Terms & Conditions
Terms & Conditions
MOUNT INTERNATIONAL UNITED SERVICES LIMITED SHALL BE REFERRED TO AS MIUS
For the purposes of this Agreement, the terms set forth below shall have the following meanings:
1.1. "Corrective Maintenance" shall mean the services carried out by MIUS to repair any defect in or malfunction of the Equipment which is discovered by the Customer or MIUS from time to time as further detailed hereinafter.
1.2 "Documentation" shall mean all the manuals relating to the Equipment, Spare Parts and Special Parts, including any operating, maintenance and other related service documentation.
1.3 “Effective Day” shall mean the first date of the delivery of the Services hereunder.
1.4 “Equipment” shall mean the medical imaging equipment included or referred to in the Terms and Conditions.
1.5 “Guaranteed Response Time” shall mean, in relation to the Corrective Maintenance, the time interval during the Time Coverage hours only beginning upon the recording of the Customer’s request by the Technical Call Centre and ending either (i) at the time when labour starts carrying out the Services on the Equipment on the Customer’s Site or (ii) at the time when connection is established with the Equipment for carrying out the Remote Service.
1.6 “Labour” shall mean the services MIUS or MIUS’s Service Supplier(s)’ personnel whose involvement is necessary for the fulfilment of MIUS’s obligations under this Agreement.
1.7 “Period Charge” shall be the fraction(s) of the Total Annual Price, the payment frequency of which is indicated in the Specific Terms, calculated by MIUS, and payable by the Customer to MIUS in accordance with Section 5 hereof for the Services provided.
1.8 “Planned Maintenance” shall mean the routine maintenance services carried out by MIUS, at such intervals as recommended by manufacturers, to reduce the risk of breakdown and maintain the performance of Equipment to a level that ensures its normal use, as further detailed hereinafter, Planned Maintenance does not include replacements of items of Equipment or parts required due to wear and tear.
1.9 "Safety and Mandatory Field Modification Instructions" shall mean those safety modifications and/or upgrades relating to the Equipment that are ordered by the manufacturer or mandated by regulatory provisions and are included in the Standard Services provided by MIUS.
1.10 “Service Supplier” shall mean any third party individual, firm or company appointed by MIUS at its sole discretion to render services in fulfilment of MIUS’s obligations hereunder.
1.11 “Services” shall mean all the services selected by the Customer in the Specific Terms and Conditions, provided by MIUS for the Customer in accordance with the provisions of this Agreement.
1.12 “Site” shall mean the specific geographic location within which the Equipment will be used by Customer,
1.13 “Software” shall mean a computer program or compilation of data that is fixed in any tangible medium of expression, or any storage medium from which the program may be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.
1.14 “Spare Parts” shall mean all the parts necessary to carry out Corrective Maintenance as described in the Documentation, to the exclusion of Special Parts.
1.15 “Special Parts” shall mean the specific spare parts not included in the Services and specifically selected by the Customer in the Terms and Conditions.
1.16 “Substantially Equivalent” shall mean parts or items of equipment, which, by vendor type and modality, are considerably similar in technology, functionality and types of options to the Spare Parts, to the Special Parts or to the Equipment.
1.17 “Supplementary Services” shall mean any service carried out by MIUS upon the Customer’s request and which may be linked to this Agreement but which was not initially set within this Agreement’s scope of application. The Supplementary Service shall be submitted, without an amendment needing to be signed between the parties, to all the terms of this Agreement, with the exception of the contractual terms related to the Total Annual Price.
1.18 “Terms and Conditions” shall mean the page or pages preceding signed and dated by the parties and containing the Standard Services, the Optional Services, the Options, the Total Annual Price and the Periodic Charge.
1.19 “Time Coverage" shall mean 8.30 a.m. to 5.30 p.m. on any Working Day.
1.20 “Trip" shall mean the transfer of Labour from a MIUS Service Supplier site or workshop to a Customer Site as necessary for the provision of the Services herein defined.
1.21 “Total Annual Price” shall mean the annual price owed by the Customer and calculated by MIUS for the provision of all the Services in relation to the Equipment covered by this Agreement and designated in Exhibit 1.
1.22 “Working Day” means any day other than Saturday or Sunday or a bank or public holiday.
