Vtech Systems Limited
Terms and Conditions of service agreement VTF01 Issue 2
PART 1 – GENERAL
1. The Agreement contained in this document is in respect of the provision by Vtech Systems Ltd to the Customer of the Service described herein. It supersedes all previous Agreements between the parties in respect of the System. No other terms or conditions whatever are or shall hereafter be included or implied unless in writing, signed by duly authorised representatives of each of the parties.
2. In this Agreement in addition to the definitions overleaf the following expressions have the meanings given:
“chargeable work” Work (including supply of parts) not within the level of service selected by the Customer and which is carried out by Vtech Systems Ltd or a third party.
“force majeure” Hostilities (whether war be declared or not), riot, government intervention, state of emergency, lightning, storm, fire, flood, explosion, severe weather, interruption or fluctuation in power supplies, radio wave interference, industrial disputes, epidemic or pandemic or any event where or not of the same nature beyond the reasonable control of the party affected.
“intellectual property” any patent, copyright, registered or unregistered design right and any application therefore any rights in respect of confidential information and any other intellectual property right
“systems” The goods and equipment described or referred to overleaf but excluding any items not both supplied and installed by Vtech Systems Ltd.
“servicing period” The initial period from the commencement date specified overleaf.
“normal service hours” 09:00 to 17:00 Monday to Friday inclusive but excluding all bank and public holidays.
“service” Means the level of Service selected by the Customer overleaf.
“service charge” The charge for the Service specified overleaf.
“software” The software and firmware necessary to operate the System.
“customer’s premises” The premises specified overleaf.
“customer’s vehicles” Customer’s Vehicles owned by or hired to the Customer or any associate or subsidiary company or firm of the Customer.
3. Vtech Systems Ltd may vary the service charge and other rates of charge by giving at least one month’s notice in writing to the customer at any time unless a fixed price agreement has been approved.
4. Neither Vtech Systems Ltd nor the Customer shall have any liability under this Agreement for any consequences of force majeure. . If the force majeure event continues for a period of 20 working days, either party may terminate this Agreement by notice with immediate effect.
5. After expiry of the initial servicing period, either party may terminate this Agreement by giving at least 6 month’s notice in writing to expire on an anniversary of the commencement date.
6.
a) All notices must be in writing and sent by pre-paid first class post, to the parties addresses set out overleaf.
b) Where parts are replaced by Vtech Systems Ltd any parts removed will become its property.
c) If any sum is overdue for payment Vtech Systems Ltd may (in addition to any other rights) charge interest of 2% per month. If overdue sums are still due 60 days after the initial due date Vtech Systems can suspend the provision of the service.
d) Vtech Systems Ltd shall be entitled to assign all or part of its obligations under this Agreement to any third party and will give notice to the customer in writing.
e) Failure or delay by either party to enforce the terms of this Agreement shall not be deemed to be a waiver of any of its rights either at the time or on any subsequent occasion.
f) This Agreement is subject to English Law and the parties submit to the exclusive jurisdiction of the English Courts.
g) Vtech Systems Ltd will use all reasonable endeavours to react to calls within the specified response time to achieve a target of 90% in a rolling 30 day period.
7. Either party may terminate this Agreement (without prejudice to any other rights) if:
i. the other party goes into liquidation or has a receiver or administrator appointed over all or part of its assets or if it ceases to trade.
ii. the other party commits a material breach of its obligations under this Agreement and fails to remedy the same within 14 days written notice of the said breach.
Termination shall be without prejudice to the rights of either party accrued at the date of such termination.
PART II – VTECH SYSTEMS LTD OBLIGATIONS
8. Vtech Systems Ltd will use reasonable endeavours to test and service the System and carry out any repairs or replacements in accordance with the level of service selected by the Customer overleaf and the applicable British Standard and/or Code of Practice as determined by Vtech Systems Ltd from time to time.
9. Vtech Systems Ltd shall:
a) indemnify the customer against any loss or damage to the Customer’s Vehicles or to the Customer’s Premises, caused by a failure of the System through defect of testing, servicing, repairs or replacements, or by negligence of Vtech Systems Ltd during servicing or testing or carrying out repairs and replacements but such indemnity shall not exceed in any one instance an amount equal to £100,000 (one hundred thousand)
b) indemnify the Customer against any liability for death or personal injury resulting from the negligence of Vtech Systems Ltd PROVIDED THAT:
i. Vtech System Ltd shall be under no liability whatsoever, if in connection with a claim made by the Customer under this clause, the Customer shall be in breach of any of its obligations under this Agreement where such breach is a material and contributing cause of the loss, damage or liability giving rise to the claim.
c) Vtech Systems Ltd shall effect such insurance arrangements as are necessary to fulfil its obligations under this Agreement.
10.
a) Vtech Systems Ltd shall not in any event be liable for any indirect, special or consequential loss howsoever arising even if Vtech Systems Ltd shall have been informed of the possibility of the such potential loss.
b) Vtech Systems shall not incur any further obligations or liability whatsoever under this Agreement, or otherwise in connection with the System, its testing, service or operation.
