1 Definitions
In this agreement the under mentioned expressions or works shall have the following meanings:
(a) The Contractor – NEVILLE TUCKER SERVICES LTD its directors, employees, servants, agent or sub-contractors
(b) The Client – As scheduled on the front page of the Agreement, its directors, employees, servants, agents, tenants, lessees or sub-lessees.
(c) The Premises – As per maintenance contract schedule “site location”.
(d) Normal Business Hours – (08.00 – 1630) Monday to Friday, each week of the year excluding all statutory holidays.
(e) Equipment – all items listed and/or described in Section 5.
(f) Emergency Services – all matters relating to the breakdown or malfunction of the equipment which requires the Contractor to attend the Client’s Premises.
(g) Annual Maintenance Fee – the sum set out in section 6 attached.
(h) VAT – Value Added Tax.
(i) Services – Maintenance, Emergency Service.
(j) HVCA Arbitration Scheme – Heating & Ventilating Contractors Association Arbitration Scheme administered by the Chartered Institute of Arbitrators
2 Maintenance
(a) The contractor shall provide to the Client a maintenance service as described in Sections 3 and 4 for the Equipment described in Section 5 in consideration of an Annual Maintenance Fee as set out in Section 6.
(b) The Contractor shall visit the Client’s Premises as scheduled during normal business hours to maintain the Equipment so that it is kept in reasonably good working order.
(c) The Contractor shall provide an emergency call out service available on request from the Client and use his best endeavours, to rectify a breakdown or malfunction of the equipment and restore it to good working order.
(d) The contractor shall only maintain Equipment listed in Section 5.
3 Emergencies
(a) The Contractor shall use his best endeavours to rectify a breakdown and/or malfunction of the Equipment listed in Section 5. On receipt of a request for emergency service, the Contractor shall send to the Client’s Premises a Maintenance Technician as soon as it is reasonably practicable to do so. The maintenance Technician may adjust, repair and test any malfunctioning Equipment as he deems necessary to restore the Equipment to good working order.
(b) All emergency services would be charged together with all necessary replacement parts which would require Clients approval.
4 Warranty
(a) The contractor undertakes to the Client to use all reasonable skill and care in the execution of Maintenance and Emergency Service and all other work carried out in accordance with Clause 9 of this Agreement.
(b) Except as expressly provided in this agreement no warranty, condition, undertaking or term expressed or implied, statutory or otherwise, as to the condition, quality, performance, merchantability, durability or fitness for purpose of the maintenance, emergency maintenance and inspection and/or reconditioning service executed and/or replacement parts provided and/ or installed under this Agreement is given.
5 Client’s Responsibility
(a) The Client shall allow to the Contractor access to the Premises and the Equipment therein at all agreed times or in the case of an Emergency under Clause 3 immediately.
(b) The Client shall allow the Contractor whilst on the Client’s Premises to use, without change, gas, water and/or electricity necessary for the performance of any service or other work under this Agreement.
(c) The Client shall allow the Contractor whilst on the Client’s Premises the free use of designated toilets and welfare facilities.
(d) The Client shall allow the Contractor, whilst on the Client’s Premises, without charge telephone facilities necessary for the performance of any service or other work under this Agreement.
(e) The Client shall notify the Contractor in writing of any changes and/or alterations made either to the Premises or the Equipment listed in section 5. Any such change or alteration may give rise, at the Contractor’s discretion, to charges in addition to the Annual Maintenance fee as set out in Section 6.
(f) The Client states that he is the beneficial owner of the Equipment or has the right to authorise any service or other work provided for expressly in this Agreement.
(g) The Client shall notify the Contractor promptly if the Equipment malfunctions.
(h) The Client shall not permit anyone other than the Contractor to maintain the Equipment listed in Section 5 on the Client’s Premises without the prior written agreement of the Contractor.
