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Computer Communications Limited


Hardware Maintenance - TERMS AND CONDITIONS

DEFINITIONS

1 PARTIES

CCL means Computer Communications Limited and its authorised engineers, having its registered office at 24 Picton House, Hussar Court, Waterlooville, Hampshire, PO7 7SQ.

“The Customer” means the person, firm or company named in CCL’s quotation.

2 MAINTENANCE TO BE PERFORMED UNDER THIS AGREEMENT

During the continuance of the agreement incorporating these terms and conditions (“the Agreement") CCL authorised engineers shall provide the following maintenance services in respect of the equipment specified in CCL's quotation (“the Equipment").

(a) PREVENTIVE MAINTENANCE

CCL or its authorised engineers shall make visits to the Site of Installation as specified in the CCL quotation at such frequency as CCL shall determine based upon the needs of the particular items of Equipment to carry out:

  1. lubrication;
  2. such adjustments as shall be necessary to keep the Equipment in good working order; and
  3. replacement of potentially unserviceable parts (except media or consumables) where required in the opinion of CCL and its authorised engineers.

(b) REMEDIAL MAINTENANCE

Upon receipt of notification from the Customer that Equipment has failed or is malfunctioning. CCL during the days and hours specified in CCL's quotation (“Working Hours") make such repairs and adjustments to and replace such parts of the Equipment as may be necessary to restore the Equipment to good working order.

On receipt of a request for remedial maintenance, CCL shall respond to that request within the number of Working Hours specified in CCL's quotation.

3 RELATED SERVICES

Any services in respect of the Equipment not specified above and desired by the Customer, may, by written agreement of the parties, be incorporated within the scope of maintenance to be performed hereunder.

4 APPLICATION OF TERMS

(a) Terms, conditions or stipulations contained in the Customer's purchase order or other form of writing or other wise stipulated by the Customer and which are at variance with or additional to these Terms are not binding upon CCL unless specifically accepted in writing by a Director or Contracts Manager of CCL.

(b) This Agreement supersedes any arrangements, statements, representations or negotiations made or existing between the parties prior to, simultaneously with or subsequent to the execution of this Agreement which shall constitute the entire understanding between the parties hereto. Except as otherwise provided in this Agreement, no addition, amendment or modification to this Agreement shall be effective unless it is in writing and signed or accepted by a Director or Contracts Manager of CCL.

5 COMMENCEMENT AND TERM

(a) Notwithstanding the date this agreement is signed, this agreement shall commence on the Commencement as referred to in CCL's quotation (“the Commencement Date") and, subject to clause 10 below, shall continue for an initial period expiring on the Expiry as referred to in CCL's quotation such initial period being that known as the Duration and shall thereafter be automatically renewed for successive periods equal in length to the Duration unless not less than ninety (90) days notice to the contrary shall be given by either party in writing to the other, such notice to expire at the end of the initial period or at the end of any such successive period.

6 ACCESS TO THE EQUIPMENT

The Customer shall ensure CCL and its authorised engineers has full and free access to the Equipment, during Working Hours, in order to carry out its obligations under this Agreement.

7 CHARGES

(a) The Customer shall pay the maintenance charges set out in CCL quotation in advance as specified in CCL quotation. All invoices are due upon presentation and shall be paid within 30 days.

(b) Maintenance Charges set out in the CCL's quotation may be subject to an increase on no less than ninety (90) days prior written notice from CCL. Such increase shall take effect on expiry of the period of notice unless the Customer has notified CCL within such period that it is terminating this Agreement in accordance with the provisions of Clause 5(b) above.

(c) The maintenance charges payable is based on services provided during the Working Hours.

(d) All charges are exclusive and net of any taxes duties or such other additional sums including, but without prejudice to the foregoing generality, Value Added Tax, excise tax, tax on sales, property or use, import or other duties (whether levied in respect of this Agreement the Equipment its use or otherwise) which shall be payable in addition to the charges.

(e) CCL shall charge for and the Customer shall pay for any services requested by the Customer which are not specifically covered by this Agreement and which CCL agrees to perform.

(f) If payment of the agreed price or if any other sum payable by the Customer to CCL is not made by the due date, CCL may suspend the supply of goods or services and determine any unexpired contract (including this Agreement) with the Customer without prejudice to any other remedies which CCL may have. CCL reserves the right to enforce payment.

(g) Computer CCL reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 on any sum not paid by its due date.

