The following defined words and phrases shall have the following meanings:
“Contract” The KONE Care® Maintenance Contract entered into between KONE and the Customer regarding the carrying out of the Services, including these General Terms and Conditions and all other the Appendices mentioned therein.
“Contract Price” The consideration payable annually to KONE by the Customer for the performance of the Services exclusive of value added tax as set out in the Contract.
“Contract Start Date” The date stated in the Contract as the Contract Start Date.
“Contract Term” The term of the Contract as set out in the Contract.
“Equipment” The elevators, escalators and/or automatic and industrial doors listed in the Contract, and related components and parts, as the context may require.
“KONE” KONE plc.
“Normal Working Hours” The time between 08:00 to 17:00 from Monday to Friday, excluding Bank Holidays and other statutory holidays.
“Party” or “Parties” The Customer and/or KONE, as the context may require.
“Renewal Date” The date stated in the Contract as the Renewal Date.1
“Services” The services agreed to be performed by KONE relating to the Equipment pursuant to the Contract.
“Statutory Requirements” All applicable statutory, regulatory and legislative requirements concerning the maintenance of elevators, escalators and/or automatic and industrial doors including without limitation all Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1992 and all other environmental, health and safety requirements, as the context may require.
In case of any ambiguity or contradiction between the documents forming the Contract, they shall be read in the following order of priority: the KONE Care Maintenance Contract and then these General Terms and Conditions for Maintenance Services followed by all other the Appendices.
2. Provision of services by KONE
KONE shall perform the Services in accordance with the Contract in all material respects. In performing the said services, KONE shall take reasonable steps to maintain the Equipment in a proper operating condition, including, as required, the examination, adjustment and lubrication of the Equipment. If in the reasonable opinion of KONE, any part or component that is to be repaired or replaced has become obsolete, then KONE shall use its reasonable endeavours to repair or replace with equivalent available parts or components. However, KONE will not be held responsible for modifying the Equipment to enable compatibility with the equivalent part or component nor for the manufacture of the equivalent part or component. The Customer shall be responsible for any costs KONE incurs should KONE carry out any such modification or manufacture at the request of the Customer. KONE shall use trained and appropriately supervised personnel to perform the Services and shall provide the Services in accordance with the Statutory Requirements. KONE reserves the right to change or integrate new procedures in the Equipment’s maintenance schedule in line with future advances in technology and product development.
KONE shall conduct the Services during Normal Working Hours. Unless otherwise agreed in the Contract, any work conducted outside the Normal Working Hours is not included in the Contract Price and shall be invoiced separately by KONE. If stated in the Contract that the Customer has elected to only contact the KONE Customer Care Centre during Normal Working Hours, any instances of the Customer contacting the KONE Customer Care Centre outside of the Normal Working Hours shall be chargeable and invoiced separately by KONE.
All call-outs, repairs, or maintenance prompted by the 24/7 Connected Services shall be performed during the service hours agreed in the Contract. All response times generated by the 24/7 Connected Services shall be calculated starting from 8:00 a.m. local time the next business day. Repair and maintenance needs identified through the 24/7 Connected Services are acted upon based on the repair coverage agreed in the Contract. KONE cannot be held responsible for circumstances beyond its control, for example including but not limited to: traffic, weather, unplanned or unforeseen call-out demands. However, KONE shall always use reasonable endeavours to meet the response times described in the Contract, if any. If stated in the Contract that KONE is required to report and comply to any availability guarantee, any and all availability measuring will apply to KONE manufactured equipment only. The calculation of the availability of the Equipment is to be undertaken by KONE and reported to the Customer by KONE accordingly. The measuring of the availability of the Equipment is calculated from the period of time from when the notification of the Equipment being out of operation is received by KONE from the Customer to the period in which KONE returns the Equipment to Service. Any instances of the Equipment being unavailable due to the exclusions from the scope of services, including but not limited to those as stated in Clause 3 of these General Terms and Conditions, are expressly excluded from any availability calculations. In the event that KONE is unable to provide availability of the Equipment in accordance with the terms of the Contract, the Customer will receive a reduction to the Contract Price to the rate as stated within the Contract. The maximum reduction to be received by the Customer is equal to 3% of the Contract Price in the aggregate.
