TERMS AND CONDITIONS

1. Definitions

In this maintenance agreement the following words and expressions shall have the following meanings:

“The schedule”-shall mean the schedule annexed hereto;

“Maintenance Direct”-shall mean Maintenancedirect.net Ltd and/or its successors, assignees, sub-contractors and agents;

“The customer”-shall mean the person, firm, company or other body or association whose name and address are set out overleaf;

“The equipment”-shall mean the computer equipment specified in the schedule;

“The annual fee”-shall mean the sum (as amended from time to time) payable by the customer to Maintenance Direct in respect of maintenance of equipment throughout the currency of this agreement. The annual fee for the first year of the agreement is specified in the schedule;

“The location”-shall mean the address specified in the schedule at which the equipment is and will remain situated;

“The response time “-shall mean the period of time specified in the schedule, and commencing from the time of the fault being logged, within which and engineer of Maintenance Direct will attend the location to examine the equipment.

2. Maintenance

Subject to compliance by the customer with these terms and conditions Maintenance Direct shall throughout the currency of this agreement provide a remittance service at the location in respect of the equipment. The maintenance service shall comprise such services as is necessary or appropriate to maintain the equipment in good working order and without prejudice to the foregoing generally shall comprise:-

(a)
Provision of Maintenance Directs help-line telephone advisory service between the hours of 09.00 and 17.00 Monday to Friday excluding weekends and bank holidays, using such telephone numbers as may be advised to the customer by Maintenance Direct from time to time. This facility is intended to be used by the customer in priority to any other remedy available in the terms of this agreement.

(b)
If the customer has chosen a response period of 4 to 8 hours and if so recommended by Maintenance Direct Help-line staff attendance at the Location between the hours of 9.00 and 17.00 Monday to Friday excluding weekends and bank holidays, by one of Maintenance Directs maintenance engineers who will use their best endeavours, within the response period. Where a visit cannot be made on the day of the call-out, the engineer will visit the location during the following working day, and will investigate and remedy the defect (where it is a hardware default) and will, where necessary or appropriate, replace without charge any components or units ( other than disks or other consumables) which have become unserviceable.

(c)
If the customer has chosen a response period of 24 hours and if so recommended by Maintenance Directs Help-line staff the customer should return the equipment or any damaged part thereof to the service centre specified in the schedule during working hours set for the repair or replacement and Maintenance Direct will use its reasonable endeavours to repair the equipment within 24 hours.

(d)
Any components or units replaced pursuant to the firm sub-clauses shall be new or equivalent in performance, and shall be supplied on an exchange basis.

3. Excluded Service

For the avoidance of doubt it is agreed that the maintenance service shall not include:-

(a)
Electrical work external to the equipment, namely to units comprised in any central system of which the equipment forms part and which have not been supplied by Maintenance Direct, or Maintenance of extraneous accessories or of software.b)
Repair to damage resulting from accident, transportation or neglect(unless same as been caused by Maintenance Direct, its servants or agents); repair to damage caused by fire, flood, riot, civil commotion, burglary, attempted burglary, failure of electrical or any other power, operator error, programme error, air conditioning or humidity control failure or misuse, abuse or any other causes other than ordinary and careful use of the equipment, which abuse shall include the use of recording materials, machine stationery, ribbons or other consumables of a type which are not approved by the equipment manufacturer, or have been advised to the customer as unapproved by Maintenance Direct.

(c)
Maintenance which it is in the opinion of  Maintenance Direct impracticable for Maintenance Direct to render because of an alteration to the equipment, or its connection by either mechanical or electrical means to other equipment or devices, or maintenance which provides necessary by reason of any attempted maintenance or repair by persons other than Maintenance Directs approved maintenance engineers.

(d)
The supply of accessories or spare parts for painting or refinishing or equipment or units.

(e)
Performing services connected with the relocation of equipment, or adding or removing accessories, attachments or other devices.

4. Annual Fee

Unless otherwise agreed in writing, the annual fee shall be paid in full in advance by the customer at the date of execution of this agreement and Maintenance Direct shall be under no obligation incumbent on it in terms of this agreement until the annual fee has been paid in full by the customer. Maintenance Direct shall be entitled to charge the customer at its then current rates of charge for all work carried out on the equipment which is not included in the maintenance service provided in terms of this agreement.

5. Duration of Maintenance Agreement.

Subject to condition 9 hereof this agreement shall remain in force until the end of the maintenance period. The agreement shall continue in force from year to year unless terminated by wither party giving three months written notice of termination to expire at the end of such period or anniversary of the end of such period.

