BETWEEN:

(1)      
(2)       Plumb Team Limited a company registered in England and Wales under number 06771153 whose registered office is PO box 191, Bangor, LL57 9BX (“the Service Provider”)

 

WHEREAS:

(1)       The Service Provider is engaged in the business of maintaining and servicing the Equipment specified in Schedule 1 of this Agreement.

(2)       The Client wishes to procure plant maintenance services from the Service Provider and the Service Provider agrees to provide plant maintenance services under the terms and conditions set out in this Agreement.

 

IT IS AGREED as follows:

Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“Confidential Information”

means all business, technical, financial or other information created or exchanged between the Parties throughout the Term of this Agreement;

“Equipment”

means any and all equipment listed in Schedule 1 of this Agreement in addition to new or replacement equipment supplied by the Service Provider in their provision of the Services;

“Services”

means the plant maintenance services to be provided to the Client by the Service Provider as defined at Clause 4 of this Agreement;

“Service Fee”

means a fixed sum to be paid Quarterly by the Client to the Service Provider as defined at Clause 3 of this Agreement;

“Sites”

Means the locations at which the Service Provider shall provide the Services as set out in Schedule 2.

Unless the context otherwise requires, each reference in this Agreement to:
“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
“this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
a Schedule is a schedule to this Agreement; and
a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
Words imparting the singular number shall include the plural and vice versa.
References to any gender shall include the other gender.

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Term
The Services will be provided by the Service Provider during the term of this agreement (the “Term"), which shall commence on 01/04/2010 and will continue until 01/04/2011 unless otherwise terminated in accordance with Clause 9 of this Agreement.
The Term may be renewed on the same terms and conditions as set out in this Agreement for a further period of 12 months upon the mutual consent of both Parties.

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Fees and Payment
The Client shall pay a Service Fee of £xxxxx to the Service Provider each quarter throughout the Term in consideration of the Services.
The Client shall be invoiced separately for any Materials and Equipment that is supplied by the Service Provider.  The cost of any such Equipment shall be 11% above that paid by the Service Provider.
All Invoices shall be sent to the Client at the address detailed in the preamble to this Agreement unless otherwise agreed by the Parties and shall be paid within 30 days of the invoice date.
All sums specified in this Agreement are exclusive of any value added tax unless expressly stated otherwise.

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Services
The Services shall be deemed to include the following:
Initial commissioning of new Equipment excluding installation and configuration;
Repair of faults in Equipment, at an agreed rate, when occur between service visits;
Supply of maintenance history for all Equipment;
Preventative maintenance for all Equipment to take place four times per year, such maintenance to include (but not be limited to) testing, cleaning, adjustment and lubrication.  The provision of such maintenance shall take place at times agreed between the Parties; and
Corrective maintenance where required, such maintenance to include (but not be limited to) the repair and replacement of parts as may be deemed necessary by the Service Provider.
The Service Provider shall use its best and reasonable endeavours to provide the Services in a timely manner and in accordance with prevailing best practices in the industry.
Where the Services required involve the unavailability of Equipment either due to the failure of that Equipment or due to the nature of the Services being provided, the Service Provider shall complete all work required within 72 hours.
In the event that completion within 72 hours, as required by sub-Clause 4.3 is not possible, the Service Provider shall assist in the procurement of replacement equipment.
Where the nature of the Services dictates that such work takes place on an on-demand basis, the Service Provider shall provide the Services within 72 hours of receipt of notice from the Client that such Services are required.
In the event that corrective maintenance is required, the Service Provider shall supply any necessary replacement parts on an exchange basis. All parts supplied under this sub-Clause shall be new parts.  [Any replaced parts that are removed from the Equipment shall become the property of the Service Provider on replacement.]
This Agreement shall not be deemed automatically to cover any additional Equipment that the Client may purchase during the Term.  Extension of the Services to cover such new Equipment shall occur only by agreement between the Parties and may result in an increase in the Service Fee, such increase being at the discretion of the Service Provider.
The following are expressly excluded from the Services and shall only be undertaken at the discretion of the Service Provider at extra cost to the Client:
Repairs to Equipment damaged deliberately by the Client or as a result of vandalism;
Repairs to Equipment damaged as a result of war, terrorism, fire, explosion or natural disaster;
Repairs to electrical equipment or infrastructure that is external to the Equipment;
Repairs to equipment that is ancillary to the Equipment unless expressly included in Schedule 1; and
Repairs to Equipment which has been modified, moved, reinstalled or repaired by the Client or any third Party without the prior written approval of the Service Provider.