If the Customer requests additional services outside the scope of the Contract, KONE may (but has no obligation to) provide such services. If KONE agrees to provide such services, KONE will charge for these separately.
Whenever pressure testing or testing under full load or speed is required or called for, KONE shall exercise due care when carrying out such tests, but, provided that it has exercised such due care, will not accept any liability in respect of damage to the Equipment or building structure/fabric due to said tests.
If stated within the Contract, the Customer will be entitled to contact KONE via the KONE VIP Direct Line. Any misuse of the KONE VIP Contact Line by the Customer or use of the KONE VIP Direct Line by any third party who is not entitled to this service shall be chargeable and invoiced separately by KONE. KONE shall use all commercially reasonable endeavours in answering of all calls made by the Customer to KONE.
3. Exclusions from the scope of services
The following work and/or materials (as may be applicable to the Equipment) are explicitly excluded from KONE’s responsibility and shall be separately chargeable by KONE unless otherwise agreed in the Contract:
(i) repair and renewal of lighting elements, although elevator car and shaft lighting components will be attended to during scheduled maintenance visits where practical. Any call to attend lighting outside of maintenance activity will be chargeable;
(ii) refilling and replacement of gearbox oil;
(iii) the disposal of any and all materials, including waste oil;
(iv) replacement of machine and motor, control panel or major gearbox components including drive sheaves, for any reason;
(v) all third party manufactured drive units;
(vi) cleaning with the exception of any cleaning of the immediate areas in which the Equipment operates from dirt that is directly caused by the operation of the Equipment and/or by the provision of the Services by KONE;
(vii) testing charges by an inspection body or experts;
(viii) specialist access equipment;
(ix) where the Equipment, parts or components are not supplied and/or installed by KONE, any inspection of the Equipment as well as any installation, repair and/or replacement of parts, components or additional materials due to defects and/or serial defects in the manufacturer’s quality, materials or workmanship;
(x) any repair, renewal, replacement of parts or components and/or other work due to effects of fire, water, moisture, condensation, corrosion, building settlement, overloading, incorrect use or misuse of the Equipment, vandalism and/or any other causes which are not within the reasonable control of KONE
(xi) Equipment, parts or components that are identified by KONE as requiring repair, renewal or replacement in KONE’s first maintenance visit dilapidation report;
(xii) equivalent Equipment, parts or components required to replace obsolete Equipment, parts or components;
(xiii) repair, renewal or replacement due to changes in Statutory Requirements after the Contract Start Date;
(xiv) all call outs are chargeable in addition to the Contract Price except in relation to KONE Care Plus, for which travel, labour, and material element of all call out attendance above the call-out threshold limit agreed per individual occurrence;
(xv) all instances of “No Fault Found” when equipment was “Working on Arrival”, as detailed in KONE’s notification reports; and
(xvi) light and power mains and switch gear on the supply side of, and including, the main circuit breakers or isolation switch.
(i) repair, renewal, replacement or redecoration of cars; shaft enclosures, gates, door panels, door frames, decorative works, glazed shafts, exterior glass lifts, and Customer’s communications equipment (including info screens, LCD Screens or other TVs and relayed music);
(ii) cleaning of car interiors, glazed shafts, car lights and/or car exteriors; and
(iii) replacement of cylinders, pistons and concealed piping in hydraulic elevators.
(i) repair, renewal, replacement or redecoration of internal and external balustrades, truss cladding, skirting, deck panels, floor plates, decorative finishes and other panels.
Automatic, Pedestrian and Industrial Doors, Barriers & Gates
(i) light and power mains and switch gear on the supply side of, and including, the main circuit breakers or isolation switch of the door;
(ii) repair, renewal, replacement or redecoration of door structures, surfaces and enclosures (including ledges, floor, beams, guides and supports);
(iii) decorative works;
(iv) cleaning, lighting, slats and glass panels; and
(v) components to be maintained which are not easily accessible.
4. Responsibilities of the customer
The Customer shall immediately inform KONE of:
a) Any malfunction of the Equipment or accident involving the Equipment;
b) Any hazardous substances, such as asbestos, at the Site and their presumed locations; and
c) Any change or planned change in the use of the Equipment or the Site.