1.23 “Uptime Definition” means the time equipment is available to produce diagnostic imaging between the hours of 9-5 Monday to Friday. Any Scheduled work and ppm visits and delays in parts procurement
2 AGREEMENT :
MIUS agrees to provide to the Customer, and the Customer agrees to take from MIUS, for the term of the Agreement, in accordance with the Terms and Conditions, the Services specified herein based on the option(s) selected by the Customer, for all Equipment such Equipment being located and operated within a Customer Site.
3.1 This Agreement shall commence on the Effective Day and, unless terminated earlier as provided herein, shall remain in full force for the time period set forth in the Terms and Conditions.
3.2 This Agreement will automatically be renewed for successive terms of one (1) year, unless terminated by either Party serving on the other three (3) months' notice in writing prior to the expiry of the Term or any anniversary thereafter.
MIUS shall use all reasonable endeavours to provide the Services corresponding to the services and options combination selected by the Customer in the Terms and Conditions as follows:
4.1 Service Hours
4.1.1 The Services, including the Planned Maintenance and the Corrective Maintenance, shall be provided within the Time Coverage.
4.1.2 Except as expressly provided in this Agreement or as agreed between the parties in writing, MIUS shall have no obligation to provide any Services to the Customer outside the Time Coverage.
4.1.3 If the Customer has selected the Guaranteed Response Time option provided in the Terms and Conditions, for the purposes only of determining the period of time within which MIUS makes a response, any period between the end of the Time Coverage on one Working Day and the beginning of the Time Coverage on the next Working Day shall be disregarded.
4.2 Planned Maintenance
4.2.1 Planned Maintenance shall include Labour and Site Visits during the Time Coverage only and shall consist of operating, verification and calibration tests, in accordance with the recommendations and frequency prescribed by the manufacturer in the attached Documentation.
4.2.2 MIUS and the Customer shall establish, at the beginning of the calendar year or at the beginning of the contractual period, the annual forecasted schedule of Planned Maintenance for the Equipment.
4.2.3 MIUS shall undertake an on-site audit of all equipment prior to contract activation. The audit report should be submitted prior to the expiry date of the existing contract, thus enabling the Customer to forward the report to the incumbent supplier prior to contract expiry. The incumbent supplier is then obligated to complete any remedial works as detailed in the audit report free of charge. Should remedial works not be carried out, any works identified in the audit report which require remedial action post contract activation will incur a cost outside of the contract. Where MIUS have been unable to perform an audit prior to contract activation, a Preventative Maintenance Service should be planned within one month of contract activation. Any remedial works identified at this time will incur a cost outside of the contract.
4.3 Corrective Maintenance (Optional)
4.3.1 Corrective Maintenance shall include Site Visits and Labour during the Time Coverage.
4.3.2 Notification of defects in or malfunctions of the Equipment must be made immediately by the Customer to MIUS and indicate the Equipment reference number, the Site name, the name of the Customer contact person and degree of urgency of the breakdown.
4.4 Spare Parts and Special Parts (Optional)
If the Customer has selected the option in the Terms and Conditions MIUS shall use all reasonable endeavours to supply the Special Parts and if applicable Special Parts with the Corrective Maintenance services and upon the following conditions:
4.4.1 Spare Parts and Special Parts shall be provided either on a standard exchange basis (according to the applicable AFNOR standard) or as new parts. Replaced Parts become MIUS’s property and will be promptly removed by MIUS from the Customer Site.
4.4.2 MIUS reserves the right to provide the Customer with Substantially Equivalent Parts as regards the provision of Spare Part or Special Parts.
4.4.3 MIUS shall use all reasonable endeavours to ensure that the provision by MIUS to the Customer of Spare Parts or Special Parts under this Agreement hereof, shall not have in any way for result the modification of the Equipment’s performances.
4.4.4 Services shall not include accessories and consumables as well as replacement parts excluded under existing manufacturer contracts or elsewhere in this Agreement.
4.5 Tools, Documents and Software
4.5.1 In connection with the Services provided on the Equipment, MIUS’s personnel may from time to time use any Software, Document, instrument or combination, service tools, hardware or Adaptation Kit not owned by or licensed to the Customer, or for which MIUS has granted a license in application of Section 16 hereafter. For the sake of convenience, MIUS or MIUS’s Service Supplier’s personnel may permanently or from time to time store such tools and software on the Customer Site. The Customer hereby agrees
to give MIUS access, without any charge, a locked cabinet or box for such storage, allowing access and removal by MIUS of any or all of such tools and software at any time.