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Client’s Obligations
The Client shall enable the Service Provider to access the Sites at all times during which the Service Provider may reasonably require such access in order to provide the Services.  Such access shall include use of and access to HVAC systems, lighting, electrical infrastructure and outlets, computer networks, computer equipment, telephones and any other facilities which the Service Provider may reasonably require.
The Client shall provide the Service Provider with detailed reports of any and all problems that require remedy within the Services.  Such reports shall be in the form provided by the Service Provider or, where no such form is specified, in such a form that clearly sets out all known details relating to the problem, such details to include any specifically requested by the Service Provider.
The Client shall ensure that all Equipment is stored and used in an appropriate manner and, where relevant, in accordance with any and all guidelines and instructions issued by the manufacturer.
The Client shall ensure that all relevant employees are fully trained in the correct operation of the equipment.

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Service Provider’s Obligations
The Service Provider shall use its best and reasonable endeavours to ensure that it does not:
Create any unsafe or hazardous conditions at the Sites;
Materially interfere with or impair the operation of HVAC systems, lighting, electrical infrastructure, plumbing, fire protection systems, safety systems or security systems at the Sites; or
Impose any expense upon the Client in connection with its use or operation of the Sites.
The Service Provider shall immediately notify the Client of:
Any damage or destruction to property, real or personal; and
Any injury to any person resulting from the performance of the Services by the Service Provider, its sub-contractors or their respective employees.

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Warranty
The Service Provider warrants to the Client that the Services supplied under this Agreement will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.
Except as expressly provided in this Agreement, no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the satisfactory quality, fitness for purpose, or ability to achieve a particular result, of the Services is given or assumed by the Service Provider, and all such warranties, conditions, undertakings and terms are excluded.
The Client agrees that its sole remedy in respect of any non-conformance with any warranty in this Agreement is that the Service Provider will remedy such non-conformance (either by itself or through a third party) and if, in the Service Provider's reasonable opinion, it is unable to remedy such non-conformance, the Service Provider will refund the Service Fee for the month in which the Services, the subject of such claim, were supplied, if paid [, whereupon this Agreement shall immediately terminate.]
The Service Provider does not warrant that all problems can and will be corrected. The Service Provider shall use its best and reasonable endeavours to correct problems so long as the problems are replicable or otherwise identifiable by the Service Provider.
The Client must promptly notify the Service Provider of any non-conformance to the above warranties in order to benefit from the remedy set out in sub-Clause 7.3, and in any event within 3 months.

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Liability
[The Service Provider shall during the term of this Agreement, maintain employer's liability, third party liability, product liability and professional negligence insurance cover in respect of its liabilities arising out of or connected with this Agreement, such cover to be to a minimum value of £1,000,000 and with an insurance company of repute. The Service Provider shall on request supply copies of the relevant certificates of insurance to the Client as evidence that such policies remain in force. The Service Provider undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.] 
The Service Provider shall indemnify the Client for personal injury or death caused by the negligence of its employees in connection with the performance of the Services under this Agreement or by defects in any Equipment or other product supplied pursuant to this Agreement. 
The Service Provider shall indemnify the Client for direct damage to tangible property caused by the negligence of its employees in connection with the performance of the Services under this Agreement or by defects in any Equipment or other product supplied pursuant to this Agreement. The Service Provider's total liability under this Clause shall be limited to £1,000,000 for any one event or series of connected events. 
Save in respect of claims for death or personal injury arising from the Service Provider's negligence, in no event will the Service Provider be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Service Provider, whether such damages were reasonably foreseeable or actually foreseen. 
Except as provided above in the case of personal injury, death and damage to tangible property, the Service Provider's maximum liability to the Client under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the greater of: 
[the sum for which the Service Provider carries comprehensive insurance cover pursuant to clause 8.1; or]
a sum equivalent to the price paid up until the point of claim to the Service Provider for the Services, Equipment or other products that are the subject of the Client's claim, plus damages limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Client in obtaining alternative products and/or services. 
The Parties acknowledge and agree that the limitations contained in this Clause 8 are reasonable in the light of all the circumstances. 
The Client's statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort, including negligence, or any other form of action. For the purposes of this clause, the 'the Service Provider' includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.

