Our Maintenance Terms & Conditions 1 Definitions In these terms and conditions, the following terms have the meaning set opposite them (or where not set out below, defined terms will have the meaning given in the Terms and Conditions of Sale): “Additional Fees” Any fees for the provision of goods and/or services outside the scope of the Services, including but not limited to those set out in clause 16, at such rates as set out in clause 20; “Care Plan” The care plan set out in the Contract Document, which specifies the Services to be provided, or if such care plan is not set out in the Contract Document, it shall be as set out in clause 8; “Commencement Date” The commencement date of the Services, as specified in the Contract Document; “Consumables” Any consumable items, including but not limited to batteries transformers, capacitors, cooling fans and suchlike; “Contract Document“ The document to which these terms and conditions are attached which sets out details of the Services to be provided to the Customer; “Customer“ Power Control’s customer for the Services, as detailed on the Contract Document; “Equipment“ The UPS or generator equipment specified in the Contract Document; “Fees” Means the Maintenance Fee and the Additional Fees; “Maintenance Contract“ The contract for the supply of the Services in respect of the Equipment between Power Control and the Customer, governed by the Contract Document, these Special Conditions and the Terms and Conditions of Sale; “Maintenance Fee“ The fee for the Services specified in the Contract Document; “Parts” Any spare parts for the Equipment (not including Consumables) which are used as part of the Services; “Power Control“ Power Control Limited (company number: SC152126, registered at 272 Bath Street, Glasgow G2 4JR); “Power Control Personnel” The employees, agents and sub-contractors of Power Control, which Power Control may engage to provide the Services; “Preventative Maintenance” Any scheduled maintenance to the Equipment, comprising the first service and annual services, as more particularly described in clause 5; “Remedial Maintenance” Any remedial or emergency maintenance to the Equipment, as more particularly described in clause 6; “Services“ The Preventative Maintenance and Remedial Maintenance services to be provided by Power Control pursuant to the Contract Document; “Site” The Customer’s site where the Services will be provided, as set out in the Contract Document; “Special Conditions” The Special Terms and Conditions set out in this document; “Term” Has the meaning given in clause 3.1; “Terms and Conditions of Sale” Power Control’s Terms and Conditions of Sale, attached to these Special Conditions; and “Visit(s)” Visit(s) by Power Control Personnel to the Site for the purpose of carrying out the Services. 2 General 2.1 Entire Agreement – These Special Conditions along with Power Control’s Terms and Conditions of Sale and the Contract Document shall apply to the Maintenance Contract for the supply of Services by Power Control to the Customer and shall apply to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply). They shall apply in place of and prevail over any terms or conditions contained or referred to in any documentation submitted by the Customer, in correspondence or elsewhere, or implied by trade custom, practice or course of dealing and shall constitute the entire agreement between Power Control and the Customer in respect of the Services. 2.2 Variations – No variation or addition to the Maintenance Contract shall be effective unless in writing and signed by or on behalf of both parties. 2.3 Conflict – In the event of any conflict between these Special Conditions and Power Control’s Terms and Conditions of Sale, these Special Conditions shall take precedence. 2.4 Clause references – any references in these Special Conditions to ‘clauses’ shall be to clauses of these Special Conditions, unless expressly stated otherwise. 3 Term 3.1 Term – The Maintenance Contract shall commence on the Commencement Date and shall continue in force for an initial term of 12 months (or such other period as may be set out in the Contract Document) (“Initial Term”) and shall continue thereafter for successive periods of 12 months (each a “Renewal Term”) unless terminated by either party giving the other party no less than 45 days’ notice to expire at the end of the Initial Term or the then current Renewal Term (as applicable), unless terminated earlier in accordance with the terms of the Maintenance Contract (“Term”). 3.2 Renewal – Power Control will contact the Customer no less than 60 days before the Maintenance Contract is due for renewal and will advise the Customer of any changes to the terms, Services and/or Fees. In the event the Customer does not wish to continue with the Maintenance Contract, it shall notify Power Control in accordance with clause 3.1, otherwise the Customer will be deemed to have accepted any changes to the terms, Services and/or Fees. 4 The Services 4.1 Standard of Services – The Services provided by Power Control under the Maintenance Contract shall be to keep the Equipment in proper working order by providing Preventative Maintenance and Remedial Maintenance, in each case using sufficiently qualified competent employees, agents and sub-contractors in accordance with the Maintenance Contract. 