Perle Maintenance Agreement
This Maintenance Agreement applies to Perle Products serviced in European Union Member States. Products covered include:
"the Commencement Date"
"the Initial Period"
"the Hardware Maintenance Services"
"the Software Support Services"
"the Maintenance Charges"
"the Maintenance and Support Services"
"Authorised Service Centre"
During the currency of this Agreement Perle will provide (subject to clause 5) one of the following categories of maintenance services in respect of any defects in the Hardware which are reported by the Customer pursuant to Clause 2.3. The level of service provided will be as specified in the Schedule
2.1 EXPRESS REPLACEMENT (ER) - Check Availability
2.2 In the case of each level of service under this clause 2 Perle will at its option either repair or replace the defective Hardware or part thereof. Any replacement Hardware or part thereof provided by Perle may be new, reconditioned or used at Perle's discretion.
2.3 In order to obtain the benefit of the relevant Hardware Maintenance Services the Customer must request the maintenance services by calling the Perle Technical Assistance Centre.
During the currency of this Agreement Perle will provide the following support services in respect of the Software.
3.1 SOFTWARE PROTECTION
4.1 In consideration of the provision by Perle of the Maintenance and Support Services the Customer will pay the Maintenance Charges in accordance with the payment terms specified in the Schedule. The Maintenance Charges will be paid without prior demand and no payment shall be considered made until it is received by Perle.
4.2 Any charges payable by the Customer hereunder in addition to the Maintenance Charges shall be paid (unless otherwise provided elsewhere in these terms and conditions) within 14 days after receipt of Perle's invoice therefor
4.3 The Maintenance Charges will automatically increase at the commencement of each Year of this Agreement by 5 percent and Perle shall not be required to give the Customer notice of this increase. Perle shall be entitled to increase the Maintenance Charges at the commence of each Year of this Agreement by a percentage greater than 5 percent on giving the Customer not less than 90 days notice of the proposed increase. Provided that such notice is given the increased Maintenance Charges will apply as from the commencement of the relevant Year.
4.4 The Maintenance Charges and any additional charges payable under this Agreement are exclusive of Value Added Tax which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
5.1 The Hardware Maintenance Services do not include any maintenance or repairs of the Hardware which is necessitated as a result of any cause other than fair wear and tear or Perle's neglect or fault including without limitation:
5.2 The Hardware Maintenance Services do not include:
5.3 The Software Support Services do not include any support services in respect of:-
Perle shall make an additional charge, in accordance with its standard scale of charges for the time being in force, for any maintenance services provided in respect of the Hardware or support services provided in respect of the Software:
6.1 made at the request of the Customer by reason of any fault in the Hardware or Software due to causes not covered by the Maintenance and Support Services; or
6.2 made at the request of the Customer but which Perle finds are frivolous or not necessary
Subject to earlier termination under clause 9 Perle will provide the Maintenance and Support Services from the Commencement Date for the Initial Period as specified in the Schedule. Perle will continue to provide the Maintenance and Support Services after the Initial Period until the provision of such services is terminated by either Perle or the Customer giving the other party not less than 2 months notice of termination expiring at the end of the Initial Period or at the end of any Year of this Agreement
During the continuance of the Agreement the Customer shall:
8.1 ensure that proper environmental conditions are maintained for the Hardware and shall maintain in good condition the accommodation of the Hardware, the cables and fittings associated therewith and the electricity supply thereto
8.2 not make any modification to the Hardware without Perle's prior written consent
8.3 keep and operate the Hardware in a proper and prudent manner in accordance with the manufacturer's operating instructions and ensure that only competent trained employees (or persons under their supervision) are allowed to operate the Hardware
8.4 ensure that the external surfaces of the Hardware are kept clean and in good condition and shall carry out any minor maintenance recommended by the manufacturer from time to time
8.5 save as aforesaid, not attempt to adjust, repair or maintain the Hardware and shall not request, permit or authorise anyone other than Perle to carry out any adjustments, repairs or maintenance of the Hardware
8.6 use on the Hardware only such operating supplies as the manufacturer shall recommend in writing
8.7 not make any movement of the Hardware nor remove the Hardware from the Location without Perle's prior written consent
8.8 not use in conjunction with the Hardware any accessory, attachment or additional equipment other than that which has been supplied by or approved in writing by Perle
8.9 use only the Current Release of the Software
8.10 ensure that the Software is used in a proper manner by competent trained employees only or by persons under their supervision
8.11 keep full security copies of the Software and of its data bases and computer records in accordance with best computing practice
8.12 not alter or modify the Software in any way nor permit the Software to be combined with any other program to form a combined work
8.13 not request, permit or authorise anyone other than Perle to provide any maintenance services in respect of the Software
8.14 co-operate fully with Perle's personnel in the diagnosis of any error or defect in the Software
8.15 provide Perle with full and safe access to the Hardware and Software
8.16 provide adequate working space around the Hardware and Software for the use of Perle's personnel and shall make available such reasonable facilities as may be requested from time to time by Perle for the storage and safekeeping of test equipment and spare parts
8.17 ensure in the interests of health and safety that Perle's personnel, while on the Customer's premises for the purposes, are at all times accompanied by a member of the Customer's staff familiar with the Customer's premises and safety procedures
8.18 promptly notify Perle if the Hardware and Software needs maintenance or is not operating correctly.
