1. Interpretation The definitions and rules of interpretation in this clause apply in this agreement.
Additional Services:
any Emergency Maintenance and/or any Excluded Maintenance performed by the Supplier under this agreement.
Additional Services Fees:
the fees payable in consideration of the provision of any Additional Services.
Business Day:
a day other than a Saturday, Sunday or public holiday in England when banks are open for business.
Charges:
the Maintenance Fees and the Additional Services Fees together.
Corrective Maintenance:
in accordance with clause 2.3:
(a) making any adjustments to the Maintained Equipment; and
(b) replacing any parts or components of the Maintained Equipment, in each case, which are required to restore the Maintained Equipment to Good Working Order.
Excluded Causes:
(a) a defect in the manufacturer’s design of the Maintained Equipment;
(b) faulty materials or workmanship in the manufacture of the Maintained Equipment;
(c) use of the Maintained Equipment with computer equipment or materials not supplied or approved in writing by the Supplier;
(d) any maintenance, alteration, modification or adjustment performed by persons other than the Supplier or its employees or agents unless approved by the Supplier in accordance with clause 4.1.8;
(e) any alteration or modification required as a result of statutory regulations or expense of parts no longer in production;
(f) effects of hard water scale or descaling;
(g) issues relating to glass doors, sneeze screens or door seals;
(h) issues arising as a consequence of external equipment including but without limitation water softeners and booster pumps;
(i) the Customer or a third party moving the Maintained Equipment to an unsuitable location or environment;
(j) the use of the Maintained Equipment in breach of any of the provisions of the agreement under which the Maintained Equipment was supplied;
(k) a failure, interruption or surge in the water, gas, electrical or other utility source or their related infrastructure connected to the Maintained Equipment;
(l) a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Maintained Equipment, or an error or omission in the correct use of that air conditioning or other environmental controls by the Customer; or
(m) the neglect or misuse of the Maintained Equipment.
Excluded Maintenance:
any maintenance services required to restore any malfunctioning or failed Maintained Equipment to Good Working Order where the malfunction or failure results from or is caused by any of the Excluded Causes.
Emergency Maintenance:
(a) making any adjustments to the Maintained Equipment; and
(b) replacing any parts or components of the Maintained Equipment, in each case, which are required to restore the Maintained Equipment to Good Working Order.
Good Industry Practice:
in relation to any undertaking and any circumstances, the exercise of skill, diligence, prudence, foresight and judgement and the making of any expenditure that would reasonably be expected from a skilled person engaged in commercial cleaning under the same or similar circumstances.
Good Working Order:
the Maintained Equipment operates in accordance with any agreement under which the Maintained Equipment was supplied.
Maintenance Services:
Preventative Maintenance, Corrective Maintenance and Emergency Maintenance of the Maintained Equipment.
Normal Business Hours:
8.00am to 5.00pm GMT on a Business Day.
Preventative Maintenance:
means:
(a) testing that the Maintained Equipment is functional; and
(b) making any adjustments as may be required to ensure the Maintained Equipment remains in Good Working Order,
in accordance with clause 2.2.
Renewal Period:
each successive 12-month period after the Initial Period for which this agreement is renewed.
Standard Maintenance Fees:
the fees payable by the Customer for the provision of Corrective Maintenance and Preventative Maintenance, as set out above, as these fees are varied from time to time in accordance with the terms of this agreement.
Term:
the Initial Period together with all Renewal Periods.
Maintenance Services
During the Term, the Supplier shall provide the Customer with the Maintenance Services for the Maintained Equipment.
The Supplier shall attend in accordance with the required number of attendances above to perform Preventative Maintenance of the Maintained Equipment. Where the Supplier wishes to attend the Location in order to perform Preventative Maintenance, it shall do so during Normal Business Hours.
On the Customer informing the Supplier that the Maintained Equipment is malfunctioning or has failed or is otherwise not in Good Working Order, the Supplier shall:
use all reasonable endeavours to perform Corrective Maintenance of the Maintained Equipment within 24 hours of recorded notification to the Supplier; and
attend at the Location during Normal Business Hours within 24 hours of recorded notification.
On the Customer informing the Supplier outside of Normal Business Hours that the Maintained Equipment is malfunctioning, has failed or is not in Good Working Order, the Supplier shall use reasonable endeavours to perform Emergency Maintenance of the Maintained Equipment as soon as reasonably practicable.