4.2 Work not included – For the avoidance of doubt, the Services shall not include: 4.2.1 installation or maintenance of software; 4.2.2 painting or refinishing the Equipment or furnishing materials for this purpose; 4.2.3 electrical work external to the Equipment or maintenance of attachments or other devices not specifically noted as part of the Equipment; and 4.2.4 those goods and works specified in clause 16. 5 Preventative Maintenance 5.1 Care Plan – Power Control will provide Preventative Maintenance for the Equipment in accordance with the particular Care Plan agreed which may be performed concurrently with Remedial Maintenance. 5.2 First Service – The Customer’s first service will usually be within 90 days of the Customer first taking out a Maintenance Contract. If Power Control has already carried out a first service or an annual service on the Equipment in the previous twelve-month period, it will not carry out another one. If Power Control has installed new Equipment for the Customer, the first service will be carried out as part of the installation and commissioning. 5.3 Annual Service – One of the Power Control Personnel will Visit the Site once a year to check that the Equipment is working safely and in line with the relevant laws and regulations and manufacturer specifications. If these tests show that it is necessary to take the Equipment apart to adjust or clean, Power Control will do so. During the Visit, the Power Control Personnel will fill in a service record to show the Customer exactly what has been looked at. 5.4 Faults – If Power Control finds a problem or fault during any Preventative Maintenance Visits that needs to be fixed, Power Control will provide the Customer with all relevant data. This will be noted on the service record and someone from the Power Control maintenance team will contact the Customer with a quote to have the work rectified. 6 Remedial Maintenance 6.1 Care Plan – Power Control shall provide remedial maintenance when notified by the Customer that the Equipment is inoperative in accordance with the Care Plan. 6.2 Logging calls – The Customer must provide a contract number when registering a fault, and any failure to do so may result in a delayed response. 6.3 Response times – Response times given by Power Control are only estimates and Power Control shall use reasonable endeavours to meet them. Response times are measured from the conclusion of the relevant telephone call to Power Control. Specific response times to the Maintenance Contract are set out in the Care Plan. 6.4 Parts – If the Maintenance Contract includes ‘Parts’, this will exclude all Consumables which will be charged in addition, unless specifically included within the Care Plan. 6.5 Spares Level 1- If the Maintenance Contract includes ‘Spares Level 1’, this will only include Parts (not Consumables) that facilitate a first time fix up to the value of £200 per annum. This means small parts only which are available on hand to the Power Control Personnel on the Visit and can be fitted by the Power Control Personnel during that Visit. The £200 value is per year of each contract, not per Visit. If the total £200 value is not used in a particular contract year, it will not be accrued forward to the next year. 6.6 Parts and Consumables – If the Maintenance Contract includes ‘Parts and Consumables’, this will include all parts the Equipment requires to function over its life (during the term of the Maintenance Contract). Exclusions to the Consumables included will be detailed in the Care Plan. 6.7 Maintenance Price match – Power Control will match any genuine maintenance quotation, provided that the quotation is for the same maintenance services, is a valid and genuine quotation and the Customer can provide sufficient proof of the lower price to Power Control. 6.8 Battery Price match – Power Control will match any genuine replacement quotation, provided that the quotation is for the same battery, is a valid and genuine quotation and the Customer can provide sufficient proof of the lower price to Power Control. 6.9 Resolution times – Resolution or fix times given by Power Control are only estimates and Power Control shall use reasonable endeavours to meet them. In the event that Power Control fails to meet a fix time by 2 working days or more Power Control will give the Customer a 20% discount from the renewal price, this will be the only compensation Power Control will give for missing a fix time. This shall not apply in the event that any failure to meet the fix time is due to the Customer or any event outside Power Control’s reasonable control. 