(A) The Supplier carries on the business of manufacturing and supplying the Equipment and the Materials.
(B) Siemens (as defined below), following entry by it into the Hire Agreement (as also defined below), shall be the owner of the Equipment and shall be hiring the Equipment to the Customer on the terms of the Hire Agreement.
(C) Following entry into the Hire Agreement, the Customer wishes to receive Materials from the Supplier and have the Supplier maintain the Equipment on the terms and conditions set out in this Agreement.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Acceptance Certificate: the acceptance certificate issued by Siemens for the Customer to complete and sign to confirm acceptance of the Equipment by the Customer, the form of which appears at Schedule 3.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Delivery: completion of delivery of either the Equipment or Materials, as set out in clauses 3.1
Delivery Date: the date agreed for delivery of an Order.
Hire Agreement: the hire agreement (including its terms and conditions) between Siemens and the Customer for the hire of the Equipment and which is to be dated on or shortly after the date of this Agreement, the form of which the Customer has seen.
Materials: stretch wrap film utilised by the Equipment in the wrapping of the Customer’s products.
Month: a calendar month.
Order: an order for Materials submitted by the Customer in accordance with clause 3.
Siemens: Siemens Financial Services Limited (with company number 646166) having its registered office at Sefton Park, Bells Hill, Stoke Poges, Buckinghamshire SL2 4JS.
Term: the term of the Agreement, as determined in accordance with clause 8.
Year: a calendar year.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 The schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted whether before or after the date of this Agreement and, in the case of a statute, includes any subordinate legislation made under that statute from time to time.
1.7 A reference to writing or written includes faxes but not e-mail.
1.8 Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule.
1.10 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Equipment Supply and Acceptance:
2.1 On the date of this agreement, the Customer shall be required to complete and sign the Acceptance Certificate. The Supplier’s representative shall submit the signed Acceptance Certificate to Siemens.
2.2 In the event that the Customer does not sign the Acceptance Certificate, the Supplier shall be entitled to terminate this Agreement without notice (and verbal confirmation shall be permitted, with written confirmation to be provided after any such verbal termination) and remove the Equipment from the Customer’s premises. The Customer shall permit access to the Supplier or its representatives for such activity. The Customer shall provide all co-operation that the Supplier or its representatives might require under such circumstances.
3. Orders for Materials
3.1 Following the commencement of the Hire Agreement as between Siemens and the Customer, the Customer shall order Materials from the Supplier in connection with the operation of the Equipment and, in consideration of the regular payment of the maintenance service charge as set out in the Hire Agreement, the Supplier shall supply the Materials required by the Customer in the volumes as have been agreed between the Supplier and the Customer.
4. Title and Risk
4.1 For the avoidance of doubt, title to the Equipment shall not pass from the Supplier to the Customer under this Agreement and, for the avoidance of doubt, title in the Equipment shall not pass from Siemens to the Customer under the Hire Agreement.
4.2 At no time during the Term will the Customer remove, deface or obscure any identifying mark, label or plate on or relating to the Equipment.
4.3 In the event that Siemens exercises any rights available to it as a result of any event of default on the Customer’s part (such events of default being as set out in the Hire Agreement), and without limiting any right or remedy the Supplier may have, the Customer shall adhere to its obligations as set out in the Hire Agreement in respect of returning the Equipment and any unused Materials to Siemens, including allowing Siemens (or its agents) access to the Customer’s premises for such purposes.
5. Price and Terms of Payment
5.1 The Customer acknowledges that the monthly rental charges it shall pay to Siemens for the hire of the Equipment include the cost of provision of Materials and the maintenance and servicing of the Equipment by the Supplier, that element being set out in the Hire Agreement under the heading “Maintenance Services” (and being subject to alteration from time to time during the Term as more particularly described in clause 5.3 and Schedule 1).
5.2 The Customer acknowledges that if it fails to make payment of the rental payments to Siemens, this shall result in the Supplier not being paid for the provision of Materials and the maintenance and servicing costs and, consequently, in such event, the Supplier reserves the right to cease supplying Materials or services to the Customer under this Agreement and without having any liability to the Customer in such event.
5.3 The Supplier reserves the right to review the costs payable by the Customer in respect of Materials and of maintenance and servicing and to require Siemens to increase or decrease the maintenance service charge element of the rentals payable under the Hire Agreement. The basis upon which a review of the costs payable is to be carried out is set out in Schedule 1. Any increase or decrease shall be notified to Siemens by the Supplier before implementation by Siemens.
6.1 During this Agreement and for a period of six years thereafter, the Supplier shall maintain in force the following insurance policies with reputable insurance companies and upon request of the Customer shall produce copies of the insurance certificates and evidence that the premiums have been paid:
6.1.1 public liability insurance with a limit of at least £5 million per claim; and
6.1.2 product liability insurance with a limit of at least £5 million for claims arising from a single event or series of related events in any one period of insurance.
7. Confidentiality and Intellectual Property
7.1 The Customer acknowledges that no intellectual property rights of any nature in respect of either the Equipment or the Materials are transferred to it by operation of this Agreement and no licence is granted to the Customer directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by the Supplier now or in the future.
8. Commencement and Term
8.1 Subject to clause 9.2, this Agreement shall continue, unless terminated earlier in accordance with clause 2.2, 5.2, 9.3 or 10, until the expiry of five (5) years from the date upon which the Hire Agreement was entered into when it shall terminate automatically without notice.
