Service & Maintenance Terms and Conditions

September 28, 2017

GENERAL CONDITIONS for the supply of maintenance services

1.      Interpretation

1.1    The definitions and rules of interpretation in this clause apply in these Conditions.

Additional Charges: any charges payable by the Customer for the provision by TIS of any Deliverables or other services under or in connection with the Agreement and which are not included in the Charges.

Agreement: the agreement between TIS and the Customer for the provision of the Services including these general conditions and each Service Schedule.

Annual Charges: the annual charge payable by the Customer to TIS for the provision of each of the Services as specified in the Service Schedule.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Charges: means the Annual Charges and any Additional Charges (or either of them as the context requires).

Conditions: these terms and conditions.

Contract Year: in relation to each Service, the 12 month period following the Service Commencement Date and each succeeding 12 month period (or part thereof) during the Term.

Customer Equipment: any equipment, systems or facilities provided by the Customer and used directly or indirectly in the supply of the Services.

Deliverables: the deliverables set out in the Agreement produced by TIS for the Customer, including any report as may be prepared by TIS for the Customer detailing any requirements for the System(s).

Excluded Loss: means loss or deferment of profit, loss of revenue, loss of use, business interruption, loss of contract, loss of reputation, credit or goodwill, loss or corruption of data or information, loss of opportunity and (except where specifically provided to the contrary elsewhere in the Agreement) costs resulting from non-operation or increased expense of construction, operation or maintenance, cost of finance and cost of purchased or replacement equipment or systems howsoever caused including negligence or breach of duty.

Maintained Equipment: has the meaning given in Section 1 of Part A of the Service Schedule.

Normal Working Hours: the hours 08:00 to 17:00 GMT Monday to Friday, except English Bank Holidays.

Planned Maintenance Service: the services set out in, or otherwise agreed between the parties in writing in accordance with, Part A of the Service Schedule.

Reactive Maintenance Service: the services set out in, or otherwise agreed between the parties in writing in accordance with, Part B of the Service Schedule.

Service Levels: any service levels applying to a Service specified in the relevant section of the Agreement corresponding to that Service.

Services: all or any of the categories of the services to be provided by TIS as specified in the Service Schedule together with any other services which TIS provides or agrees to provide to the Client during the Term, including without limitation the Deliverables, the Planned Maintenance Services and the Reactive Maintenance Services, and “Service” shall mean any of the Services.

Service Schedule: the schedule forming part of the Agreement which describes the Services to be provided by TIS at the Sites.

Service Commencement Date: the date of commencement specified in the Service Schedule.

Sites: the sites of the Customer at which TIS is to provide the Services (if more than one) and which are listed in the Agreement and “Site” shall mean any of them.

Systems:  the systems as described in the Service Schedule, and “System” shall mean any of the Systems.

Term: the Initial Term and any Extended Term each as defined in the Agreement.

TIS’s Equipment:  any equipment, including tools, or facilities, provided by TIS or its subcontractors or third party suppliers and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

1.2    Condition and paragraph headings shall not affect the interpretation of the Agreement.

1.3    Any reference to a person includes any individual, firm, body corporate, unincorporated association, partnership, trust, foundation, government, government body or agency, estate, association or joint venture and includes any person’s executors, administrators, successors and permitted assigns.

1.4    Words in the singular shall include the plural and vice versa.

1.5    A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6    A reference to writing or written includes faxes and e-mail.

1.7    Where the words include(s), including or in particular are used in the Agreement, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.8    Any obligation in the Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

2.     Application of these general conditions

2.1    If there is any conflict or ambiguity between the terms set out in the Agreement and these general conditions, the terms set out in the Agreement shall prevail.

3.     Joint/mutual obligations

3.1    Each of the parties agrees to:

(a)    use reasonable endeavours to assist each other generally and to resolve all problems arising in the performance of this Agreement in a spirit of mutual collaboration and co-operation; and

(b)    comply with all relevant requirements having the force of law as they relate to each Site in the performance of its obligations under this Agreement.

4.      TIS’s obligations

4.1    TIS shall provide each Service to the Customer in accordance in all material respects with the description of that Service as set out in the relevant section of the Service Schedule.

