General Conditions of Service and Maintenance
1 Definition and Interpretation
1.1 In these Conditions, the following words and expressions shall have the following meanings except where the context otherwise requires:
“Additional Charge” means a charge payable by the Customer for additional services outside the scope of the Services in accordance with Nology’s prevailing rates for such services including without limitation, the supply of spare parts and goods.
“Agreement” means the Service & Maintenance Agreement (including its Schedules) for the Services entered into by Nology and the Customer, and includes these Conditions.
“Conditions” means these General Conditions of Service & Maintenance which are incorporated into and form part of the Agreement.
“Customer” means the person or persons, firm or company named on the cover page of the Agreement.
“Equipment” means the equipment listed in Schedule 1.
“Network” means the IP network(s) listed in Schedule 1.
“Fee” means the fee payable for the Services as specified in Section II of the Agreement.
“Party” means the Customer or Nology, and “Parties” means both of them.
“Services” means the maintenance and other services provided in respect of the Equipment detailed in Schedule 2 and as defined in these Conditions.
“Service Time” means the period set out in Clause 2 herein.
“Site” means the premises where the Services are provided.
“Nology” means the Nology company named on the cover page of the Agreement including its successors, agents and assigns.
“Term” means the duration of the Agreement as set out in Section III of the Agreement.
1.2 Any reference in these Conditions to any provision of a statute and any regulations made in pursuance thereof as from time to time modified or reenacted, whether before, on or after the date of the Agreement, so far as such modification or re-enactment applies or is capable of applying to any transaction entered into prior to completion of the Agreement (so far as liability thereunder may exist or can arise) shall be construed as a reference to that provision or regulation as amended, re-enacted or extended at the relevant time and shall include also any past statutory provision or regulation (as from time to time modified or re-enacted) which such provision or regulation has directly or indirectly replaced.
1.3 The headings in these Conditions are for convenience only and shall be ignored in construing these Conditions and shall not affect their interpretation.
1.4 Words (including words defined in the Agreement) importing the singular also include the plural and vice-versa where the context requires. The words “written” and “in writing” include any means of visible reproduction.
1.5 Nology shall provide the Services to Customer in accordance with this Agreement. In the event of any inconsistency between these Conditions and other documents forming part of the Agreement, the following order or priority shall apply:
1.5.1 Any written agreement between the Parties where the Parties agree that any of the provisions in these Conditions should be superseded with an express reference to this Clause 1.5;
1.5.2 Nology’s quotation and documents (if any) incorporated by express reference to this Clause 1.5;
1.5.3 This Agreement; and
1.5.4 These Conditions.
2 Service Time
The Services shall be performed during business hours and after hours, depending on the item being serviced. Public Holidays excluded unless otherwise agreed in Schedule 2. Response times for corrective maintenance services shall be as set out in Schedule 2 or as otherwise agreed between the Parties.
3 Modification, Changes and Enhancements
3.1. During the Term, Nology shall at their discretion undertake such modifications, changes or enhancements to the Equipment and/or Network, and/or implement any practice, procedure or measure, which is deemed by Nology to be necessary and/or to prevent or minimize damage to the Equipment or the Network.
3.2. Nology will before undertaking any such modification, change or enhancement etc as mentioned in 3.1 above, explain to the Customer, if Nology deems necessary, the need and cost (where applicable) of such modification, change or enhancement. The Customer shall pay any Additional Charge for such modification, change or enhancement according to Clause 7.2.
4 Exclusions & Additional Services
4.1 The Services do not include:-
a) Support in the form of labour hours past the amount of included to complete Services.
b) Custom programming or software development
c) Equipment or Networks not included in Schedule 2
d) Repair of damage caused by the operation of the Equipment other than in accordance with the specifications or otherwise than in accordance with the direction, instruction or recommendations of Nology or its personnel.
e) Repair of damage arising from the re-installation, moving or removing of the Equipment by a person other than Nology.
f) Repair of damage caused by any circumstances beyond Nology’s reasonable control.
g) Furnishing or supplying maintenance of accessories, attachments, supplies, spare parts, consumables or items associated with the Equipment unless otherwise provided in Schedule 2.
h) Transportation charges, whether for air, sea or land transport for Services
i) The cost of any Equipment or part whether spare part, consumable or otherwise supplied, unless otherwise provided in Schedule 2.
k) The upgrading of or retrofitting of improvements or major modification to the Equipment.