8.2 If the Customer continues the Hire Agreement beyond its term and makes payment to Siemens of secondary rental payments as provided for in the Hire Agreement, this Agreement shall not terminate automatically but, unless this Agreement is terminated earlier in accordance with clause 8.1 or 14, shall continue under such circumstances until such time as the Customer gives notice to end the Hire Agreement in accordance with its terms and conditions. Materials and maintenance costs will continue to be paid to Siemens along with the secondary rentals.
9.1 The Supplier shall be entitled to terminate this Agreement with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer asserts any rights of ownership in relation to the Equipment or acts or purports to act in breach of clause 4.2.
9.2 Without prejudice to clause 10.1, this Agreement shall automatically terminate in the event that the Hire Agreement is terminated and without any liability on the Supplier’s part to perform any further obligations as are otherwise set out in this Agreement.
9.3 The Supplier reserves the right to suspend performance of the supply of Materials or its obligations under the Agreement generally in the event of any of the circumstances set out in clauses 10.1 arising.
9.4 Termination of this Agreement shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.
10. Obligations on Termination
10.1 On termination of this Agreement the Customer shall promptly:
10.1.1 co-operate with all instructions that it may receive from Siemens with regard to the Equipment and any unused Materials; and
10.1.2 return to Siemens (or, if Siemens directs, the Supplier) all documents and materials (and any copies) regarding the Equipment and Materials and any documents and materials containing the Supplier’s Confidential Information save that the Customer may retain one copy of the documents, materials and Confidential Information as may be relevant under the prevailing circumstances at the time of termination and only to the extent required by law.
10.2 On termination of this Agreement the following clauses shall survive and continue in full force and effect: Clause 6 (Insurance), Clause 7 (Limitation of liability), Clause 8 (Confidentiality and Intellectual Property) and Clause 11 (Obligations on termination).
11. Variation and Waiver
11.1 Any variation of this Agreement must be in writing and signed by or on behalf of the parties.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement but all the counterparts shall together constitute the same agreement.
This Agreement has been entered into on the date stated at the beginning of it.
Schedule 2: Performance Agreement
1. The Supplier is fully responsible for the suitability, adequacy, and safety of design and fabrication of the Equipment designed or furnished by the Supplier, including by any subcontractor of the Supplier. The Supplier agrees to hold harmless the Customer, its officers, directors and employees from all claims for injury, including death, and material damage arising strictly out of the design and fabrication of the Equipment and installation of the Equipment.
2. The Supplier will instruct the Customer’s employees on the use of all safety features of the Equipment as part of the training provided to the Customer prior to commercial operation of the Equipment.
3. The Supplier will provide annual servicing (see paragraph 5 below).
4. The Supplier will provide up front training and support for the Equipment, to sufficiently enable the Customer to maintain the Equipment in good repair, to include preventative maintenance (“PM”) and cleaning. Following the conclusion of the commissioning process, further training sessions can be arranged but at a cost to be agreed between the Supplier and the Customer.
5. The Supplier will provide a free annual service visit for each unit of Equipment held by the Customer and any work carried out will be at no cost provided the regular service checks, cleaning and PM programme (as covered during training) are followed by the Customer’s plant engineers in all material respects. Failure to comply will result in work being carried out as per the charges outlined in paragraph 9 below. The annual service visit will be carried out on a date agreed between the parties.
6. Responsibility for Equipment maintenance follows the categorisation of parts, outlined in paragraph 8 below and is defined as follows:
(a) In house repairs (“In house repairs”)
– Consumables, critical consignment items or regular service and maintenance spares, fit or repair
(b) Supplier attendance (no charge)
– Annual planned maintenance
– Catastrophic failure
– Turret components
– The PLC or programme
– 3 occurrences of the same problem
– Machine modification or integration
Job reports will be provided by the Supplier’s engineer for each call out. If the Supplier’s engineers are called out for In house repairs, the Supplier reserves the right to charge for time and travel in line with the standard Supplier price list.
7. The Supplier will provide the following service level agreement for escalation of maintenance issues:
Level 1 – the first level of response will be the Customer’s site engineering team effecting In house repairs using the training previously provided by the Supplier
Level 2 – If the Customer’s site engineers are unable to fix the problem unaided, the Supplier’s 24hr help line can be called and the problem fixed through the Supplier’s service engineers talking the Customer’s engineers through the necessary steps. A response will be provided within 2 hours between the hours of 6am and 10pm to cover the existing operation times.
Level 3 – If the problem cannot be resolved through Level 2 above, then a Supplier engineer will attend site. The timing for the site visit will be mutually agreed between the site engineer and the Supplier engineer, but the Supplier will work with the Customer to ensure the Supplier engineer attends the Customer site at a mutually agreed time, with the intention of such appointment being within a time of 2 hours for calls received between the hours of 6am and 10pm.
8. The Supplier will supply spare parts, categorised as follows:
– Changed on breakdown or replacement basis (e.g. hot wires)
Consignment (critical items)
– Long lead time items
– Supplier supplied items (shafts etc)
– Important catalogue spares (e.g. motors / gearboxes)
Regular service and maintenance items
– Catalogue items, next day delivery, stock items
Consumable items will be ordered by the Customer and charged in line with the Supplier’s standard price list referred to in paragraph 9 below.