Definitions

"We, Us, Our" etc., "DBS" refers to Datel Business Systems Ltd.
"You, Your, Yours" etc. "Customer", refer to the customer as named on the attached Schedule.
"Service Agreement", "Agreement" means this agreement and the attached Schedule.
"Schedule" means the Schedule of Equipment and Service Levels attached to this document
"Hardware" includes any installed modules, interfaces, firmware, software, operating system and options.
"Software" means any executable code sold by the manufacturer as a product separately from the Hardware.
"Equipment" means all the Hardware and Software covered by this contract as listed in the Schedule.
"Service Level" means the agreed response options and times as set out in the Schedule.
"Effective Date" is agreed date of commencement of the service as set out in the Schedule. This date shall be not less than fourteen days following the Customer purchase order for this service.
"Customer Services" means non-maintenance services provided by DBS.
"Normal Working Hours" are 09:00 to 17:00, Monday to Friday excluding holidays normally observed in England.

The Service

This Service Agreement is a platform under which DBS can deliver a broad range of complementary services in support of the Customer. These services are designed to minimise interruptions to the Customer's installed system to assist in rapidly resolving apparent system failures, and to facilitate smooth integration of new and additional DBS products into the system.
Datel Business Systems Ltd will:

• Perform remedial repairs and routine maintenance in accordance with the manufacturers recommendations on the Hardware listed in the attached schedule. DBS will plan for and schedule this maintenance in agreement with the Customer
• Make available to the Customer copies of any updates to the Software listed in the attached schedule, including any patches, bug fixes and security updates provided that such updates are made available by the manufacturer as maintenance updates as opposed to chargeable feature upgrades.
• Promptly notify the Customer of any Field Notices, Security Alerts and the like which may affect the operation of the Equipment after we are notified by the manufacturer.
• Respond to calls for remedial maintenance by the Customer within the times specified on the schedule.
• Provide assistance to the Customer in diagnosing network problems and determining if the problem is caused by a defect or configuration error in the Equipment.

If the problem should be caused by a defect in the Equipment, DBS will make arrangements to repair or replace the Equipment in accordance with the Service Level.

At DBS' option, service will be effected by repair of a failing machine element or part, or by exchange with one in good working order.
Where a fix cannot be affected within the period defined on the schedule, DBS will endeavour to provide loan equipment of equivalent technical specification and performance.

DBS will ensure that its employees and agents, whilst they are on the client's premises, comply with the Client's reasonable safety and security regulations and procedures. It will be the Clients responsibility to ensure that DBS' employees and agents have been made aware and fully understand any such regulations and procedures.

Service Representative

In addition, DBS will assign a named Service Representative to the Customer, who will participate in key service planning activities with the Customer, who will be responsible for managing the DBS service resources and support provided and who will periodically review with the Customer the levels of service provided under all the above clauses.

The Service Representative will be the main contact point for the Customer for all problems related to the Services provided under the Agreement which include, but are not limited to the activities specified below:

• Agree and define with the Customer the service requirements for each Customer location included in the Agreement based on the specific needs of each location.
• Provide Guidance and support to Customer personnel on problem analysis and problem determination. 
• Ensure a proper flow of information between the service representatives servicing the Customer locations, in order to speed up the solution of problems.
• Maintain a central control and record of service problems notified by the Customer to DBS in order to achieve the most effective and timely solution.

The named Service Representative and their direct line contact number are listed in the Schedule.

Client's Obligations

The Client will:

• Ensure that all the environmental and electrical supply conditions for the Hardware are maintained in accordance with the manufacturer's specifications.
• Permit DBS personnel to access the Equipment (including providing any relevant passwords) at the location where it is installed for inspection, repair and maintenance within normal working hours provided DBS has given reasonable notice. . If sufficient access is not provided, DBS shall not be obliged to perform the service and may charge the customer for costs and expenses incurred
• Make available adequate working space and facilities for DBS personnel at no charge to DBS where the need for such space and facilities has been agreed.
• Take all reasonable precautions to ensure the health and safety of DBS personnel while they are on the Client's premises.
• Make available on demand appropriate facilities for remotely accessing and diagnosing the Equipment.
• Accept that it is a fundamental condition that no third party or person in the Client's organisation shall service or attempt to repair or remedy any defect or in any way interfere with the Hardware except on each occasion under the specific instructions of DBS personnel. 
• Repay to DBS, the costs including all reasonable labour costs for replacing, repairing or rebuilding any part of the Hardware which has failed or which has been damaged or destroyed through any cause other than normal wear and tear. 
• Ensure that the Equipment is kept and operated in a proper and prudent manner and Ensure that only competent trained employees are allowed to operate the Hardware.
• Ensure full co-operation with all DBS personnel in the diagnosis of the reasons for any malfunction of the Equipment
• Ensure that the Equipment and any necessary passwords are made immediately available to DBS or their agents on their arrival on site, subject to prior mutual arrangements having already been made with the Client.
• Promptly inform DBS of any changes to the specification, location or configuration of all Hardware covered by this agreement. 