4.5.2 The presence of such tools and software on the Site shall not grant the Customer any right, title or licence to use the same. Any access, disclosure or use of any of such tools and software to or by the Customer, its employees or any person other than MIUS’s or MIUS’s Service Supplier’s employees is strictly prohibited. The Customer hereby agrees to use its best endeavours to protect all of such tools and software from damage, loss and any access, disclosure or use contrary to such prohibition. The risks of loss of and damage to the tools and software passes to the Customer from the moment of their installation in the Customer Site.
4.6 Record Retention and Access
Any Service performed on the Equipment hereunder shall give rise to the preparation of a service report by MIUS, which shall mention for each Equipment any dysfunction and any Corrective Maintenance provided in order to restore the Equipment into operating condition.
4.7 Agency authorisation
4.7.1 In order to allow MIUS to provide Services more efficiently, the Customer authorises MIUS to act as it’s duly authorised representative in obtaining if necessary service support, parts and other technical information or elements from the manufacturers of Equipment.
5 PRICE AND TERMS OF PAYMENT
5.1 Price of Services
The Total Annual Price to be paid by the Customer for the Services is set forth in the Terms and Conditions.
5.1.2 The Total Annual Price shall comprise the Periodic Charges, the frequency of which are indicated in the Terms and Conditions. For each period of payment of the Periodic Charges, MIUS shall calculate the total amount due by the Customer hereunder and shall issue to the Customer a corresponding written invoice. If the first contractual period between the Effective Date and the Anniversary Date is less than one year, then the Total Annual Price will be calculated on a pro rata basis.
5.1.3 Any revision of the Total Annual Price and the Periodic Charges corresponding to (i) the addition or withdrawal of any Equipment to or from the Equipment or (ii) any modification of the options relating to the Equipment shall always be agreed by way of a written amendment to this Agreement signed by the Parties which shall amend as the case may be:
(i) the Equipment; (ii) the Terms and Conditions; (iii) the Total Annual Price, modified in accordance with the applicable MIUS price lists.
5.1.4 All charges and other sums payable by the Customer under this Agreement are exclusive of any applicable value added tax, which shall be additionally payable by the Customer together with the charge or the sum in question.
5.2 Price Revision
The Total Annual Price shall be revised automatically on an upward only basis on each anniversary date of the Effective Date (hereafter “Anniversary Date”) of this Agreement, as provided in the Terms and Conditions or on such other terms as MIUS shall from time to time reasonably specify.
5.3 Additional price for Supplementary Services
Supplementary Services shall be paid for in accordance with the current applicable price list at that time. The Customer’s agreement on the price of such Supplementary Services is deemed accepted up to a total annual amount stipulated in the Specific Terms.
5.4 Terms of payment
5.4.1 The Customer shall pay the total amount of the Periodic Charges invoiced by MIUS, plus the corresponding VAT at the then applicable rate, within thirty (30) days from the date of the invoice. If the Customer fails to pay on the due date any amount which is payable to MIUS pursuant to this Agreement then, that amount shall bear interest from the date due until payment is made to MIUS (both before and after any judgement) at 4 per cent over Barclays Bank plc base rate from time to time.
5.4.2 The payment shall be made by cheque or bank transfer to an account, the particulars of which shall be communicated by MIUS to the Customer, or by direct debit.
5.4.3 All amounts due from the Customer under this Agreement shall be paid in full without any deduction or withholding other than as may be required by law and the Customer shall not be entitled to assert any credit, set-off, or counterclaim against MIUS in order to justify withholding payment of any such amount, in whole or in part.
5.4.4 Time for payment by the Customer of any amounts hereunder shall be of the essence of this Agreement.
6 EXCLUSIONS Services shall not include the following:
6.1 All services relating to equipment not identified in the Terms and Conditions.
6.2 Any service resulting from a force majeure event or the provision of which by MIUS is made impossible due to a force majeure event, including, but not limited to, any fire, explosion, flooding or damage to a building, whatever the cause may be.
