TERMS AND CONDITIONS OF MAINTENANCE HEIDELBERG ENGINEERING LTD.

The Buyer’s attention is specifically drawn to the provisions dealing with:

The Buyer’s obligations (clause 3)
Warranties (clause 5)
Limitations of liability (clause 6)

1. INTERPRETATION

In this agreement (Agreement), the following words and phrases shall have the meanings set out below. Any capitalised terms not defined below shall have the meaning as set out in the Terms and Conditions of Sale.

Buyer: the person, firm or company who orders the Goods from the Company under the Terms and Conditions of Sale.
Charges: the Services Charges and: (a) Maintenance Fees; or (b) Extended Warranty Fees as applicable.
Commencement Date: the date as agreed between the parties in writing.
Company: Heidelberg Engineering Ltd.
Data: any data stored by the Buyer which relates to or is generated by the Goods.
Data Protection Law: the Data Protection Act 2018 or any subsequent national legislation on data protection, or, when it is in force, the GDPR (as defined below).
Device: the Heidelberg Engineering device, as produced by the Company and supplied under the Terms and Conditions of Sale as part of the Goods.
Device Software: the software supplied as part of the Device, including any version updates provided for the Device.
Excluded Causes:
(a) use of the Goods with computer equipment or materials not supplied or approved in writing by the Company;
(b) any maintenance, alteration, modification or adjustment performed by persons other than the Company or its employees or agents;
(c) the failure by the Buyer to back up the Data;
(d) the Buyer or a third party:
(i) moving the Goods; or
(ii) moving or otherwise transferring the location of the Device Software or the Data;
(e) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Goods;
(f) a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Goods, or an error or omission in the correct use of that air conditioning or other environmental controls by the Buyer; or
(g) the neglect or misuse of the Goods.
Extended Warranty: the provision of the Services in accordance with the “Extended Warranty” column as set out in Schedule 1.
Extended Warranty Fees: the fees payable by the Buyer for the provision of the Extended Warranty as set out in Schedule 1, as these fees are varied from time to time in accordance with the terms of this Agreement.
GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679).
Good Industry Practice: in relation to any undertaking and any circumstances, the exercise of skill, diligence, prudence, foresight and judgement and the making of any expenditure that would reasonably be expected from a skilled person engaged in the same type of undertaking under the same or similar circumstances.
Goods: any goods agreed in the Terms and Conditions of Sale to be supplied by the Company to the Buyer.
Initial Period: a period of 12 months commencing on the Commencement Date.
Insolvency Event: any event in which the Buyer becomes insolvent or enters into and/or itself applies for, and/or calls meetings of members and/or creditors with a view to one or more of a moratorium, administration, liquidation (of any kind, including provisional), or composition and/or arrangement (whether under deed or otherwise) with creditors, and/or have any of its property subjected to one or more of appointment of a receiver (of any kind), enforcement of security, distress, or execution of a judgment (in each case to include similar events under the laws of other countries).
Location: the location of the Goods.
Maintenance Fees: the fees payable by the Buyer for the provision of the Maintenance Contract as set out in Schedule 1, as these fees are varied from time to time in accordance with the terms of this Agreement.
Maintenance Contract: the provision of the Services in accordance with the “Maintenance Contract” column set out in Schedule 1.
Renewal Notice: the written confirmation or purchase order from an authorised person of the Buyer confirming its renewal of this Agreement.
Renewal Period: each successive 12-month period after the Initial Period for which this Agreement is renewed.
Service Charges: the charges payable by the Buyer to the Company in accordance with each of the Services as set out in Schedule 1, as these fees are varied from time to time in accordance with the terms of this Agreement.
Services: the services as detailed in the Schedule 1.
Term: the Initial Period together with all Renewal Periods.
Terms and Conditions of Sale: the terms and conditions upon which the Buyer purchased the Goods from the Company.

2. SERVICES
2.1 During the Term, the Company shall, upon the Buyer’s request, provide the Buyer with the Services for the Goods at the Location in accordance with the Buyer’s selected Maintenance Contract or Extended Warranty.

2.2 The Company shall perform the relevant Services within a reasonable time period of the Buyer’s request.

2.3 The Company shall not be obliged to provide the Services where damage or a fault arises as a result of an Excluded Cause.