4.2 Nology may at the Customer’s option provide any of the services referred to in clause 4.1 or any other services requested by the Customer, at the relevant Additional Charge. Nology shall inform the Customer of the associated Additional Charge, and the Customer shall accept the Additional Charge in writing before the services are performed. The Additional Charge shall be payable by the Customer according to clause 7.2.
5 Customer’s Responsibilities
5.1 The Customer shall undertake to release all Equipment which is being maintained by Nology from all operational demands when so requested to do so by Nology in order for Nology to perform the Services. Alternatively, the Customer shall ensure that Nology’s personnel have full and safe access to the Equipment at all reasonable times for the purpose of providing the Services. The Customer shall also ensure that such access conforms to any specifications issued by Nology from time to time.
5.2 The Customer will ensure that Nology’s personnel or representatives are provided a safe and secure work environment at all times while they are on the Site to enable work to be carried out.
5.3 The Customer shall provide on request a suitably qualified or informed representative, agent or employee to accompany Nology’s personnel when providing the Services or to render such assistance or to give such advice as will enable Nology’s personnel to exercise unrestricted access to the Site and the Equipment and otherwise to perform the Services effectively.
5.4 The Customer shall supply auxiliary facilities and services when requested by Nology as necessary for the provision of the Services. Where the Customer does not provide the auxiliary facilities and services, Nology shall be entitled to procure such auxiliary facilities and services and seek full reimbursement from the Customer provided Nology has given the Customer written notice of the non-compliance and the Customer has failed to remedy the non-compliance within the time specified in the notice. The auxiliary facilities and services shall include without limitation: –
a. Adequate telephone/communications facilities;
b. Lighting for all work areas;
c. Main and auxiliary electrical power necessary for the operation of all equipment, capable of being isolated either by isolating switches, removal of fuses or other means to the reasonable satisfaction of Nology;
d. Suitable dry lockable storage space for the storage of machinery, equipment, materials and tools;
e. Suitable rooms on or adjacent to the Site with adequate air-conditioning, lighting, washing, toilet and drinking water facilities for the use of Nology’s personnel or representatives; and/or
5.5 The Customer shall upon Nology’s request furnish to Nology sufficient information which, in Nology’s reasonable opinion, will enable the services to be carried out forthwith and without interruption. The Customer shall be responsible for and bear the cost of any modification to the scope of the Services arising from any discrepancy, error or omission in any drawings, specification or other information supplied or approved by the Customer.
5.6 All such assistance to be provided by the Customer under this Clause 5 or in general shall be at the Customer’s sole cost and expense.
5.7 Nothing in this Agreement shall relieve the Customer from its obligations to perform normal day to day maintenance on the Equipment as per the Operator’s Manuals supplied by the manufacturer and/or Nology including but not restricted to normal cleaning procedures, checks and adjustments designed for operational use.
5.8 During the continuance of this Agreement, the Customer shall not carry out or attempt to carry out modifications to, repair of, experiments on, or maintenance of the Equipment other than day to day maintenance and the Customer shall not permit any other person except Nology’s personnel or representatives to carry out such work unless prior written approval has first been obtained from Nology.
6 Replacement, Spare Parts, and New Purchases
6.1 In the case of Services for which an Additional Charge is payable by the customer for replacement of spare parts, title in such replacement or spare parts shall pass to the Customer only upon full payment of the Additional Charge. Unless otherwise agreed in writing between the Parties, risk of damage to or loss of replacement spare parts shall pass to the Customer as soon as they are delivered to the Customer’s designated premises.