6.10 Power Control Personnel – The Services will normally be carried out by a Power Control engineer however Power Control reserves the right to use sub-contractors, provided they are suitable and qualified to provide the Services. 6.11 Repairs – If the fault is related to one Power Control has fixed for the Customer in the last twelve months, then the Customer will not have to pay any Additional Fees for resolving the same, subject to clause 16.1. The Power Control Personnel will use his/her expert judgement to decide whether a fault is related to an earlier fault or not and his/her decision will be final. 6.12 Safety advice – From time to time, Power Control may tell the Customer that the Equipment needs certain preventative repairs or improvements to keep it working safely and efficiently, which are not covered by the Maintenance Contract (for example, some Equipment at 5-6 years old will require fans and capacitors replacing in order to continue working correctly). If the Customer fails to follow Power Control’s advice, it will affect certain parts of the Customer’s cover – but the Maintenance Contract will remain in place in accordance with its terms. 7 Visits 7.1 Arranging Visits – When a Preventative Maintenance Visit is due (or a Visit otherwise needs to be re-arranged), Power Control will contact the Customer to agree a date for the Visit but, if after two attempts, no date has been fixed, it shall be the Customer’s responsibility to contact Power Control to re-arrange the Visit. Failure in that event to contact Power Control to make such arrangements will result in the Visit not being conducted, and the Customer will not be entitled to any credit or refund in this respect. In these circumstances, Power Control will still be entitled to the full Maintenance Fee. 7.2 Timescale for Visits – Subject to clause 7.1, Power Control will carry out any repairs or visits the Customer is entitled to within a reasonable time, subject to clause 7.3. 7.3 Cancelled visit by Power Control – Power Control will use reasonable endeavours to meet all Visits it has arranged with the Customer, provided that if for any reason Power Control has to cancel the Visit it will let the Customer know as soon as practicable and will seek to re-arrange the Visit in accordance with clause 7.1. 8 Care Plans 8.1 All care plans are documented in the individual contract care plans. The Care Plan sets out the terms of the SLA for Maintenance Contract. 9 Rental of Equipment Power Control shall be under no obligation to do so but may, if so requested by the Customer, at its discretion rent Equipment to the Customer. Such Equipment shall remain at all times the property of Power Control and the Customer will be responsible for risk in and insurance of the Equipment whilst in the Customer’s control. All hire of the Equipment will be subject to Power Control’s Terms and Conditions of Hire. Power Control shall be entitled to collect the Equipment at any time during normal Working Hours upon giving five Working Days’ notice in writing, or otherwise upon termination or expiry of the Maintenance Contract. 10 Fees and Payment 10.1 Maintenance Fees – The Maintenance Fee shall be payable by the Customer to Power Control annually in advance on the Commencement Date and on each Renewal Date. 10.2 Additional Fees – All Additional Fees or other sums due to Power Control pursuant to the Maintenance Contract shall be payable within 30 days from the date of issue of the invoice. 10.3 VAT – All amounts payable to Power Control are, unless otherwise stated, exclusive of VAT which shall be paid in addition by the Customer. 10.4 Late payment – Power Control will have no obligation to provide any Services unless and until the Maintenance Fee has been received by Power Control in full. In the case of late payment Power Control shall be entitled to postpone the provision of the Services under the Maintenance Contract or to cancel the Maintenance Contract. 10.5 Interest – If the Customer fails to make a payment when due, then without prejudice to any other rights or remedy available to Power Control, Power Control shall be entitled to charge interest on the sum outstanding at the rate of 4% above the base lending rate from time to time at Barclays Bank Plc accruing on a daily basis until payment is made whether before or after judgement. 10.6 Quotes – Any prices quoted are net and exclude VAT and are valid for 30 days. The price shown assumes that an order is placed for the all Equipment and Services quoted. If a part order is placed then Power Control reserves the right to amend the quoted price accordingly. Quoted price(s) assume that all work is undertaken during normal working hours unless specifically stated otherwise. 