a. "Commencement Date" - the start date of the Period of Cover for RM SystemCare. b. "Chargeable Services" - additional maintenance services for computer hardware provided by RM, excluding RM SystemCare as defined in this agreement but including the services set out in Clause 2(b). c. "Customer" - the relevant legal person purchasing the RM SystemCare Maintenance services; d. "Equipment" - the Customer's hardware which is subject to RM SystemCare maintenance, as specified in the contract schedule. e. "Normal Working Hours" - shall mean eight (8.0) hours per day between 0900 and 1700, Monday to Friday, excluding Public Holidays during the Period of Cover unless these hours of service are extended by written agreement between the parties. f. "Period of Cover" - the duration of this agreement as specified in the contract schedule for each individual item of Equipment. g. "RM SystemCare" - the contracted hardware maintenance services provided for the Equipment for the Period of Cover and described in this agreement, including point of sale warranty enhancements and extensions, but excluding Chargeable Services. h. "RM ServerCare" - the specific type of RM SystemCare services provided for the Period of Cover for network file servers.
2. Scope of the Agreement
a. RM SystemCare. Subject to payment, RM shall, during the Period of Cover, provide labour and parts for remedial maintenance of the Equipment on an on-call basis during the Normal Working Hours. RM SystemCare is based on the specific performance needs of individual Equipment items as determined by RM and may be performed by RM, its agents or representatives. RM SystemCare includes remedial service of the Equipment including adjustments, lubrication and replacement of parts deemed to be necessary by RM. RM's obligation to provide RM SystemCare is limited to services required by normal wear and tear on Equipment. Unless agreed in writing by RM, RM SystemCare does not include any scheduled preventative maintenance visits. Replacement parts will be furnished on an exchange basis when installed by RM and will be new or equivalent to new in performance. Replaced parts will become the property of RM. Where RM SystemCare is provided as an enhancement to the warranty (see RM Standard Terms and Conditions of Sale) provided by RM on Equipment manufactured or sold to the Customer by RM, then the terms of the said warranty shall continue to apply except to the extent enhanced by this agreement.
b. Chargeable Services. At the Customer's request, RM may provide subject to additional charges, any related service in respect of the Equipment and not specified above and desired by the Customer, including but not limited to: (i). Services required by other than normal wear and tear, such as those required due to unauthorised attempts to maintain or restore Equipment, misuse of Equipment, fault or negligence of Customer or user, or required due to causes external to the Equipment e.g. power failure or lightning strike; (ii). RM SystemCare or other services provided outside the Normal Working Hours.
3. RM SystemCare Service Levels
RM SystemCare will be provided, as specified in the contract schedule for each item of Equipment, at one of the following levels: NDAY Next day on-site response. RM will use reasonable endeavours to respond to calls placed by the Customer to RM by the arrival of an RM engineer at the applicable Customer site by the end of the next working day or by identification of the problem by telephone. 8HR 8 hour on-site response. RM will use reasonable endeavours to respond to calls placed by the Customer to RM by the arrival of an RM engineer at the applicable Customer site within 8 working hours of call or by identification of the problem by telephone. 4HR 4 hour on-site response. RM will use reasonable endeavours to respond to calls placed by the Customer at RM's control centre by the arrival of an RM engineer at the applicable Customer site within 4 working hours of call or by identification of the problem by telephone. RSC Return to Service Centre. RM will arrange to collect Equipment reported faulty by the Customer at RM's control centre. RM will use reasonable endeavours to carry out service and despatch Equipment to Customer within 7 working days of receipt. Due to transit arrangements and courier times, it may typically be 10 working days between the logging of a fault call with RM and the return of the repaired Equipment. For service levels Next Day, 8 hour and 4 hour above, RM will use reasonable endeavours to carry out service and complete the repair of the Equipment within 3 working days of the target response time. Irrespective of the service level applicable to PC equipment, where the call involves repair to a monitor, RM may at its own discretion effect the repair by exchange with an as new replacement, return to RM Service centre or at the Customer site. When placing a fault call, all 8 hour and next day on site requests for service must be placed by 15:30 (duringNormal Working Hours). Calls placed after this time may not receive a response until the following working day.
4. RM ServerCare
RM ServerCare is a variant of RM SystemCare and provided as an additional service to the standard warranty (see RM Standard Terms and Conditions of Sale) and is specifically for network file servers. The service level provided will be next day (as described in Clause 3 above), unless agreed otherwise by both parties in writing. Additionally RM will: a. Assist with the restoration of the network operating system, the network system plus the user configuration, applications and customer data from the Customer's last good backup. b. If after logging a hardware fault with RM, a unit of Equipment remains inoperative due to malfunction through no fault or negligence of Customer, its employees, agents or other third parties not authorised by RM for a period of greater than 3 working days (calculated from the end of the target response time set out in Clause 3 above) the Customer shall be entitled to be provided by RM, on request, with loan equipment of a similar or higher specification until such time as the Customer's Equipment is repaired.