6.3 Any and all services relating to or resulting from, in MIUS’s opinion:
any design, specification or instruction provided by the Customer or by its representative; or
non-compliance by the Customer with its obligations under this Agreement; or
non-compliance by any person other than MIUS or MIUS’s Service Suppliers with the written instructions or recommendations issued by MIUS or any manufacturer; or
customer’s combining the Equipment with any other item of equipment incompatible therewith; or
any alteration or improper storage, handling or use (and in particular any intentionally improper use or operation or any inadequate disinfecting or sterilisation procedure) or to or from the fact that any part of the equipment has been improperly maintained by any person other than MIUS or MIUS’s Service Suppliers; or
any cause external to the Equipment, including, but not limited to, the defective nature of a building or vehicle, variations, fluctuations or outages in the power supply or any default of the air-conditioning system; or
any chemical, biological or radioactive damage or contamination requiring decontamination; or
any malfunction or design or manufacturing defects impacting any Equipment or any part not manufactured by MIUS; or
any transportation or relocation of the Equipment not performed by or on behalf of MIUS; or
any modification, adjustment or repair to the Equipment made by a third party without the written consent of MIUS.
6.4 Any service included in the manufacturer’s warranty or related to Equipment upgrades, if the option has not been selected by the Customer in the Terms and Conditions, in the installation programs or in the Equipment certification protocols.
6.5 The provision by MIUS of any whole machine or of Accessories and consumables
6.6 Any repair, adjustment, replacement or any other services required by reason of (i) any negligence, wrongful acts, omissions of the Customer, its agents, employees, subcontractors or any third party or (ii) non-compliance or default by the Customer, his agents, employees, sub- contractors, or third parties with or with respect to (A) technical standards or regulations in force, or (B) installation specifications or instructions, or (C) user or general maintenance manuals, or (D) environmental installation conditions (including without limitation, supply of power, water, or air conditioning).
6.7 Any Service made impossible because of the unavailability from suppliers or refusal of sale or supply by the said Suppliers of Spare Parts, Special Parts and/or service software
6.8 Any other services specifically not expressly covered under this Agreement, the maintenance and repair services that may be provided by MIUS at the Customer’s request and in particular technical assistance, demonstrations, or removal of materials.
6.9 If on investigation MIUS reasonably determines that any defect in or malfunction of the Equipment is the result of any of the matters referred to in this Section 6, the Customer shall be liable for all costs incurred by MIUS in making the investigation and determining the cause at MIUS's current standard prices at that time.
6.10 Equalisation and/or Reconditioning of batteries on Mobile units.
7 EXISTING SERVICE AGREEMENTS
7.1 In the event that the Customer is party to continuing maintenance services agreements with other manufacturers or service suppliers in respect of the maintenance of any Equipment, the terms of such agreements shall in no way be amended by this Agreement, and MIUS shall not assume any obligation under such agreements.
7.2 The terms of this Agreement shall not apply to Equipment covered by such agreements prior to the lawful expiration or termination thereof. The Customer agrees to pursue all reasonable steps for expeditious, legal and proper termination of any such agreement. In this case, the Total Annual Price applicable to this Equipment shall be adjusted according to MIUS’s current standard prices.
8 DECLARATION REGARDING THE END OF THE MAINTENANCE SERVICES
In the event that the Equipment has not been commercialised by MIUS or any other manufacturer for more than five (5) years, and/or as regards Equipment not manufactured by MIUS, in the event that MIUS is unable to obtain the Spare Parts or Special Parts, including of the Substantially Equivalent parts, MIUS may stop providing the Services on the concerned Equipment, upon the service of written notice by MIUS to the Customer to that effect. In such case, the Total Annual Price shall be adjusted on a pro rata basis.
9 CUSTOMER’S SPECIFIC RESPONSIBILITIES AND OBLIGATIONS
During the Term of the Agreement, the Customer shall be responsible for and shall bear all costs and expenses and bear all liability in respect of the obligations relating to:
9.1 Maintaining the Customer Site and technical environment (including temperature and humidity control, incoming power quality and fire protection system) in a state adapted to the operation of the Equipment;
9.2 Ensuring that the Equipment is operated in accordance with all applicable regulations;
9.3 Ensuring that no person other than MIUS's or the Service Supplier's personnel adjusts, maintains, repairs, replaces or removes any part of the Equipment.