8.19 make available to Perle free of charge all facilities and services reasonably required to enable Perle to perform the Maintenance and Support Services
8.20 provide such telecommunication facilities as are reasonably required by Perle for testing and diagnostic purposes at the Customer's expense
9.1 Notwithstanding anything else contained herein this Agreement may be terminated:
9.2 Any termination of this Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination
9.3 If this Agreement is terminated by the Customer under clause 9.1 then Perle will repay to the Customer the proportion of any Maintenance Charges already paid by the Customer which relates to the period following termination calculated on a pro rata basis. If this Agreement is terminated by Perle under clause 9.1 then Perle will not be required to repay any part of the Maintenance Charges.
10.1 Each party shall treat as confidential all information obtained from the other and shall not divulge such information to any party (except to such party's own employees and then only to those employees who need to know the same) without the party's prior written consent provided that this clause shall not extend to information which is already public knowledge or becomes so at a future date (otherwise then as a result of a breach of this Clause) or which is trivial or obvious. Each party shall take all reasonable steps to ensure that its employees are aware of and comply with the provisions of this Clause. The foregoing obligation of confidentially shall survive any termination of this Agreement
11 Force Majeure
Neither party shall be liable for any delay in performing or any failure to perform any of its obligations hereunder to the extent that such delay or failure is caused by circumstances beyond its reasonable control including without limitation acts of God, transportation delays, strikes, governmental action, adverse whether conditions, or inability to obtain materials or services from suppliers.
12.1 Perle warrants to the Customer that it will perform its obligations under the Agreement with reasonable skill and care
12.2 The provisions of clause 12.1 are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law
13.1 Notwithstanding anything else contained in this Agreement Perle shall not be liable to the Customer for loss (whether direct or indirect) of profits, business or anticipated savings or for any indirect or consequential loss or damage whatsoever suffered by the Customer even if Perle has been advised of the possibility thereof and whether arising from negligence, breach of contract or howsoever
13.2 Perle will not be liable to the Customer for any claims, liabilities, damages, losses or expenses incurred by the Customer resulting from any negligence on the part of Perle or its employees or agents in connection with the provision of the Maintenance and Support Services.
13.3 Perle will not be liable for any loss arising out of any failure by the Customer to keep full and up to date security copies of its data and the computer programs it uses in accordance with best computing practice
13.4 The provisions of clause 12 and 13 states the entire liability of Perle whether in contract, tort or otherwise in relation to the provision by Perle of the Maintenance and Support Services pursuant to these terms and conditions
14 Waiver of Remedies
No forbearance, delay or indulgence by either party in enforcing the Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative
15 Entire Agreement
This Agreement supersedes all prior representations, understandings, agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereto; Neither party has relied on any representation (written or oral) not set out or referred to in this Agreement. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties
16.1 The Customer will not be entitled to assign or otherwise transfer this Agreement or any its rights and obligations hereunder whether in whole or in part without the prior written consent of Perle
16.2 Perle will be entitled to assign or otherwise transfer this Agreement or sub-contract any of its rights and obligations under this Agreement without the consent of the Customer.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address in England as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be delivered personally or by first class prepaid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when dispatched.
The Agreement and these terms and conditions shall be governed by and construed in accordance with the laws of England
Any dispute which may arise between the parties concerning the Agreement shall be determined by the High Court of Justice in England and the parties hereby submit to the exclusive jurisdiction of that Court for such purpose