Maintenance Services Standard Terms and Conditions

1. Interpretation

1.1 In these terms and conditions the following words shall have the following meanings:

1.2 The headings in the Maintenance Contract are for convenience only and shall not affect their interpretation.

1.3 In this Maintenance Contract reference to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

1.4 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.

1.5 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression are to be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.6 Reference to the Plant, Materials, Maintenance Services or Site includes a reference to any part of them.

2. Application of the Maintenance Contract

2.1 The provision of the Maintenance Services is governed exclusively by the Maintenance Contract terms. No other terms and conditions shall apply to the design, supply, carrying out Maintenance Services including any terms or conditions which the Client purports to apply and including the Contract.

2.2 No terms or conditions endorsed upon, delivered with or contained in the Client’s purchase order; confirmation of order, specification or other document will form part of the Maintenance Contract simply as a result of such document being referred to in the Maintenance Contract.

2.3 The Maintenance Contract shall not be varied unless expressly agreed in writing and confirmed in writing by an authorised representative of both parties.

2.4 Any Maintenance Contract Quotation is given on the basis that no contract will come into existence until Covair receives a purchase order from the Client or the Maintenance Contract Quotation is signed, or the Maintenance Contract Quotation is accepted by the Client whether in writing or by conduct.

2.5 Any Maintenance Contract Quotation is valid and capable of acceptance for a period of 60 days only from its date, unless Covair has expressly withdrawn it.

3. Supply of the Maintenance Services

3.1 Covair shall carry out and complete the Maintenance Services with reasonable skill and care (and will not be liable unless there has been a failure to exercise such reasonable skill and care) and in accordance with the Maintenance Contract terms and Statutory Requirements.

3.2 Covair may at any time without notifying the Client make any changes to the Maintenance Services which are necessary to comply with any Consents or Statutory Requirements, or which do not materially affect the nature or quality of the Maintenance Services.

3.3 Unless otherwise agreed in writing by Covair, the Client will give Covair access to the Site to carry out the Maintenance Services in accordance with the Maintenance Programme.

3.4 Covair may change dates it has arranged to carry out the Maintenance Services and will communicate such changes to the Client who will accommodate these changes provided that the overall frequency of the Maintenance Services is not changed.

3.5 Access to the areas where the Maintenance Services are to be carried out will be given in the Maintenance Hours set out in the Maintenance Contract Quotation. The attendances or Facilities the Employer will provide free of charge to Covair to use while carrying out the Maintenance Services are set out in the Maintenance Contract Quotation. If for any reason the Client does not allow Covair on Site to carry out the Maintenance Services as required or does not provide the Facilities necessary for Covair to provide the Maintenance Services, Covair will re-arrange a time to attend to carry out the Maintenance Services and the wasted costs of Covair’s personnel and travel costs will be charged to the Client in addition to the Prices.

3.6 Covair shall have no obligation to carry out the Maintenance Services and shall have no liability to the Client for a failure to carry out the Maintenance Services in the following circumstances: i) any event outside of Covair’s control, ii) a failure to obtain Consents by the Client, iii) an act of impediments, default or prevention by the Client or any of its suppliers or other contractors on Site iv) damage to the Works unless it is caused by Covair’s negligent carrying out of the Maintenance Services, v) defects or faults in the Facilities and/or Ring Beam and/or Latent Defects in the Works; vi) suspension by Covair under clause 6.8.1.2.

3.7 Covair shall be entitled to increase the Prices if any of the following result in extra cost to Covair carrying out the Maintenance Services: i) a Variation occurs, ii) changes to the Site Information; iii) the Client’s failure to provide Facilities, valid instructions or late provision of instructions; iv) the base wind is in excess of 10mph or gusts of 15mph or other weather conditions which prevent the carrying out of the Maintenance Services, under clause vi) the Variation will be the cost of the re-visit. The Maintenance Services do not include any replacement parts of the Works which are charged as Variations, do not include a dome structure inspection, and do not include emergency call out charges which are outside of the Maintenance Hours and which are charged in addition to the Prices, do not include: i) any mechanical and electrical testing that is not accessible from a ground level or safely accessible (if any access is required which is not from the ground level or safe this will be a Variation), ii) any complex door repairs over and above door level adjustments, any complex repairs must be referred to the door manufacturer.