9.4 Using the Equipment only in accordance with the recommendations under the Documentation relating to the Equipment;
9.5 Ensuring that all personnel permitted to operate Equipment are adequately trained in the proper operation of the Equipment;
9.6 Providing lighting and generally all necessary sources of energy, as well as a telephone line;
9.7 Ensuring proper safety conditions for Labour during the provision of the Services and in particular ensuring that, prior to the provision of any service, the Equipment shall be totally clean and exempt from potentially infected materials and from all biological fluids. As a consequence, during any intervention by members of MIUS’s personnel at any Site, the Customer undertakes to:
- Take any measures to prevent the transmission of infectious agents transmitted through blood and/or biological fluids.
- Comply with the standards of conduct applying in case of an accident involving exposure to blood and/or biological fluids.
MIUS’s personnel may suspend maintenance or repair operations and disconnect the Equipment if they consider that there is a risk to their safety and health. In such event, the MIUS’s personnel concerned will inform the Customer and the Customer shall promptly take all necessary actions to ensure that the Equipment is safe and free of any risk to the health and safety of MIUS’s personnel.
9.8 Issuing a formal prevention plan defining the risks and protection measures taken in order to guarantee the safety and hygiene conditions applicable to MIUS’s personnel when providing services on the Customer Site.
9.9 The regulation of personnel and patient access as well as parking in the environment of the Equipment’s magnets.
9.10 Management of the Equipment’s regulatory control which is under the Customer’s sole responsibility.
The Customer shall take, under his sole responsibility, all measures required by regulatory modification and in particular, the Customer shall take all necessary steps relating to the knowledge and application of legislative and regulatory provisions applicable to the Equipment.
10 INITIAL EQUIPMENT, ADDITION/ REMOVAL OF EQUIPMENT
10.1 If any item of the Equipment is permanently removed by the Customer, the Customer may notify MIUS in writing to discontinue the Services for such item subject to compliance with a term of notice of thirty (30) days. This applies to single items of equipment and not the whole contract. The Periodic Charges applicable to such item of Equipment shall cease to apply from the date of the removal, and MIUS shall grant the Customer a credit on a pro rata basis of the period of use during the period concerned.
10.2 Subject to prior express acceptance by MIUS and at the Customer’s request, MIUS shall also provide the Services on any Equipment installed on a Customer Site after the Effective Date.
Such modification shall give rise to an amendment to the Agreement, updating the list of Equipment and Customer Sites, and adjusting the Total Annual Price.
10.3 None of the clauses of this Agreement shall be construed as obliging MIUS to provide maintenance services in respect of any equipment not expressly identified in the Terms and Conditions.
The Customer acknowledges that MIUS has entered into this Agreement in reliance on the following representation made by the Customer. The Customer represents and warrants to MIUS that all items of Equipment are in good working order and have been properly maintained in accordance with manufacturer recommendations prior to the Effective Date, except as has been disclosed to MIUS in writing by Customer. The Customer represents and warrants that he is a health care provider and has full legal right to use each Site and has the exclusive right to operate the Equipment at each Site.
12.1 MIUS warrants that Services provided under this Agreement will be provided in a workmanlike manner by trained individuals using reasonable care and skill.
12.2 MIUS shall use all reasonable endeavours to ensure that all Spare Parts, Special Parts or Substantially Equivalent parts used in connection with the Services shall conform with the specifications given by the manufacturer and shall have the same operating features as new parts.
12.3 Except as expressly provided in this Agreement, all warranties, conditions, representations, rights, obligations, liabilities and other terms whether express or implied by statute or common law in connection with the Services are hereby excluded to the fullest extent permitted by law, but nothing in this Agreement shall affect the liability of either party for fraudulent misrepresentation.
MIUS undertakes to keep such patient personal data confidential. Such data will be used for the sole purpose of the performance of the Services requested by the Customer, under the instructions of the Customer or under authorisations given to MIUS in the framework of other agreements concluded with the Customer. Only MIUS’s employees or MIUS’s Service Suppliers or its affiliates, taking part to the performance of these obligations under this Agreement, may have access to such data on a need to know basis and in compliance with this confidentiality undertaking.
In case of termination of the agreements concluded between MIUS and the Customer, MIUS will at its choice, destroy such patient data or return to Customer any copies thereof, unless MIUS is authorised by the Customer to keep such information for specific purposes or unless MIUS is prevented to do so, for instance by law, in which event the data will be kept confidential and will not be processed for any purpose other than those necessary to comply with legal obligations.