(i) The Client undertakes to comply with all safety regulations, statutory or otherwise, in force from time to time, and at all time observe, conform or comply with all statutory and other regulations applicable to the Equipment so as to provide a safe working environment for the Contractor. The Client shall indemnify and keep indemnified the Contractor from and against all or any breach or non-compliance therewith or non-performance of any obligations there under.
6 Software Consents and/or Licences
(a) The Client hereby warrants that he has obtained or will obtain the necessary consents and/or licences so as to permit the Contractor to use any software programmes. Provided such use is in connection with the Premises being serviced in accordance with Clauses 2 and 3 or other work in accordance with Clause 9 of the Agreement.
(b) In absence of an express licence, the Client warrants that the Contractor is entitled to use the software and to modify and/or alter any software programmes, provided such use, modification or alteration is made in connection with the Premises being serviced in accordance with Clauses 2 and 3 or other work in accordance with Clause 9 of this Agreement.
(c) The Client shall indemnify the Contractor for any loss, expense charge or any other costs incurred by the Contractor, by virtue of the Client’s breach of this warranty.
7 Payment of the Contractor
(a) The Client shall pay to the Contractor the Annual Maintenance Fee plus VAT set out in Section 6.
(b) The payment shall fall due upon the date that the Maintenance Service begins as set out in Section 6. The Client shall pay within 30 days of that date. All subsequent instalments shall fall due at service intervals calculated from the date that the Maintenance Service began. Payment of these instalments shall be made by the Client to the Contractor within 30 days of the due date.
(c) The Client shall pay to the Contractor all charges plus VAT for any additional services or other work executed at the Client’s request under clauses 3, 8 and 9. Payment shall be made with 30 days of the invoice date.
(d) Any alteration or addition to the Equipment by the Client may result, at the Contractor’s Discretion, in an increase in the Annual Maintenance Fee.
8 The Replacement and Reconditioning of Parts
(a) The provision of Maintenance or an Emergency Service under this Agreement does not include, unless expressly provided, the replacement or reconditioning of any parts of the Client’s Equipment. Therefore any charge or charges made under this Clause are additional to the Annual Maintenance Fee.
(b) When in the Contractors opinion, during either the provision of Maintenance or Emergency Service and/or a Service visit to the Client the replacement or reconditioning of any part or parts of the Equipment, listed in Section 5 is considered necessary, then the Contractor shall submit to the Client a cost estimate for the replacement or reconditioning of any part or parts required. Should the Client decline to make payment on the basis of the cost estimate provided by the Contractor for replacing or reconditioning the part or parts required for the Equipment, the Contractor reserves the right to cancel the Agreement insofar as it relates to the provision of Maintenance or Emergency Services for that part or parts and the section or sections of the Equipment in which that part or parts is integral without any corresponding reduction in the Annual Maintenance Fee.
(c) The Contractor disclaims any responsibility for the good working order of the equipment if the Client declines to replace or recondition defective or worn parts and/or materials when advised by the Contractor to do so.
9 Other Works
(a) The contractor from time to time at the written request of the Client undertakes other work than that provided for in Clauses 3 and 8 of this Agreement. Such other work is to be of a like nature and may include, but is not limited to, the installation and/or supply of heating, ventilating and/or refrigeration Equipment or systems.
(b) The contractor on receipt of a request from the Client for the execution of other work than that provided for in Clause 3 and 8 shall within a reasonable period submit a written estimate for that work to the Client.
10 Termination of this Agreement
(a) Either party may terminate this Agreement upon 3 months’ notice given to the other party in writing and sent by recorded delivery.
(b) This Agreement may be terminated in the event of either party becoming bankrupt or making a composition arrangement with its creditors or having a winding-up order validly made, except for the purposes of an amalgamation or reconstruction, or a resolution for voluntary winding-up being passed, or having a provisional liquidator, receiver, administrative receiver or manager of its business or undertaking duly appointed or having possession taken, by, or on behalf of the holders of any debentures, secured by a floating charge, or any property comprising or subject to the floating charge.
