TERMS AND CONDITIONS OF TRADING
1. OUR RESPONSIBILITIES
1.1 To the extent applicable you engage us, and we agree to provide, the System and/or the Maintenance Services.
1.2 We shall at all times:
1.2.1 In the event you confirm a requirement for the System to be installed or have additional installation work done to the Customer’s System, install the System or carry out additional installation work to the Customer’s System within a reasonable time of date of acceptance by you of the Quotation (unless otherwise agreed between us in writing) provided always that time shall not be of the essence;
1.2.2 In the event you confirm a requirement for the System to be maintained, carry out the Maintenance services;
1.2.3 Comply with all statutory requirements (including those relating to health and safety), which apply to the installation of the System and/or the Maintenance Services.
2. YOUR RESPONSIBILITIES
2.1 You shall at all times:
2.1.1 Promptly provide us with any information, which we reasonably require to enable us to proceed without interruption with the performance of this agreement:
2.1.2 Obtain and pay for all necessary consents including listed building consent for the erection of any CCTV towers (where applicable) for the installation of the System and shall give us access to the Installation Site at all reasonable times for the purpose of doing anything which we are required or entitled to do under this agreement. You acknowledge that it may be necessary for some work to be carried out outside Normal Working Hours although this shall be agreed by yourself in advance before the work commences.
2.1.3 Operate the System only in accordance with the written information and instructions, which may from time to time be supplied by us to you.
2.1.4 Notify us as soon as reasonably practicable (confirming such notice in writing) of any defect appearing in the System and shall permit us to take such reasonable steps as we shall consider necessary to remedy such defect in accordance with these terms and conditions. We shall not be liable for any loss arising from failure of the System if you fail to notify us as soon as reasonably practicable upon your becoming aware of the same;
2.1.5 Advise us of the existence of concealed pipes, wires and cables for water, gas, electricity, telephone or other services affecting the Installation Site and shall confirm the location of such services in writing to our technician before work commences. In the absence of such notice we accept no liability for damage to such services or any loss damage or injury whatsoever incurred or sustained in consequence thereof as you hereby acknowledge and you shall indemnify us against any claim whatsoever for loss damage or injury resulting from damage to such services;
2.1.6 Comply with all statutory requirements (including those relating to health and safety) which apply to the System;
2.1.7 Keep the Installation Site, its contents and persons in or on the Installation Site insured against all appropriate risks including physical damage, loss of profit, revenue and any other economic loss in an mount sufficient to cover all such losses yourself;
2.1.8 As soon as reasonably practicable inform us about any facts or opinions of which you become aware which are likely to affect our obligations under this agreement or lead to an increase in our costs or the charge
3. CHARGES AND PAYMENT
The applicable installation charges shall be payable in accordance with the following terms:
(i) 35% of the Charge shall be payable on receipt of your official purchase order or equivalent authorisation to proceed.
(ii) 35% of the Charge shall be payable on mobilisation to the Installation Site.
(iii) 25% of the charge shall be payable on practical completion and the balance shall be payable on system completion/handover to the client.
Variation for major works where specifically agreed will be allowable to include monthly charges.
These shall be payable (based on overall percentage of work completed) up to practical completion and to a maximum value of 95% of the overall installation charge and the balance shall be payable on system completion/handover to the client.
3.1 The maintenance charge for the first year shall be payable in advance with effect from the later of the Installation Date or the Commencement Date and annually thereafter on each anniversary of such date.
3.2 The Additional Services Charge detailed in the Quotation will be the cost of such services detailed in the Maintenance Schedule. The additional charge shall be payable on the specific terms agreed in the Maintenance Schedule.
3.3 In addition to the charges indicated in the Quotation which are payable as detailed in this clause any additional charges that arise in respect of our performance of this agreement shall be payable by you within 14 days of the date of our invoice.
3.4 Payment can be made in cash, by cheque or direct bank transfer or standing order, the instructions for which shall be signed by you at the same time that this agreement is signed.
3.5 Invoices which have not been queried by you within 2 calendar months from their date shall be deemed to have been accepted by you for all purposes.
3.6 Unless otherwise provided we shall charge, and you agree to pay double the applicable charge per hour for Maintenance Services as are carried out on public holidays, bank holidays (within the meaning of the Banking and Financial Dealings Act 1971) and on Christmas Day, Boxing Day, New Year’s Day and Good Friday.
3.7 The charges indicated in the quotation and any additional charges payable under this agreement are exclusive of value added tax, which shall be paid by you at the rate and in the manner prescribed by law.
3.8 We may (without prejudice to our other rights and remedies):
3.8.1 Suspend performance of any or all of our obligations under this agreement by giving written notice to you, if you are in default of your payment obligations under this agreement: and
3.8.2 Charge you interest in respect of the late payment of any sum due under this agreement on a day-to-day basis (both before and after any judgement) at the rate of 4% per annum above the base rate of HSBC Bank plc from the due date of payment to the date of actual payment (both dates inclusive). You shall pay the interest on demand.
4. VARIATION OF CHARGES
4.1 Unless otherwise agreed in writing the charges in the Quotation may be accepted up to thirty days from the Quotation Date detailed in the Quotation after which time we reserve the right to amend them or to withdraw our offer to install and / or maintain the System on the terms detailed in this agreement.
4.2 We may vary the Installation Charge and / or Additional Services Charge by giving three months written notice if:
4.2.1 You require any alteration to the Specification or if we incur additional costs as a result of interruption or delays caused by you, your employees, agents or customers or other trades during the course of the installation; or
4.2.2 We are unable to gain full and free access to the site during normal working hours or at such other times as has been agreed between us.