6.2 Where parts of the Equipment have been replaced by or upon the instruction, recommendation or direction of Nology or otherwise, title in the replaced parts will pass to Nology upon removal from the Equipment.
6.3 Nology may from time to time require the Customer to purchase and store at the Site such spare parts as Nology considers necessary for the provision of effective Services.
6.4 Nology will not be liable for any failure or delay in providing the Services where such failure or delay is the direct or indirect result of the failure of the Customer to comply with clause 6.3.
6.5 Save as aforesaid, the property of and risk in the Equipment is not affected by the provisions contained in this Agreement.
7 Payment, Charges and Fees, etc.
7.1 The Customer shall pay all Fees at the rate and in the manner specified in this Agreement.
7.2 The Customer shall pay the Fee, all Additional Charges and any cost wherever and howsoever incurred within the terms of Nology’s invoice.
7.3 If the Customer fails to make full payment on the due date, then without prejudice to any other right or remedy available to Nology, Nology shall be entitled to:
a. terminate the Agreement or suspend any further Services or other obligations to the Customer under the Agreement (without being liable to Customer for any losses so caused);
b. at its sole discretion, apply any monies received from the Customer in relation to the Agreement or any other contract or agreement between the Customer and Nology, including but not limited to deposits or security payments, towards the payment of the relevant invoice; and/or
c. charge the Customer interest on the amount unpaid on a daily basis at the rate of one per cent (1.5%) per annum above the average Prime Lending Rate of TD Canada Trust, from the due date until payment in full is received by Nology.
7.4 The Customer shall not be entitled to withhold from, set off against or otherwise reduce any payments due to Nology unless agreed in writing by Nology.
7.5 Nology shall be entitled to adjustment of the Fees and Additional Charges (to be mutually agreed in writing) in the event of changes in law or engineering standards applicable to or affecting the Equipment and/or Services after the execution of the Agreement.
8 Maintenance Equipment
Customer will purchase necessary tools, equipment, testing and diagnostic apparatus or software which Nology requires in order to carry out the Service unless otherwise agreed.
9 Customer Records & Service Reports
9.1 The Customer shall keep such records relating to the use and performance of the Equipment as may be directed by Nology from time to time.
9.2 The Customer shall permit Nology to have access to such records at all reasonable times, including all periods during which the Services are being performed or preparations are being made for the Services to be performed.
10 Intellectual Property Rights & Confidentiality
10.1 All intellectual property rights in all materials (whether in hard copy or electronic form) which Nology creates or supplies to the Customer in the course of performing the Services under this Agreement will, as between the Parties, be owned by Nology.
10.2 The Customer acknowledges the confidential nature of any Service or procedure that Nology uses and items associated with the Equipment including, but not limited to, documentation, forms, trade marks, instructions, operating manuals and other information.
10.3 The Customer shall not, without Nology’s prior consent in writing, copy or cause to be copied or disclosed any details of such technology, design, procedure or items to a third party.
10.4 The Customer may only make use of such details to the extent necessary to enable the Equipment to be used in a manner reasonably contemplated by Nology.
10.5 The Customer may only disclose such details to those of its employees by whom it is required to enable the Equipment to be used in a manner reasonably contemplated by Nology.
10.6 The Customer acknowledges that any discoveries, inventions, patents, designs or other rights arising directly or indirectly out of or in the performance of this Agreement are the property of Nology.
10.7 The Customer’s obligations under this clause 10 shall survive the termination of this Agreement.
10.8 The Customer is responsible for the security of its proprietary and other classified information. The Customer undertakes to indemnify Nology against all claims brought by any party for loss or damage to such information howsoever caused.
10.9 Other than as specifically provided for in this Agreement, nothing in this Agreement assigns, transfers or grants a license to a Party over or in relation to pre-existing intellectual property rights owned by the other Party, Nology’s supplier or a third party.
