Terms and Conditions for Maintenance agreements – UPS Systems plc (UPS)
1.1 Definitions. In these Conditions, the following definitions apply:
Additional Services: those further services and parts required not covered under the Services.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 4.2(c).
Commencement Date: set out in the Maintenance Schedule.
Company: UPS Systems Plc (“UPSS”), the full details of which are set out in the Maintenance Schedule.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.8.
Contract: the contract between the Company and the Customer comprising the Maintenance Agreement, the Quotation and the Conditions for the supply of Services.
Customer: the person or firm who purchases Services from the Company, the full details of which are set out in the Maintenance Schedule.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Maintenance Agreement: the agreement to which these terms are attached setting out the details of the parties and the Services to be provided to the Customer.
Maintenance Schedule: the Schedule forming part of the Maintenance Agreement.
Parts: any items fitted as part of the Services under the terms of the Maintenance Schedule.
Quotation: the quotation showing a breakdown of the Charges for the Services.
Services: the provision of maintenance and repair services, including any Parts supplied by the Company to the Customer as set out in the Maintenance Schedule.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its [personal representatives,] successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes [and e-mails].
2. Basis of contract
2.1 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.2 Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services and Parts
3.1 The Company shall supply the Services to the Customer in accordance with the Maintenance Schedule in all material respects.
3.2 The Company shall use all reasonable endeavours to meet any performance dates specified in the Maintenance Schedule, but any such dates (unless otherwise agreed in writing) shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
3.4 The Company warrants to the Customer that the Services will be provided using all reasonable care and skill.
3.5 The risk in the Parts shall pass to the Customer on completion of delivery.
3.6 Title to the Parts shall not pass to the Customer until the Supplier receives payment in full (cash or cleared funds) for the Parts and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Parts shall pass at the time of payment of all such sums.
3.7 If before title to the Parts passes to the Customer the Customer becomes subject to any event prescribed for in clause 9.2 then, without limiting any other right or remedy the supplier may at any time:
(a) require the Customer to deliver up the Parts in its possession which have not been irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Parts are stored in order to recover them.
4. Customer's obligations
4.1 The Customer shall:
(a) ensure that the terms and details of the Maintenance Schedule are complete and accurate;
(b) co-operate with the Company in all matters relating to the Services;
(c) provide the Company, its employees, agents, consultants and subcontractors, with full convenient and safe access to the Customer's premises and other facilities as reasonably required by the Company;
(d) provide adequate working space and facilities for the Services to be provided;
(e) provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(f) prepare the Customer's premises for the supply of the Services;
(g) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
(h) co-operate with the Company to provide such information to assist with the diagnosing of any faults or problems;
(i) at all times follow the Company’s instructions applicable to any systems and not to undertake any repairs, adjustments, modifications or make any other changes without first taking advice from the Company;
(j) keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Customer's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation.
4.2 If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company's performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
5. Charges and payment
5.1 The Charges for the Services shall be as set out in the Maintenance Agreement:
(a) for the Services for the Initial Term;
(b) for any period after the Initial Term;
(c) for any Additional Services charged at the Company's standard daily fee rates, which may vary from time to time; together with any expenses reasonably incurred by the individuals whom the Company engages in connection with the Additional Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Additional Services.
5.2 The Company shall invoice the Customer for the services annually in advance.
5.3 The Customer shall pay each invoice submitted by the Company:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Company, and
time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 Without limiting any other right or remedy of the Company, if the Customer fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge compound interest on the overdue amount at the rate of 2 per cent per month from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment.
5.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
5.7 The Company reserves the right to:
(a) increase the price of the Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Services to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the Services; or
(iii) any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Services.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Customer.
6.3 All Company Materials are the exclusive property of the Company.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8. Limitation of liability and Insurance
8.1 Nothing in these Conditions shall limit or exclude the Company's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
(a) the Company shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including, but not limited to, any loss, damage or expenses arising from any loss of use, failure or deterioration of any equipment at the Customer’s Premises or any losses incurred by any third party who has any contact with the Customer; and
(b) the Company shall have no liability to the Customer for any claims or losses relating to or arising out of any fire suppression gas leaks for which the Customer shall retain full responsibility whether under insurance or otherwise;
(c) the Company's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £500,000.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 The Company shall at all times maintain appropriate insurance to cover the provision of the Services, including:-
(a) Public Liability Insurance
(b) Employers Liability Insurance
(c) Product Liability Insurance.
8.5 The Customer shall at all times maintain Public Liability and Employers Liability Insurance of not less than £1m per event (or series of events).
8.6 This clause 8 shall survive termination of the Contract.
9. Term and termination
9.1 The Contract shall be for the Initial Period as from the Commencement Date and shall continue (subject to clause 9.2 below) until either party gives not less than 30 days’ written notice of termination to expire at the end of the Initial Term or at any time thereafter.
9.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (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 (being a partnership) has any partner to whom any of the foregoing apply;
(c) 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 (where 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];
(d) 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;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) 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 the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the 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(b) to clause 9.2(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.4 Without limiting its other rights or remedies, the Company shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 9.2(b)) to clause 9.2(l), or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10. Consequences of termination
10.1 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Company Materials which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
10.2 In the event of termination, howsoever arising, the Company shall not be liable to the Customer for refunding any monies paid in advance for the Services.
11.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), 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 Companies or subcontractors.
(b) The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Company from providing any of the Services for more than 4 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
11.2 Assignment and subcontracting:
(a) The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) 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 to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the address as set out in the Maintenance Agreement.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by email, on the same day as transmission.
(c) This clause 11.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Company.
11.9 Governing law and jurisdiction: This Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.