Other elements which participate in ensuring a secure environment for the data processed by networked Equipment, such as the Customer’s and the telecommunication provider’s own networks, are not under the control of MIUS, and therefore are not in the scope of its liability. MIUS encourages its customers to employ industry best practices which include, but are not limited to, isolating diagnostic imaging equipment and related networks from other Customer enterprise networks, isolating the serviced equipment from the internet and other open networks, limiting access via firewalls, providing active user password management, establishing ongoing processes to monitor network traffic to address unauthorised access and anonymise or code personal data to the extent possible.
13.2 Both Parties acknowledge that the content of this Agreement as well as any information (including any trade secrets) ("Confidential Information") related thereto are confidential. Both parties agree neither to use the Confidential Information (except for the purposes permitted herein) nor to disclose the Confidential Information to any third party or to any of their employees who do not have a need to know them in order to perform the Parties' obligations under this Agreement. Such obligations shall not apply or shall cease to apply to any Confidential Information which:-
- is, at the time of disclosure, or becomes public knowledge other than by breach of this Agreement;
- a party can demonstrate was known prior to disclosure hereunder and is not under any obligation of confidence;
- lawfully becomes available to a party from a third party source without breach of any obligation of confidence;
- disclosure is required by law.
This confidentiality obligation shall survive for three (3) years from termination or expiration of this Agreement.
14 SUBCONTRACTING AND ASSIGNMENTS
14.1 MIUS is free to subcontract to Service Supplier(s) of MIUS’s choice part or all of the Services. No such subcontract shall release MIUS from its obligations to the Customer.
14.2 The Customer shall not have the right to assign or otherwise transfer any of its rights or obligations under this Agreement, except with MIUS’s prior written consent.
Without prejudice to any other rights to which a party may be entitled the Agreement may be terminated under the following conditions
15.1 In writing by either party with a period of 3 months notice. The notice period commences from the date of the written notification.
15.2 If equipment is de-commissioned and is no longer in use, there will be no termination fee. If equipment does remain in use, a fee of 10% of the contract value with apply
15.3 All parts fitted under the terms of a comprehensive contract will form part of any pro-rata rebate. The cost of any fitted part will be charged on a pro-rata basis equal to the remaining period of the contract after the 3 months notice.
15.4 If the Customer needs to terminate a contract during the last 3 months of the contract due to equipment end of life and cannot therefore give 3 months notice prior to the date of expiry, 1 month notice will apply in such cases. This does not apply to equipment which is kept in use. This does not apply to Multi Year Contracts
15.5 Termination of Multi-Year contracts will be subject to 3 months notice in all cases. If a Multi Year Contract is terminated prior to the expiry of the agreed term, the agreed Multi Year Contract Discount for each previous 12 month period and any part of a current 12 month period will become re-payable to MIUS in addition to 15.2
15.6 By either Party giving notice in writing to the other terminating the Agreement with immediate effect if the other Party becomes insolvent or goes into liquidation or a liquidator, administrator, administrative receiver or receiver is appointed in respect of the whole or any part of its assets (save for the purpose of a solvent reconstruction or
amalgamation) or makes any assignment for the benefit of, or composition with its creditors or ceases to do business.
16 INTELLECTUAL PROPERTY
16.1 The Customer hereby accepts and acknowledges that he does not have any right other than a non-exclusive, personal and non- transferable user right over any Software to which he may have access installed by MIUS as part of its Services hereunder. MIUS, or any other person designated by it, is and shall remain the sole owner of all of the intellectual property rights in or to the Software, including any specific modifications or adaptations carried out for the Customer. Accordingly, the Customer shall not acquire any right in or to the Software or to the media on which it is delivered.
The Customer agrees not to reproduce, arrange, decompile, translate, adapt or otherwise modify the Software other than as authorised by the applicable regulations.
The Customer may only exercise the rights listed on an exhaustive basis in said regulation provided he has previously and unsuccessfully requested from MIUS the information required to ensure the interoperability between the Software and other software.
16.2 This user license is granted for the same term of protection of intellectual property rights of the Software, subject to compliance by the Customer of all of the provisions of this Agreement and of the applicable laws and regulations.
16.3 The Customer further agrees to include MIUS’s copyright notice on any full or partial copy of the Software made in application of the Maintenance Agreement and in no event to remove any copyright notice from any Software.
