Peerless Consulting Terms & Conditions

Maintenance Charges

The Company shall be entitled to vary the Maintenance Charges not more than once in every successive period of 12 months upon giving not less than 90 days prior written notice of increase to the Customer

Upon receipt of a notice of increase in Maintenance Charges in accordance with clause 3.2 above the Customer shall be entitled to terminate this Agreement in accordance with clause 14.1.1 below

The Maintenance Charges shall include the travel accommodation and subsistence expenses of the Company’s employees (including the cost of time spent travelling) incurred in the provision of the Maintenance Services

Maintenance Charges shall be levied by the Company Monthly in advance.  Maintenance Charges shall be payable by the Customer within 7 days of receipt of an invoice therefore

The Company reserves the right to charge the Customer interest in respect of the late payment of any Maintenance Charges or Additional Charges due under this Agreement (as well after as before judgment) at the rate of 3 per cent per annum above the base rate from time to time of HSBC Bank plc from the due date therefore until payment

If this Agreement is terminated by the Company in accordance with this Agreement for any reason other than the service of 90 days notice under clause 14.1.2, the Company shall be entitled to retain any Maintenance Charges paid in advance by the Customer in accordance with this Agreement.

If this Agreement is terminated by the Customer in accordance with clause 14, the Customer shall not be entitled to a pro rata refund, or indeed any refund, of Maintenance Charges.

Maintenance Services

Maintenance Services shall comprise the provision by the Company of “Preventative Maintenance” “Curative Maintenance” and “Mandatory Engineering Changes” (as respectively defined in clauses 4.2, 4.3 and 4.4 below) in respect of each item of Equipment and Software at the Place of Use

Preventative Maintenance shall comprise:

the routine inspection and testing (by attendance on Site or remotely) by the Company of each item of Equipment and Software in accordance with the Company’s recommendations therefore; and

Curative Maintenance shall comprise:

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 Software; and

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

Mandatory Engineering Changes shall comprise the implementation of such mandatory alterations adjustments additions or modifications to the Equipment and Software as the Company shall from time to time prescribe

Times for maintenance services

Curative Maintenance will be provided upon request by the costumer between the hours of 9 a.m. and 5.30 p.m. Monday through Friday (excluding bank and other public holidays).[The Company will use its reasonable endeavours to respond to a request for Curative Maintenance within 3  hours of receipt of the same]

Maintenance and Mandatory Engineering Changes will be provided at such times during normal business hours as shall from time to time be agreed between the company and the Customer

the correction of any fault due to:

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

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

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

the use of defective or inappropriate supplies with the Equipment and/or Software;

any defect or error in any software, other then the Software, used upon or in association with the Equipment;

6.1.1.7

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

the painting or refinishing of the Equipment;

the relocation or transportation of the Equipment and/or Software;

electrical work external to the Equipment;

the provision of supplies for use in association with the Equipment and Software;

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

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

For the avoidance of doubt ownership of the parts provided in accordance with this Clause 6 shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums (including VAT) due to it in respect of the Excepted Services provided.

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;

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

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

The Company warrants and undertakes to the Customer:

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

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

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

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:

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

any representation statement or tortious act or omission including negligence arising under or in connection with this Agreement  AND THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 9

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”

death or injury resulting from its own or that of its employees’ agents’ or sub-contractors’ negligence; and

all damage suffered by the Customer as a result of any breach by the Company of the condition as to title or the warranty as to quiet possession implied by Section 2 of the Supply of Goods and Services Act 1982 shall not be limited

Subject to the limits set out in clause 9.5.1 below the Company shall accept liability to the Customer in respect of damage to the tangible property of the Customer in resulting from the negligence of the Company or its employees agents or sub-contractors

Subject to the provisions of clause 9.3 above the Company’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the aggregate of the Maintenance Charges and the Additional Charges for the 12 months immediately preceding the date of the Event of Default

Subject to clause 9.3 above 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

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

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

Except in the case of an Event of Default arising under clause 9.3 above 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 [two] years 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

Customer's Warranty

The Customer warrants and undertakes to the Company that it is the owner of the Equipment and Software 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

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

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 replacement parts in the performance of its duties hereunder 

by the Company upon giving not less than 90 days notice to the Customer;

forthwith by the Company if the Customer fails to pay the Maintenance Charges or any Additional Charges due hereunder within 30 days of the due date therefore;

forthwith by the Company if the Customer 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 I                 s 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)

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 provisions hereof                which is expressly or by implication intended to come into or continue in force on or after such termination

trivial or obvious;

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

The Company shall not 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”).

Notices

Notices may be sent by first class mail, facsimile transmission or e-mail provided that all facsimile transmission and e-mails are confirmed in writing within 24 hours by first-class mailed. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 48 hours after  posting and correctly directed facsimile transmissions and e-mails shall be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above.

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.

The Company shall not be liable to the Customer for loss 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.

The Company shall be entitled to assign or sub-contract this Agreement including all or any of their rights and obligations hereunder without the prior written consent of the other.

The Customer may not assign or sub-contract this Agreement.

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.

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.

No provision of this Agreement is intended to confer a benefit on any third party, whether or not in existence at the date of this Agreement. The provisions of the Contract (Rights of Third Parties) Act 1999 (and any subsequent supplemental or modifying legislation) are hereby excluded to the   fullest extent permitted by law.

These terms and conditions represent the entire agreement and understanding relating to this Agreement and the maintenance of the Equipment and Software. These terms are governed by English Law, and each party hereby consents to the exclusive jurisdiction of the English courts for all disputes arising out of these terms and conditions.