5. Loan Equipment
Unless the specific item is covered by RM ServerCare or RM agree otherwise in writing, this agreement does not provide any entitlement to loan equipment. Loan equipment where provided shall remain the property of RM and the Customer agrees to insure the loan equipment against loss or damage and to care for and use the loan equipment in accordance with the RM's instructions.
6. RM SystemCare Limitations
RM SystemCare is only provided under this agreement in mainland Great Britain and its islands connected by road bridges but may be provided in other geographical areas by separate agreement. RM SystemCare does not include: a. Electrical work external to the Equipment or the maintenance of accessories, attachments or other devices not listed in the schedule. b. Service necessitated by the fitting of consumable items not to the manufacturers specification. c. Service necessitated by environmental elements external to the Equipment. d. Service on Equipment located in an environment considered in the opinion of RM to be unsafe or hazardous. e. Assistance with relocation of the Equipment. f. Service resulting from accident, neglect, alterations, improper use or misuse of the Equipment, failure to operate the Equipment in accordance with the manufacturers published specifications or necessitated by repairs attempted by non-RM authorised personnel. g. Restoring the System to the latest backup (unless the system is a network server that is covered by an RM ServerCare contract) and the retrieval of data lost as a result of a hard disc or floppy disc failure. h. Remedial work necessary as a consequence of a computer virus, unless the virus has been caused by RM. i. Repair of add-on cards, drives, memory processors unless supplied by RM for the Equipment or clearly specified and in either case agreed with RM to form part of this agreement. j. The repair/replacement of consumable items i.e. those items which have a finite useful life and are specified by the original manufacturer as consumable or requiring replacement at given intervals due to usage. These would include but are not limited to: ribbons, ink cartridges, toner cartridges, laser printer drums, printer heads and batteries.
All Equipment must be in full working order at the commencement of an RM SystemCare agreement. Unless covered by a current RM warranty, if in RM's opinion the Equipment was not fully functional prior to the commencement of the contract, RM reserves the right, at the Customer's expense, to inspect and carry out any changes to the Equipment which is necessary to return it to operating order.
7. Reconditioning
RM may charge for the reconditioning of Equipment, which, in RM's opinion, cannot be properly or economically repaired due to excessive wear or deterioration. In this event, RM will provide to the Customer an estimate of reconditioning charges. If the Customer does not elect to have the Equipment reconditioned, RM may withdraw RM SystemCare for such item(s).
8. Term
The agreement for RM SystemCare is for a fixed term that is the Period of Cover starting on the Commencement Date. Thereafter the Period of Cover may be renewed by agreement between the parties at RM's then current prices, terms and conditions.
9. Customer Responsibilities
To enable RM to perform RM SystemCare and the Chargeable Services under this agreement the Customer will: a. Allow RM full and free access to the premises, Equipment and communications facilities. b. Be responsible for the installation and maintenance of computer network cabling, including active components,and telecommunications equipment or services and any charges. c. Provide RM with reasonable assistance in the diagnosis of problems and machine time, use of communications equipment and services and suitable computer medium as reasonably required by RM. d. Maintain current backup copies of all software and data. Under the terms of this agreement RM will not be held responsible for data loss whether caused through the conduct of this service or for any other reason. RM may refuse to assist with the restoration of any software, which the Customer cannot provide RM with satisfactory evidence of licence. e. Ensure that a member of the Customer's staff will be in attendance while service is being carried out.
10 Service Warranty
RM warrants that it will use all reasonable skill and care in carrying out RM SystemCare and the Chargeable Services. Repairs to Equipment are warranted for ninety (90) days from the date of repair or the remainder of the Period of Cover, whichever is longer.
11 Application
Unless specifically agreed in writing and authorised by a Director of RM these Conditions shall supersede all Terms and Conditions of the Customer. These Conditions shall constitute the entire understanding between the parties and (for the avoidance of doubt) where the Customer permits RM to commence delivery of the services thereunder this shall constitute acceptance by the Customer of these Conditions. Changes to these Conditions by way of addition or amendment are only valid if approved in writing by a Director of RM.
