Terms & Conditions

This master service agreement (the ‘Agreement’), is made and entered into by you as a customer who has accepted the quotations and works carried out by UKCold.

each a Party and together the Parties.

NOW, THEREFORE, in consideration of the foregoing, and of mutual covenants and commitments set forth herein, the Parties hereto agree as follows:

  1. DEFINITIONS
    • In this Agreement the following terms shall have the following meanings:

Agreed Parameters”                           means the parameters outside of which UKCold ltd is not obliged to provide Services or Equipment, as set out in Schedule 2 Part 1;

Applicable Law”                                    means the law of England and Wales and the European Union and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the use, receipt and/or re-sale of the Services and/or Equipment;

Change”                                                   means any change to this Agreement including to any of the Services and/or Equipment under the Change Control Procedure;

Change Control Note”                        means the written record of a Change agreed or to be agreed by the parties, such record being in the form set out in Schedule 5 (Change Control Procedure);

Change Control Procedure”             means the procedure set out in Clause 8 (Change Control) and Schedule 5 (Change Control Procedure);

Charges”                                                  means the charges for the Services and any Equipment to be supplied pursuant to this Agreement and as may be updated by InterCold from time to time in accordance with the provisions of this Agreement;

Commencement Date”                      means the date on which the Services are to commence as set out in the relevant Order Form or Voice Recording;

Contractor”                                             means any person who, on or prior to any Commencement Date (and/or prior to the transfer of such services to UKCold ltd), supplied services to the Customer which were the same as or similar to those provided, or to be provided, by UKCold ltd to the Customer under this Agreement.

Customer Material”                            means any equipment, systems, cabling or facilities provided by the Customer, including Input Material and used directly or indirectly in the supply of the Services and/or Equipment;

UKCold Affiliate”                                 means (i) UKCold ltd and any entity which from time to time is UKCold’s ultimate holding company or a subsidiary of such ultimate holding company or of UKCold and (ii) any entity over which from time to time any of the entities defined in (i) either directly or indirectly exercises management control, even though it may own less than fifty per cent (50%) of the shares and is prevented by law from owning a greater shareholding;

UKCold Materials”                               means any equipment, including tools, systems, cabling, processors, software or facilities, provided by UKCold or its subcontractors and used directly or indirectly in the supply of the Services and for which title does not pass to the Customer;

UKCold Personnel”                             means all employees, agents, consultants, contractors and other representatives of UKCold (or any UKCold Affiliate or any of their respective subcontractors) who are involved, or proposed to be involved, in the provision of the Services and/or Equipment;

Data Processor”                                    has the meaning set out in the DPA;

Data Subject”                                         has the meaning set out in the DPA;

Document”                                             means any document including any drawing, map, plan, diagram, design, picture or other image, whether in writing, on tape, disk or other device or record embodying information in any form;

DPA”                                                          means the Data Protection Act 1998;

Employee                                                means any employee, former employee, consultant, former consultant, contractor, former contractor, agent or former agent of the Customer or any Contractor or Subcontractor;

Equipment”                                            means an item of equipment in respect of which UKCold is to perform the Services in accordance with the terms of this Agreement;

Excluded Event”                                   means any of the events set out in Schedule 2 Part 2 (Exclusions);

GDPR”                                                       means the General Data Protection Regulations 2018

Incident”                                                  means any fault, issue, matter or notice relating to any Customer Equipment;

Input Material”                                     means all Documents, information and materials provided by the Customer relating to the Services or Equipment, including computer programs, data, reports and specifications;

Intellectual Property Rights”          means all present and future rights conferred by statute, common law or equity in any territory in or in relation to patents, rights in inventions, copyright and related rights, moral rights, database rights, rights in designs, semi-conductor topography rights, trade marks, business and domain names, rights in goodwill or to sue for passing off, and other similar or equivalent rights or forms of protection (whether or not registered or registrable) and all applications (and rights to apply) for, and for renewals and extensions of, any such rights as may now or in the future exist anywhere in the world;

Logistics Services”                               means the procurement of Spares together with a courier service for those Spares to any End User’s Sites;

Minimum Term”                                   means the initial term from and including the relevant Commencement Date during which Services are to be performed pursuant to, and as stated in the Order Form or Voice Recording;

Non-Standard Project Services”    means Project Services other than Standard Project Services;

Normal Working Hours”                   means 09:00 to 17:30 on a Working Day;

Order Form”                                           means the form detailing the Maintenance Support Services and any other Services as detailed in this Agreement;

Personal Data”                                      has the meaning set out in the DPA;

Pre-existing Materials”                     means all Documents, information and materials provided by UKCold relating to the Services which existed prior to the Commencement Date of the relevant Order Form, including computer programs, data, reports and specifications;

Request”                                                  means a specific request by the Customer to UKCold to provide individual Services;

Routine Maintenance”                      means scheduled service, inspections and maintenance of any End User Equipment;

Sale of Goods Terms”                         means the terms set out in Schedule 4 to this Agreement which apply to Spares and Consumables to be supplied or form part of the Services;

Services”                                                  means (as the context requires) the services to be provided by UKCold under this Agreement as set out in Schedule 1;

Site(s)”                                                     means the premises of the Customer where Services are to be performed;

Spare”                                                       means an individual, supplementary or replacement part provided by UKCold as part of the Services;

Subcontractor”                                      means any subcontractor of a Contractor;

Supported Equipment List”             means the list of Equipment in respect of which UKCold may provide Services in accordance with the terms of this Agreement as detailed in Schedule 5;

Term”                                                        means the term of the Agreement as set out in Clause 2.1; and

Working Day”                                        means Normal Working Hours Monday to Friday inclusive (excluding bank and other public holidays in England and Wales).