(c) Should the client fail to make payment to the Contractor in the manner agreed under Clause 7 of this Agreement the Contractor may serve, in writing, 5 working day’s’ notice of his intention to suspend all work until payment is received.
(d) Should payment not have been made by the Client to the Contractor ten days after the suspension notice provided for in sub-clause (c) the contractor may determine this Agreement forthwith after informing the Client of its intention to do so.
(e) The Contractor shall levy a 2% per month interest charge of all monies due to it under this Agreement from the Client from the date of the suspension notice until payment is received.
(f) In the event of termination by the Client, the Client shall be entitled to recover a pro rata amount of the Annual Maintenance Charge, subject to the Contractor’s right to deduct and/or recover all reasonable and foreseeable cost resulting from such determination.
(g) The client has 14 days from the date of auto renewal to terminate this agreement with no charge payable to the contractor unless work has been carried out within this timescale.
11 Duration and Charge Review
(a) This agreement comes into force on the date stated in Section 6 for a period of 12 months.
(b) This agreement will be auto renewed at the end of 12 months. The Client shall, 3 months before the expiry of the Agreement, notify the Contractor in writing of his intention to renew the Agreement or not, as the case may be.
(c) After 12 months have elapsed from the start date as stated in Section 6, the Contractor may increase all or some of the charged levies or being capable of being levied under this Agreement.
12 Force Majeure
(a) This Agreement determines forthwith only in relation to that part or parts of the Client’s Equipment and/or Site or Sites, or the Contractors premises which are destroyed either in whole or part by the following:
(i) Fire
(ii) Lightning
(iii) Explosion
(iv) Tempest or flood
(v) Storm
(vi) The bursting of overflowing water
(vii) Earthquake
(viii) Aircraft and other aerial devices or articles dropped therefrom
(ix) Riot or civil commotion
(x) Act of war, whether declared or undeclared, and/or act of aggression as defined under the United Nations Charter and declared in a resolution of the United Nations Security Council.
Not withstanding the above, this Agreement shall only continue to exist in relation to those parts of the Client’s Equipment, and/or premises that are reasonably capable of being maintained in good working order by the Contractor.
(b) (1) Should the Client’s or Contractor’s staff become involved in an industrial dispute which renders the Contractor’s performance of his obligations under Clauses 2 and 3 of this Agreement impossible, then this Agreement shall be suspended until such time as the industrial dispute is resolved.
(c) (ii) In the event that the industrial dispute involved the Contractor’s own staff which renders the Contractor’s performance of his obligations under Clauses 2 and 3 impossible, then the Client shall be entitled to either a cash refund or credit, at the Contractor’s sole option, of part of the Annual Maintenance Fee for the period of the suspension of this Agreement.
13 Limitations or Liability
(a) The Contractor shall not be liable to the Client or any other person or party at the Client’s site or sites or connected with the Client or its business for any direct, indirect, incidental or consequential or economic loss or damage except that covered by, but strictly limited to, the public liability insurance maintained by the Contractor as required by Clause 15(d) of this Agreement.
(b) This Agreement shall not be invalidated by way of infringement of the Client’s Statutory Rights. Should it be ruled that any part of the Client’s Statutory Rights are infringed by any clause, sub-clause or sub-clauses of this Agreement, the remainder of the Agreement will remain in force and only the sub-clause or sub-clauses within which such infringement or infringements occur may be deleted.
14 The Agreement
(a) The document constitutes the entire Agreement between the parties. The Contractor does not regard as binding nor do they form any part of this Agreement, statements, promises, opinions or representations contained in the Contractor’s promotional literature and/or expressed by the Contractor or any of his representatives or dealers during the course of the Contractor’s dealings with the Client prior to or after this Agreement coming into force.