10.7 Increase in Fees – Power Control reserves the right to increase the Maintenance Fee or any of its rates for Additional Fees by giving the Customer 60 days’ prior written notice to take effect from the next Renewal Date. Power Control’s rates which relate to Additional Fees will be reviewed from time to time and will be charged in accordance with the rates then in force. 11 Access to the Site and Delays 11.1 Access – The Customer shall grant Power Control Personnel, access to its Site for all Visits to enable Power Control to provide the Services. It is the sole responsibility of the Customer to ensure that: 11.1.1 Power Control Personnel have all necessary access to the Site and the Equipment including but not limited to ensuring necessary access for (a) maintenance/repair of the Equipment; (b) removal of the Equipment or parts and (c) the delivery of replacement equipment or parts (if applicable under the Maintenance Contract); and 11.1.2 there are clear routes for removal or siting of Equipment, to remove any obstacle hindering removal/sitting, and to provide any necessary lifting equipment and operators for the same. 11.2 Failed Visit – In the event that Power Control Personnel are prevented or delayed, for whatever reason, from accessing the Site or the Equipment and as a result Power Control is unable to provide the Services: 11.2.1 Power Control shall remain entitled to charge, and the Customer shall be obliged to pay, the applicable day rate for the engineers concerned, or if the Power Control Personnel are delayed in the commencement of the Services at the Site, Power Control shall be entitled to charge the Customer for all costs incurred as a result of the delay at its prevailing rates; 11.2.2 it shall be the responsibility of the Customer to arrange another Visit and any re-arranged Visit will be charged at the standard rate (and in the event the Customer fails to re-arrange the Visit, the Maintenance Contract will still continue (but the Visit will be deemed “used”); and 11.2.3 Power Control shall not be liable to the Customer for any failure or delay to provide the Services, or for any problem with the Equipment that would have been noticed or rectified in such a Visit. 11.3 Shut-Down Period – Power Control shall not be obliged to provide the Services during any Customer shut-down period unless provided to the contrary in the Contract Document. This shall not prejudice Power Control’s entitlement to the Maintenance Fee. 12 Testing, Safety and Bypass 12.1 Health and safety compliance – The Services shall be carried out by Power Control with full and proper regard to safety and in compliance with all relevant Health and Safety legislation. 12.2 Health and safety on Site – The Customer undertakes to take all reasonable precautions to protect Power Control’s Personnel, while on site and to notify such Power Control Personnel of any applicable health and safety policies and security policies which apply at the Site. The Customer accepts full responsibility for and shall indemnify and hold harmless Power Control in respect of any claims, costs, demands and liabilities that Power Control may suffer as a result of failure by the Customer to comply with its obligations under this clause 12.1 or under any other applicable laws and regulations, including but not limited to the Health and Safety at Work Act 1974 in relation to Power Control Personnel whilst attending the Site. 12.3 Risks – Power Control will not start doing any work if it believes there’s a health and safety risk, for example: hazardous chemicals, pest infestations, unsafe electrical installation. Power Control will not return to finish the work until the risk has been dealt with. 12.4 Asbestos – If any asbestos needs to be removed before Power Control can repair the Equipment, it will be the sole responsibility of the Customer to arrange and pay for its safe removal and certify to Power Control that this has been fully completed prior to a Visit. Power Control will not be liable for any failure or delay in providing any Services whilst it is awaiting the removal of asbestos and certification. 12.5 Tests – During the scheduled Preventative Maintenance Visits, the Customer shall provide Power Control with an opportunity to test the performance of the Equipment. 12.6 Customer’s attendance at Visit – The Customer shall have a competent person in attendance when the Services are being performed to ensure that all proper procedures and safety precautions are carried out and to deal with any systems and equipment not forming part of the Equipment which have to be operated to enable the Services to be performed. 