3. BUYER’S OBLIGATIONS
3.1 The Buyer shall:
3.1.1 ensure that the Location is within the UK;
3.1.2 ensure that the Goods are kept in suitable premises and under suitable conditions, as specified in the relevant user manual, permit only trained and competent personnel to use the Goods and follow any operating instructions as the Company may give from time to time;
3.1.3 notify the Company promptly if the Goods are discovered to be operating incorrectly;
3.1.4 at all reasonable times permit full and free access to the Location and to the Goods to the Company, its employees, contractors and agents, and provide them with adequate and safe working space, and any telecommunications or IT systems as are reasonably required to enable the Company to perform the Services;
3.1.5 provide the Company with any information that is reasonably requested in the performance of the Services; and
3.1.6 take any steps reasonably necessary to ensure the safety of the Company’s personnel when attending the Location.

3.2 If the Buyer elects to take out an Extended Warranty, then the Buyer must ensure that it has a member of permanent staff employed at the premises where (each of) the Goods are located who is trained in first line maintenance (as described in Schedule 1). The Company shall have no obligation to provide the Services under an Extended Warranty unless the Buyer has complied with this clause 3.2.

4. CHARGES
4.1 For the performance of the Services, the Buyer shall pay to the Company the Charges in accordance with the Buyer’s chosen Maintenance Contract or Extended Warranty.

4.2 The Maintenance Fees (if applicable) shall be due and payable in full to the Company within 30 days of receipt of a valid invoice from the Company.

4.3 The Extended Warranty Fees (if applicable) shall be due and payable in full to the Company annually in advance, within 30 days of receipt of a valid invoice from the Company.

4.4 Any relevant Service Charges shall be due and payable, within 30 days of receipt of a valid invoice from the Company.

4.5 If the Buyer fails to make any payment due to the Company under this Agreement by the due date for payment, then, without limiting the Company’s remedies under this Agreement, the Buyer shall pay interest on the overdue amount at the rate of 3% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.

4.6 All Charges are exclusive of VAT or any other applicable sales tax, which shall be paid by the Buyer at the rate and in the manner for the time being prescribed by law.

4.7 The Company may, at any time after the first anniversary of the Commencement Date, increase the Charges by giving to the Buyer not less than 30 days written notice, provided that:
4.7.1 the increase shall not exceed a percentage equal to the percentage increase in the Retail Prices Index published by the Office for National Statistics (or its successor from time to time) for the period from the Commencement Date (in the case of the first increase) or the date on which the immediately preceding increase came into effect pursuant to this clause (in the case of the second or any subsequent increase) up to the date of this notice; and
4.7.2 the increases shall be no more frequent than once in any 12-month period

4.8 The Buyer shall not be entitled to set off or reduce payments of the Charges by any amounts which it claims are owed to it by the Company under this Agreement or the Terms and Conditions of Sale.

5. COMPANY WARRANTIES
5.1 The Company represents and warrants to the Buyer that the Services shall be performed:
5.1.1 by an appropriate number of suitably qualified and experienced personnel;
5.1.2 using reasonable skill and care and in accordance with Good Industry Practice; and
5.1.3 in accordance with all applicable laws and regulations in force from time to time.

5.2 Nothing in this Agreement shall extend the warranties provided by the Company in the Terms and Conditions of Sale (the Sale Warranty). No spare parts, software updates, viewing licence updates or repairs or updates to the Goods shall be covered by the Sale Warranty beyond its expiry in accordance with the Terms and Conditions of Sale.

5.3 To the extent permitted by the applicable law, the Company disclaims all other warranties, representations and/or conditions with respect to the Goods, either express or implied, including but not limited to any implied warranties, representations and/or conditions of satisfactory quality or fitness for any particular purpose.
5.4 The Buyer hereby acknowledges that the terms and conditions of this Agreement and, in particular, the limitations of liability contained in clause 6 are reasonable in all the circumstances and having regard for the purchase price paid by the Buyer for the Goods.

6. LIABILITY
6.1 The Company shall not be liable to the Buyer whether in contract, tort (including for negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
6.1.1 any loss (whether direct or indirect) of profits, business, revenue, or goodwill;
6.1.2 for any costs incurred by the Buyer in recovering or attempting to recover any data which may have been lost or corrupted or for any damage resulting from the loss or corruption of the data itself;
6.1.3 any loss arising out of an Excluded Cause or a breach by the Buyer of its obligations under clause 3; or
6.1.4 any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.

6.2 Subject to clause 8 below and without prejudice to clause 6.1 above, the Company’s total aggregate liability in contract, tort (including for negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise arising out of the subject matter of this Agreement shall be limited to 100% of the total Charges paid by the Buyer to the Company during the 12 month period immediately preceding the date on which the cause of action first arose.