Before requesting service, the Customer will Ensure:

• Any applicable normal operator tasks and procedures on problem determination, problem analysis and problem recovery have been followed.
• Any operational problems have been corrected.
• Appropriate safeguards for all programs, software, data or configuration information contained in the Equipment have been implemented.
• All removable storage media, non-standard parts, alterations and attachments are removed from any Equipment to be exchanged or returned to DBS. Any such item not removed will be notified to the Customer, who will acknowledge to DBS their intentions regarding said items.
  

If requested to do so by DBS, the Customer will nominate personnel authorised to place a call for remedial maintenance under the terms of this Agreement. 

The Customer represents that he is authorised by both the owner and the user to include the Equipment under this Agreement. Therefore the Customer will inform each owner or user of all the services provided by DBS under the Agreement and of all the relevant user's obligations.
Exclusions

Maintenance is dependent upon the proper use of all Hardware and does not cover Hardware which has been modified without the approval of DBS or which has been subject to unusual physical or electrical stress.

DBS shall be under no obligation to furnish maintenance:

• If adjustment, repair or parts replacement is required because of accident, neglect other than that of DBS, misuse, failure of electrical power, transportation or causes other than ordinary use.
• If the Hardware is maintained or repaired, or if attempts to repair or service the Hardware are made by other than DBS personnel, without prior approval of DBS.
• If in the opinion of DBS, remedial maintenance service is required as a result of causes stated above, the Client will be liable to pay DBS per call charges, at DBS' current standard rates, and reimburse any directly related expenses.

The maintenance services do not include:

• Operating supplies, cathode ray tubes, lamps, bulbs, accessories or consumables.
• Machines that the Software is loaded and/or operating on, unless those machines are specifically mentioned in the Hardware list.
• Electrical work external to the Hardware or maintenance of accessories, 
• Alterations, attachments or other devices not furnished by DBS unless specifically noted herein.
• Overhauls, Re-builds or Refits

The provision of remedial maintenance service for Equipment is subject to the availability to DBS of the necessary parts and support services. Where such service becomes unavailable to DBS, during the Term of this Agreement, DBS will use its best endeavours to obtain an alternative source of parts and support services. 

DBS assumes risk of loss or damage only if it is caused by DBS' negligence when in possession of Equipment during service or during shipment connected with such service.

Unless otherwise agreed between the Customer and DBS, direct electronic diagnosis and service delivery facilities provided under the terms of this Agreement shall be used only in the provision of service to the Equipment specified in the Schedule.

Charges

The charges set forth in the Schedule are exclusive of Value Added Tax or any other Government levies which would be chargeable in accordance with statutory provisions then prevailing.

Without prejudice to any other remedy DBS may at any time, by giving one month's notice in writing of a non-compliance, vary any or all of its charges if for any reason the cost of DBS performing its obligations is increased by non-compliance by the Client with the conditions of this contract.

Should the Client request preventative maintenance to be performed outside Normal Working Hours, DBS will use its best endeavours to provide such maintenance and the Client will be liable to pay DBS the prevailing DBS hourly charges and reimburse any directly related expenses.

Payment will be subject to DBS normal Terms & Conditions of Sale.

Parts or Equipment replaced by DBS under this Agreement become the property of DBS, and those provided by DBS become the property of the owner of the Equipment at the time of their exchange. However, should the Customer wish to retain replaced parts then DBS will make them available to the Customer at the commercial rate.

Warranty

DBS warrants that it will use reasonable care and skill in the provision of service described in this Agreement and that it will use suitably qualified and experienced personnel. 

Service provided under this Agreement does not assure uninterrupted operation of the Equipment.

Liability

Neither party shall be liable for failure to perform its contractual obligations if such failure results from an Act of God, governmental act, fire, explosion, accident, industrial dispute, or any other cause beyond the part's control.

DBS' liability for actual damages from any cause will be limited to £100,000. This limitation applies regardless of the form of action, whether in contract or in tort including negligence, except in respect of claims related to personal injury or damage to real property or tangible personal property caused solely by DBS' negligence. 