8 MAINTENANCE NOT INCLUDED AND WHICH SHALL IN GENERAL BE CHARGED FOR.

The maintenance services provided under this Agreement do not include:

(a)
(i) maintenance necessitated as a result of a cause other than normal wear and tear, including without limitation services necessitated by unauthorized attempts by the Customer or user to maintain or restore Equipment, improper operation or misuse of Equipment, fault or negligence of the Customer or user or latent or pre-existing defects in the Equipment or by causes external to the Equipment such as, without limitation, power or air-conditioning failure;
(ii) services provided outside the term of this Agreement;
(iii) necessary repair or adjustment to Equipment prior to the Commencement Date;
(iv) installation of equipment manufacturer sponsored modifications performed outside of the frequency specified in clause 2;

(b) electrical work external to the Equipment;

(c)
(i) maintenance necessitated as a result of a cause other than normal wear and tear, including without limitation services necessitated by unauthorized attempts by the Customer or user to maintain or restore Equipment, improper operation or misuse of Equipment, fault or negligence of the Customer or user or latent or pre-existing defects in the Equipment or by causes external to the Equipment such as, without limitation, power or air-conditioning failure;
(ii) services provided outside the term of this Agreement;
(iii) necessary repair or adjustment to Equipment prior to the Commencement Date;
(iv) installation of equipment manufacturer sponsored modifications performed outside of the frequency specified in clause 2;

(d) Maintenance rendered more difficult because of changes, alterations, or additions; or refusal/restriction of access, or change of location;

(e) attendance to faults caused by operating Equipment outside design specifications or without any documentation or manuals supplied with the Equipment;

(f) cleaning, painting, refinishing or touching-up, specification changes, relocation of Equipment, addition or removal of accessories, attachments and other devices, installation and de-installation of Equipment;

(g) repair of any malfunction due to radiation in the environment of the Equipment.

(h) rectification of problems not associated with the Equipment following initial diagnosis.

(i) rectification of problems arising from the operating environment or as a result of layout or design or pre-existing or latent defects in the Equipment;

(j) overhaul or repair of Equipment which, as a result of fair wear and tear in the opinion of CCL can no longer be maintained in good working order. For such Equipment CCL will, if possible and upon request by the Customer, submit a cost estimate of the work required. In the event that the Customer does not authorize the work to be carried out, the item or items concerned may be deleted from CCL’s quotation and such deletion initialed by an authorized signatory of CCL.

(k) any other testing or repair as a direct result of any requirement or regulation having the force of law, including but not limited to, Health and Safety at Work Regulations.

(l) maintenance or support of any operating system of any Equipment save to the extent that any patch has been made available to CCL from the licensor of the said operating system and provided that such patch is not defective in any way.

(m) without prejudice to (l) above maintenance or support of any operating system of any equipment which does not conform to Year 2000 Conformity (within the meaning set out in the document published by the part of the British Standards Institution called DISC entitled “A Definition of Year 2000 Conformity Requirements”);

(n) recovery or reconstruction of any data or programs lost or spoiled as a result of any breakdown of or fault in the Equipment.

9 ALTERATIONS, ADDITIONS AND PARTS

(a) Alterations and additions to or in connection with any of the Equipment may be carried out by CCL or, following prior approval in writing from CCL, by the Customer. No liability whatsoever shall be accepted by CCL for any alterations or additions carried out by the Customer in contravention of this Clause nor for any effect such alterations or additions may have on the Equipment.

(b) CCL may, at no additional cost to the Customer, undertake modifications that will improve operation of the Equipment, ease future maintenance work, eliminate or diminish risk of accidents and for such purposes the Customer shall without delay allow CCL access to the Equipment.

(c) Replacement parts installed in the Equipment shall become the property of the Customer, parts removed shall become the property of CCL. Should the Customer wish to retain title to any parts removed for whatever reason the Customer shall pay such additional charges as CCL shall reasonably require.

(d) CCL shall make an additional charge, for any maintenance services that it may, in its absolute discretion, provide which are outside its obligations under this Agreement.

10 TERMINATION

(a) CCL may, upon thirty (30) days written notice, discontinue maintenance of any Equipment if the maintenance of such Equipment becomes in CCL's opinion uneconomical due to wear and tear. If the maintenance services are discontinued in respect of any such Equipment, the Customer's payments under this agreement shall be reduced by such proportion of the maintenance charge as CCL reasonably consider relates to such Equipment. There shall be no reduction in maintenance charges if CCL and the Customer agree within thirty (30) days of such notice, to refurbish the Equipment at the Customer's expense. If the customer agrees, CCL may, in its absolute discretion, provide Maintenance Services for such Equipment on a time and material basis in accordance with its charges, and on its terms and conditions then in effect.

(b) CCL may, by notice in writing to the Customer, terminate this Agreement forthwith if:
(i) the Customer is in breach of any term of this Agreement, including but not limited to, any payment term.
(ii) the Customer, being a body corporate shall present a petition or have a petition presented by a creditor for its winding up, convene a meeting to pass a resolution for voluntary winding up, enter into any liquidation whether compulsory or voluntary. call a meeting of its creditors or have a receiver of all or any of its undertakings of assets appointed, or shall be unable to pay its debts or cease to carry on business;
(iii) the Customer, being an individual shall die or, being a firm/ partnership shall be dissolved or in either case shall commit any act of bankruptcy or have a receiving order made against him/it or make or negotiate for any composition or arrangement with or assignment for the benefit of his/its creditors.

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.

11 DOWNTIME

(a) In this clause:
“Effectiveness Level" means in relation to each Month (Available Time less Downtime) divided by Available Time and then multiplied by 100.

“Available Time" means the number of Working Hours in the Month in question.

