1.1 “Monika” means Gamtol Ltd trading as Monika, whose registered office is at 10, Brook Park, Gaddesby Lane, Rearsby, Leicester LE7 4ZB, England
1.2 “Systems” means Monika’s temperature monitoring and logging Systems
1.3 “the User” means the User of the Systems
1.4 “the Agreement” means the system support agreement between Monika and the User to which these terms and conditions apply
1.5 “the Sites” means the Sites at which the User operates the Systems
1.6 “the Software” means Monika’s PC software modules for which Monika has granted a licence or licences to the User for operating the Systems
1.7 “the Annual Fee” is the fee payable by the User to Monika under the Agreement
1.8 “the Commencement Date” means the date of the Agreement being the date the payment of the Annual Fee is first made by the User to Monika
1.9 “the Initial Term” means the initial term of systems support as agreed in the Agreement;
1.9 “the Term” means the Initial Term of the Agreement and any continuation thereof as provided for in the Agreement or in these terms and conditions.
1. The User operates the Systems as provided by Monika and the User has also been granted a licence or licences to use Systems’ related PC software modules which remain the property of Monika.
2.1 The Annual Fee shall be payable on each anniversary of the Commencement Date
2.2 Monika will provide the User with system support which will comprise the following services throughout the Term:
(1) Hotline telephone advice on operation of the Systems during normal working hours
(2) Free on site repair or replacement of Monika branded system components, excluding Monika Hand Readers and Monika Hand Probes which are not covered by the Agreement. Also excluded is propriety equipment such as PC’s, Message Boards and Telephone auto diallers
(3) Free on site rectification of data networking faults, excluding faults to the User’s own Local Area Network for networking computers and other information technology devices
(4) Free on site rectification of any malfunction to the Software, except where caused by conflicting third party software or software set up and viruses
(5) Attendance on site with a maximum response time of three working days Monday – Friday excluding Bank Holidays.
(6) Annual servicing of the Systems comprising a check of sensor positioning, system settings and signal strength and a review of repetitive system alerts
(7) Annual re-calibration of temperature and humidity sensors, with the provision of written confirmation referencing the calibrating instrument. This excludes the calibration of sensors within Monika hand held insertion and non contact probes which Monika will calibrate off site for an additional cost
(8) Upgrades to the Software as new releases become available. This excludes the issue of new software modules for which additional software licences are required
3. The User agrees to operate the Systems properly in accordance with Monika’s recommended practices including but not limited to those set out in its published operating manuals and to:
(1) Report as soon as is reasonably practicable to Monika any malfunction in the Systems
(2) Allow access to the Systems and to any record of its use kept by the User by an authorised technician of Monika or its authorised agent or agents during normal working hours, provided that each such technician will, while in the User’s premises, comply with the User’s reasonable requests as to his conduct on the Site.
(3) Ensure that service to the Systems is only carried out by Monika or its authorised agent or agents and that contractors or staff involved in maintaining monitored plant are aware of and understand the function of the networked components and that they do not disconnect them or meddle with them in any way.
4. System support is limited to the services described in the Agreement. Any additional work will be charged for at Monika’s normal rates for travel, labour, parts, components, equipment and materials relating to the work in question. Additional work will include, but not be limited to:
(1) Resolving permanent or intermittent data signal failures not directly caused by a malfunction of Monika networking equipment and networked components. Such failures will include but not be limited to those caused by defects to the electrical supply (such as abnormal extraneous power surges or “spikes”) and the electrical mains within the Sites (including non compliance with wiring regulations and electrical codes); changes or additions to the electrical mains within the Sites (including changes or additions to ring mains, spurs, distribution boards, circuit breakers and other integral mains equipment); relocation of the monitored plant or networking equipment from the originally installed position on the Sites’ electrical mains to another alternative position; use within the Sites of any equipment providing inadequately suppressed or filtered wave signals or other emissions or noise; use on the Sites of mains signalling equipment not complying with BSEN 50065, which covers equipment using the 3khz to 150khz band. R
(2) Re-connection or re-installation of items of networking equipment where these have been switched off, disconnected, removed or tampered with by anyone other than any of Monika’s employees, agents or sub-contractors.
(3) Rectification of Systems problems caused by tampering with, re-locating, re-fitting or otherwise altering networked components as originally installed to any item of monitored plant.
(4) Rectification necessitated by accident or improper use or neglect caused by the User or by others during the maintenance or repair of monitored plant.
(5) Re-installation, including the removal of networked components from a redundant item of monitored plant and re-fitting in another and related alterations to the electrical mains
(6) Servicing of proprietary items, and items which are not part of the Systems, including the monitored plant itself.