(b) All documents, letters and schedules expressly referred to in this Agreement are hereby deemed to by incorporated herein and are to be regarded as having the same effect as if they were set out in full in the text of this Agreement.
15 Insurance
(a) The Client shall maintain or cause to be maintained insurance against loss or damage to the existing structures, its contents and to the Premises and to the Equipment therein by fire, explosion, storm, tempest or flood, the bursting or overflowing of water tanks and/or pipes, earthquake, aircraft or other aerial devices or articles dropped therefrom, riot or civil commotion and act of terrorism. The Client shall further arrange that any subrogation rights against the Contractor shall be waived.
(b) The client shall pay any excess under any insurance policy required by this Agreement.
(c) The Contractor shall maintain or cause to be maintained Employer’s Liability insurance as required by the Employer’s Liability insurance (Compulsory Insurance) Act 1969 and/or any other statutes, orders, regulations or directives in force from time to time.
(d) The Contractor shall maintain or cause to be maintained Public Liability Insurance of not less than £1,000,000 in respect of any one event or number of events in any insurance year unlimited.
16 Settlement of Disputes
(a) Except as otherwise provided in this Agreement, the parties shall attempt in good faith to resolve any dispute, difference or claim arising out of or related to this Agreement promptly through negotiations between the respective senior executives to the parties or those that have the authority to settle the same.
(b) If the matter is not resolved through negotiation in accordance with sub-clause (a) within 7 days, the parties shall attempt in good faith to resolve the dispute, difference or claim through the Alternative Dispute Resolution Mediation procedure under the aegis of the HVCA Fixed Priced Mediation Scheme as administered by the Centre for Dispute Resolution.
(c) If the matter has not been resolved by the Alternative Dispute Resolution Mediation procedure within the 7 days of the initiation of such procedure, or if either party will not participate in the Alternative Dispute Resolution Mediation procedure, the dispute shall be referred to arbitration or litigation.
(d) Where the parties have in good faith invoked the Alternative Dispute Resolution Mediation procedure as provided for in sub-clause (b) but fail to resolve their dispute, difference and/or settle their claim, or one party refuses to participate in the procedure, then the dispute, difference or claim arising out of, or relating to this Agreement, may be referred to arbitration, providing always the party wishing to make the referral shall give 3 working days’ written notice of the same to the other party.
(e) The Arbitrator shall be appointed in accordance with the HVCA Arbitration Scheme rules.
(f) Where a question of law arises during the course of the Arbitration or out of the award made in arbitration under the HVCA Arbitration Scheme, either party may appeal to the High Court of England and Wales.
(g) The Arbitration shall be conducted in accordance with the HVCA Arbitration Scheme rules in force from time to time and Arbitration Acts 1950-1979
17 The Contractor’s Staff
It shall be a fundamental condition of this Agreement that the Client and/or his agents shall not offer any inducement bribe or other advantage to any employee of the Contractor with a view to enticing such employee to work directly for or enter the employment of the Client, and the Client undertakes and agree actively to discourage any such approaches from any employee of the Contractor. In the event of any breach by the Client of this condition, this Agreement shall be terminated forthwith and the Contractor reserves the right to take all necessary proceedings to recover any loss or damage resulting from such a breach.
18 Jurisdiction
The law of England and Wales shall be the proper law applicable to this Agreement.
19 Headings
The headings used herein are for ease of reference only and are not to be used as a means of interpretation or construction to this Agreement.
20 Assignment
This Agreement shall not be assignable or transferable in whole or in part, by either party, without the express written consent of the other party. Such consent shall not be unreasonably withheld.
21 Amendments
(a) This Agreement may only be altered or amended by the mutual consent of both parties. Such alterations or amendments shall be in writing and shall only become part of this Agreement if duly agreed and signed by both parties.
(b) Lack of observation or compliance with any clause or clauses of this Agreement by either party shall not under any circumstances be taken to mean that this agreement is altered or amended in any way.