6. Obligations of the Customer

Throughout the currency of this agreement the customer shall:-

(a)
Use the equipment in suitable premises and environment and care for the equipment in accordance with Maintenance Directs or the original manufacturer’s recommendations, and/or any appropriate instructions which may be given from time to time.

(b)
Operate the equipment with reasonable care and in a manner which preserves proper and effective working order.

(c)
Allow Maintenance Direct s engineers full free and prompt access to the equipment at all reasonable times and provide such engineer with adequate working space, facilities and power sockets all at no charge to Maintenance Direct.

(d)
Make available operating staff at the location during service calls to operate the equipment where required, to demonstrate any fault, and subsequently to verify rectification and satisfactory operation of the equipment.

(e)
Under no circumstances, unless agreed in writing by Maintenance Direct, or where equipment is designed to be portable, allow the equipment t be removed from the location nor under any circumstances be interfered with or repaired by anyone other than authorised Maintenance Direct service engineers.

(f)
Not call for Maintenance Direct s visits when there is either no hardware malfunction, or where the fault is referable to a post office line or power supply fluctuation.

(g)
Use only those disks, tapes, ribbons and other consumables which are recommended for use in relation to the equipment by the original manufacturer or by Maintenance Direct.

(h)
At all times client’s requests for the maintenance service to Maintenance Direct and co-operate with Maintenance Direct in all programmes which are intended to gather information to the benefit of users of Maintenance Directs equipment.

(i)
Where the customer has selected a response period of 24 hours, be responsible for the whole costs and risk of delivery of the equipment or any part thereof to the service centre and its return to the location

7. Abortive Calls

In the event of the customer making a maintenance call which proves to be unnecessary or abortive or which requires to be repeated as a result of the customers failure to comply with any of the obligations contained in this agreement the customer will be liable to pay for all labour costs and expenses in connection with the said call at Maintenance Direct s current rate of charge.

8. Limitation of Liability.

(a)
Except as herein stated Maintenance Direct shall not be liable in any manner whatsoever to the customer or its agents, servants or employees for any direct, indirect or consequential loss or damage which occurs as a result of:-

(i)Misuse of the equipment or any part thereof
(ii)Stoppage, breakdown or failure of the equipment including changes of fluctuation in the mains voltage supply, damage to media and other accessories and reprogramming;
(iii)Unauthorised modification, alteration, interference with or repair to the equipment; or for the cost of repairs to the equipment necessitated by any of the above.

(b)
Except as provided in section 16 of the unfair contract terms act 1977 (liability for death or personal injury from breach of duty) Maintenance Direct shall not be responsible in ant circumstances for any direct, indirect or consequential loss or damage which the customer may sustain in connection with the provision of the maintenance service.

(c)
Maintenance Direct shall not be responsible or liable in any manner whatsoever for any direct, indirect or consequential loss arising from any delay or fault in the performance of any of Maintenance Direct s obligations in terms of this agreement where such delay or default arises as a result of any circumstances or conditions beyond the control of Maintenance Direct including ( but without prejudice to the foregoing generality) war, industrial dispute, strike, lockout, riot, terrorism, vandalism, malicious damage, fire, storm, flood, Act of God, accident, non-availability or shortage of materials, spare parts or labour, failure of any sub-contractor to perform, failure of equipment, electricity or other power or of telephone service, any statute, rule, byelaw, order, regulation or requisition made or issued by any government department, local or other duly constituted authority or any act of omission of the customer or its employees, agents or servants.

9. Termination

Notwithstanding condition 5 thereof, Maintenance Direct may at any time terminate this agreement forthwith by giving notice in writing to that effect to the customer on the happening of any one or more of the following events, namely:-

(a)
If the customer shall be in breach or fail to observe or perform any of the provisions of this agreement and, where such breach is capable of remedy, fails to remedy the same within 14 days of its receipt of written notice from Maintenance Direct specifying the breach.

(b)
If the customer sells or parts with possession of the equipment or becomes bankrupt or grants a trust deed on behalf of its creditors or is sequestrated or, if the customer is a company, a provisional liquidator is appointed or an order is made or a resolution passed for its winding-up or a receiver is appointed to the assets of the customer or any part thereof.

10. Sub-Contractors.

Maintenance Direct may arrange for the maintenance service to be provided in terms of this agreement to be carried out by a nominated sub-contractor.

11. Assignation

The customer will not assign, transfer, mortgage or otherwise alienate any of its rights or obligations in terms of this agreement without prior consent of Maintenance Direct.

12. Choice of Law

This agreement shall be governed and construed in accordance with the law of Scotland.