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| | Service Pack Terms and Conditions | |
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1 | DEFINITIONS |
“Business Day” means 9am to 5.30pm Monday to Friday, excluding United Kingdom public and bank holidays.
“Commencement Date” means the date the ServicePack was registered.
“Customer” means the organisation or company that has purchased the ServicePack.
“Proof of Purchase” means a dated sales receipt, showing the date of purchase of the Serviced Equipment and the ServicePack, and identifies the Serviced Equipment by serial number.
“Recovery Time” means the time taken (as defined in each Service Description) to restore the defective Serviced Equipment to proper functionality. The Recovery Time is measured from acknowledgement of the fault call by the FSC ITPS Service Operations Centre (SOC) or Service Factory (SF) until the defective Serviced Equipment is restored.
“Response Time” means the time taken (as defined in each Service Description) from when a fault call is acknowledged by the FSC ITPS Service Operations Centre (SOC) or Service Factory (SF) until the time when the FSC ITPS engineer arrives on site, excluding time taken where appropriate for online remote investigation.
“Serviced Equipment” means hardware computer equipment, including integral options as supplied by Fujitsu Siemens Computers specified in the ServicePack registration form, to which the Services are to be provided. The Serviced Equipment does not include software programs, whether pre-loaded, installed subsequently, or otherwise.
“ServicePack” means the Terms and Conditions together with the Service Description.
“Services” means the services supplied by FSC ITPS, described in the Services Description.
“Territory” means worldwide for Lifebook and Stylistic products and European, Middle East and African (“EMEA”) countries in which Fujitsu-Siemens trades or has an authorized service provider for other products.
“Service Cover Time” means the hours during which the Services are available as specified within the Service Description.
“Service Description” means the relevant product sheet incorporated herein and amended from time to time by FSC ITPS in accordance with clause 8.5.
“FSC ITPS” means Fujitsu Siemens Computers IT Product Services (Registered Number 5659400).
“Terms and Conditions” means these terms and conditions.
“Term” means the lesser of; three (3) year period; or the remaining Warranty Period.
“Warranty Period” means the period during which Fujitsu Siemens Computers provides a guarantee against defects for the Serviced Equipment.
1.1 Words in the singular shall include the plural, and vice versa.
1.2 A reference to a person shall include a reference to a firm, a body corporate, an unincorporated association or to a person's executors or administrators.
1.3 Headings and sub-headings are included in this ServicePack for convenience only and shall not affect the interpretation or construction of this ServicePack. |
2 | TERM |
| 2.1 | This ServicePack shall commence the Commencement Date and shall continue in force for Term unless terminated in accordance with the Terms and Conditions. |
| 2.2 | The Customer will be deemed to have accepted these Terms and Conditions by registering the ServicePack with FSC ITPS in accordance with the registration process detailed within the Service Description. |
3 | SERVICE PROVIDED |
| 3.1 | The Services to be provided during the Service Cover Time are described within the applicable Service Description. |
4 | CUSTOMER OBLIGATIONS |
| 4.1 | In addition to the Customer obligations detailed in the Services Description the Customer shall; |
| 4.1.1 | carry out routine maintenance activities in accordance with manufacturers’ recommendations; |
| 4.1.2 | ensure that the Serviced Equipment is installed, and kept in suitable premises and under suitable conditions, in accordance with manufacturers’ recommendations; |
| 4.1.3 | permit only trained and competent personnel to use the Serviced Equipment; |
| 4.1.4 | in the event that the Serviced Equipment does not operate correctly, notify FSC ITPS promptly in accordance with the call acceptance procedure described in the Service Description; |
| 4.1.5 | not maintain, alter, modify or adjust the Serviced Equipment, nor attach to nor use any other equipment save pursuant to normal operational use in accordance with the manufacturers’ recommendations or following other instructions from or authorisation by FSC ITPS; |
| 4.1.6 | provide FSC ITPS with all information as may be reasonably requested by FSC ITPS in order to enable FSC ITPS to perform its obligations under this ServicePack; |