  • The interpretation and construction of this Agreement shall be subject to the following rules, except where the context makes it clear that a rule is not intended to apply:
    • reference to legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced from time to time, and includes any subordinate legislation issued under it;
    • reference to a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;
    • a singular word includes the plural, and vice versa;
    • if an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing;
    • the headings in this Agreement are for reference purposes only and shall not affect the interpretation or construction of this Agreement; and
    • a reference in this Agreement to: a Clause is a reference to the clause that bears the relevant number in the body of this Agreement; a Schedule or an Appendix to a Schedule is a reference to the relevant schedule to this Agreement and the appendix to such schedule; and a paragraph is a reference to a paragraph of a Schedule.
  1. APPOINTMENT
    • This Agreement shall commence on the Effective Date and shall continue in full force and effect until terminated in accordance with the terms outlined herein. upon expiration of the Minimum Term, this Agreement shall automatically renew for successive one (1) year periods, unless and until terminated by either Party on at least sixty (60) days’ notice and shall, under no circumstances expire before the end of either:
      • the Minimum Term; or,
      • any renewed Minimum Term.
    • The Minimum Term shall be stated on the face of any Order Form or in the Voice Recording, and if none is stated it shall be deemed to be twelve (12) months.
    • The terms and conditions of this Agreement apply to the exclusion of all other terms and conditions which the Customer may purport to apply. Notwithstanding the foregoing, any terms or conditions contained herein which are in contradiction with any order, purchase order, offer, acknowledgement or similar document, then the order purchase order, offer, acknowledgement or similar document shall take precedence.
    • The Customer warrants and undertakes to UKCold that it is entering into the Agreement for the purposes of its trade, business and/or profession, and not as a consumer.
  1. SERVICES
    • In consideration of the provision of the Services, the Customer shall pay UKCold the Charges in accordance with the provisions of Clause 7 (Charges) and Schedule 3 (Price and Payment).
    • The Customer acknowledges and accepts UKCold’ right to determine, at their sole discretion, that the Services may be provided by UKCold and/or a UKCold Affiliate and/or the contractors and/or sub-contractors of UKCold.
    • Where any time is stipulated for the provision of Services, such time shall be an estimate only and shall not be (nor be capable of being deemed) of the essence of this Agreement.
  1. UKCOLD’S OBLIGATIONS
    • UKCold shall use its reasonable endeavours to perform the Services in accordance with the terms of this Agreement.
    • UKCold shall use reasonable endeavours to:
      • where relevant, inform the Customer about new developments and modifications to the Services; and
      • promptly provide, to the Customer, a quotation for providing any Services (as defined in Schedule 1).
    • In providing each of the Services, UKCold will:
      • allocate sufficient Personnel to provide the Services in accordance with the terms of the Agreement; and
      • ensure that any of the UKCold Personnel who are engaged in the provision of any of the Services shall be appropriately qualified and experienced to undertake their tasks.
    • UKCold shall co-operate and use reasonable endeavours to procure that each of its sub-contractors co-operates, with the Customer so as to integrate (where reasonably requested by the Customer) other services, materials or equipment supplied by any third party with the Services.
    • The co-operation referred to in Clause 4.4 shall only apply where the need to integrate the Services and/or other third party Personnel and/or equipment is set out clearly in the Agreement and the costs of such co-operation shall be charged by UKCold in accordance with the Agreement.
  1. THE CUSTOMER’S OBLIGATIONS
    • The Customer shall:
      • co-operate with UKCold in all matters relating to the Services;
      • provide, for UKCold, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by UKCold;
      • provide, in a timely manner and at the cost of the Customer, such Customer Materials and other information as UKCold may reasonably require, and ensure that it is accurate in all material respects of satisfactory quality, and fit for purpose;
      • inform UKCold of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises;
      • take all reasonable steps to protect the health and safety of UKCold Personnel whilst UKCold Personnel are at the Customer’s premises;
      • ensure that all the Customer Material is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
      • obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the use of Customer Material (such licences and consents shall in all cases commence on or before the date on which the Services are to start); and
      • make available to UKCold and UKCold Personnel such access to staff of the Customer who are familiar with the Customer’s systems and Equipment and software as UKCold may reasonably require in connection with the supply of the Services.
    • The Customer is responsible for the integrity of any information, including Customer Material, provided to UKCold and for all direct and indirect consequences of any errors in such data or Customer Material.

The Customer is solely responsible for safeguarding its equipment, maintaining an onsite disaster recovery process and through any other means the Customer believes appropriate.