If the Equipment is dangerous to any person, the Customer shall take the Equipment out of use until KONE’s personnel arrive on Site. Additionally, KONE shall be entitled to immobilize all or part of the Equipment if, in KONE’s reasonable opinion, there is a risk that the Equipment will cause injury or damage to any person or property. The Customer shall within 24 hours of all other cases of non-emergency breakages, minor failures inform KONE of any unsatisfactory operation or performance of the Equipment, or of any accidents or incidents involving the Equipment, or of any change in use of the Equipment.
The Customer shall provide KONE’s personnel a safe and adequate working environment. The Customer shall provide KONE’s personnel easy access to the Equipment, including car parking close to the Equipment allowing easy transportation of heavy tools and spare parts to the Equipment.
The Customer is responsible for all wiring at the Site and a stable power supply for the Equipment. The Customer is responsible for the LAN used and any interface between the LAN and the Equipment. The Customer shall ensure that the LAN and any possible interface towards the Equipment meets the technical requirements informed by KONE and/or the supplier of the Equipment, and that the LAN does not interfere negatively with the functioning of the Equipment.
The Customer shall co-operate with KONE as reasonably requested by KONE. The Customer shall provide any information requested by KONE relating to the Equipment and shall ensure that any information it provides is complete and accurate. The Customer shall comply with all applicable Statutory Requirements, including work safety regulations and any applicable retroactive norms relating to the safety of existing Equipment.
If the Customer determines that it requires services outside the scope of this Contract, the Customer shall provide KONE with an opportunity to provide a quotation. If the Customer elects to have a third party perform such services, KONE reserves the right to adjust the Price.
The Customer shall notify KONE if a third party works on the Equipment during the term of the Contract. The Customer will reimburse KONE for the cost of inspecting any third party work and any additional worked required by KONE.
If the Customer fails to comply with any of its responsibilities under this Clause 4, KONE shall be entitled, without limiting its other rights and remedies, to suspend the Services until the Customer has remedied such failure or removed or appropriately contained the hazardous substances and/or materials. KONE shall be entitled to recover all losses, costs and expenses incurred due to the suspension and/or resumption of Services.
The Customer shall defend, indemnify and hold KONE harmless from and against all liabilities, costs, expenses, damages and losses by KONE arising out of or in connection with any breach of this Section 4 by the Customer or the Customer’s negligence or wilful misconduct.
5. Voice/data link
The Customer is responsible for provision of telecommunication lines and VOIP connection (including related equipment where applicable) required for remote monitoring systems, and payment of all costs and charges relating to the maintenance and use of the same. KONE will, however, subscribe, maintain and be responsible for GSM connection where required for the purposes of remote monitoring system. The Customer accepts that the operators responsible for the GSM network and/or third parties may make alterations, changes and/or upgrades to the network or otherwise affect the connection which may render the data and/or voice link inoperable. KONE shall not be held liable for any possible changes, alterations, upgrades, fluctuations or resultant costs in the voice or data connection or any other changes made by network operators and/or third parties which may affect the functioning of the voice/data link device. The Customer is responsible for providing adequate insurance to cover theft of and vandalism to the remote monitoring equipment owned by KONE. KONE may collect, export and use data generated by the use and operation of the equipment. KONE may export the data using a network connection. KONE owns the data exported to KONE. In order to provide 24/7 Connected Services, KONE may need to install a remote monitoring device to the equipment. Unless otherwise agreed, such remote monitoring device installed by KONE shall be the property of KONE. The Customer shall upon request provide KONE access to the equipment in order to allow KONE to remove, replace or repair any remote monitoring device owned by KONE. Such right shall survive the expiration or termination of the Agreement If the Customer uses an own SIM card or network connection for any data transfer related to the equipment, KONE shall not be liable for the costs of such data transfer.