| 4.1.7 | make available to the FSC ITPS engineer, the appropriate Customer’s staff who are adequately familiar with the Customer's operations and procedures; |
| 4.1.8 | at all reasonable times permit FSC ITPS, its employees and agents full and free access to perform the Service and at the Customer’s expense, provide FSC ITPS, its employees, subcontractors and agents with adequate working space and such telecommunication facilities as are reasonably required; |
| 4.1.9 | notify FSC ITPS in writing prior to the movement of the Serviced Equipment. Failure to notify FSC ITPS may result in delay in responding to any fault call; |
| 4.1.10 | where the Services are to be provided remotely provide to FSC ITPS the required remote service connection free of charge and ensure that the appropriate remote access software and a modem, is connected to the Serviced Equipment; |
| 4.1.11 | take reasonable precautions to protect the health and safety of FSC ITPS' employees, agents and sub-contractors while on the Customer’s premises; |
| 4.1.12 | ensure that any software required for operating system reload (where pervaded within the Services) is available to the FSC ITPS engineer; |
| 4.1.13 | be responsible for taking a full back up of its system and data before the Services commence and at any other relevant times during the provision of the Services. |
| 4.2 | Upon completion by FSC ITPS of any work or services that forms part of the Services, the Customer will promptly return to FSC ITPS all software, documentation, manuals and any other material used by FSC ITPS for performing the Services which may be in the Customer's possession or control. |
| 4.3 | Without limiting any of FSC ITPS other rights or remedies, FSC ITPS shall be relieved of any liability arising from any failure on the part of FSC ITPS in meeting any of its obligations under this ServicePack, to the extent that such failure is as a direct or indirect consequence of the Customer failing (for whatever reason) to meet any of its obligations contained in this ServicePack. |
5 | SERVICES EXCLUDED |
| 5.1 | The Services do not include maintenance of the Serviced Equipment which is necessitated as a result of any cause, other than fair wear and tear or FSC ITPS' fault under this ServicePack including without limitation; |
| 5.1.1 | failure or fluctuation of electrical power, air conditioning, humidity control or other environmental conditions; |
| 5.1.2 | accident, transportation, neglect, misuse, or default of the Customer, its employees or agents or any third party including unauthorised attempts to repair or adjust the Serviced Equipment; |
| 5.1.3 | any failure due to removable storage media; |
| 5.1.4 | repair or renewal or supply or fitting of tapes, disk packs, batteries, print heads, printing cartridges or other consumable supplies (including without limitation ribbons, diskettes and stationery); |
| 5.1.5 | electrical or other environmental work external to the Serviced Equipment; maintenance of Serviced Equipment, the supply of products that have become obsolete by passing their manufacturers’ specified support life or are no longer commercially available; |
| 5.1.6 | the recovery or installation of any lost or corrupted data or operating system software and any software application software, unless specified within the Service Description; |
| 5.1.7 | repair of the Serviced Equipment where failure of the Serviced Equipment occurred prior to the purchase or registration of the ServicePack or Commencement Date; |
| 5.1.8 | maintenance or support of any other software, attachments or associated equipment (whether or not supplied by FSC ITPS) other than the Serviced Equipment; |
| 5.1.9 | consequences of excessive use. |
| 5.2 | FSC ITPS will, where it is able, at the request and expense of the Customer repair or replace any part of the Serviced Equipment which has failed due to a cause not covered by the Services. Where FSC ITPS in its sole discretion repairs or replaces any item of the Serviced Equipment, then FSC ITPS shall have the right to levy such additional charge as FSC ITPS shall deem reasonable. |
| 5.3 | Services provided under this ServicePack shall be limited to the local capability of the country within the Territory. Services with Response Time sooner than next business day is limited to Serviced Equipment located on the mainland of Great Britain excluding the Scottish highlands and islands, Channel Islands, Isle of Man, Isle of Wright, Scilly Isles and Northern Ireland. Services may be subject to additional charge or increased Response Time for remote locations. |