6.3 Nothing in this Agreement shall exclude the Company’s liability for death or personal injury or for fraud or fraudulent misrepresentation or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

7. TERM AND TERMINATION
7.1 This Agreement shall commence on the Commencement Date. Unless terminated earlier in accordance this clause 7, this Agreement shall continue for the Initial Period at which point it shall automatically expire unless renewed in accordance with clause 7.2 below.

7.2 The Buyer may extend the Agreement for a Renewal Period by providing a Renewal Notice no later than the expiry of the Initial Period. The Buyer may further extend the Agreement for an unlimited number of Renewal Periods provided that:
7.2.1 the Buyer provides a Renewal Notice, in each instance, no later than the expiry of the previous Renewal Period; and
7.2.2 no Extended Warranty shall be provided after expiry of seven (7) years from the date of manufacture of the Goods.

7.3 Either party may give written notice to the other party, not later than 60 days before the end of the Initial Period or the relevant Renewal Period, to terminate this Agreement at the end of the Initial Period or the relevant Renewal Period, as the case may be.

7.4 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, the Company may terminate this Agreement with immediate effect by giving written notice to the Buyer if:
7.4.1 the Buyer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make that payment;
7.4.2 an Insolvency Event occurs; or
7.4.3 the Buyer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
7.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

7.6 Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

7.7 On termination of this Agreement for any reason, the Buyer shall as soon as reasonably practicable pay any outstanding amounts owed to the Company pursuant to this Agreement.

8. FORCE MAJEURE
If either party is subject to an event of force majeure, that is circumstances outside its reasonable control, including but not limited to acts of god, war, fire, industrial disputes or civil commotion, it shall notify the other and the first party’s obligations under this Agreement shall be suspended until it notifies the other party of the end of such event of force majeure.

9. ASSIGNMENT
9.1 The Company shall be entitled to, without the consent of the Buyer, assign or sub-contract any part of the Agreement.
9.2 The Buyer shall not be entitled to assign or sub-contract any part of the Agreement.

10. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11. NOTICE
Any notice or other communication required to be given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next-working-day delivery service at its registered office (if a company) or (in any other case) its principal place of business.

12. DATA PROTECTION
12.1 The parties shall comply with all applicable requirements of Data Protection Law.

12.2 The parties acknowledge that, in providing or in order to provide the Services under this Agreement, the Company may have access to and, in limited circumstances, be required to process personal data (as the terms “process” and “personal data” are defined in Data Protection Law).

12.3 Although the parties acknowledge that their respective status is determined by Data Protection Law, the parties are of the view that the Buyer is the controller and that the Company is the processor (as defined in Data Protection Law) in respect of such processing.

12.4 In respect of any personal data processed by the Company in the course of providing or in order to provide the Services, the Company shall:
12.4.1 process the personal data only on documented instructions from the Buyer, unless required to do so by EU law or the national law of an EU member state to which the Company is subject (and in such a case, the Company shall inform the Buyer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest);
12.4.2 ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
12.4.3 implement appropriate organisational and technical measures as required pursuant to Article 32 of the GDPR;
12.4.4 respect the conditions for engaging another processor referred to in paragraphs 2 and 4 of Article 28 of the GDPR;
12.4.5 taking into account the nature of the processing, assist the Buyer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Buyer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR;
12.4.6 assist the Buyer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to the Company;
12.4.7 at the choice of the Buyer, delete or return all the personal data to the Buyer after the end of the provision of services relating to processing, and delete existing copies unless EU law or the national law of an EU member state to which the Company is subject requires storage of the personal data;
12.4.8 make available to the Buyer all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits to the extent necessary to demonstrate compliance with such obligations, including inspections, conducted by the Buyer or another auditor mandated by the Buyer (in each case at the Buyer’s cost).

12.5 In relation to the processing of personal data, certain clinical and biographical data concerning patients/customers of the Buyer will be processed by the Buyer for the purposes of services provided by the Buyer to those individuals and will be retained for so long as such services require. The Buyer shall be solely responsible for obtaining all necessary consents to the collection, processing and retention of such data, and for all aspects of data security. Any processing by the Company shall be limited to incidental access to such data by reason of providing the Services under this Agreement.

13. ENTIRE AGREEMENT
13.1 This Agreement and the Terms and Conditions of Sale constitute the entire Agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

13.2 Each party acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the other party which is not set out in this Agreement and the Terms and Conditions of Sale.

14. VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15. SEVERANCE
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

16. THIRD-PARTY RIGHTS
No person other than a party to this Agreement shall have any rights to enforce any term of this Agreement.

17. GOVERNING LAW AND JURISDICTION
17.1 This Agreement and any dispute or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
17.2 The Company and Buyer irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).