  1. SITES
    • To enable UKCold to fulfil its obligations under this Agreement:
      • the Customer shall permit UKCold and any other person(s) authorised by UKCold to have reasonable access to the Customer’s Sites, equipment and shall provide such reasonable assistance as UKCold requests;
      • UKCold will normally carry out work by appointment and during Normal Working Hours but may request the Customer to (and if requested the Customer shall) permit or procure access to the relevant Sites at other times. In the event that the Customer cancels, reschedules or misses any pre-arranged appointment, the Customer shall be liable to UKCold for any costs and expenses which UKCold incurs as a result of such cancellation, rescheduling and/or missed appointment;
      • the Customer warrants, represents and undertakes that it has adequate health and safety provisions in place at the Sites; and.
      • the Customer warrants, represents, and undertakes that it has (and shall maintain throughout the Term) all consents, licences and permissions necessary from landlords or other third parties for the carrying out of preparation work and for the provision, use and operation of the Equipment and/or Services at the Sites (save to the extent UKCold has agreed in writing to obtain such consents, licences and permissions).
    • In the event that the Customer discovers that it is not in possession of, or is unable to procure, a necessary consent, licence or permission (as described in Clause 6.1.4 above), UKCold shall be able to terminate the relevant Services forthwith without liability to the Customer by giving the Customer written notice. If the Customer has not managed to procure the necessary consents and UKCold has commenced work, on request by UKCold, the Customer shall pay UKCold the Charges for all such work (including, without limitation, staff costs and equipment costs) in accordance with Schedule 3 (Price and Payment) (or if not stated at Schedule 3 at its then current rates), and shall reimburse UKCold for any and all costs, damages, expenses and liabilities which UKCold suffers or incurs as a result of having commenced work without the necessary licence, consent or permission.
    • If the Customer fails to provide UKCold access or access rights, permission or consent required under this Agreement to deliver the Services, then the Customer shall pay all Charges for such Services from and after the date UKCold is otherwise ready to deliver them. In addition, UKCold shall not be liable for any failure to provide the Services to the extent that such failure is due to UKCold being denied access to the Customer’s Site.
    • The Customer shall provide UKCold with the site and building plans of the Sites (as required to provide the Services) and provide UKCold with full details of all other services in the vicinity of any proposed works.
    • As between UKCold and the Customer, the Customer is responsible for making good the Site (at its own cost) after the Services have been performed by UKCold at a Site, (including, without limitation, for re-decorating).
    • If the Customer is moving or transferring its operations to a new Site, UKCold must be informed as soon as is reasonably practicable so that suitable arrangements can be made to transfer the relevant services and/or Equipment to the new site.
    • If a new installation or moving Site involves the visit of UKCold Personnel to facilitate it, the Customer shall be responsible for the costs incurred by UKCold for the appointment of such Personnel together with an administration fee in respect of any additional works required to be undertaken by UKCold to complete the transfer of the Services and/or Equipment.
    • If the Customer moves to a new Site and leaves the Equipment for the new owner/tenant, the Customer is required to inform the new owner or tenant that the relevant Service will be discontinued if the Customer is not contacted by the new owner/tenant within seventy two hours for the purpose of entering into a new contract with the Customer for such services and subject in any event to the agreement of such a contract. The Customer shall submit a written request to UKCold to request the provision of Services to the Customer at the new site.
    • If, at the new site, the Customer receives services which are similar to the Services from an alternative supplier, as between UKCold and the Customer, the Customer shall remain liable for meeting the Customer’s obligations under any contractual agreement the Customer has with such alternative supplier and for any liabilities the Customer may incur for terminating such agreement. For the avoidance of doubt, the Customer shall remain liable to pay the Charges in respect of the old Site until such time as the new contract is entered into pursuant to Clause 6.8.
  1. CHARGES
    • The Charges payable by the Customer to UKCold in respect of the Services shall be as set out in Schedule 3, (and if none are set out in Schedule 3 (Price and Payment) then charges payable shall be UKCold’s then current charging rates).
    • All Charges are expressed exclusive of Value Added Tax or other applicable or equivalent taxes. The Customer will be responsible for paying Value Added Tax and other applicable or equivalent taxes. Such taxes will be included at the applicable rate at time of invoice in all invoices submitted by UKCold.
    • UKCold shall be entitled to invoice the Customer in accordance with the relevant SOW.
    • The Customer shall pay, by direct debit or bank transfer, each undisputed invoice (or such undisputed part thereof) within seven (7) days of the date of the invoice (without any set-off or deduction).
    • UKCold shall have the option, but not the obligation, to send a single consolidated invoice to the Customer for all Services provided.
    • All Charges shall be expressed, invoiced and payable in pounds sterling. Invoices shall be in InterCold’s standard form and shall constitute valid VAT invoices.
    • Without prejudice to any other right or remedy that it may have, if the Customer fails to pay UKCold on the due date, UKCold may:
      • charge interest on such sum from the due date for payment at the annual rate of 4% above the bank of England base rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand; and/or
      • (if payment remains unpaid four (4) days after the due date) immediately suspend all Services until payment has been made in full (and for the avoidance of doubt, such suspension shall be at no cost or penalty to UKCold).
    • If the Customer’s account remains unpaid (in any part) UKCold may require a security deposit of three time the average monthly invoice or payment in full for the next twelve months before UKCold will reinstate the Services.
    • All sums payable to UKCold for the provision of Services shall become due immediately on its termination, despite any other provision. This Clause 7.9 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
    • If the Customer receives an invoice which it reasonably believes includes a sum which is not valid and properly due:
      • the Customer shall notify UKCold in writing within seven (7) days of the date of the invoice;
      • the Customer’s failure to pay the disputed Charges pending an investigation by UKCold shall not be deemed to be a breach of this Agreement;
      • the Customer shall pay the balance of the invoice which is not in dispute by the due date for payment of the invoice;
      • to the extent that the Customer is obliged, following investigation by UKCold of the dispute, to pay an amount, then UKCold may charge interest in accordance with Clause 9 from the original due date until the date of payment;
      • once the dispute has been investigated, where either party is required to make a balancing payment (or UKCold is required to issue a credit note), it shall do so within 3
    • UKCold reserves the right to carry out a credit check against the Customer during the Term of this Agreement, and subsequent to the carrying out of such credit check, may set a credit limit and/or request from the Customer (and if requested the Customer shall provide and/or procure) a cash deposit or bank guarantee in a form and amount to be approved by UKCold and issued by a bank acceptable to it, the amount not exceeding the Charges which UKCold might reasonably expect the Customer to incur during the Term of this Agreement. UKCold shall be entitled to retain any such deposit or bank guarantee during the Term of this Agreement.
  1. CHANGE CONTROL
    • Where the Customer or UKCold need to make a Change to this Agreement, Schedule or SOW, the Customer may at any time request, and InterCold may at any time recommend, such Change only in accordance with the provisions of Schedule 5 (Change Control Procedure).
  1. INTELLECTUAL PROPERTY RIGHTS
    • As between the Customer, UKCold and any UKCold Affiliate, the Customer acknowledges that all Intellectual Property Rights and all other rights in the Pre-existing Materials are owned by InterCold, the relevant UKCold Affiliate or it sub-contractor absolutely. Subject to Clause 9.1, ukCold hereby licenses all such rights to the Customer on a non-exclusive, royalty-free, non-transferable basis and to such extent as is necessary to enable the Customer to make reasonable use of the Equipment and the Services. If this Agreement is terminated for whatever reason, this licence will automatically terminate.
    • If and to the extent that UKCold, UKCold Affiliates and/or UKCold Personnel are required to use any software belonging to the Customer or any third party for the purposes of providing the Services, the Customer hereby grants to UKCold (or shall procure the grant to UKCold of) a non-exclusive, royalty-free, non-transferable licence to use such software to the extent necessary to enable UKCold Personnel to provide the Services in accordance with this Agreement.
    • The Customer shall, at all times during and after the Term, hold harmless and indemnify UKCold and each relevant UKCold Affiliate and keep UKCold and each relevant UKCold Affiliate indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by UKCold or the relevant UKCold Affiliate arising from any claim made against UKCold or a UKCold Affiliate for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the use of the Services.
  1. WARRANTIES