6 | LIABILITY |
| 6.1 | FSC ITPS liability under this ServicePack for errors or omissions in performing the whole or any part of the Services, will be limited to the provision of services of the same nature as those originally provided in order to correct such errors or omissions, provided FSC ITPS is notified of the errors or omissions within three (3) months following completion of such part of the Services. |
| 6.2 | Neither party excludes or restricts liability for death or personal injury to the extent that its own negligence or that of its employees, agents or subcontractors causes such death or injury. |
| 6.3 | Subject to clauses 6.2 and 6.4 the aggregate liability of FSC ITPS to the Customer under this ServicePack will be limited to: |
| 6.3.1 | a maximum of one million pounds (£1,000,000) over the term of this ServicePack in respect of direct loss or damage to the tangible property of the Customer to the extent caused by the negligence of the FSC ITPS or its employees, agents or subcontractors; |
| 6.3.2 | a maximum of the price paid by the Customer for this ServicePack, in respect of all other direct losses, damages, costs and/or expenses incurred or suffered by the Customer whether arising in tort, breach of contract, breach of statute or otherwise. |
| 6.4 | Notwithstanding anything else contained in this ServicePack neither party shall be liable to the other for: |
| 6.4.1 | loss of profits, loss of business, loss of data, loss of revenue, loss of goodwill or loss of anticipated savings; and/or |
| 6.4.2 | any category of indirect, special or consequential loss or damage. |
| 6.5 | Each provision of this clause 6 limiting or excluding liability operates separately and shall survive each other if any are held invalid or unenforceable. |
| 6.6 | All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the ServicePack. |
| 6.7 | The remedies in this ServicePack are Customer’s sole and exclusive remedies. |
7 | TERMINATION |
| 7.1 | FSC ITPS may terminate this ServicePack at any time if the Customer fails to perform any of its material obligations under this ServicePack or to observe any of the Terms and Conditions contained herein. |
| 7.2 | This ServicePack will terminate automatically if any of the Serviced Equipment is transferred or sold to any third party. |
8 | GENERAL |
| 8.1 | The Terms and Conditions of this ServicePack shall prevail over the Service Description and any conflicting, additional or other terms of purchase order or other document submitted by the Customer. |
| 8.2 | FSC ITPS will not be liable for performance delays or for non-performance due to causes beyond its reasonable control (including without limitation acts of god, industrial disputes, inclement weather, fires, acts of government or other competent authority, acts of war or terrorism). |
| 8.3 | Any term of this ServicePack which is held to be invalid will be deleted, but the reminder of these terms will not be affected. |
| 8.4 | No provision of this ServicePack is intended to or does confer upon any third party any benefit or right enforceable at the option of that third party against either FSC ITPS or the Customer under the Contracts (Rights of Third Parties) Act 1999. |
| 8.5 | No modification, alteration or waiver of the provisions of this ServicePack shall be valid unless made in writing and signed by the authorised signatory of FSC ITPS and the authorised signatory of the Customer, save for alteration of the Service Description which may be modified on notice to the Customer, or upon posting a revised copy upon the FSC ITPS web site. |
| 8.6 | Neither party shall assign, transfer, novate, sub-contract or otherwise dispose of, in whole or in part, any of its respective rights or obligations under this ServicePack without the prior written consent of the other, except that FSC ITPS shall be permitted to appoint sub-contractors in relation to the delivery of the Services under this ServicePack, provided that FSC ITPS shall be responsible for the acts and omissions of its sub-contractors as if they were acts and omissions of FSC ITPS. FSC ITPS may also assign the ServicePack to any member of the FSC ITPS group of companies. |
| 8.7 | If requested by FSC ITPS the Customer shall make available to FSC ITPS documentation verifying the Proof of Purchase of the ServicePack and/or the Serviced Equipment. |
| 8.8 | This ServicePack shall be governed and construed in accordance with the laws of England and Wales and the parties hereto hereby submit to the exclusive jurisdiction of the English and Welsh Courts. |
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