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Termination
The Service Provider shall be entitled to terminate this Agreement in the event that:
The Client has failed to pay the Service Fee to the Service Provider for a period exceeding 4 consecutive months and fails or refuses to do so following the expiry of a written notice from the Service Provider requesting such payment within 28 days; or
The Client demands services which do not form part of the Services and which are not covered by this Agreement.
The Client shall be entitled to terminate this Agreement in the event that:
The Service Provider fails on more than 3 consecutive occasions within a period of 3 consecutive months to render the required Services to the Client in a timely manner and in accordance with the terms of this Agreement; or
The Service Provider supplies inferior Equipment or parts, damaging the Equipment and causing loss to the Client.
Either Party has the right to terminate the agreement immediately if the other:
has committed a material breach of this agreement, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 14 days after a written notice to do so; or
goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.
In the event of termination for default committed by the Client, all payments required under this Agreement shall become due and immediately payable.
Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Agreement shall survive termination under this Clause 9.

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Confidentiality
Each Party undertakes that, except as provided by sub-Clause 10.2 or as authorised in  writing by the other Party, it shall, at all times during the continuance of this Agreement  and [for 3 years] after its termination:
keep confidential all Confidential Information;
not disclose any Confidential Information to any other person;
not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
not make any copies of, record in any way or part with possession of any Confidential Information; and
ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 10.1.1 to 10.1.4 above.
Either Party may:
disclose any Confidential Information to:
any sub-contractor or supplier of that Party;
any governmental or other authority or regulatory body; or
any employee or officer of that Party or of any of the aforementioned persons;
to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that Party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 10.2.1.2 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
use any Confidential Information for any purpose, or disclosure it to any other  person, to the extent only that it is at the date of this Agreement, or at any time  after that date becomes, public knowledge through no fault of that Party,  provided that in doing so that Party does not disclose any part of that  Confidential Information which is not public knowledge.
The provisions of this Clause 10 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.

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Notices
All notices under this Agreement shall be in writing. 
Notices shall be deemed to have been duly given: 
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or 
when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or 
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or 
on the tenth business day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

Relationship of Parties
Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the Client.

Assignment
Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.

Force Majeure
Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.  Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

Severance
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement.  The remainder of this Agreement shall be valid and enforceable.

Entire Agreement
This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement.  Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.
Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.

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No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement.  Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

Non-Exclusivity
The relationship between the Parties under this Agreement is and shall remain non-exclusive.  Both Parties are free to enter into similar relationships with other parties.

[Dispute Resolution (Arbitration)
It is agreed that where any dispute or difference relating to this Agreement arises between the Parties that matter shall be referred to the arbitration of a single arbitrator with appropriate qualifications and practical experience to resolve the particular dispute.
The arbitrator shall be agreed by the Parties or in the event of failure to agree shall be appointed by the President for the time being of the Law Society of England and Wales.
The arbitration shall take place in London and shall be in accordance with the Arbitration Act 1996 or any re-enactment or modification of that Act for the time being in force.
The Parties shall promptly furnish to the arbitrator all information reasonably requested by him relating to the particular dispute, imposing appropriate obligations of confidence.
The Parties shall require the arbitrator to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible as soon thereafter as may reasonably be practicable.  The Parties shall co-operate fully with the arbitrator to achieve this objective.
The Parties shall share the fees and expenses of the arbitrator equally. The decision of the arbitrator shall be final and binding upon both Parties.
[The Parties agree to exclude any right of application or appeal to the courts of England and Wales concerning any question of law arising in the course of the arbitration.]]

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Law and Jurisdiction
This Agreement shall be governed by the laws of England and Wales.
[Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of England and Wales.]