3.8 This Contract will start on the Maintenance Services Start Date and end on the Maintenance Services End Date.

3.9 Covair and its licensors shall retain ownership of all Covair’s intellectual property rights and the Client and its licensors shall retain ownership of all intellectual property rights in the Client provided materials.

3.9.1 Covair grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy the Covair’s documents for the purpose of receiving and using the Maintenance Services in the Client’s business during the term of the Maintenance Contract.

3.9.2 The Client grants Covair fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client’s documents for the term of the Contract for the purpose of providing the Maintenance Services to the Client in accordance with the Maintenance Contract.

3.9.3 Both parties shall indemnify the other party in full against any sums awarded by a court against the other party arising of or in connection with any claim brought against the party suffering the loss for infringement of a third party’s rights (including any intellectual property rights) arising out of, or in connection with, the receipt or use of documents including any intellectual property rights for use in the performance of or receipt of Maintenance Services.

4. Insurance and Liability

4.1 The Client will bear the risk of damage to the Works unless such damage was caused by the negligent carrying out of the Maintenance Services. The Client will insure the Works under its property insurance policy for the full reinstatement value of the Works against damage which may arise under or connection with this Maintenance Contract and there shall be a waiver of subrogation against Covair for such damage.

4.2 Covair will provide public liability insurance in the sum of £2 million.

4.3 Covair is not responsible for and shall have no liability to the Client under the Maintenance Contract in respect of any Latent Defects.

5. Client Obligations

5.1 The Client shall obtain any Consents required to carry out and complete the Maintenance Services.

5.2 The Client will also ensure that the Site is suitable for the Maintenance Services.

5.3 Any defects or faults in the Ring Beam or Facilities or Latent Defects which result in additional cost when carrying out the Maintenance Services will be a Variation and Covair shall be under no obligation to carry out the Variation and shall do so entirely at its own discretion.

5.4 The Client will at its own expense supply Covair with all Site Information within sufficient time to enable Covair to provide the Maintenance Services in accordance with the Maintenance Contract.

5.5 The Client will ensure that:

5.5.1 the Site is ready and accessible to Covair to carry out the Maintenance Services and the Client will be charged for the additional cost of re-visits should the Site not be ready and accessible as required.

6. Prices

6.1 Subject to any special terms agreed, the Client shall pay the Prices and any additional sums which may become due to Covair pursuant to these terms.

6.2 A Variation or an instruction to carry out a Variation by the Client does not vitiate the Maintenance Contract. A Variation may include an omission of the Maintenance Services provided that Covair shall have no responsibility to warn the Client that such omission may invalidate a warranty in the Contract or cause harm to the Works.

6.3 The Prices will be increased by the amount agreed between the parties for any Variation and if no amount is agreed by a fair and reasonable price for the Variation unless the Variation is due to a fault or omission of Covair in carrying out the Maintenance Services in which event Covair shall carry out and complete the Variation at its own cost.

6.4 The Prices will also be increased by any additional costs incurred by Covair due to any failure by the Client to comply with the terms of this Contract.

6.5 The Prices are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.

6.6 The Client shall pay the Prices set out in the Maintenance Contract Quotation for Maintenance Services by way of a direct debit order set up on a monthly basis or as a payment as set out in the Maintenance Contract Quotation and the Client shall pay any additional sums which may become due pursuant to the terms of this Contract and which may be invoiced to the Client on a monthly basis pursuant to the terms of this Maintenance Contract. Such additional sums will be paid within 28 days of the date of the invoice for the additional sums. The Prices and any additional sums payable shall be paid by the Client together with any applicable Value Added Tax and without any set-off or other deduction.

6.7 Unless otherwise agreed in writing between the parties, all such payments shall be made by direct debit or bank transfer only and the Client will not be considered to have paid any amount tendered by cheque unless and until it has been credited to Covair’s bank account.

6.8 If the Client fails to make payment in full in accordance with this paragraph 6 then, without prejudice to any other rights of Covair:

6.8.1 the Client shall become liable to pay Covair interest on the amount for the time being unpaid without any need for Covair to give notice to that effect. This interest shall be calculated at 5% per annum above the annual base rate from time to time of Barclays Bank Plc calculated from the date payment was due until the date of actual payment and such interest shall be payable after as well as before any judgement; and

6.8.1.1 Covair shall be entitled to either:

6.8.1.2 upon issue of a 7 day notice of suspension setting out its reasons for suspending, suspend the provision of the Maintenance Services without incurring any liability and such suspension shall continue until the sum payable is paid, but under no circumstances shall the Client be released from its obligations to Covair under this Maintenance Contract; or

6.8.1.3 terminate the Maintenance Contract with the Client in accordance with Condition 8 below and claim damages from the Client caused by or arising from such termination.