The Customer shall have the option to purchase the GSM Voice Link from KONE. The cost of the purchase of the GSM Voice Link, as provided by KONE, is to be added to the Contract Price and invoiced in equal instalments throughout the remaining duration of the Contract or over a 2 year period, whichever is the shorter, in accordance with Clause 6 of these General Terms and Conditions. In the event that the Contract is terminated by either party in accordance with Clause 13, the remaining cost of the GSM Voice Link payable by the Customer is to be paid immediately to KONE upon termination of the Contract.
6. Payment and adjustment of price
The Contract Price is due in advance as invoiced by KONE. Any charges and payments shall be calculated according to KONE’s standard scale of charges for the time being in force. Payments shall be due by the Customer within thirty (30) days from the date of invoice. Payment of taxes, including any Value Added Tax, is in addition to the Contract Price. The Contract Price may be adjusted annually in accordance with any increase in costs during any invoicing period, unless due to unusual circumstances KONE determines additional adjustments are necessary in the meantime. Any such variations will be made taking into account the index determined by the Lift and Escalator Industry Association. Further, KONE reserves the right to increase the Contract Price in the event the main purpose of use of the Equipment is materially changed during the Contract Term or in the event new legislative and regulatory requirements enter into force which materially changes the scope of the Services or the costs of the said services. KONE may adjust the fee for the 24/7 Connected Services on 30 days prior written notice if value adding features or functionalities are added to the services. Should the Customer disagree with a fee increase, the Customer may terminate the affected 24/7 Connected Service starting from the fee increase.
If, when compared to the rate of usage of the Equipment at the commencement of the Contract, KONE determines the rate of usage of the Equipment has increased significantly, then any rate of discount to the Contract Price applied by KONE to the Customer will be subsequently removed. The monitoring of usage and applied discount applies only to KONE manufactured Equipment. Confirmation that the Equipment is being used significantly more is to be at KONE’s sole discretion, acting reasonably.
The Customer is to provide KONE with at least 3 working days’ notice if the Customer cancels or amends any request for KONE to attend the Equipment or any other location identified by the Customer to perform any works or services in addition to the Services, including but not limited to providing standby availability. Cancellation or amendment by the Customer within 3 working days’ prior to the date of the visit will incur a charge of 100% of the full price payable by the Customer for the visit. If any part of the additional works or services to be conducted by KONE is cancelled or changed after the arrival of KONE to the Equipment or location as instructed by the Customer, the full cost of the visit requested will remain payable.
7. Delayed payment by the customer
If the payment of any sum due from the Customer is delayed, KONE shall be entitled to charge interest on such sum at the rate of eight per cent (8%) per annum above the base rate of the Bank of England for every day the payment is overdue. KONE shall also be at liberty, without prejudice to other remedies, to suspend the provision of Services upon the expiry of seven (7) days’ written notice to suspend and until the overdue payments (with interest) have been received by KONE in full. KONE shall be entitled to recover all costs and expenses incurred due to the suspension and/or resumption of Services.
8. Spare parts and components
Risk of damage or loss in parts and components supplied by KONE under the Contract and/or a separate order related to the Contract shall pass to the Customer upon delivery of the same to the Equipment site. The title to such parts and components shall only pass to the Customer upon KONE’s receipt of the associated payment.
KONE warrants that parts supplied by KONE shall be free from defects for a period of 1 year from installation by KONE, or if not immediately installed, from delivery to the Customer. The warranty does not cover defects due to normal wear and tear and Excluded Events. KONE’s liability for any defect in a part supplied by KONE shall be limited to replacement of such part by KONE at its expense. Any part or component replaced by KONE shall become the property of KONE.
KONE’s liability to the Customer for any defects in design, materials or workmanship relating to parts and components shall be limited to the replacement of spare parts or components as set out in this Clause 8. All spare parts and components fitted by KONE, whether without additional charge under the Contract or subject to a separate order in relation to the Contract by the Customer, will be original parts or components unless unavailable. If original parts or components are not available, the parts or components fitted will be of equal or similar functionality and quality. The title in all parts and/or components removed from the Equipment by KONE under and/or in relation to the Contract shall pass to KONE upon their removal.