DBS will indemnify the Client for direct damage to property, (however, not including any loss of data), which is caused by the negligence of DBS personnel. DBS' total liability to any one Customer under this sub-section is limited to £500,000 for any one event or connected events.

Except as stated above, DBS disclaims all liability to the Customer in connection with DBS' performance under this Agreement, including, but not limited to, liability for loss of profits, and other consequential losses.

In no event will DBS be liable for:

• Any damages caused by the Customer's failure to perform its responsibilities;
• Any lost profits, lost savings, incidental damages, other economic or consequential damages, or;
• Any claim made against the Customer by any other party.

Even if has been advised of the possibility of such damage, loss or claim. 

Subject to the clauses above the Customer shall indemnify and defend DBS in respect of any Claims by third parties that are occasioned by or arising from any DBS performances pursuant to instructions of the Customer.

Dialled Network Services

If any of the Equipment is designed to connect to a dialled network service (such as, but not limited to, ISDN services), please note that telecoms provider call charges will apply. There is a possibility that network configuration changes made following maintenance will result in the Equipment coming or remaining on-line for extended periods or excessively frequently thereby incurring line charges with your telecoms provider. Whilst we take every reasonable step to ensure your Equipment is not causing excessive charges at the time of maintenance, we cannot be responsible for the charges, which may be made by your telecoms provider in these circumstances. It remains the responsibility of the Customer at all times to monitor the line usage and ensure that charges are kept to a minimum. DBS will not accept liability for excessive call charges arising as a result of the Customer failing to notice or take action on any condition causing excessive or excessively long calls.

Confidentiality

Each party undertakes to keep and maintain all confidential information in the strictest confidence and not to disclose such information to any third party without prior written consent of the other. The provisions of this clause shall apply for the term of this agreement and for five years after.

Duration

This contract will commence on the Effective Date and will remain in force for a minimum term of one year or as specified in the schedule, whichever is the longer, and will automatically renew for further periods of one year unless terminated by either party giving three months notice in writing. Deletion of individual items of equipment shall be subject to a minimum of 30 days notice.

Should either party be put into liquidation this contract will cease.

In the event of a material failure by either party to comply with any of the terms and conditions of the Agreement, the other party may serve written notice specifying the breach and requiring it to be remedied within 60 days. If the breach is not remedied within this period, the injured party may terminate the Agreement at any time by immediate written notice. Such termination by DBS for the failure of the Customer to remedy a breach will be subject to the payment to DBS of any outstanding charges. DBS will recalculate the charges up to the date upon which a termination is effective and will invoice or credit any resultant adjustment when it occurs.

Assignment

The Customer may not assign the Agreement except with DBS prior written consent.
DBS' arrangements for services described herein may include the use of subcontractors.
In particular, where the word "SmartNet" appears in the Service Level, a separate contract exists directly between the Customer and Cisco Solutions Inc. to provide many of the services that would normally be provided by DBS. In these cases, DBS will manage the support provided by Cisco and that provided by its own staff to Ensure the best service to the Customer.

Law

This maintenance agreement will be constructed entirely in accordance with the laws of England.

Any notice given under this agreement by either party to the other must be in writing and shall be effected by personal delivery, telex, facsimile, email or registered mail postage to the address set out on the face of this agreement or such other address as shall have been notified and shall in the case of telex, facsimile or email, be deemed to be received on the same date as it was sent and in the case of postage within 48 hours after the date of posting if posted in the United Kingdom.

The provisions of this agreement are severable and if any provision (not being a fundamental term) is held to be invalid or unenforceable by a court of competent jurisdiction such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions.

Clerical errors are subject to correction by DBS at any time.

DBS may, upon three months notice in writing to the Customer, modify the terms and conditions of this Agreement. The Customer may either accept all such modifications, or, if the Customer considers that the modified term and conditions are less favourable to him, then the Customer may continue with the terms and conditions contained in the then current Agreement until the next renewal date.

Except as stated in the clause above, this Agreement can only be modified by a written agreement duly signed by persons authorised to sign agreements on behalf of the Customer and DBS. Variance from the terms and conditions of this Agreement in any Customer order or other written notification will be of no effect.

This Agreement, together with its applicable schedule, contains the entire agreement between the Customer and DBS relating to maintenance of the Equipment, superseding all proposals of prior agreements, oral or written and all other communication between the Customer and DBS.
Any products supplied or services carried out that are not covered by this Agreement will be subject to DBS standard terms and conditions of sale.