(7) Rectification necessitated by environmental events external to the Systems.
5. Either party may terminate the Agreement forthwith on giving written notice to the other:
(1) If the other party is in material or continuing breach of any of its obligations under the Agreement and fails to remedy the breach (if capable of remedy) within a period of 30 days after a written request to remedy the breach has been given to it by the party not in breach;
(2) If the other party shall become involved in any legal proceedings concerning its solvency, commits an act of bankruptcy or is adjudicated bankrupt or has an administrator, receiver or liquidator or other similar officer appointed to manage its affairs; and
(3) If the other party ceases, or threatens to cease, to carry on its business.
6.1 Monika may terminate the Agreement forthwith on giving written notice to the User should the User permanently discontinue the use of the Systems or the Systems being rendered unusable because of components becoming obsolete.
6.2 Upon termination of the Agreement for any reason prior to the end of the Initial Term, there shall become due and the User shall immediately pay to the Company such sum as shall equate to the total fees (including VAT) for the Term less any Annual Fees actually paid.
7. Where the Agreement continues to the full term it shall automatically be renewed for successive one year periods subject to Monika’s then current prices, terms and conditions until terminated by either party with three months prior written notice of termination expiring at the end of the Initial Term or at the end of any subsequent consecutive period of one year.
8. Both payment of each and every Annual Fee and the time for payment thereof shall be of the essence of this Agreement. The Annual Fee is based on the size of the Systems as determined by the number of temperature and humidity sensors. It is subject to variation where:
(1) there is an increase in the number of temperature and humidity sensors at the Sites
(2) the labour and component cost of providing the system support increases
9. Payment of all additional charges will be made by the User within 30 days of the date of the invoice. VAT will be added to all invoices at the rate prevailing under current government legislation. The User’s failure to pay within 30 days of invoice date is cause for termination by Monika of the Agreement.
10.1 The following provisions set out Monika’s entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the User in respect of:
10.1.1 any breach of its contractual obligations arising under this Agreement; and
10.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.
10.2 Any act or omission on the part of Monika or its employees, agents or subcontractors falling within Clause 11.1 above shall for the purposes of this Clause 11 be known as an “Event of Default”.
10.3 Monika’s liability to the User for:
10.3.1 death or injury resulting from its own or that of its employees’, agents’ or subcontractors’ negligence; and
10.3.2 all damage suffered by the User as a result of the implied statutory undertakings as to title, quiet possession and freedom from encumbrances shall not be limited.
10.4 Subject to the limit set out in Clause 10.5.1 below Monika shall accept liability to the User in respect of damage to the tangible property of the User resulting from the negligence of Monika or its employees, agents and sub-contractors.
10.5 Subject to the provisions of Clause 10.3 above, Monika’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to:
10.5.1 GBP1,000,000 in the case of an Event of Default falling within Clause
10.4 above, where such Event of Default is the subject of insurance cover effected by Monika; and
10.5.2 the Contract Price in the case of any other Event of Default.
10.6 Subject to Clause 10.3 above, Monika shall not be liable to the User in respect of any Event of Default for loss of profits, goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the User as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Monika had been advised of the possibility of the User incurring the same.
10.7 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.
10.8 the User hereby agrees to afford Monika not less than 28 days in which to remedy any Event of Default hereunder.
10.9 Except in the case of an Event of Default arising under Clause 10.3 above, Monika shall have no liability to the User in respect of any Event of Default unless the User shall have served notice of the same upon Monika within six months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
10.10 Nothing in this Clause 10 shall confer any right or remedy upon the User to which it would not otherwise be legally entitled.
11. Monika shall not be deemed to be in breach of the Agreement or otherwise be liable to the User for any delay in the performance or the non-performance of any of its obligations under the Agreement to the extent that the delay or non performance is due to any circumstances beyond the reasonable control of Monika including without limitation any strike lock out or other industrial action or non-availability of components and the time for performance of that obligation shall be extended accordingly.
12. The Agreement is personal to the User, who will not be entitled to assign its interests and /or duties hereunder. Any attempt by the User to make such an assignment will constitute a material breach of the Agreement and Monika will have the right immediately to terminate the Agreement in such an event.
13. The Agreement shall be governed by and construed in accordance with the laws of England. If any of the provision of the Agreement is held to be invalid or illegal under applicable statute or rule of law, such invalidity shall not have any effect or impair the remaining provisions hereof.
14. The Agreement contains the complete and exclusive statement of the Agreement between the parties in respect of the subject matter hereof, and it supersedes all proposals or prior agreements, oral or written and all other communications between the parties, relating thereto.