11. Vtech Systems Ltd will not be liable to the Customers for any loss or corruption of data, software or database configuration held by the Customer (whether before or after termination of this Agreement) which could have been avoided (or, if less, to the extent that it could have been avoided) by the Customer keeping adequate back up copies of its data, software or database configuration in accordance with best data processing practise. The Customer must at all times keep adequate back-up copies of its data, software or database configuration off Site in accordance with best data processing practice.
PART III – THE CUSTOMER’S OBLIGATIONS
12. The Customer shall pay:
a) during the servicing period, the service charge specified overleaf should be paid on or before the commencement date of the Agreement or such other date as shall be mutually agreed in writing and thereafter annually in advance upon the anniversary date.
b) charges invoiced by Vtech Systems Ltd (other than the service charge) within 30 days of the date of invoice.
c) value added tax and other payments imposed by or pursuant to statute.
d) interest at 2% per calendar month on all sums overdue.
e) all email/telephone orders placed with a value under £500 Net with Vtech Systems for delivery will incur a postage and packing charge at the current rate applicable
13. The Customer shall:
a) obtain and pay for all licenses, consents, wayleaves and approvals as are necessary to enable Vtech Systems Ltd to provide the service.
b) use the Systems properly in accordance with operating instructions issued or supplied by Vtech Systems Ltd from time to time.
c) not alter, interfere with or permit any alteration or interference with the Systems.
d) permit Vtech Systems Ltd and any regulatory body access at reasonable times and upon the provision of reasonable notice to the Systems on the Customer’s Premises or vehicles at all times.
e) notify Vtech Systems Ltd in writing of any major additions or alterations to the Customer’s Vehicles and ensure that the Customer’s Vehicles and its contents are safe and without risk to Vtech Systems Ltd employees, servants or agent whilst in attendance.
f) arrange suitable training for it’s staff in the use of the Systems.
g) inspect regularly the Systems and replace consumables from time to time and notify Vtech Systems Ltd promptly of any faults or defects which arise.
h) only permit Vtech Systems Ltd employees or agents to service the Systems.
i) effect such insurance arrangements as are necessary to fulfil its obligations under this Agreement.
j) obtain and pay for the cost of any service or item of equipment provided by a third party which is required for operating the Systems.
k) keep confidential all information it acquires about Vtech Systems Ltd and the systems except information in the public domain and only utilise such confidential information to operate the system.
14. The Customer shall indemnify Vtech Systems Ltd against:
a) any claim for loss of or damage to Vtech Systems Ltd property or equipment caused by negligence or breech of duty but such indemnity shall not exceed in any one instance an amount equal to ten times the amount of the service charge
b) any claim by a third party arising out of or in connection with the servicing or operation of the systems by the customer but such indemnity shall not exceed in any one instance an amount equal to ten times the amount of the service charge
PROVIDED THAT: the Customer shall be under no liability whatsoever, if in connection with a claim made by the Vtech Systems Limited under this clause, Vtech Systems Limited shall be in breach of any of its obligations under this Agreement where such
The Customer shall not in any event be liable for any indirect, special or consequential loss howsoever arising even if the Customer shall have been informed of the possibility of such potential loss.
15. The Customer shall use only approved consumables in the operation of the Systems.
16. The Customer or its representatives at the Customers Premises will be deemed to be fully authorised to request repairs to or replacements of the Systems.
17. Nothing in this agreement shall confer on any third party any benefit or the right to enforce any term of this Agreement.
18. If any provision of this Agreement is held by any court or competent authority to be void or unenforceable in whole or in part, the other provisions of this Agreement and the remainder of the affected provisions shall continue to be valid.
19.
a) The Customer will have no rights in respect of any of the Intellectual Property of Vtech Systems Ltd and shall not use any of it except for the implementation of this agreement.
b) The Customer will promptly notify Vtech Systems Ltd of any infringement or threatened infringement of its Intellectual Property rights and assist Vtech Systems Ltd, at its expense, to maintain and enforce the validity of the Intellectual Property.
PART IV – CONFIDENTIALITY OF EMPLOYEES
20. Vtech Systems Ltd and the Customer undertake to each other;
a) to keep confidential all information (written or oral) concerning the business and affairs of the other that it has obtained or received as a result of the discussions leading up to or the entering into, or obtained or received in performance of, this Agreement.
b) not to disclose the Information in whole or in part to any other person without the other’s written consent, save those of its employees, agents and sub-contractors involved in the implementation and/or support of the Systems and who have a need to know the same.
21. The Customer undertakes to Vtech Systems Ltd that during the currency of this Agreement and for the period of six months following its termination or expiry, that it will not directly or indirectly, by means of an agent or otherwise (and whether for themselves or for the benefit of any other person), solicit or endeavour to solicit any officer or employee of Vtech Systems Ltd.
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