Emergency Maintenance shall be charged at the Additional Services Rates for each of the Supplier’s personnel involved in the performance of Emergency Maintenance. Any additional charges shall be calculated, in the case of Emergency Maintenance that is performed remotely, from the time at which the relevant Supplier personnel commence performance of Emergency Maintenance, and in the case of Emergency Maintenance that is performed at the Location, including travel time and cost of travel from when the personnel begin their journey to the Location until they arrive back from the Location.
In performing any Maintenance Services, the Supplier shall use all reasonable endeavours to restore any malfunctioning or failed Maintained Equipment to Good Working Order while in attendance at the Location. Where this is not reasonably practicable, or not reasonably practicable within Normal Business Hours (in the case of Preventative Maintenance and Corrective Maintenance), the Supplier shall either arrange for a further visit to the Location within Normal Business Hours to complete the repair, or remove the Maintained Equipment or part of the Maintained Equipment for repair off-site.
The Supplier shall procure that its personnel shall, while on site at the Location, comply with the Customer’s reasonable health and safety and security policies provided that these policies have been brought to the attention of its personnel.
Replacements and Spare Parts
In performing the Preventative Maintenance, Corrective Maintenance and the Additional Services, the Supplier shall use all reasonable endeavours to source spare parts required to restore the Maintained Equipment to Good Working Order and the Supplier shall have the right to charge the Customer for the spare parts but not without receiving approval prior.
All spare parts and/or replacements provided by the Supplier to the Customer shall become part of the Maintained Equipment and the property of the Customer. The Supplier will assign to the Customer, with full title guarantee and free from all third-party rights, all spare parts and/or replacements provided by the Supplier. All parts and components removed from the Maintained Equipment by the Supplier in the course of performing the Preventative Maintenance, Corrective Maintenance and/or the Additional Services shall no longer constitute part of the Maintained Equipment and will be the property of the Supplier. The Customer will assign to the Supplier, with full title guarantee and free from all third-party rights, all parts and components removed from the Maintained Equipment by the Supplier in accordance with this clause 3.2. For the purposes of this sub-clause, ‘assign’ includes ‘transfer ownership of’.
Customer’s Obligations
The Customer shall:
ensure that the Maintained Equipment is installed and kept at the Location, under suitable conditions, as specified in the agreement under which the Maintained Equipment was supplied, and permit only trained and competent personnel to use it and follow any operating instructions as the Supplier may give from time to time;
notify the Supplier promptly if the Maintained Equipment is discovered to be operating incorrectly;
ensure the Maintained Equipment is cleaned daily by competent employees and in accordance with the manufacturers’ instructions and general standards of competent hygiene;
ensure the immediate surrounds as well as all main services and connections to the Maintained Equipment are kept in good repair and condition;
at all reasonable times permit full and free access to the Location and to the Maintained Equipment to the Supplier, its employees, contractors and agents, and provide them with adequate and safe working space, and any facilities as are reasonably required to enable the Supplier to perform the Maintenance Services and the Additional Services while at the Location including but not limited to the free supply and assembly of scaffolding, ladders, walkways, hoists, lighting and other equipment necessary to ensure the safe provision of the Services;
provide the Supplier with any information that is reasonably requested in the performance of the Maintenance Services and the Additional Services;
take any steps reasonably necessary to ensure the safety of the Supplier’s personnel when attending the Location;
not allow any person other than the Supplier to maintain, alter, modify or adjust the Maintained Equipment without the prior written approval of the Supplier;
not move the Maintained Equipment from the Location without the prior written approval of the Supplier (such approval not to be unreasonably withheld or delayed);
store any reserve equipment only in conditions approved by the Supplier, and make this equipment available for periodic maintenance, as with all other Maintained Equipment; and
only use supplies or materials supplied or approved by the Supplier (such approval not to be unreasonably withheld or delayed).
Excluded Maintenance
The Supplier is not obliged to perform any Excluded Maintenance.
Where the Supplier is performing or has performed the Maintenance Services in circumstances where it is established that the Maintained Equipment was not in Good Working Order due to any of the Excluded Causes, the Supplier may charge, and the Customer shall pay, the Additional Services Fees in respect of that work.
Charges
For the performance of Corrective Maintenance and Preventative Maintenance, the Customer shall pay to the Supplier the Standard Maintenance Fees.
For the performance of any Additional Services, the Customer shall pay to the Supplier the Additional Services Fees.
The Standard Maintenance Fees and the Additional Services Fees shall be inclusive of all expenses, other than those recoverable in accordance with clause 3.1, and the Supplier shall be responsible for all costs and expenses incurred in providing the Maintenance Services (other than those recoverable in accordance with clause 3.1).