    • The Customer warrants that it has full power and authority to enter into this Agreement and to perform its obligations under this Agreement.
    • UKCold warrants that:
      • it has full power and authority to enter into this Agreement and shall obtain all approvals and consents where necessary for the fulfilment of its obligations under this Agreement; and
      • it shall use reasonable skill and care when providing the Services.
    • The warranties given by UKCold in this Agreement shall not apply to improper, incorrect, or unauthorised use of the Services by the Customer or a third party authorised by the Customer, and UKCold shall have no liability for such use.
    • The warranties stated in this Clause 10 are the only warranties made by UKCold in relation to the Services. Subject to Schedule 4, all warranties, conditions and other terms implied by statute or common law or course of dealings are, to the fullest extent permitted by law, excluded from this Agreement.
    • No employee, agent or representative of UKCold has the authority to bind UKCold to any oral representation or warranty concerning the Services provided by UKCold. Any oral or written representation or warranty not expressly contained in this Agreement, or its schedules shall not be enforceable by either party.
  1. LIMITATIONS OF LIABILITY
    • Each party’s total aggregate liability to the other in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in any calendar year in connection with the performance or contemplated performance of its obligations under this Agreement shall be limited to a sum equal to 100% of the Charges payable under this Agreement during the calendar year which the relevant claim
    • Any credits payable shall be limited with respect to all failures to meet the Service Levels occurring in any month to 5% of the Charge payable for the Services. For the avoidance of doubt, the monthly charge for Services shall be one twelfth of the annual amount invoiced. Credits shall be the sole and exclusive remedy of the Customer for any failure by UKCold to achieve the associated Service Levels.
    • The parties agree that if any limitation or provision contained or expressly referred to in this Clause 11 and as detailed in the applicable Schedules are held to be invalid under any applicable statute or rule of law, it shall, to that extent, be deemed omitted (all other terms shall remain in full force). If either party becomes liable for loss or damage which would otherwise have been excluded, that liability shall be subject to the other limitations and provisions set out in this Clause 11.
    • Nothing in this Agreement shall be taken as in any way reducing or affecting a general duty to mitigate loss suffered by a party.
  1. DATA PROTECTION AND FREEDOM OF INFORMATION
    • To the extent that UKCold is required as part of the Services to process Personal Data as a Data Processor, UKCold shall:
      • process the Personal Data only on behalf of the Customer (or, if so directed by the Customer), only for the purposes of:
        • administering the Customer’s account and this Agreement;
        • notifying the Customer of changes to the Services, including     (without limitation) contacting the Customer regarding                                 potential and/or actual enhancements or offers, enabling                   UKCold to supply the Services to the Customer;
        • for invoicing purposes; and notifying the Customer of other     services offered by UKCold and any UKCold Affiliate.
      • at all times comply with the provisions of the seventh data protection principle set out in schedule 1 of the DPA and also the GDPR and implement appropriate technical and organisational measures to seek to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure; and,
      • not publish, disclose or divulge any of the Personal Data to any third party (including the Data Subject himself) unless directed to do so in writing by the Customer, but except where such disclosure is required by law or for regulatory purposes.
    • UKCold may transfer Personal Data to any sub-contractor (which transfer may be outside the European Economic Area) for the purpose of performing its obligations. By executing this Agreement, the Customer hereby consents to UKCold transferring Personal Data to any sub-contractor in connection with the provision of the Services.
    • UKCold shall not be liable (whether in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise) if a Data Subject makes a claim or complaint with regards to UKCold’s actions to the extent that such actions directly result from instructions received from the Customer.
    • The parties shall comply at all times with the DPA and the GDPR and shall not perform their obligations under this Agreement in such a way as to cause UKCold or any of its sub-contractors to breach any of its obligations under the DPA and the GDPR. Each Party shall immediately notify the other party in the event that it becomes aware of any breach of the DPA or the GDPR by either party in connection with this Agreement.
    • The Customer warrants, undertakes and represents that it will grant and shall procure that its employees, other personnel and End Users grant consent to the use of Personal Data (referred to above) as may be necessary to enable InterCold to use such data for the purposes described in this Clause 12.
  1. TERMINATION
    • Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving notice to the other if the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach.
    • In the event of termination of this Agreement for any reason:
      • the Customer shall immediately pay to UKCold all of UKCold’s unpaid invoices, and in respect of Services supplied but for which no invoice has been submitted UKCold may submit an invoice which shall be payable immediately upon receipt;
      • UKCold shall, if requested by the Customer, provide assistance to the Customer to the extent reasonably necessary for an orderly handover of the Services, the terms of such assistance (which will include the extent to which UKCold shall be paid for such assistance) shall be agreed between the parties; and,
      • the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
  1. RIGHTS OF SUSPENSION
    • UKCold may, at its sole discretion and without prejudice to any other right which it might have under or in connection with this Agreement, elect to immediately suspend the provision of one or more Services if UKCold:
      • has reasonable grounds to consider it is entitled to terminate this Agreement;
      • has an express right in this Agreement to do so;
      • is required to do so to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority;
      • has reasonable grounds to consider that any of the Services is being used fraudulently or illegally or otherwise in violation of this Agreement (whether by the Customer or any of its users);
      • has reasonable grounds to consider that the Customer shall not or is unable to make any payment which is due or is to fall due to UKCold hereunder or the Customer exceeds any credit limit set pursuant to Clause 2; or
      • has reasonable grounds to consider that the Customer is or has been involved or connected with criminal activity or other activity, which is or may be detrimental to UKCold.
    • If UKCold exercises its right to suspend any of the Services pursuant to Clause 14.1.3 it shall, whenever reasonably practicable, give prior notice of such suspension to the Customer, such notice to state the grounds of such suspension and its expected duration.
    • If a Service is suspended as a consequence of the breach, fault, act or omission of the Customer or an user, the Customer shall pay to UKCold all reasonable costs and expenses incurred by UKCold in the implementation of such suspension and/or recommencement of the provision of the Services. UKCold shall have no obligation to perform the Services during the period of suspension.
    • UKCold shall not be liable for any loss, damage or inconvenience suffered by the Customer as a result of any suspension made pursuant to this Clause 14.
  1. VARIATION
    • Subject to Clause 8 (Change Control), No variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by UKCold.
  1. FURTHER ACTIONS
    • The Parties shall execute any documents and take all appropriate actions as may be necessary to give effect to the Joint Venture.
  1. ASSIGNMENT
    • Neither Party shall assign or transfer any of its rights or obligations hereunder without the prior written consent of the other Party, except to a successor in ownership of all or substantially all of the assets of the Party if the successor in ownership expressly assumes in writing the terms and conditions of this Agreement. Any such attempted assignment without written consent will be void. This Agreement shall inure to the benefit of and shall be binding on the valid successors and assigns of the Parties.
  1. GOVERNING LAW
    • This Agreement shall be governed by and construed in accordance with the laws of England and Wales, and subject to the English courts.
  1. COUNTERPARTS
    • This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute on instrument.
  1. SEVERABILITY
    • If any provision contained herein is determined to be invalid or unenforceable by a court of competent jurisdiction, such provisions shall be deleted from this Agreement or modified so as to make them enforceable. All other terms and provisions contained herein shall remain unaffected by the forgoing.
  1. NOTICES
    • All notices, requests, demands and other communications under this Agreement must be in writing and will be deemed duly given, unless otherwise expressly indicated to the contrary in this Agreement:
      • When delivered personally; or,
      • Received via email, providing the email is read and acknowledged; or,
      • One business day after having been dispatched by a nationally recognised
  1. HEADINGS
    • All headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.
  1. ENTIRE AGREEMENT
    • This Agreement contains the entire relationship and understanding between the Parties, superseding all prior contemporaneous communications, representations, agreements and understandings; whether oral or written, between the Parties with respect to the subject matter hereof. This Agreement may not be modified in any manner except by written amendment executed by each party hereto.