4.2    If, as part of or in relation to the Services, TIS supplies or installs any parts or products or services which are supplied by a third party manufacturer (a Third Party Product), TIS shall, to the extent it is permitted to do so under its contracts with third parties, endeavour to transfer to the Customer the benefit of any warranty or guarantee given to TIS but otherwise gives no warranty or guarantee in connection with such Third Party Products or the use of them and shall have no liability in respect of Third Party Products.

4.3    TIS shall use its reasonable endeavours to meet any performance dates or times specified in the Agreement (including the Services Levels) or as may be agreed from time to time, but any such dates shall be estimates only and time shall not be of the essence of the Agreement.

4.4    TIS shall comply with all health and safety rules and regulations and any other security requirements that apply at any of the Sites and that have been communicated to it under condition 5.1(b), provided that it shall not be liable under the Agreement if, as a result of such compliance, it fails to meet or perform any of its obligations under the Agreement.

5.      Customer’s obligations

5.1    The Customer shall:

(a)    provide, for TIS, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as requested by TIS and which is reasonably required to enable TIS to provide the Services;

(b)    inform TIS of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Sites;

(c)    in any circumstances where any of TIS’s Equipment is to be located at one of the Sites, take all reasonable steps to keep, maintain TIS’s Equipment in good condition and shall not dispose of or use TIS’s Equipment other than in accordance with TIS’s written instructions or authorisation;

(d)    comply with any reasonable requests given to it by TIS from time to time in connection with the Services (including reasonable requests which are necessary for reasons of health, environment/sustainability, security, safety or the quality and/or performance of the Services);

(e)    notify TIS immediately in writing upon agreeing to sell the Site or any part thereof and at the same time inform TIS of the name and address of the person to whom such sale has been made;

(f)     not adjust, re-set, test, repair or alter or interfere in any way with the System(s);

(g)    keep the relevant System maintained in good operating condition and use and operate the same with reasonable care;

(h)    promptly notify TIS by telephone  if the System is activated;

(i)     promptly notify TIS by telephone followed by confirmation in writing of any proposed structural alteration to a Site or any modification in the telephone installation affecting the relevant System or in the case of space alarms of any alteration to the layout or fitting of the Site or of major movements of contents.

5.2    The Customer warrants that any description or list of the Maintained Equipment provided to TIS prior to, on or after the Service Commencement Date (and upon which TIS relies for the purposes of calculating the Charges) is complete and accurate and shall notify TIS in writing before acquiring any additional systems or equipment which the Customer wishes to become part of the Maintained Equipment or before adding any additional Sites at which the Customer wishes TIS to provide the Services.  TIS shall not be obliged to provide any Services in relation to any such additional systems or equipment or at any such additional sites unless a written variation has been agreed between the parties in accordance with Condition 6.5. If TIS agrees to carry out work any such work in connection with such additional systems or equipment or at an additional site, such work shall be paid for by the Customer on a time and materials basis at TIS’s standard rates from time to time.

5.3    If TIS’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees or any other circumstances beyond the reasonable control of TIS, TIS shall be relieved from its obligations under this Agreement and shall not be liable for any costs, charges, losses or liabilities suffered or incurred by the Customer arising directly or indirectly from such prevention or delay.

5.4    The Customer shall not, without the prior written consent of TIS, at any time from the Effective Date to the expiry of six months after the termination of the Agreement, solicit or entice away from TIS or employ or attempt to employ any person who is, or has been, engaged as an employee of TIS in the provision of the Services to the Customer. Any consent by TIS shall be subject to the Customer paying to TIS a sum equivalent to 25% of the then current annual remuneration of TIS’s employee or, if higher, 25% of the annual remuneration to be paid by the Customer to that employee or sub-contractor.

6.     Change control

6.1    If either party wishes to change the scope or execution of any of the Services, it shall inform the other party of the proposed change.

6.2    Any change under this condition 6 which has a material impact on the provision or nature of any of the Services by TIS shall be a “Major Change” and shall be subject to the provisions set out in conditions 6.4 to 6.7 below. Any other change to the Services or the Agreement shall be a “Minor Change”. TIS’s decision as to whether a change is a Major Change or a Minor Change shall be final and binding.