6.9 All amounts due under the Maintenance Contract from the Client to Covair shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.10 Covair may adjust the Prices from time to time with effect from 1 July of each year to reflect increases in the cost of the provision of the Maintenance Services. Covair shall give the Client not less than 3 weeks’ notice in writing of the changes to the Prices.

7. Warranties and Liability

7.1 Covair shall have no liability under or in respect of this Maintenance Contract or the provision of the Maintenance Services in respect of: i) any defect arising from fair wear and tear, wilful damage, negligence by others or abnormal operating conditions, ii) failure to follow Covair’s instructions (whether oral or in writing), iii) misuse or alteration or repair of the Works, iv) any claim where the Prices has not been paid by the date for payment; v) any Latent Defects.

7.3 Covair shall not be liable for any loss, damage, costs, expenses or other claims for compensation under or arising from this Maintenance Contract or the carrying out of the Maintenance Services:

7.3.1 unless: i) Covair is given a reasonable opportunity after receiving the notice referred to in paragraph 8 to inspect the Maintenance Services and rectify the defect in the Maintenance Services; ii) if the defect arises because the Client failed to follow Covair’s written instructions/manuals as to the storage or use of the Works, iii) if caused by any Site Information, other information or instructions supplied by the Client which are incomplete, incorrect or inaccurate, missing or late; or iv) if caused by any act, omission, default or negligence of the Client or any of its customers, contractors or suppliers, v) the incorrect or improper installation, maintenance, operation, use or servicing of any Facilities, the Ring Beam or any other equipment that is connected with or interacts with the Works or on which the operation and use of the Works is dependent, vi) any modification to or to any part of the Works carried out by the Client or any third party.

7.4 Except in respect of death or personal injury caused by Covair’s negligence, or as expressly provided in this Maintenance Contract, Covair shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Maintenance Contract, for any loss of profit, loss of sales or business, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Covair its servants or agents or otherwise) which arise out of or in connection with the provision of the Maintenance Services or their use by the Client, and the entire liability of Covair under or in connection with the carrying out Maintenance Services shall not exceed the Prices in the contract year in which the breaches occurred, save where the loss, damage, cost or expense is covered by an insurance policy held by Covair and then the liability of Covair shall be limited to the amount paid out under the insurance policy if it is greater than the Prices.

7.5 Covair shall not be liable to the Client or be deemed to be in breach of the Maintenance Contract by reason of any delay in performing, or any failure to perform, any of Covair’s obligations in relation to the Maintenance Services, if the delay or failure was due to any cause beyond Covair’s reasonable control.

7.6 If a claim is not notified by the Client within the time limits set out in Condition 8 below, Covair shall have no liability to the Client and the Client shall be bound to pay the Prices as if the Maintenance Services had been performed in accordance with the Maintenance Contract, notification under paragraph 8 is a condition precedent to making any claim against Covair.

7.7 The Client shall indemnify Covair in respect of any claims, proceedings, liabilities, damages, costs and expenses of whatsoever nature made against or incurred by Covair by reason of damage caused to person or property and arising out of a failure by the Client to comply with the provisions of this Maintenance Contract regarding the use of the Works or Latent Defects.

7.8 Subject as expressly provided in this Maintenance Contract except where the Maintenance Services are provided to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The rights of individual consumers pursuant to any Statutory Requirements are not affected by the terms in this clause.

7.9 Covair is not responsible for any loss of revenue incurred by the Client during the carrying out of the Maintenance Services and consequent facility closures including rectifying any defective Maintenance Services.

7.10 Covair shall not be liable to the Client for any damage to any of the Client’s Facilities or Site (including any verge or natural border at the Site) where Covair has provided Maintenance Services.

8. Claim for Unsatisfactory Performance of the Maintenance Services

8.1 The Client will notify Covair when any Maintenance Services have not been performed or not performed properly and no later than 5 months from the date on which the Client became or ought reasonably to have become aware of the event having occurred. The notice must be in writing and identify the event and the grounds for the claim in reasonable detail.