9. Limitation of liability
Notwithstanding any other provision of the Contract, KONE shall under no circumstances be liable for any indirect, consequential, incidental, special, or punitive damages or loss of profit, loss of use, loss of contracts, loss of business, loss of customers, loss of good will, the contractual liabilities of others which may be suffered by the other party relating to KONE’s performance of Services or arising under or in connection with the Contract. KONE’s total annual aggregate liability to the Customer in respect of all other losses relating to KONE’s performance of the Services or arising under or in connection with the Contract shall in no circumstances exceed a sum equal to the Contract Price. In addition, KONE makes no warranties, whether express, implied, statutory, or collateral, including but not limited to, the warranty of merchantable standards and the warranty of fitness for a particular purpose, except those warranties expressly made in the Contract, which are in lieu of any and all other warranties. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
To the fullest extent allowed by applicable laws KONE shall in no case be liable for any:
i) repairs, replacement of parts or components, or work upon or damage to the Equipment including the Services due to or related made to misuse of the Equipment, negligence, theft, accident, vandalism or tampering of the Equipment, or due to repairs, alterations, or adjustments to the Equipment by anyone other than a KONE employee;
ii) failure by the Customer to carry out any work or make any repairs, replacements or upgrades recommended by KONE or required by Statutory Requirements, including work required by reason of the Equipment not being in a safe and satisfactory condition on the Contract Start Date or thereafter or which otherwise falls outside the scope of the Services;
iii) KONE being prevented from performing the Services due to any failure by the Customer to satisfy any of its obligations under the Contract including, without limitation, those set forth in Clauses 4 and 5 above or due to reasons set out in Clause 11 below;
iv) any loss, damage or injury which may be sustained either to persons or property due to the operation of, or any accident or failure relating to, the use of the Equipment, except to the extent that the said loss, damage or injury is a direct result of KONE’s own negligence or wilful misconduct; and/or
v) responsibility for personal injury howsoever caused resulting from Equipment breakages or failures that occur which are not reported to KONE as set out in Clause 4.
vi) any failure to notify, remind or advise the Customer of any impending or outstanding inspection or visit to the Equipment carried out by third parties or the Customers persons including the issuance of any subsequent reports if the Customer fails to provide KONE with actual dates of the inspection or visit at the commencement of the Contract.
vii) any failure to provide 24/7 Connected Services due to lacking network coverage at the site or tampering with any remote monitoring device. KONE makes no warranty that the 24/7 Connected Services will be uninterrupted or error-free.
KONE shall maintain in force for the duration of the Contract Term a Public & Employer's Liability Insurance with reputable insurance companies. The limit of the insurance shall not be less than £5,000,000 for any one incident and in an annual aggregate. Upon request, KONE shall provide the Customer with reasonable evidence that said insurance is in place.
11. Force majeure
KONE shall not be liable for any failure to fulfill any obligation under the Contract to the extent prevented or delayed by circumstances beyond KONE’s reasonable control such as, but not limited to, acts of God, acts of government, trade sanctions, war, terrorism, civil commotion, material shortages, transportation delays, strikes, lock-outs or other labor unrest, adverse climate conditions, natural disasters or accidents.
12. Intellectual and other property rights
KONE shall retain title and ownership to all intellectual property rights relating to any hardware, software, documentation, drawings or other material supplied by KONE under or in relation to this Contract.
The Customer shall not use or copy any software, documentation, drawings, or other materials supplied by KONE under the Contract for any other purpose than use and maintenance of the Equipment, or allow a third party to do so.
KONE may collect, export and use data generated on the use and operation of the Equipment. KONE may export such data using a network connection and owns any data exported to KONE.
KONE collects certain personal information on the Customer’s representatives. Such data is primarily used for providing the Services and managing the customer relationship, but may also be used for contacting the representatives (by phone, e-mail, SMS and other electronic means) for surveys and to market KONE’s and its partner’s products and services. More information about the data processing can be obtained from KONE’s website (www.kone.com).
13. KONE Online
If the Customer has opted for KONE Online, KONE shall provide the Customer access to KONE Online solely for purposes of viewing information on the status and performance of the Equipment and to make service requests related to the Equipment. Any service requests made through KONE Online shall be deemed made by the authorized representatives of the Customer.