The Standard Maintenance Fees shall be due and payable in full to the Supplier half yearly in advance, within 30 days of receipt of a valid invoice from the Supplier. Any Additional Services Fees shall be due and payable monthly, within 30 days of receipt of a valid invoice from the Supplier. Any charges for spare parts recoverable in accordance with clause 3.1 shall be due within 30 days of receipt of a valid invoice from the Supplier.
If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier’s remedies under this agreement, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
All Charges are exclusive of VAT or any other applicable sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
The Supplier may, at any time after the first anniversary of the Commencement Date, increase the Standard Maintenance Fees and the Additional Services Rates by giving to the Customer not less than three months written notice, provided that the increases shall be no more frequent than once in any 12-month period.
Supplier Warranties
The Supplier represents and warrants to the Customer that:
the Maintenance Services and the Additional Services shall be performed:
(a) by an appropriate number of suitably experienced personnel;
(b) using all reasonable skill and care and in accordance with Good Industry Practice; and
(c) in accordance with all applicable laws and regulations in force from time to time.
the Supplier has the full capacity and authority and all necessary permissions, licences and consents necessary to enter into, and perform its obligations under, this agreement.
Except as expressly stated in this agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law.
Liability
Neither party excludes or limits liability to the other party for:
fraud or fraudulent misrepresentation;
death or personal injury caused by negligence; or
a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
Subject always to clause 8.1, neither party shall be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
any loss (whether direct or indirect) of profits, business, revenue, or goodwill;
any special, indirect or consequential loss, costs, damages, charges or expenses,
in each case, however arising under this agreement.
Subject always to clause 8.1, each party’s total aggregate liability in contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance, contemplated performance, or non-performance of this agreement shall be limited to the greater of the total Charges paid by the Customer to the Supplier during the 12-month period immediately preceding the date on which the first cause of action under this agreement first arose.
The parties agree the use of the Maintained Equipment is under the control of the Customer and it is fair and reasonable for the Supplier to limit it liability under this Agreement accordingly
Term and Termination
This agreement shall commence on the Commencement Date. Unless terminated earlier in accordance this clause 9, this agreement shall continue for the Initial Period and shall automatically extend for a Renewal Period at the end of the Initial Period and at the end of each Renewal Period. Either party may give written notice to the other party, not later than 90 days before the end of the Initial Period or the relevant Renewal Period, to terminate this agreement at the end of the Initial Period or the relevant Renewal Period, as the case may be.
Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified to make that payment;
the other party commits a material breach of any material term of this agreement (other than failure to pay any amounts due under this agreement) and (if that breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
the other party:
(a) suspends, or threatens to suspend, payment of its debts;
(b) is unable to pay its debts as they fall due or admits inability to pay its debts;
(c) (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
(e) (being a partnership) has any partner to whom any of clause (a) to clause (d) apply.
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (in the case of a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over that other party (being a company);
the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of that other party or a receiver is appointed over the assets of that other party;
a creditor or encumbrancer of that other party attaches or takes possession of, or a distress, execution, sequestration or other similar process is levied or enforced on or sued against, the whole or any part of that other party’s assets and that attachment or process is not discharged within 14 days;
any event occurs or proceeding is taken with respect to that other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2.3 to clause 9.2.9 (inclusive);
that other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
there is a change of control of that other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
Termination of this agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
On termination of this agreement for any reason, each party shall as soon as reasonably practicable:
return all of the other party’s equipment and materials, failing which the other party may enter the relevant premises and take possession of them. Until these are returned or repossessed, the party remaining in possession shall be solely responsible for their safe-keeping;
the Supplier shall provide all reasonable assistance to the Customer and/or any third party engaged by the Customer in connection with the maintenance and support of the Maintained Equipment;
the Customer shall immediately pay any outstanding amounts owed to the Supplier pursuant to this agreement.
Regardless of its obligations in this clause 9, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials which it would otherwise be required to return or destroy under clause 9.5, it shall notify the other party in writing of that retention, giving details of the documents or materials that it must retain.
Force Majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
Assignment
This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any of its rights and obligations under this agreement without the prior written consent of the other party.
Waiver
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Notice
Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next-working-day delivery service providing proof of delivery, at its registered office (if a company) or (in any other case) its principal place of business.
Any notice or communication shall be deemed to have been received, if delivered by hand, on signature of a delivery receipt, or otherwise at 9.00 am on the Business Day after posting or at the time recorded by the delivery service.
This clause 13 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, writing shall not include e-mail.
Entire Agreement
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Severance
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
No Partnership or Agency
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Third-party Rights
No person other than a party to this agreement shall have any rights to enforce any term of this agreement.
Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Governing Law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
In witness whereof this document has been executed and delivered on the date first stated above.