“Downtime" means those complete hours of Available Time during which an item of Equipment is unusable or substantially unusable, other than where such circumstances have arisen as a result of any of the matters set out in clause 8 or other than as a consequence of any breach of any term of this Agreement by the Customer.

“Month" means any complete calendar month during which this Agreement continues.

(b) If the Effectiveness Level for an item of Equipment in any Month falls below [95] and provided that the Customer is not in breach of any of the terms of this Agreement the Customer shall be entitled to a credit against the maintenance charge for such Month calculated as follows:
Credit = (95 – Effectiveness Level for such Month) x M

100

Where “M" is such part of the aggregate maintenance charge for such Month as CCL considers should be apportioned to that item of Equipment.

The maintenance charge for a Month shall be equal to one twelfth of the annual maintenance charge.

(c) The amount of such credit shall be paid by the end of the second Month immediately following the Month in respect of which the credit is given.

(d) Save as provided in this clause 11, CCL shall have no other liability to the Customer as a consequence of any item of Equipment not being usable, breaking down or being faulty.

12 LIABILITY

(a) Subject to the provisions of clauses 11 and 12(g) CCL shall not be liable for any loss or damage sustained or incurred by the Customer or any third party (including without limitation any loss of use of the Equipment or loss or corruption of the Customer's programs or data) resulting from any breakdown of or fault in the Equipment unless such breakdown or fault is caused by the negligence of CCL, its employees, agents or sub-contractors and then only to the extent not excluded by this Agreement.

(b) To the extent CCL has any liability to the Customer, CCL's liability to the Customer for breakdown or fault caused by the negligence of CCL, its employees, agents or shareholders negligence arising under or in connection with this Agreement and which does not cause loss or damage to any tangible property of the Customer shall in respect of each event or series of connected events not exceed £500,000.

(c) To the extent CCL has any liability to the Customer, CCLs liability to the Customer for any loss or damage to any tangible property of the Customer caused by any negligent act or omission of CCL, its employees, agents or sub-contractors shall be in respect of each event or series of connected events shall not exceed £2,000,000.

(d) Notwithstanding anything else contained in this Agreement CCL shall not be liable to the Customer for loss of profits, goodwill, business or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.

(e) CCL shall not be liable to the Customer for any loss arising out of any failure by the Customer to keep full and up-to-date security copies of the computer programs and data it uses in accordance with best computing practice.

(f) All implied conditions, warranties, terms and undertakings are hereby excluded to the fullest extent permitted by law.

(g) CCL's liability to the Customer for death or injury resulting from its own or that of its employees' agents' or subcontractors' negligence shall not be limited.

13 CUSTOMER DATA SECURITY

CCL shall use its reasonable endeavors to protect the confidential nature of any information made available to or coming into the hands of CCL during the performance of its duties under this Agreement. Unless otherwise requested by the Customer in writing, CCL is hereby authorized to carry out the required maintenance notwithstanding the potential destruction or overwriting of data and it shall be the Customer's sole responsibility to ensure that adequate backup records are maintained at all times to safeguard against possible loss of data, including that due to malfunction of magnetic disk drives and associated equipment, overwriting or deletion of data.

14 FORCE MAJEURE

CCL shall be under no liability to the Customer in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure namely circumstances beyond control of CCL which shall include (but shall not be limited to) acts of God, adverse road traffic conditions, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority including acts of local government and parliamentary authority, shortage of supplies, equipment or materials, breakdown of equipment and labor disputes of whatever nature and for whatever cause arising including but without prejudice to the generality of the forgoing work to rule, , strikes and lockouts and whether of Computer Communications Limited or any other employer and whether local or national official or unofficial.

15 ASSIGNMENT

The Customer shall not assign or otherwise transfer its rights and obligations under the contract whether in whole or in part without the prior written consent of CCL.

16 SEVERABILITY

In the event that any of the terms and conditions shall be held by any court invalid unlawful or unenforceable to any extent such term or condition shall be severed from the remaining terms and conditions and the Agreement shall continue to be valid and in force to the fullest extent permitted by law.

17 WAIVER

No forbearance delay indulgences by either party in enforcing at any time any of the provisions hereof shall be construed or deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole of any part of any Agreement or prejudice that party's right to take subsequent action.

18 INTERPRETATION

(a) The Agreement shall be interpreted in accordance with English Law and subject to the sole jurisdiction of the English Courts.

(b) The headings are for reference only and are not intended to be part of or to affect the meaning or interpretation of any of these terms and conditions.

19 NOTICES

Any notices, which are required or authorised to be given, shall be in writing and shall be sent to the address of the recipient. Any such notice may be delivered by hand or by first-class pre-paid letter post or facsimile device 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 device when dispatched.Any notices, which are required or authorised to be given, shall be in writing and shall be sent to the address of the recipient. Any such notice may be delivered by hand or by first-class pre-paid letter post or facsimile device 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 device when dispatched.

Important Information

It is important to advise your Service Account Manager of any changes to your contract as soon as possible as these may impede the provision of support.

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