In witness Whereof, the Parties have caused this Joint Venture Agreement to be duly executed and delivered as of the Effective Date.

UKCold    
Name:     Name:  
Title:     Title:  
Signed:     Signed:  
Date:     Date:  

SCHEDULE 1: SERVICES

  1. Definitions

In this Schedule 1, the following definitions shall have the following meanings:

Closed                                                         means where an Incident, or Per Event Service has been Fixed or Completed (as appropriate) and all follow up work on the Sites (if such work is not itself the subject of a separate request to perform Services) has been completed, including the removal of all parts that have been replaced and Close shall be interpreted accordingly;

Completed                                                means:

– (in respect of Logistics Services) the Spares have been delivered, and the old Spares removed;

– (in respect of Routine Maintenance Services) the service, inspection or maintenance of the Customer Equipment or systems has been carried out by UKCold;

– (in respect of MACD Services) means the move, addition, change or deletion of the Customer Equipment or systems has been carried out by UKCold.

UKCold Engineer                                    means the UKCold representative responsible for carrying out engineering duties on the Sites;

Estimate Request                                   means a description of the Project and the requirement of the Customer for Non-Standard Project Services from UKCold (such request to be in the format provided to UKCold by the Customer).

Estimate Response                                means a response to the Estimate Request in the agreed format including the price associated with the relevant Non-Standard Project Services.