12 Service Charges
a. RM SystemCare charges are payable in advance of the Period of Cover. Additional charges will be levied for: (i)Subject to agreement from RM, additional Equipment may be added to this agreement. The Customer will be charged the pro rated price for the remainder of the then current Period of Cover. b. In respect of any Chargeable Services: (i) The Customer shall pay RM for labour, parts, travel, packing, carriage, insurance and other charges in respect of such Chargeable Services. All such charges shall be at RM's standard charge rate in effect at the time the Chargeable Services are furnished. Where applicable these will be added as separate items on RM's invoice. (ii) Charges for labour shall include travel time to and from the location of the Equipment and be computed to the nearest one-half (0.5) hour with a minimum charge of one hour per call. (iii) Charges shall be invoiced to Customer immediately after the Chargeable Services have been provided. Failure of the Customer to pay any charges when due shall constitute sufficient cause for RM to suspend or terminate this agreement. c.Unless otherwise notified to the Customer in writing by RM, the Customer shall pay all invoices within thirty (30) days of the date thereof (time being of the essence).
13 Damages, Shortages or Loss in Transit
a.Where RM deliver Equipment to the Customer, the Customer shall inspect the Equipment immediately on delivery and RM will accept responsibility for damages, shortage or loss in transit only if: (i).Such loss or damage is noted on the consignment note or delivery document upon receipt or is notified in writing to RM in cases of outwardly non visible loss or damage to unchecked Equipment to arrive in either case within five (5) working days from receipt of the Equipment by the Customer; and (ii).In cases of suspected damage in transit, the added packaging is retained for inspection. b.Where RM has arranged the collection of Equipment from the Customer's site, RM will only accept responsibility for damages, shortage or loss in transit provided the Equipment has been packed by the Customer in the original manufacturers packaging or reasonable equivalent. Where RM accepts responsibility under this clause, RM shall at its option replace or repair any Equipment proved to RM's satisfaction to have been lost or damaged in transit.
14 RM's Liability
a.There are no warranties, conditions, guarantees or representations whether express, implied by statute or otherwise oral or in writing except as provided herein. b.Notwithstanding (a) above, all rights which the Customer may have under the Consumer Protection Act 1987 and the Unfair Contract Terms Act 1977 are in addition to those set out in these Conditions. c.In the event of a breach of the warranty in Clause 10, RM shall re-perform at its expense any services which do not conform to Clause 10 for the Period of Cover. d.Without prejudice to Clause 15 (a) below, if RM fails without cause to perform the services in accordance with its obligations hereunder the Customer may recover an amount to compensate for any direct physical loss which is suffered as a result of its failure subject always to a maximum aggregate liability in any calendar year of the total charges (whether annual or ad hoc) paid or payable for the services in question. e.RM shall be liable for death or personal injury arising from the performance of services to the extent that it results from the negligence of RM or its employees. RM shall also be liable to the Customer for any other direct loss of or damage to tangible property caused solely by the negligence of RM or its employees subject always to a maximum aggregate liability of in any calendar year of the total charges (whether annual or ad hoc) paid or payable for the services in question . f.The Customer agrees that RM will not be liable for any loss arising out of the provision of goods or services by any company organisation or person other than RM or for any loss caused by the Customer's failure to perform his obligations in relation to this agreement. g.RM shall not in any event be liable for any indirect, special or consequential loss, howsoever arising (including but not limited to loss of anticipated profits or of data) in connection with or arising out of the supply, functioning or use of the Equipment even if RM shall have been advised of the possibility of such potential loss and shall not be liable for any loss except as provided for in this agreement.
15 Termination
a.Either party to this agreement shall have the right, without prejudice to any other remedies, at any time by giving notice in writing to the other party to terminate forthwith this agreement, in any of the following events:- (i)if the other party being the Customer fails to pay any sums to RM on the due date of payment; or (ii)if the other party commits any other breach of this agreement provided that if the breach in question is one which that other party can effectively remedy then the said notice of termination shall not be effective to terminate this agreement unless the said party fails within thirty (30) days of the date of such notice effectively to remedy the breach complained of; or (iii)if the other party ceases to carry on business or a substantial part thereof, commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary other than for the purposes of amalgamation reconstruction or compounds with its creditors generally or has a receiver or manager appointed over all or any part of its assets or suffers execution or distress or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due. b.Clauses 12 and 14 shall survive the termination or expiry of this agreement.
16 Miscellaneous
a.Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than a payment of money) provided that such a failure is due to causes beyond its reasonable control. b.The inability to enforce or invalidity for any reason of any part of these Conditions shall not prejudice the continuation in force of the remainder thereof. c.These Conditions shall be deemed to have been made in, and shall be construed pursuant to, the laws of England.