6.3    TIS may, from time to time and without notice, make a Minor Change the Services for any reason including in order to comply with any applicable health, safety or statutory requirements, provided that such changes do not materially affect the nature, scope of or the charges for the Services. Where practicable, it will give the Customer at least 1 months’ notice of any Minor Change.

6.4    If either party requests a Major Change to the scope or execution of any Services, TIS shall, within a reasonable time, provide a written estimate to the Customer of:

(a)    the likely time required to implement the Major Change;

(b)    any variations to the Charges arising from the Major Change; and

(c)    any other impact of the Major Change on the terms of the Agreement.

6.5    If the Customer wishes TIS to proceed with a Major Change, TIS has no obligation to do so unless and until the parties have agreed in writing (signed by a duly authorised representative of each of the Customer and TIS) on the necessary variations to its charges and any other relevant terms of the Agreement to take account of such Major Change.

7.     Charges and payment

7.1    In consideration of the agreement by TIS to provide the Services, the Customer shall pay to TIS the Annual Charges without deduction, counterclaim or set off. The Annual Charges are payable at the times and in the manner set out in the relevant section of the Service Schedule. Time for payment shall be of the essence of the Agreement.

7.2    The Customer shall pay to TIS any Additional Charges which become payable under or in connection with the Agreement within thirty (30) days from receipt of an invoice from TIS without any deduction, counterclaim or set off. Time for payment shall be of the essence of the Agreement.

7.3    The Charges exclude:

(a)    the cost of hotel, subsistence and any other ancillary expenses reasonably incurred by TIS in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and which are required for the supply of the Services. Such expenses, materials and third party services shall be invoiced by TIS at cost plus TIS’s standard handling charge from time to time; and

(b)    VAT, which TIS shall add to its invoices at the appropriate rate.

7.4    Without prejudice to any other right or remedy that it may have, if the Customer fails to pay TIS on the due date, TIS may:

(a)    charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and TIS may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Customer shall pay the interest immediately on demand; and

(b)    suspend all Services (or any of them) until payment has been made in full.

7.5    All sums payable to TIS under the Agreement shall become due immediately on its termination, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.

7.6    TIS may, without prejudice to any other rights it may have, set off any liability of the Customer to TIS against any liability of TIS to the Customer.

8.     Confidentiality and TIS’s property

8.1    Each party (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party (the “Disclosing Party”), its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging its obligations under or in connection with the Agreement, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.

8.2    All materials, equipment and tools, drawings, specifications and data made available by TIS to the Customer (including TIS’s Equipment and the Deliverables) shall, at all times, be and remain as between TIS and the Customer the exclusive property of TIS, but shall be held by the Customer in safe custody and shall not be disposed of or used other than in accordance with TIS’s written instructions or authorisation. The Customer shall be liable to TIS for any loss of or damage to TIS’s Equipment, except where the loss or damage is due to fair wear and tear or is caused by TIS or anyone acting on its behalf.

8.3    All materials, drawings, specifications, reports, working methods and processes produced by TIS, or TIS’s employees exclusively in connection with the performance of the Services, including the Deliverables, during the Agreement shall be and shall remain the exclusive property of TIS unless expressly otherwise agreed by TIS in writing.

8.4    This condition 8 shall survive termination of the Agreement, however arising.

9.     limitation of liability and disclaimers

9.1    This condition 9 sets out the entire financial liability of TIS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a)    any breach of the Agreement;

(b)    any use made by the Customer of the Services; and

(c)    any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement;

or otherwise under or in connection with the Agreement.

9.2    All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

9.3    Nothing in these conditions limits or excludes the liability of TIS:

(a)    for death or personal injury resulting from its negligence; or

(b)    for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by TIS; or

(c)    for any liability incurred by the Customer which cannot be limited or excluded by TIS by law.

9.4    Subject to condition 9.3:

(a)    TIS shall not be liable for any Excluded Loss;

(b)    TIS’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement or otherwise under or in connection with the Agreement in each Contract Year shall be limited to the aggregate of the Charges paid or payable by the Customer to TIS during the Contract Year in which the claim arose; and

(c)    TIS’s aggregate liability to the Customer of any description (including for breach of contract and negligence) in connection with the Agreement shall not exceed the total Charges paid by the Customer to TIS pursuant to the Agreement.