12.7 Bypass – During the performance of the Services, it may be necessary to bypass the Equipment with the result that other systems and equipment of the Customer receive direct mains supply and become subject to any variations therein. The Customer acknowledges and agrees to the risks associated with the bypass procedure and accepts that Power Control will have no liability whatsoever in connection with the same. 13 Customer Obligations If Power Control’s performance of the Services or its obligations under the Maintenance Contract is prevented or delayed by any act or omission of the Customer or the Customer’s personnel (including but not limited to any breach of its obligations under clauses 5, 6, 7, 11 and 12, any delay in granting access to the Site or Equipment, any failure to have met any or all of its preparation obligations) Power Control shall not be liable for any costs, charges, losses or other liability sustained or incurred by the Customer arising directly or indirectly from such prevention or delay, and Power Control shall be entitled to recover from the Customer any costs or expenses of whatever nature incurred by Power Control as a result of any prevention or delay. 14 Parts and Consumables 14.1 Exchange of Parts – All Parts shall be supplied on exchange terms and will be equivalent standard parts of equal quality. Power Control normally provides new replacement Parts, but it reserves the right to provide refurbished Parts. 14.2 Removed Parts – All Parts removed for replacement shall become the property of Power Control. Power Control will be free to dispose, or refurbish them at its own discretion. 14.3 Spare Parts – Where spare parts are included within a Maintenance Contract, Power Control reserve the right to replace a faulty UPS with another that will have similar features but not necessarily the same features or an identical make and model. Unless specifically mentioned within the Care Plan, Power Control are under no obligation to provide a replacement UPS. If the Power Control Personnel attending the Visit does not have the Parts he/she needs at the time, Power Control will first try to get original Parts, or if it is unable to, will seek to obtain reconditioned Parts from the original manufacturer or an approved supplier. If Power Control remains unable to source the parts Power Control needs after that, Power Control may need to cancel the Maintenance Contract. If Power Control has agreed to cover certain Equipment but warned the Customer that it might be difficult to find spare parts, Power Control will do what it can, within reason, to repair it. 14.4 Power control batteries and 5-year services – Over time, Equipment batteries will degrade and need replacing, and the Customer acknowledges and agrees that these are the very items that power the Equipment in a power cut. If Power Control has advised these require replacing and this has not been completed Power Control may not attend related emergency call outs until the batteries have been replaced. Power Control will tell the Customer if the Customer’s system needs replacement batteries to enable the system to continue to work properly. 14.5 Charges – The replacement of any batteries by Power Control will be chargeable as an Additional Fee, as batteries are not included in any cover level. 14.6 Third party replacement of batteries – If someone else carries out a battery replacement for the Customer, the Customer will need to show Power Control the completed job sheet before it continues attending emergency call outs. They must be completed by a suitably qualified engineer and evidence may be required to verify this. Any adjustments and calibrations to the UPS that are required in relation to the battery replacement will be chargeable at the prevailing commissioning fee, even if completed during a service visit. 15 Warranty 15.1 Twelve month warranty – Power Control will repair or replace any faulty parts it has supplied, or fix any faulty work that it has carried out, within the previous twelve month period, subject to clauses 13, 16.1 and 18. 15.2 Warranty – Any warranty period given by Power Control for Equipment (if applicable) will run from the date of the original purchase and not from the date of any repair. 15.3 Third party warranty – If the Customer’s Equipment is covered by a third party or manufacturer’s warranty, it is the Customer’s sole responsibility to make sure that any work Power Control undertakes as part of the Services does not affect that warranty. 16 Additional Services and Fees 16.1 The Customer shall be charged and invoiced separately for any goods or services not covered in the Maintenance Contract at Power Control’s rates prevailing at the time and, where practicable, such charges shall be agreed by Power Control and the Customer before commencement of the same including but not limited to: 16.1.1 any Parts (not specifically covered in the Care Plan); 16.1.2 maintenance or repair of modifications or additions to the Equipment made without the prior consent of Power Control; 16.1.3 peripheral items and Consumables (including but not limited to batteries and transformers); 16.1.4 defects caused by battery failure; 16.1.5 the installation and fitting of spares not supplied by or on behalf of Power Control; 16.1.6 defects resulting from misuse, neglect, wilful damage of or accident to the