10.10 Each Party agrees not to, and shall ensure that its employees, agents and advisors do not, disclose to third parties, any confidential or proprietary information arising or disclosed pursuant to this Agreement (including information not generally known to the public, such as without limitation technical, development, marketing, sales, operating, performance, cost, know-how, business and process information or computer programming techniques), except: (i) with the prior written permission of the Party to whom such information belongs; (ii) as required by applicable law or regulation or pursuant to a court order or direction of any government authority or regulatory body or stock exchange; or (iii) where the information is already known to, or obtained by independent means, or independently developed, by the recipient, or is already in the public domain through no fault of the recipient.
11 Liability of Parties
11.1 The Customer shall keep Nology, its personnel and agents fully and effectively indemnified against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or breach of this Agreement by the Customer, its employees, agents or servants, and shall pay to Nology all reasonable costs, charges and losses sustained or incurred by Nology as a result of Nology being prevented or delayed from performing its obligations under this Agreement by reason of any act or omission of the Customer, its employees, agents or servants.
11.2 Except as expressly provided in this Agreement, all terms, conditions, warranties, undertakings or representations whether express, implied, statutory or otherwise relating in any way to the Services or to this Agreement are excluded. Without limiting the generality of the foregoing, Nology shall not be under any liability to the Customer for any loss of profit (actual or anticipated), loss of use, loss of production (including loss of hydrocarbons), loss of contracts, loss of opportunities, loss of revenue, cost of capital, costs of replacement, loss of goodwill, loss of reputation, loss of information or data, loss from any third party contracts, loss due to business interruption, loss of interest, loss of power, cost of purchased or replacement power, contractual claims from third parties or any indirect, incidental, special or consequential losses or damages arising from or in connection with its performance or non-performance under this Agreement and whether based upon contract, tort, or any other legal theory. This Clause 11.2 shall apply to the benefit of Nology’s personnel, Nology’s affiliates and Nology’s subcontractors.
11.3 Notwithstanding any other provision of this Agreement Nology’s total cumulative liability for any act or omission, whether in contract, tort (including negligence or strict liability) or any other legal or equitable theory during the Term of this Agreement shall not exceed in the aggregate, 10% of the Fee payable under this Agreement during the preceding one (1) year, to a maximum of $500. This Clause 11.3 shall apply to the benefit of Nology’s personnel, Nology’s affiliates and Nology’s sub-contractors.
12 Warranties
12.1 Nology warrants that:
a. it will provide the Services in a proper, workmanlike and professional manner at all times;
b. it will exercise the reasonable standards of skill, care and diligence in the performance of the Services;
c. it will retain a sufficient number of personnel with the expertise required to provide the Services; and
d. its personnel possess the required skills and experience required to provide the Services.
12.2 The above warranties shall not replace or supersede the warranty applicable to the Equipment as specified in any sale and purchase agreement.
13 Force Majeure
13.1 Nology shall not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of Nology’s obligations in relation to the Services, if the delay or failure was due to force majeure. For the purposes of this clause, force majeure shall mean any unforeseen event beyond the reasonable control of Nology such as, but not limited to any act of God, act of government or any authorities, hostilities between nations, war, riot, civil commotions, civil war, insurrection, blockades, import or export regulations or embargoes, rainstorms, national emergency, earthquake, fires, explosion, flooding, hurricane or other exceptional weather conditions or natural disaster, acts of terrorism, accidents, sabotages, strikes, shortages in material or supply, infectious diseases, epidemics, as well as travel restrictions or travel warnings due to any such events. If any delay in performing, or any failure to perform the Agreement is caused by the delay of a subcontractor of Nology, and is beyond the control and without the fault or gross negligence of Nology, Nology shall incur no liability for such delay.
13.2 If such delay or failure continues for at least one (1) month, the other party may terminate this Agreement immediately with written notice. In such event, the Customer shall pay Nology a reasonable sum in relation to Services already rendered and costs and expenses incurred prior to termination.