Fixed                                                           means that the Equipment is installed and operational and Fix shall be interpreted accordingly;

Incident Request                                    means a request by the Customer within the Agreed Parameters for UKCold to Fix an Incident;

Project                                                        means the engineering project to be carried out by the Customer;

Response Time Service Level           means the time within the Agreed Parameters or Schedule 4 (Service Levels and Service Credits) in which UKCold must arrange for an engineer and/or part to be on Site as notified by the Customer in the Incident Request;

Triage                                                          means a suitably qualified engineer will attempt to resolve an Incident or identify the root cause of an Incident including but not limited to the use of remote access tools and dialogue with the Customer; and

  1. Obligation

2.1       Each Party undertakes to the other that it shall (and shall use reasonable endeavours to procure that persons acting on its behalf shall) comply with any requirements or obligations set out in this Schedule

  1. Statement of Work
    • Any work undertaken by UKCold shall be agreed under a Statement of work, using the template outlined below

SCHEDULE 1 – PART 1: BREAKDOWN

  1. Incident Requests

1.1 Where an Incident occurs the process set out in this Schedule 1 Part 1 shall be followed.

1.2 The Customer shall at any time after becoming aware of an Incident be entitled to make an Incident Request that UKCold provide Maintenance Support Services to Fix the Incident by logging a breakdown with UKCold UKCold Express application.

1.3 Each Incident Request shall include all relevant information required for UKCold to assess the Incident including but not limited to a description of the Incident and the Equipment which is relates to.

1.4 UKCold shall use reasonable endeavours to carry out Maintenance Support Services in response to the Incident Requests for items of Equipment identified on the Supported Equipment List. For all Incident Requests in relation to Equipment not listed on the Supported Equipment List, UKCold shall use reasonable endeavours to respond to such Incident Requests and the Customer shall be liable to pay UKCold in accordance with UKCold’ applicable standard hourly rates. Such Incidents shall not benefit from any Service Level and UKCold’s performance in relation to responding and/or fixing such an Incident shall not be counted in relation to its achievement or otherwise of the Service Levels.

  1. Maintenance Support Services

2.1 As soon as reasonably possible following the receipt of the Incident Request, UKCold shall undertake Triage work to attempt to Fix the Incident.

2.2 In the event that UKCold acting reasonably concludes that the Incident cannot be fixed remotely, UKCold shall arrange for an Engineer to attend at the relevant Site. UKCold shall notify the Customer of the estimated

time of arrival for the UKCold Engineer at the relevant Site.

2.3 Providing such items have been made available to UKCold, UKCold shall ensure that any UKCold Personnel responding to an Incident Request shall have the relevant security clearance, card access and gate keys necessary to gain access to the Sites for the purposes of providing the Maintenance Support Services. If the UKCold Engineer cannot gain entry to the Sites, paragraph 2.9 below shall apply.

2.4 The Customer can cancel any Incident Request at any time by giving notice to UKCold. Such an Incident shall be deemed to be Fixed and Closed for the purposes of determining UKCold’s achievement or otherwise of the Service Levels. Any cancelled Incident Request shall be charged to the Customer in accordance with UKCold’ standard hourly rates.

2.5 UKCold shall ensure that on arrival at the Site, the UKCold Engineer will notify UKCold that they have arrived. The time of arrival recorded by UKCold is shall be recorded as the response time for the purposes of calculating whether the Response Time Service Level has been achieved.

2.6 UKCold shall update the Customer as soon as reasonably possible following any material change to the estimated time of arrival of a UKCold Engineer at any Site.

2.7 UKCold shall ensure that the UKCold Engineer uses their reasonable endeavours to Fix any Incident (which shall include the UKCold Engineer using their own skill and judgement to Fix an Incident) where the Incident does not match information provided by the Customer, providing always such Incident requires Maintenance Services within the Agreed Parameters and that the Incident is not within any of the Exclusions listed in Schedule 2 Part 2.

2.8 Where a UKCold Engineer arrives at the Sites and is refused access to the Sites by the End User or is otherwise unable to access the Sites, the UKCold Engineer shall notify UKCold of the situation together with sufficient details to allow the parties to determine the cause and action required. The UKCold Engineer shall remain at the Sites for a further period of fifteen (15) minutes or such time as is agreed with the Customer (whichever is the shorter). UKCold shall be entitled to charge for this period of waiting time in accordance with UKCold’ applicable standard hourly rates. In such circumstances where UKCold does not gain access to the Sites and/or Equipment at all, UKCold shall be entitled to charge for the time and travel in accordance with UKCold’ standard hourly rates together with the charges for any spares, logistics and subsistence and the Incident shall be deemed to be Closed and Fixed within any relevant Service Level.

2.9 If the UKCold Engineer requires assistance from the Customer, UKCold shall contact the Customer and the Customer shall provide such assistance which the UKCold Engineer may reasonably require.

3 Fixing and Closing Incidents

3.1 Where a UKCold Engineer considers that the Incident is Fixed it shall UKCold, who in turn will notify the Customer as soon as reasonably possible. The notice to the Customer shall include the date on, and time at, which the Incident was Fixed.

3.2 Where any follow up action is required (if UKCold determines such work should not be the subject of a separate Request) UKCold shall complete the follow up action. On completion of the follow up action UKCold shall give notice to the Customer.

SCHEDULE 1 – PART 2: MAINTENANCE

1 Servicing

1.1 Where any maintenance is required this Schedule 1 Part 2 shall apply.

1.2 The Customer shall make a written Request to UKCold which shall include the following:

1.2.1 details of any Spares or Consumables required;

1.2.2 details of any items of equipment to be returned to UKCold;

1.2.3 details of the relevant user;

1.2.4 details of the Site which is to be visited or to which the spares or parts are to be delivered to

(and any return address) (as applicable);

1.2.5 a proposed date(s) for the delivery of the Spares;

1.2.6 any other information which is relevant to the request.