8.2 Covair will use its reasonable endeavours to rectify any failures regarding its performance of the Maintenance Services provided that any such issues are notified to Covair upon their discovery by way of an email to service@covair.co.uk.

8.4 Notifying any faults or defects or failures on the part of Covair with regard to the Maintenance Services pursuant to this paragraph 8 is a condition precedent to Covair’s liability for such faults, defects or failures and Covair shall not be liable for any claims, proceedings, liabilities, damages, costs and expenses of whatsoever nature caused by or arising from such faults, defects or failures in respect of the performance of the Maintenance Services unless notification to Covair is provided strictly in accordance with this paragraph 8.

9. Term and Termination

9.1 The Maintenance Contract shall commence on the date it is accepted by the Client and shall continue unless terminated earlier in accordance with its terms. Either party may terminate the contract by giving no less than the notice period regarding termination set out in the Maintenance Contract Quotation, provided that in the case of DomeCycle Services and Dome Care Services, such notice shall not expire earlier than, or on, the first anniversary of the Maintenance Services Start Date. In the event of termination under clause 9.1 the Client will pay Covair for the Maintenance Services provided up to the date of termination without any deduction or set off.

9.2 Covair may, by notice in writing to the Client, terminate the Maintenance Contract forthwith if:

9.2.1 the Client commits any breach of any of these terms, including terms concerning the time for payment of the Prices or any part thereof and fails to rectify that breach after 7 days of receipt of a notice to so rectify.

9.3 Covair may with immediate effect terminate this Maintenance Contract or its employment under it if:

9.3.1 the Client enters into an arrangement, compromise or composition in satisfaction of debts;

9.3.2 being an individual the Client shall die or have a bankruptcy order made against him/her under Part IX of the Insolvency Act 1986 or commits an act of bankruptcy or;

9.3.3 being a Company the Client enters into administration within the meaning of Schedule B1 to the Insolvency Act 1986; shall call any meeting of its creditors or have an administrative receiver or manager of its property under Chapter I Part II of that Act or the appointment of a receiver under Chapter II of that part; on the passing of a resolution for voluntary winding up without a declaration of insolvency under section 89 of that Act or the making of a winding up order under part IV or V of that Act or a moratorium pursuant to part A2 of the Insolvency Act 1986 comes into force in respect of the company or an order is made sanctioning a compromise or arrangement pursuant to Part 26A of the Companies Act 2006 with respect to it or;

9.3.4 being a partnership on the making of a winding up order under any provision of the Insolvency Act 1986 or is the subject of an individual arrangement or any other event or proceeding referred to in paragraph 9.3.2.

9.4 The Client will be liable to pay Covair’s damages incurred due to or arising from a termination pursuant to clause 9.2 or 9.3.

9.5 This paragraph shall be without prejudice to either party’s rights under common law regarding termination.

10. Dispute Resolution

10.1 Covair and the Client shall use their reasonable efforts to negotiate in good faith and settle amicably any dispute that may arise out of or relate to the Maintenance Contract or any breach or alleged breach of it.

10.2 If any negotiations held in accordance with Conditions 10.1 above fail to result in a settlement within 28 days of the date of the meeting or if no meeting takes place within 28 days of the date of dispute, the matter at the election of either party shall be referred to mediation or litigation.

11. General

11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and may be sent by email save that a notice must be sent to Covair by emailing both service@covair.co.uk and management@covair.co.uk.

11.2 No failure or delay by either party in exercising any of its rights under the Maintenance Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Maintenance Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

11.4 For the avoidance of doubt the parties confirm that no Condition of the Maintenance Contract will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it.

11.5 Covair may change these terms and conditions from time to time. Covair shall inform the Client of changes within thirty (30) days of such change via email. The Client shall be bound by such changes following the expiry of that thirty (30) day period (updated terms and conditions). The updated terms and conditions shall take precedence over any other terms and conditions between Covair and the Client.

11.6 English law shall apply to the Maintenance Contract, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.

12. Personal Data

12.1 For the purposes of this Maintenance Contract and Data Privacy Laws the Client is the Personal Data Controller and Covair is the Personal Data Processor and all terms regarding the Processing of Personal Data will be governed by the Data Privacy Laws and in particular Schedule 1 hereto.