While KONE takes reasonable efforts to ensure that the information presented in KONE Online is correct, any information visible through KONE Online or included in rapports produced by KONE Online are indicative only and cannot be relied upon. KONE may at any time further develop or make changes to KONE Online. KONE makes no warranty that KONE Online will be uninterrupted or error-free.
14. Termination of contract
The Contract shall remain in force for the initial Contract Term and shall thereafter continue to automatically renew for subsequent periods equal to three (3) years or the initial Contract Term, whichever is the longer, unless cancelled in writing by either party not less than ninety (90) days prior to end of the subsequent Contract Term. Without limiting its other rights and remedies, either Party may terminate the Contract, with immediate effect, by giving written notice to the other Party, in the event that the other Party:
(i) goes into liquidation either compulsorily or voluntarily; or
(ii) a receiver, administrator or administrative receiver is appointed with respect to the whole or any part of its assets: or
(iii) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;or
(iv) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);or
(v) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(vi) commits a material breach of the Contract without correcting said breach within thirty (30) days after receipt of written notice setting forth particulars describing the alleged breach.
Further, KONE has the right to terminate the Contract with immediate effect in the event the main purpose of use of the Equipment is materially changed during the Contract Term or the Equipment is serviced or repaired by a third party without prior written approval of KONE during the Contract Term or the ownership and/or material share of the ownership of the building where the Equipment is located is changed. In the event that the Contract is terminated by either Party as set out above:
A. The Customer’s payment obligations due under the Contract shall survive the termination and KONE shall be entitled to receive payment from the Customer for any Services performed before the effective date of termination.
B. Each of the following Clauses survive termination: 1, 6, 7, 8, 9, 12, 15 and 16.
C. The remote monitoring equipment (including any SIM cards) owned by KONE (if any) will be disabled or removed, unless agreed otherwise, and any Equipment specific maintenance productivity tools will be removed, unless the Customer wishes to purchase such tools at prevailing market price.
The Contract may also be terminated at the Customer’s convenience. In which case, a termination fee shall become due and payable by the Customer, without prejudice to any of KONE’s other rights. The said termination fee is equal to the aggregate Contract Price payable by the Customer for the remaining years of the Contract Term or pro-rata thereof but for the termination.
Where the Contract is terminated by KONE in accordance with this Clause, the Customer shall be liable to pay KONE liquidated damages. The said liquidated damages shall be at the rate of 30% of the Contract Price payable by the Customer for the remaining term of the Contract but for the termination. The Parties agree that the said liquidated damages are without prejudice to any of KONE’s other rights under or in relation to the Contract and are a reasonable pre-estimate of the loss suffered by KONE as a result of the termination, including KONE’s abortive initial costs (such as up-front remedial repair costs, including provision for parts and labour and other preparatory work) and additional expenditure incurred to meet the Customer's requirements.
15. Applicable law
The Contract will be governed by English Law where the Equipment is situated in England and by Scottish Law where the Equipment is situated in Scotland. The courts of England or Scotland, as the case may be, shall also have sole jurisdiction over any disputes between the Parties relating to the Contract.
The Contract shall become effective after signing by both Parties. However, if the Customer causes or permits KONE to start performance of the Services, the Customer is deemed to have accepted the terms of the Contract.
The signatories warrant that they are duly authorized to enter into this Contract on behalf of the relevant Party. The signatories are personally responsible for the liabilities of the Party if they are not so authorized.
The Contract constitutes the entire agreement between the Parties relating to the Services, and supersedes all prior negotiations, representations and agreements between the Parties, if any. Any reference to the Customer’s general terms included in a purchase order or otherwise shall not be binding upon the Parties.
The Contract and the scope of Services may only be amended by a written agreement signed by duly authorized representatives of both Parties. Any waiver of any rights or obligations under this Contract must be made in writing.
KONE may use subcontractors in performing the Services. KONE may assign this Contract to any company in the KONE group without the consent of the Customer. Any other transfer of the Contract requires KONE’s prior written consent. Notwithstanding any transfer of ownership of the building where the Equipment is located or change of the property manager of the said building, the Contract will continue in full force and effect until the end of the Contract Term.
A person who is not a party to the Contract may not enforce any of the Contract’s terms under the Contracts (Rights of Third Parties) Act 1999.