1.3 UKCold shall accept or reject each Request in accordance with Clause 2.

2 Provision of Services

2.1 UKCold shall use reasonable endeavours to carry out Per Event Services for items of Equipment identified on the Supported Equipment List. As soon as reasonably possible following acceptance of an Order Form by the Customer, UKCold shall notify the Customer of:

2.1.1 the estimated time of arrival of the UKCold Engineer at the Sites; and

2.1.2 (if applicable) the estimated time of arrival for the Spare at the relevant Site.

2.2 Subject to the following provisions of this paragraph 2.2, the Customer can cancel any Order Form at any time by giving notice in writing to UKCold, and such request for Per Event Services shall be deemed to be Completed and Closed:

2.2.1 If (in respect of Logistics Services), the Customer cancels the request for Per Event Services

before UKCold receives the consignment number or similar from the relevant logistics supplier,

the Customer shall be charged for such Logistics Services in accordance with UKCold’ standard

hourly rates together with charges for any Spares or Consumables;

2.2.2 If (in respect of Routine Maintenance Services and/or MACD Services), the Customer cancels

its request for Routine Maintenance Services and MACD Services less than fourty eight (48)

Working Hours before the Routine Maintenance Service or the MACD Services is due to

commence, the Customer shall be charged for such services in accordance with UKCold’ standard

hourly rates.

3 Completed and Closed Per Event Services

3.1 Where UKCold considers that the relevant Per Event Service is Completed it shall confirm to the Customer that the relevant Per Event Service is Completed.

3.2 Where any follow up work is required, UKCold shall complete the follow up action at a date and time agreed with the Customer. Upon completion of the follow up action, UKCold shall give notice to the Customer.

3.3 The Per Event Services shall be charged to the Customer in accordance with Schedule 3 (Price and Payment).

SCHEDULE 1 – PART 3: INSTALLATION

1 Installation Services

1.1 Where any installation Services are required, this Schedule 1 Part 3 shall apply.

1.2 Following acceptance by UKCold of an Order Form in accordance with Clause 2, UKCold shall use its

reasonable endeavours to commence work on the start date agreed between the parties, and to

perform the Standard Project Services in accordance with the terms of this Agreement.

1.3 The Standard Project Services shall be charged to the Customer in accordance with Schedule 3.

2 Non-Standard Project Services

2.1 Requests for Estimates

2.1.1 On receipt of a Estimate Request, UKCold shall provide the Customer with a Estimate Response

or reject a Estimate Request within a reasonable period of time.

2.1.2 A Estimate Response submitted by UKCold shall be valid and capable of acceptance by the

Customer for the period stated in the Estimate Response.

2.1.3 A Estimate Response submitted in accordance with paragraph 2.1.2 above shall include the

information agreed between the parties from time to time but shall include (as a minimum) a

breakdown of the number of days required to complete the Non-Standard Project Services,

and the associated Charges (including requirements for any interim payments) and a summary

of the work required

2.1.4 If the Customer has any queries with regard to the Estimate Response, both parties will seek to resolve such queries promptly.

2.2 Orders for Non-Standard Project Services

2.2.1 Once the parties have agreed the Estimate Response, the UKCold shall submit an Order Form to the Customer referencing the Estimate Response. If and when the Order Form is signed by an authorised representative of the Customer, the terms of the Order Form shall bind both parties.

SCHEDULE 2: AGREED PARAMETERS AND EXCLUSIONS

Part 1 – Agreed Parameters

1 Introduction

1.1 This Schedule 2 defines when the Customer must seek consent from InterCold with regard to the provision of Services.

1.2 Requirements which are outside of the defined parameters set out below are to be referred to InterCold.

2 Geographical Coverage

2.1 InterCold shall not be obliged to provide Services if the relevant premises are:

2.1.1 outside the United Kingdom; or

2.1.2 within the United Kingdom and in:

(i) the Highlands (area North and West of a line between Inverness and Fort William and West of a line between Dunoon and Fort William) and Islands of Scotland;

(ii) West Cornwall, (area west of Newquay and Truro); or

(iii) the Isle of Wight, Isle of Man, Orkneys, Shetlands, Outer and Inner Hebrides, Northern

Ireland, Channel Islands, Isles of Scilly.

Part 2 – Exclusions

1.1 Notwithstanding any other provision of this Agreement, UKCold shall not be obliged to perform or provide any of the services set out below. If UKCold does agree to provide such services, UKCold’s charges for supplying or providing such services shall be calculated in accordance with UKCold’ applicable standard hourly rates and charges in respect of Spares and Consumables, and shall not be counted or considered in relation to any performance of any Service Level or other term or condition of this Agreement:

1.1.1 the maintenance or repair of any power supply (including without limitation, any battery backup and/or uninterruptible power supply) to the Equipment;

1.1.2 the repair or maintenance of any network connected to the Equipment; and/or

1.1.3 repair or maintenance of ancillary items including, but not limited to cabinets and/or any infrastructure cabling.

1.2 The following matters shall not be included or covered in the Charges or the scope of the Services. If such services are performed, supplied or provided (and UKCold shall be under no obligation in this regard), they shall be subject to charges in accordance with UKCold’ applicable standard hourly rates and charges in respect of Spares and Consumables and shall not be counted or considered in relation to any performance of any Service Level or other term or condition of this Agreement:

1.2.1 the transportation or relocation of the Equipment;

1.2.2 the repair of damage to the Equipment resulting from accident, neglect or causes other than ordinary use (including, but not limited to, failure to observe any instructions supplied by the manufacturer regarding the operation of the Equipment);

1.2.3 any development, modification or correction of any software used upon or in association with the Equipment; and/or

1.2.4 the reprogramming of the Equipment to provide improved or modified service or facilities;

1.2.5 any repair, labour or materials required as a result of accidental damage, theft, vandalism, fire, lightning, water damage, fluctuations in electrical power supply, unsatisfactory environmental conditions, telephone line or other network (public or private) conditions or faults, the connection of unapproved accessories, attachments or other devices;

