transportation of the Equipment;

6.1.3 electrical work external to the Equipment;

6.1.4 the provision of supplies for use in association with the Equipment;

6.1.5 in the event of hard disk failure, the system configuration or installation of any application software other than the reinstallation of a basic operating system using software provided by the Customer;

6.1.6 any modification or alteration of or attachment to the Equipment or removal of the same.

6.2 The Company shall upon request by the Customer provide all or any of the Excepted Services referred to in clause 6.1 above but shall be entitled to charge for the same by levying Additional Charges in the manner described in clause 6.4 below.

6.3 Without prejudice to clause 6.2 above the Company shall be entitled to levy Additional Charges in the manner described in clause 6.4 below if Maintenance Services are provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Customer’s request to have been unnecessary.

6.4 Additional Charges shall be levied by the Company monthly in arrears and shall be payable by the Customer within 30 days of receipt of an invoice therefor.

7. Customer’s obligations

7.1 The Customer undertakes to the Company throughout the term of this agreement:

7.1.1 to grant the Company such access to the Place of Use as the Company shall from time to time reasonably require in order to discharge its obligations hereunder;

7.1.2 to make available at the Place of Use such facilities as the Company shall reasonably require in order to discharge its obligations hereunder including without limitation adequate work space storage and office furniture and equipment;

7.1.3 to take all reasonable precautions to protect the health and safety of the Company’s employees agents and sub‑contractors while on the Customer’s Site; and

7.1.4 to make available the Equipment and supply all documentation and other information necessary for the Company to diagnose any fault in the Equipment.

8 Company’s warranty

8.1 The Company warrants and undertakes to the Customer:

8.1.1 to perform the Maintenance Services and any Excepted Services with reasonable care and skill;

8.1.2 to perform any Excepted Services within a reasonable time of being so requested by the Customer;

8.1.3 that it shall have a free and unemcumbered title to any replacement parts for the Equipment supplied hereunder; and

8.1.4 that the Customer will enjoy quiet possession of any such replacement parts and that the same will be of merchantable quality and reasonably fit for their purpose.

8.2 The Company does not warrant that the Maintenance Services (or the Additional Services) will cause the Equipment to operate without interruption or error.

8.3 Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the performance by the Company of the Maintenance Services or Excepted Services hereunder are hereby excluded.

9. Limitation of liability

9.1 The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees agents or sub‑contractors) to the Customer in respect of:

9.1.1 any breach of its contractual obligations arising under this agreement; and

9.1.2 any representation statement or tortious act or omission including negligence arising under or in connection with this agreement

9.2 Any act or omission on the part of the Company or its employees agents or sub‑contractors falling within clause 9.1 above shall for the purposes of this clause 9 be known as an ‘Event of Default’.

9.3 The Company shall not be liable to the Customer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.

9.4 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.

9.5 The Customer hereby agrees to afford the Company not less than 30 days in which to remedy any Event of Default hereunder.

9.6 The Company shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon the Company within 1 month of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.

9.7 Nothing in this clause 9 shall confer any right or remedy upon the Customer to which it  would not otherwise be entitled.

10. Customer’s warranty

10.1 The Customer warrants and undertakes to the Company that it is the owner of the Equipment and that it has full power and authority to enter into this agreement and permit the Company to perform the Maintenance Services and any Additional Services.

10.2 The Customer undertakes to indemnify and hold harmless the Company against any loss or damage that the Company may suffer as a result of a breach by the Customer of clause 10.1 above.

11. Replacement of parts

11.1 Subject always to the warranty set out in clause 8.1.4 above the Company reserves the right to supply new, second‑hand, or reconditioned, alternative but compatible replacement parts in the performance of its duties hereunder.

11.2 Any parts of the Equipment replaced by the Company pursuant to clause 11.1 above (‘Replaced Parts’) shall upon replacement become the property of the Company and the Customer warrants that either it shall have a free and unencumbered title to such Replaced Parts or (where the Equipment is leased or charged) that it shall have obtained all necessary consents and authorities to part with possession and give good title to the Replaced Parts.

11.3 The Replaced Parts shall be paid for by the Customer at the current retail value.

12. Duration of agreement

12.1 This agreement shall commence on the Commencement Date and shall continue on a monthly basis until terminated by either party in accordance with the provisions of clause 13 below.

13. Termination

13.1 This agreement may be terminated:

13.1.1 by the Customer upon giving not less than three months notice to the Company;

13.1.2 by the Company upon giving not less three months notice to the Customer;

13.1.3 forthwith by the Company if the Customer fails to pay the Service Charge;

13.1.4 forthwith by the Company if the Customer fails to pay any Additional Charges due within 30 days of the relevant invoice;

13.1.5 by the Customer upon receipt of a notice of increase in Service Charge from the Company under clause 3.6 such termination to end on the date upon which the increase in Service Charge was to be effective and payable by the Customer to the Company;

13.1.6 forthwith by either party if the other commits any material breach of any term of this agreement (other than one falling within 13.1.3 or 13.1.4 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days of a written request by the other party to remedy the same;

13.1.7 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).

13.2 Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

14. Confidentiality

14.1 Each of the parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this agreement save that which is:

14.1.1 trivial or obvious;

14.1.2 already in its possession other than as a result of a breach of this clause; or

14.1.3 in the public domain other than as a result of a breach of this clause.

14.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 14.1 above by its employees agents and sub‑contractors.

15. Force majeure

15.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires strikes (of its own or other employees) insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an ‘Event of Force Majeure’).

15.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.

15.3 If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of an Event of Force Majeure.

16 Waiver

16.1 The waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

17. Notices

17.1 A notice or other communication under or in connection with this agreement shall be in writing and shall be delivered personally or sent by first class post pre‑paid recorded delivery (or air mail if overseas) or by fax to the party due to receive the notice or communication, in the case of the Customer at its address set out in the Schedule and in the case of the Company at the address set out in this agreement or another address specified by either party by written notice to the other.

17.2 In the absence of evidence of earlier receipt, a notice or other communication is deemed given:

17.2.1 if delivered personally, when left at the address referred to in clause 17.1;

17.2.2 if sent by mail except air mail, two days after posting it;

17.2.3 if sent by air mail, six days after posting it; and

17.2.4 if sent by fax, on completion of its transmission evidenced by a transmission report.

18. Invalidity and severability

18.1 If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

19. Entire agreement

19.1 The Company shall not be liable to the Customer for loss or damage arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this agreement other than those representations agreements statements and undertakings confirmed by a duly authorised representative of the Company in writing or expressly incorporated or referred to in this agreement.

20. Successors

20.1 This agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.

21. Assignment

21.1 Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.

22. VAT

22.1 Save insofar as otherwise expressly provided all amounts stated in this Agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefor.

23. Headings

23.1 Headings to clauses in this agreement are for the purpose of information and identification only and shall not be construed as forming part of this agreement.

24. Law

24.1 This agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the non‑exclusive jurisdiction of the English courts.

24.2 Statutory rights to recover any outstanding invoices under the late payment of Commercial Debt Regulations 2002 may be used including interest permitted under such regulations.