13. Confidentiality

13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 13.2. For the purposes of this clause 13.2, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

13.2 Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Maintenance Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.2; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Maintenance Contract.

Schedule 1

Article 28 Contractual Clauses

Definitions to include in the contract:

Data Controller has the meaning given in Data Privacy Laws.

Data Processor has the meaning given in Data Privacy Laws.

Data Subject means a natural person who is the subject of the Personal Data.

Personal Data has the meaning given in Data Privacy Laws.

SAR means a written request made by or on behalf of an individual for the information they are entitled to ask for under Data Privacy Laws.

Data Protection

The parties acknowledge and agree that nothing in this Maintenance Contract relieves the parties from their own responsibilities and liabilities under Data Privacy Laws.

Covair shall Process the Personal Data solely in accordance with Annex A and the Client’s written instructions unless Covair is required by Statutory Requirements to otherwise Process the Personal Data, in which case Covair shall inform the Client of the legal requirement before such Processing (unless such notification is prohibited by Statutory Requirements on the ground of public interest).

In the event that Covair sub-contracts any aspect of the Processing of the Personal Data to a third party (a “Sub-Processor”) Covair will ensure that each (if any) Sub-Processor is bound by a written contract binding on it with regard to the data controller and imposing on it obligations which are (at least) equivalent to those imposed on Covair by this Contract.

In relation to any Personal Data, Covair shall:

1. procure that all Covair personnel shall:
   1. comply with the terms of this Maintenance Contract; and
   2. be engaged under written binding obligations of confidentiality or under an appropriate statutory obligation of confidentiality in respect of the Processing of the Personal Data.
2. comply with Data Privacy Laws;
3. not itself exercise control, nor will it transfer or purport to transfer control of the Personal Data to a third party;
4. not Process Personal Data for its own purposes;
5. not include the Personal Data in any product or service offered to third parties;
6. not carry out any further research, analysis or profiling activity which involves the use of any part of the Personal Data;
7. promptly comply with the Client’s written instructions in respect of Personal Data (including but not limited to the rectification, erasure or restriction of Personal Data);
8. provide reasonable assistance to the Client in conducting any privacy impact assessments required in relation to this Agreement;
9. ensure that the Personal Data shall be maintained in a format which permits data portability, as required by Data Privacy Laws;
10. consent to the Client providing details about Covair’s involvement in the Processing of the Personal Data within the Client’s privacy notices;
11. not transfer or access any of the Personal Data outside the European Economic Area unless the Client has given its prior written consent and such transfer complies with Data Privacy Laws;
12. inform the Client if it considers that it has received an instruction which does not comply with Data Privacy Laws;
13. at all times have in place technical and organisational measures to protect the Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access which are appropriate to the risks of varying likelihood and severity for the rights and freedoms of individuals that are presented by the processing, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing, including in particular:
    1. any specific security measures required by this Agreement; and
    2. where appropriate:
       1. measures for the pseudonymisation and encryption of Personal Data.
       2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
       3. the ability to restore the availability of and access to Personal Data in a timely manner in the event of a physical or technical incident; and
       4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing;
14. give to the Client such co-operation, assistance and information as it may reasonably request and Covair may reasonably be able to provide; and
15. delete all the Personal Data in its possession or under its control as soon as is practicable after the end of the provision of the relevant Services.

Covair shall within three (3) Business Days notify the Client if it receives a SAR in relation to Personal Data. Covair shall not respond to any such SAR without the Client’s written consent and shall comply with the written instructions of the Client in relation to such SAR.

The Client shall promptly notify Covair of any SAR received that concerns Personal Data Processed by Covair in its performance of the Maintenance Services. Within five (5) Business Days of such notification Covair shall confirm to the Client that it is Processing such Personal Data and shall provide the Client with the following:

1. the purposes of the Processing and confirmation of whether any profiling is involved in that Processing;
2. the format in which the Personal Data is held; and
3. a description of the relevant Personal Data (e.g. by reference to categories of personal data).

Within fifteen (15) Business Days of receipt of the notification provided under either paragraphs 4 or 5 above (as applicable) Covair shall provide to the Client a copy, in the format and via the medium requested by the Client, of the applicable Personal Data.

Annex A

Description of Processing