14 Termination and/or Suspension of Services
14.1 In addition to Nology’s right to terminate the Agreement under Clause 7.3, Nology shall be entitled to:
(i) terminate the Agreement or suspend any further Services under the Agreement without any liability to the Customer, and
(ii) demand that the Fee, Additional Charges or balance thereof shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, and (iii) retain any security given or monies paid by the Customer and apply the said security or monies against the assessed loss and damages, if any, suffered by Nology, in the event that:
a. the Customer is in breach of the Agreement; or
b. the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or has an order made or resolution passed for such winding-up or shall otherwise become insolvent or make such proposal, assignment or arrangement for the benefit of its creditors or have a receiver or manager appointed over its affairs or have an application made to court for the appointment of a judicial manager or be placed under a judicial management order; or
c. an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Customer; or
d. the Customer ceases, or threatens to cease, to carry on business; or
e. there is a change in control of the Customer which in the reasonable opinion of Nology adversely affects the position, rights or interests of the Customer. (For the purpose of this sub-clause, “control” means the ability to direct the affairs of another whether by virtue of Agreement, ownership of shares, or otherwise howsoever); or
f. in the reasonable opinion of Nology, there occurs a material change in the financial position of the Customer which is likely to affect the Customer’s ability to perform its obligations under the Agreement; or
g. Nology reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
14.2 Termination of the Agreement by Nology shall not discharge the Customer from any existing obligation accrued due on or prior to the date of termination.
14.3 The rights and remedies granted to Nology pursuant to the Agreement are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity.
15 General
15.1 The Customer shall not assign any of its rights or obligations under the Agreement without the prior written consent of Nology, such consent to be signed by its authorized representatives. Any attempted delegation or assignment shall be void. Nology may sub-contract the performance of this Agreement or any part of this Agreement without obtaining the prior consent of the Customer.
15.2 The fulfillment of the Agreement on Nology’s part is subject to the proviso that this shall not be prevented by impediments on the grounds of national and international legal requirements.
15.3 Any notice required or permitted to be given by either Party to the other under the Agreement shall be in writing and signed by the authorized representatives of the Party addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified to the Party giving the notice. Notices may be delivered by hand, or by prepaid registered post or by facsimile and shall be deemed to have been served:
(i) if by hand, at time of delivery;
(ii) if by prepaid registered post, 3 working days after posting;
(iii) if by facsimile, on the date printed on the facsimile transmission report produced by the sender’s machine.
15.4 No waiver by either Party of any breach of the Agreement by the other Party shall be considered as a waiver of any subsequent breach of the same or any other provision. If either Party delays, neglects or chooses not to enforce its right under the Agreement, it shall not affect its right to do so at a later date.
15.5 If any provision of the Agreement or these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part such provision shall be construed, limited or if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability and the validity of the other provisions of the Agreement and these Conditions and the remainder of the provision in question shall not be affected but shall remain in full force and effect.
15.6 No terms shall survive the expiry or termination of the Agreement unless expressly provided.
15.7 This Agreement is the entire agreement between the Parties and may not be changed unless agreed in writing by properly authorized representatives of both Parties.
15.8 The relationship between Nology and the Customer is one of independent contractor and nothing in this Agreement shall be construed as creating any relationship of partnership, employment, joint venture or agency between Nology and the Customer.
15.9 Save for the Nology group of companies, the Parties do not intend that any term of the Agreement should be enforceable, by virtue of the Contracts or otherwise, by any person who is not a party to the Agreement.
16. Applicable Law and Dispute Resolution
16.1 The Agreement (including these Conditions) shall be governed by and construed in accordance with the laws of Canada.
16.2 The Parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations between representatives of the Parties, the dispute shall be referred to the management of each Party who will meet in good faith in order to try and resolve the dispute.
16.3 All negotiations connected with the dispute will be conducted in complete confidence and the Parties undertake not to divulge details of such negotiations except to their professional advisers who will also be subject to such confidentiality and such negotiations shall be without prejudice to the rights of the Parties in any future proceedings.
16.4 In the event any such dispute is unresolved after thirty (30) days of the commencement of such negotiations referred to in Clause 16.2, such disputes arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be finally settled under the rules of Canadian arbitration.
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