9.5    The Customer acknowledges and agrees that the Agreement is for the provision of repair and maintenance services in relation to the Systems and that TIS gives no undertaking or guarantee that any of the Systems cannot be compromised or circumvented or will be fully functional or operational at all times and in all circumstances. The Customer also acknowledges and agrees that the Systems may not prevent loss, damage or injury, that TIS is not an insurer of the Customer’s property and that the Charges are not calculated by reference to the value of the Customer’s Sites or the property at the Sites. Accordingly, it is the responsibility of the Customer to maintain comprehensive insurance against all normal risks applicable to the Sites and the property held or located at the Sites.

10.    Termination

10.1  Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving notice to the other if:

(a)    the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 21 days of notification in writing of the breach; or

(b)    an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party (or where the Customer is an individual, the Customer becomes subject to a bankruptcy petition or order); or

(c)    an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

(d)    a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or

(e)    the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

(f)     the other party ceases, or threatens to cease, to trade; or

(g)    the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

10.2   On termination of the Agreement by TIS under condition 10.1 for any reason:

(a)    the Customer shall immediately pay to TIS all of TIS’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, TIS may submit an invoice, which shall be payable immediately on receipt;

(b)    the Customer shall pay to TIS (within 14 days of the date of termination) an amount or amounts equal to any remaining Charges which would have been due to TIS under the Agreement until the end of any applicable minimum period for a Service as specified in the relevant Section (notwithstanding that such Services have not been provided due to the termination);

(c)    the Customer shall return all of TIS’s Equipment and Deliverables (or, as TIS may elect, the Customer shall allow access to TIS to the Customer’s premises to enable TIS to repossess the same), and the Customer shall immediately cease using the same. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and

(d)    the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

10.3  TIS may, at its discretion, suspend and/or stop access to a Service, either in whole or in part:

(a)    in an event of emergency;

(b)    where it is required to do so by law (including where directed to do so by a regulatory authority);

(c)    to comply with an order, instruction or request of government, an emergency services organisation, or other competent administration;

(d)    where TIS becomes entitled to terminate the Agreement pursuant to condition 10.1; or

(e)    where it is expressed to have the right to do so elsewhere in the Agreement

and shall not be liable to the Customer in respect of any such suspension.

11.    General

11.1   No variation of the Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.

11.2   Neither party shall have any liability to the other under the Agreement if it or any of its sub-contractors or suppliers is prevented from, or delayed in, performing its obligations under the Agreement (other then the Customer’s  obligation to pay the Charges) or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

11.3   Failure to exercise, or any delay in exercising, any right or remedy provided under the Agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.

11.4   No single or partial exercise of any right or remedy provided under the Agreement or by law shall preclude or restrict the further exercise of any such right or remedy.

11.5   A waiver (which may be given subject to conditions) of any right or remedy provided under the Agreement or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.

11.6   Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

11.7   If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.

11.8   The Agreement (which includes each Service schedule and these General Conditions) and any documents referred to in it constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter of the Agreement.

11.9   Each party acknowledges that, in entering into the Agreement and any documents referred to in it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to the agreement or not) other than as expressly set out in the Agreement or those documents.  Each party agrees that the only remedies available to it arising out of or in connection with a representation shall be for breach of contract as provided in the Agreement. Nothing in this condition shall limit or exclude any liability for fraud.

11.10 The Customer shall not, without the prior written consent of TIS, assign, transfer, charge, mortgage, subcontract or deal in any other manner with any of its rights or obligations under the Agreement.

11.11 A person who is not a party to the Agreement shall not have any rights under or in connection with it.

11.12 Notice given under the Agreement shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Agreement (or such address, fax number or person as the relevant party may notify to the other party in writing) and shall be delivered personally, sent by fax or sent by pre-paid, first class post or recorded delivery.  A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition is not within business hours (meaning 8:30 am to 5:30 pm Monday to Friday on a day that is a business day), at 8:30 am on the first business day following delivery.  To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

11.13 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter.