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records of the operational documentation provided by the manufacturer.all relevant information to help assist in resolving any malfunction of the equipment software materials, and services necessary for the maintenance and testing of the equipment, and the co-operation of the Client's personnel in diagnosing and overcoming any malfunction of the equipment.
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Provide remote access to its Equipment to enable the Company to perform the services;
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Provide access to the Equipment at the Client's premises at the times agreed in advance with the Company.
Note on Access to Equipment:
- The Client shall ensure that the Company shall have full and free access to the Equipment at all times necessary for the carrying out of maintenance thereon. In the event that access cannot be given to the equipment within 30 minutes of the request of same by the Company (providing such request is given during normal working hours), the Client will agree to a deferral of the repair and shall be liable for additional charges at the prevailing Company rates, including any expenses, and travel time incurred. The Company shall not be in breach of its obligations due to this deferral.
6. EXCLUSIONS
Maintenance and Support Services are fully outlined under Schedule 2(a), however they do not include the investigation, diagnosis or rectification of any default or other problem resulting from:-
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the improper use or operation of the Equipment;
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modification or repair to any of the Equipment made by any person other than the Company or a person previously approved in writing by the Company;
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failure by the Client to implement recommendations in respect of defaults previously advised by the Company; or
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any breach by the Client of any of its obligations under any maintenance agreement in respect of the Equipment.
The Client may request the Company to provide support services in respect of the above mentioned matters. If the Company agrees to do so, it will be entitled to make an additional charge on a time and materials basis in accordance with its current Standard Rate Charges.
7. WARRANTY AND LIABILITY
The Company warrants that maintenance and any additional service, which may be provided under this agreement, will be carried out in a professional manner, and that all parts fitted to the equipment will be good quality.
The Client must notify the Company immediately and in any event within 30 days of performance by the Company of any Services which in the Client's opinion are unsatisfactory. The Company will rectify any faulty work as soon as reasonably practicable at its own expense.
If a fault is reported which upon investigation is not the responsibility of the Company, the Company may charge the Client at its Standard Rate Charges for the time and expenses incurred in undertaking the investigation and rectification.
All terms, conditions and warranties implied by law, trade use or otherwise (including but not limited to any warranties as to quality or fitness for purpose) are excluded to the extent permitted by law. The Client, by entering into the Agreement, acknowledges that the only warranties are those given expressly by the Company in this Agreement and the Company has no liability or obligation to the Client except as expressly set out in this Agreement.
The Client is responsible for the consequences of any use of the Services. The Company will have no liability for any indirect or consequential loss, damage, cost or expense of any kind whether arising under contract, tort or otherwise including (but not limited to) loss of production, loss of or corruption to data, loss of profits, loss of operating time or loss of goodwill.
The Company's maximum aggregate liability in respect of any negligence or breach of contract including any damage to or loss of property of the Client is limited to Automates PI Cover.
Where the Client avails of third party goods or services, offered through the Company (Online Backup, Domain Hosting Services etc.), the Company cannot accept any liability whatsoever for any loss or damage which arises out of, or is in any way connected with, those goods or services, however the Company will provide assistance to the Client with selecting the most appropriate and secure third party goods and services including online back up, domain hosting services, antivirus, etc and support the Client with maintaining/using these services in most efficient and effective way.
8. CONFIDENTIAL INFORMATION
Each party may have access to certain non-public information of the other party, including without limitation information regarding the other party's business, plans, clients, technology, products and services, methods and procedures of providing services, the pricing and terms of this Agreement, confidential information belonging to third parties, any information marked or designated as confidential at the time of disclosure, and any information that, under the circumstances of its disclosure, should be considered confidential (the "Confidential information").
Neither party will use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or as reasonably necessary to the receiving party's attorneys, accountants and other advisors who are obligated to maintain the confidentiality of such information), any of the other party's Confidential Information. The disclosing party retains all right, title, and interest in and to all confidential information it discloses under this Agreement. Each party shall protect the other party's Confidential Information by using at least the same degree of care used for its own similar Confidential Information, but no less than reasonable care. This section shall apply to any confidential information provided prior to the effective date of this agreement.
Confidential Information shall not extend to information which:-
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Is in or enters the public domain without breach of this Agreement and through no fault of the receiving party;
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The receiving party can demonstrate was developed by it independently and without use of the disclosing party's Confidential Information;
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The receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
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If a party is required to disclose Confidential Information by law, court order, or government agency, such disclosure shall not be deemed a breach of this Agreement, provided that the disclosing party, if practical, shall give reasonable prior notice to the other party.
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The parties acknowledge that money damages would not be sufficient remedy for any unauthorised copying, transfer, or use of any Confidential Information of the other party and that the other party shall be entitled to seek equitable relief as a remedy, therefore. Equitable remedies shall not be deemed to be exclusive remedies for a breach, but shall be in addition to all other remedies available at law or in equity.
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The obligations in this clause will survive the termination of this Agreement.
CONFIDENTIAL INFORMATION CONTINUED
Automate will take all reasonable precautions to ensure data protection. Following full site assessment Automate will make recommendations to to help ensure data protection for example - encrypting all PCs/Laptops. For the purposes of providing the services set out in this Agreement, the Company may process personal data on behalf of the Client.
The personal data associated with the Client's employees, contractors or other IT account holders may include the following:
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Names
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Email addresses
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Telephone numbers
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IT account details (usernames, permissions, etc.)
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Support queries and responses
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Hardware and software details
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The Company shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Client, and in accordance with GDPR.
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The Company shall apply appropriate technical and organisational measures to ensure that the personal data is adequately protected from unauthorised or unlawful processing or disclosure, or its accidental loss, destruction or damage.
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In the event of a data protection breach arising due to the actions or practices of the Company, the Company shall be liable for regulatory penalties imposed on the Company.
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Any copies of the personal data held by the Company shall be returned to the Client or deleted upon termination of the contract
9. TERMINATION
Either party may terminate this Agreement by notice to the other if the other party:-
Commits a breach of this Agreement and (in the case of the breach capable of remedy) fails to remedy it within 14 days of receiving notice requiring it to remedy the breach; or The other party becomes insolvent or unable to pay its debts or if a liquidator, trustee, receiver or administrative receiver is appointed in respect of all or part of its business or assets or a resolution is passed for its winding up.
Termination will not prejudice any rights or remedies of either party that have accrued at the termination date.
If the Client fails to pay any invoice of the Company by the due date, the Company may, by notice to the Client, suspend performance of the Services until payment has been received. To avoid doubt, the suspension will not prejudice the Company's right to terminate the Agreement under this Clause.
10. FORCE MAJEURE
The Company will not have any liability to the Client if it is prevented from performing the Agreement on account of any circumstances beyond its reasonable control (a "force majeure event"). The Company will immediately notify the Client of a force majeure event and take such steps as is reasonably practicable to overcome the same. During a period of force majeure, the obligations of the Company shall be suspended to the extent that they cannot be performed.
11. ASSIGNMENT AND SUB-CONTRACTING
Neither party will assign any of its interests in the Agreement without the prior written consent of the other.
The Company is entitled to sub-contract all or part of its obligations with respect to the provision of the Services but sub-contracting will not relieve it from its obligations to the Client.
12. NOTICES
Any notice to be given by either party under this Agreement to the other shall be in writing and in the case of a notice regarding ‘Termination' sent by registered post or delivered by hand. Any routine notice concerning the Services may be sent by email to the pre-notified email address of the recipient.
13. SEVERABILITY
If any part of this Agreement is held by a Court to be unenforceable or invalid, the remaining provisions of the Agreement will continue in effect.
14. WAIVER
No delay or failure by either party to exercise any of its rights under this Agreement will operate as a waiver of them. To be effective, a waiver must be in writing.
15. WHOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all previous communications, representations and other arrangements, whether oral or written. The Client acknowledges that no reliance is placed on any representation made by the Company but not embodied in this Agreement.
16. HIRING OF COMPANY EMPLOYEES OR EX-EMPLOYEES
If during the terms of this Agreement, or for 12 months thereafter, the Client directly retains the services (whether as an employee, independent contractor, or otherwise) of any employee of the Company (or ex-employee within six months of the employee's termination from the Company), the Client agrees that the Company will be damaged, but that the amount of this damage will be difficult to determine.
Accordingly, the Client agrees that for each such employee of the Company hired by the Client, the Client will pay the Company €100,000 as liquidated damages.
17. GENERAL
No variation or amendment of this agreement shall be binding on either party to this agreement unless confirmed by both parties in writing. Any notice to be given under this agreement shall be in writing sent by email or post to the receiving party at its business address as last notified in writing to the other party and shall be deemed to have been given on the date of the email or on the day following the date of posting.
18. DISPUTES & ARBITRATION
The parties will endeavour to resolve any disputes through good faith amicable negotiations.
In the event of a dispute between the parties hereto in regard to the construction of this agreement, or to any act or thing done pursuance hereof, or to the quantification or any sum of money due hereunder or in connection herewith or any other matter, or relating hereto, any such dispute shall be referred to an arbitrator for determination who shall in default of agreement between the parties be appointed on the application of either party by the president of the Incorporated Law Society. The decision of the arbitrator shall be final and binding on both parties and the arbitrator shall have power to award the cost of determination against either party. Any dispute which is not settled by negotiation or mediation shall be finally determined by the Courts .
The Company shall not accept responsibility for the management and/or prevention of any computer viruses (or any of their variants) which may infiltrate the Client's computer system.
Once an anti-virus programme has been installed on the Client's computer system, the Company shall not accept responsibility for the upgrading and or changing of automatic settings on the said programme and this shall remain the responsibility of the Client. Where the Client's computer system has been damaged by computer viruses, spyware, or any of their variants, the Company shall endeavour, where possible, to recover and or rebuild the said system, within the response times specified under the contract. However, all such work will be carried out on a chargeable basis, according to the Company's Standard Rate Charges.
When replacing parts in the equipment, the Company may, but shall not be obliged to, use parts manufactured by the manufacturer of the equipment and may use fully compatible parts or reconditioned parts in lieu thereof. The Company may, if it considers it necessary, make engineering changes that may not be required solely for maintenance and repair provided that such engineering changes will not adversely affect the performance of the equipment.
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Critical / Site Down - Immediate (We are based in the City Centre. Onsite within 1 hour)
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Urgent - 2 Hour Response time
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Minor - 4 Hour Response time
(Based on Dublin-based Client Sites Only).
For major breakdowns (i.e. a File Server outage) a telephone response shall be given in one hour. An on-site response shall be provided within four hours of the telephone response. Where the Equipment breaks down completely, the Company shall endeavour to restore an improvised service within eight hours after the original notice. The Company shall use its endeavours to ensure normal service is restored within twenty-two hours after the original notice to the Company. (Note: Works to laptops will take place off-site with an expected turnaround of five working days).
For non-major faults or hindrances, a response shall be given within eight hours. Maintenance or repair of the fault shall take place within ten working days of the original notice to the Company unless third party intervention is required i.e. the manufacturer. The restoration to normal service indicated above shall not apply where data files have to be restored or replaced.
SCHEDULE 3 FEES & CHARGES
The fee for the provision of Support and Maintenance Services to the Client is -
Standard Rate Charges for additional services, outside of the terms of this Agreement are:
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Hourly (Standard) Rate
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Half-Day Rate
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Daily Rate
Where hourly rates are indicated, these rates are charged per hour or part thereof.
Note on ‘Out of Hours' Cover: Any services performed at the request of the Client outside of normal working hours (8:30am - 5:30pm) will be charged at 1.5 times the standard rate during weekdays and at 2.0 times the standard rate at weekends.