1.2.6 the alteration, modification, repair or maintenance of the Equipment by any person other than UKCold;

1.2.7 the negligence of the Customer or its users or the improper use by Customer or the user of the Equipment;

1.2.8 a failure to maintain a suitable environment for the Equipment at the Sites;

1.2.9 a disaster affecting the Equipment (including without limitation fire, flood, water, wind, lightning);

1.2.10 network faults caused by equipment other than the Equipment in respect of which the Services are provided and which cannot be fixed without that unsupported equipment being repaired or which could be fixed but would fail again unless the unsupported equipment is repaired;

1.2.11 any Equipment which cannot be fixed due to the failure of any other software or the system (not being Equipment) without such unsupported software or system being repaired, or which could be fixed, but would fail again unless the unsupported software or system is repaired by the relevant third party;

1.2.12 the repair or maintenance of any Equipment which is at the end of its normal, useful working life, for which parts are no longer reasonably, commercially available or which is beyond economical repair; and/or

1.2.13 any call-outs, repair, maintenance or advice in respect of an item of Equipment during the first week after the later of the date upon which:

(i) UKCold agrees to provide Services in respect of such item; or

(ii) the item of Equipment is added to the Supported Equipment List.

1.3 UKCold shall not be obliged to fix or correct, or be liable for, any of the following matters. Such matters shall not be counted or considered in relation to any performance of any Service Level or other term or condition of this Agreement and any services or equipment utilised in connection with such matters shall be charged to the Customer in accordance with UKCold’ applicable standard hourly rates and charges for Spares and Consumables:

1.3.1 (save as expressly provided in Schedule 4 (Sale of Goods Terms)) any defect in design, manufacture or installation or performance of equipment (including Equipment) and/or services to be used under or in connection with this Agreement (except in relation to defects in installation, where UKCold defectively carried out such installation);

1.3.2 late or non-delivery of parts or equipment or software by a third party not under the instruction of UKCold;

1.3.3 any change in the Customer’s requirements other than agreed by way of a Change;

1.3.4 a Customer restricting or preventing access to Sites and/or any Equipment;

1.3.5 the Customer’s breach of this Agreement;

1.3.6 requirements arising after the termination of this Agreement;

1.3.7 any necessary landlord or local authority consent or permission not being in place;

1.3.8 an act or omission by the Customer, a user or other third party (not being a sub-contractor of UKCold) which prevents the achievement of a Service Level or other obligation by UKCold (or any of InterCold’s subcontractors);

1.3.9 the Customer or any third party incorrectly diagnosing the cause of any Incident or instructing UKCold to provide the incorrect Spare or replacement equipment;

1.3.10 UKCold not being provided with the necessary configuration of the Equipment by the Customer;

1.3.11 making the Sites good (for example, plastering and/or redecorating) following the performance of any Services; and/or

1.3.12 power or cooling failure at any of the Sites.

1.4 If, and to the extent that a failure or delay by UKCold (or any of its sub-contractors) in performing any of its obligations under this Agreement is attributable to any of the matters in Clause 1.3 above:

1.4.1 the time for performance of UKCold’s obligations shall be extended by a reasonable period;

1.4.2 the Customer shall reimburse UKCold for all costs, expenses and losses incurred as a result of such matter; and

1.4.3 if there is any other material impact on the Services (including the timing of delivery or level of performance of any of the Equipment or Services) as a result of such matter, then the parties shall deal with such impact in accordance with the Change Control procedure in Clause 9.

SCHEDULE 3 – SUPPORTED EQUIPMENT LIST

  1. 1. Introduction

If the Customer wishes to amend the Supported Equipment List, it shall submit a request to UKCold, indicating the changes to the Supported Equipment List it wishes to make. Without prejudice to the Term or the Minimum Term, in respect of each item of Equipment listed in the Supported Equipment List, the Customer shall be obliged to procure a minimum of 12 months of Maintenance Services from UKCold. Such 12 month minimum term will commence from the date on which the Customer signs the relevant Order Form or Change Control Note provided by UKCold and upon confirmation by UKCold that the item of Equipment had been accepted onto the Supported Equipment List. If the Customer wishes to remove such an item of Equipment from the Supported Equipment List (for any reason) during such 12 month minimum term such that the Customer will no longer be entitled to receive Maintenance Services in respect of that item, the Customer shall continue to be liable to pay the Charges for that item of Equipment for the remaining period of the Minimum Term.

  1. Supported Equipment

I.

II.

SCHEDULE 4: CHANGE CONTROL PROCEDURES

  1. PRINCIPLE

1.1 Where either party sees a need for a variation to the Agreement or an Order Form, a Change Control Note will be completed by the requester and issued to the other party.

1.2 The obligations of the parties shall not be affected until a change control note in the form attached to this Schedule (a Change Control Note) has been signed by a duly authorised officer of each party.

2 PROCEDURE

2.1 The parties shall promptly meet to discuss changes proposed by either party to the Agreement such discussion shall result in:

2.1.1 agreement not to proceed further; or

2.1.2 a written request for a change by either party.

2.2 Where a written request for a change is agreed, the party which has requested the change shall submit two signed copies of a Change Control Note to the other party within five working days of such a request.

2.3 Each Change Control Note shall contain details of the change including, where applicable:

2.3.1 the title of the change;

2.3.2 the originator and the date of the request or recommendation for the change;

2.3.3 the reason for the change;

2.3.4 full details of the change including any specifications;

2.3.5 the price, if any, of the change;

2.3.6 a timetable for implementation with any proposals for a