17 LIMITATION OF LIABILITY
17.1 MIUS shall not be liable in any circumstances to customer for any indirect or consequential loss or damage, loss of profits, anticipated savings, goodwill, reputation, or other claims or consequential compensation whatsoever (howsoever caused) arising out of or in connection with the provision of any goods or services or any delay in providing any goods or services pursuant to this agreement.
17.2 MIUS shall in no event be held liable for any damages resulting directly or indirectly from a wrong manipulation or use of the Equipment by the Customer’s personnel during the execution of the Remote Services instructions given by MIUS.
17.3 The aggregate liability of MIUS to the Customer in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising out of or in connection with the performance or contemplated performance of this agreement shall be limited to the total annual price owed by the customer for that year.
17.4 MIUS shall in no event be held liable for any other reason, whether in contract, tort (including negligence or breach of statutory duty) misrepresentation or otherwise arising from any action committed or event occurring after the date of expiration or termination of this Agreement.
17.5 MIUS shall in no event be held liable for any loss or damage, if such loss or damage arises from the fact that MIUS has failed to discover or repair a hidden defect or flaw inherent in the design of Equipment, Spare Parts or Special Parts not manufactured by MIUS or caused by the fact that an item of Equipment is used by the Customer in a manner contrary to the manufacturer’s instructions. MIUS shall not be liable for the supply of any advisory services or assistance by MIUS’s personnel concerning products or systems which are not expressly identified as Equipment in the Terms and Conditions.
17.6 The Customer shall be considered as having waived any right to make a claim against MIUS, its representatives or agents or its Service Suppliers if the Customer fails to notify MIUS about the existence of the problem or claim within thirty (30) days of the event occurring or the event first coming to the attention of the Customer.
17.7 Nothing in this Agreement excludes or limits the liability of MIUS for death and personal injury caused by MIUS's negligence or for fraudulent misrepresentation.
18 EXCUSABLE DELAYS
Neither MIUS nor the Customer shall be liable for any delayed performance of the Services due to causes beyond the reasonable control of MIUS or the Customer.
Such causes shall include in particular delays in the procurement or supply of the products and parts used for the Equipment, acts of Government authorities, force majeure events, strikes or lock-outs or other industrial action. In case of excusable delay, MIUS or the Customer, as the case maybe, shall be granted additional time to perform its obligations, such time being equal to the excusable delay.
19 UPTIME GUARANTEE
19.1 MIUS guarantee a level of 98% uptime on all equipment on Comprehensive Cover levels. This guarantee is not available on Preventative Maintenance contracts
19.2 Failure to achieve 98% will result in a credit to the customer of 5% of the contract price for every 1% below 98%
19.3 Uptime is calculated on an 8 hour working day. Downtime is calculated from the time of the customer reporting the breakdown on equipment which cannot be used. Equipment which has intermittent faults or is still in use is not subject to downtime
19.4 Downtime is suspended if the Customer causes downtime due to delays in order numbers, authorisation to commence work, access to the equipment, or any other delaying factor which is not attributed to MIUS
20.1 This Agreement shall be governed by and construed in accordance with English law and the Parties submit to the non-exclusive jurisdiction of the English Courts.
20.2 MIUS is an independent contractor of Customer. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating or be deemed to create a partnership, joint venture or franchise relationship between the Parties. MIUS’s employees are under MIUS's exclusive direction and control.
20.3 Save as provided elsewhere in this Agreement, no waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorised representative of the waiving Party.
20.4 Notices must be in writing to MIUS's or the Customer's address specified in this Agreement and shall be deemed delivered on the first working day after sending by hand or (subject to confirmation of transmission) by facsimile, or on the third working day after being placed prepaid in the first class post to MIUS's or the Customer's address.
20.5 If any provision of this Agreement shall be held to be illegal, invalid or unenforceable in whole or in part, either under enactment or rule of law, such provision or part shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected.
20.6 This Agreement contains the entire Agreement reached between the Parties with respect to the subject matter and supersedes and cancels all previous negotiations, communications, declarations, agreements, undertakings and commitments, either oral or written, between the Parties regarding the subject matter hereof and may not be modified except in writing signed by duly authorised representatives of the parties.
20.7 No term or condition of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement and MIUS and the Customer may exercise, without the consent of any third party, any rights they may have to amend or rescind this Agreement.
20.8 In the event of any conflict between Specific Terms, these General Terms and Conditions and their exhibits, unless expressly agreed on otherwise in a written agreement signed by both Parties, the documentation shall prevail.