Equipment or failure to follow the operating and maintenance manuals for the Equipment or written or oral instructions or advice of Power Control; 16.1.7 loss or damage caused by a force majeure event (as set out in clause 14 of the Terms and Conditions of Sale), lightning, water (from sprinkler devices or otherwise) flooding, explosion, earthquake, aircraft or other devices or articles dropped on the Equipment or failure of the room ventilation; or 16.1.8 further maintenance Visits required following an abortive visit by Power Control resulting from inadequate notice unjustified or unauthorised calls, inaccurate instructions, inaccessibility of the site or unavailability of the Equipment for examination, surveillance, maintenance or repair. 16.2 All additional services and goods supplied in accordance with clause 16.1 will be subject to Additional Fees. 17 Reports The Customer acknowledges and agrees that Power Control is not obliged to supply written reports with regard to any faults, repairs, maintenance or otherwise in respect of the Services, and that any reports requested by the Customer will only be supplied entirely at the discretion of Power Control subject to an additional fee (such fee to be notified by Power Control to the Customer at the time of request). 18 General exclusions The Customer acknowledges and agrees that: 18.1 no credit will be offered in lieu of carrying out an annual service; 18.2 the Maintenance Contract does not include cover for any faults or design faults that: 18.2.1 were already in existence when the Equipment system was installed, or were in existence prior to Power Control becoming involved with the equipment. 18.2.2 Power Control has informed the Customer about and the Customer has failed to fix; 18.2.3 Power Control couldn’t reasonably have been expected to know about (for example, password protected Equipment systems that Power Control is locked out of by the Equipment manufacturer); 18.3 Power Control will not be liable for or provide maintenance in respect of any damage caused by the Customer or if anyone other than Power Control carries out any work on the Equipment and damages it; 18.4 repair or replacement of any parts that have been deliberately damaged or misused (and it shall be at the discretion of the Power Control Personnel to use his/her expert judgement to determine how the damage was done); 18.5 Power Control will not repair any damage that is caused by changes in, or problems with, the supply of the Customer’s electricity; 18.6 if the system doesn’t have an external bypass switch Power Control may not be able to complete Equipment repairs without turning off the supply and shutting down the load. It will be up to the Customer to arrange a suitable time that the supply can be turned off, this will incur extra charges for re-attendance; 18.7 the Services do not include repairing or replacing any damage caused by extreme weather, flooding, structural issues, fire or explosions, or any other kind of damage that would typically be covered by insurance; 18.8 Power Control is not responsible for the Customer’s network connection or for the data transmission to, or from, appliances, devices or control systems; and 18.9 if the Customer adds any new Equipment to the Maintenance Contract during the Term at the same Site, Power Control will arrange it so that they all renew at the same time. 19 Cancelling the Maintenance Contract 19.1 Power Control shall be entitled to cancel the Customer’s Maintenance Contract (without liability to the Customer) in the following circumstances (in Power Control’s sole discretion): 19.1.1 Power Control finds a pre-existing fault during the Customer’s first service; 19.1.2 Power Control is unable (after making reasonable attempts) to source the parts needed to repair the Customer’s Equipment; 19.1.3 Power Control Personnel are subject to unreasonable conditions or treatment whilst carrying out a Visit (including but not limited to being subject to health and safety at risk or subjected to physical or verbal abuse); 19.1.4 the Site is unfit, unsuitable or unsafe to work in; 19.1.5 access to the Site for Visits is not facilitated, despite several attempts; and 19.1.6 the Customer fails to make permanent repairs or improvements to the Equipment, following advice from Power Control. 19.2 In the event of cancellation by Power Control in accordance with clause 19.1, Power Control will credit the Customer for the remaining time the Maintenance Contract was set to run less 90 days, to take account of the administrative work involved in cancelling the Maintenance Contract, provided that if such cancellation is at the first service, Power Control will refund the Customer for the remaining time the Maintenance Contract was set to run less the standard engineering day rate for that Visit. The parties agree that the sums set out in this clause 19.2 and reasonable and a genuine pre-estimate of Power Control’s loss.