4.3 We may vary the Maintenance Charge and / or Additional Services Charge by giving three months written notice:
4.3.1 At any time after 9 months from the Commencement Date.
4.3.2 Notwithstanding clause 4.3.1, in advance of any anniversary of the Commencement Date and if you do not accept the increased charges, you may, without prejudice to either of our respective rights and remedies, to the extent that this agreement is one for Maintenance Services terminate this agreement by giving us 3 months’ written notice.
4.3.3 Variations of charges under clause 4.2 and 4.3 may reflect any matters which we think fit including, but not limited to, increased costs resulting from legislative or regulatory compliance, increases in fuel or taxation and / or any matters notified by you to us under clause 2.1.8.
5. TITLE AND RISK
5.1 In the event you confirm a requirement for a system to be installed or extended we shall sell and you shall buy the System.
5.2 You shall assume all risks in the System upon and from Installation of the System. Title to the System shall not pass to you until we have received all monies due to us in accordance with this Agreement. In the event of termination of this agreement prior to such payment you hereby grant us licence so that we may enter the Installation Site and may repossess the System or any part thereof.
6. WARRANTY AND LIABILITY
6.1 We warrant that to the extent applicable:
6.1.1 We shall install the System in accordance with the Specification.
6.1.2 We shall carry out Maintenance Services with reasonable skill and care.
6.2 In the event that we install the System and you engage us to carry out Maintenance Services we shall during the Warranty Period make good by repair or at our option by the supply of a replacement, such defects in the System which arise solely from faulty materials or workmanship supplied to you by us. The costs of all parts and labour shall be free of charge. In the event that you do not engage us to carry out Maintenance Services, to the extent that we are unable to do so under the terms of any agreement with the manufacturer, we shall be liable to remove the equipment and return the same to the manufacturer to take advantage of the manufacturer’s guarantee or warranty. The costs of labour and the costs of hiring specialist equipment to carry out such work are not included and shall be borne by you.
6.3 You acknowledge and agree that:
6.3.1 The System is not designed or adapted for use in adverse industrial atmosphere or extremes of weather or abnormal operating conditions of any kind unless otherwise specified;
6.3.2 We have no special knowledge of the nature and value of the contents of the Installation Site for which the System has been specified and in which it has been installed or maintained or of the nature of risks to which the Installation Site and its contents will or may from time to time be exposed.
6.3.3 You are in a better position than we are to foresee and evaluate any potential damage or loss that you may suffer in connection with the installation or maintenance of the System or any other service provided by us under this agreement; and
6.3.4 The charges in the Quotation have been calculated on the basis that we will exclude or limit liability as set out in clauses 6.4 and 6.6.
6.4 Our total liability to you, whether directly to you or by reason of indemnity or contribution in respect of your liability to any third party, for any acts or omissions of our employees, agents or sub-contractors shall be limited to £5 million.
6.5 We do not limit or exclude our liability for death or personal injury caused by the negligence of our employees, agents or sub-contractors or, where you deal with us as a consumer, for any breach of any condition or warranty implied by statute as to the correspondence of the System with description or sample or as to its quality or fitness for purpose.
6.6 Notwithstanding anything else contained in this agreement, we shall not be liable to you for:
6.6.1 Economic loss including, but not limited to, loss of profits, revenues or goodwill (including any such loss or damage payable by you to a third party as a result of an action brought by a third party); or
6.6.2 Any other indirect or consequential loss (including any such loss or damage payable by you to a third party) even if the loss in clauses 6.6.1 and/or 6.6.2 was reasonably foreseeable or we had been advised of the possibility of you incurring it and whether arising from negligence, breach of contract or of statutory duty or otherwise; or
6.6.3 Any claims which have not been notified to us within 30 days of the date on which you knew, or should have known, of the claim’s existence
6.7 The express terms of this agreement are in lieu of all warranties, conditions, terms, undertakings and obligations supplied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
6.8 Where they arise as a result of your fraud, negligence or wilful default (or that of your employees, agents or sub-contractors) you shall indemnify us against all actions, proceedings, costs, claims, penalties, fines, liabilities, damages, expenses, demands and legal or professional fees in respect of all liabilities in respect of any patent, registered design or any industrial copyright of any third party where the System is made or procured for us and supplied by us to other than our design at your request or is used by you in conjunction with other equipment not supplied by us.
7. TERMS AND TERMINATION
7.1 This agreement shall continue unless or until terminated by you pursuant to clause 4.3.2 or by either of us pursuant to clause 7.3 or in the case of an agreement for Maintenance Services by either of us giving to the other 3 months’ written notice expiring on or at any time after the 1st anniversary of the Commencement Date.
7.2 If you fail to give us written notice of termination in accordance with clause 7.1, then the following sum shall become immediately due and payable to us:
7.2.1 If the agreement includes the provision of Maintenance Services then save in respect of a termination as provided for in clause 4.3.2, a sum equal to 3 months’ of the Maintenance Charges stated in the Quotation or
7.2.2 If the agreement is for the installation of a System and such work has not been completed prior to termination a sum equal to the greater of:
(a) 75% of the quotation charge
(b) Such costs losses and damages actually incurred by us in the performance of the agreement to the date of termination.
Provided that these termination costs are without prejudice to our rights under clauses 5 or 7.4 to re-enter the Site and repossess the equipment comprising the System, sums payable under this clause shall be payable in full together with value added tax thereon without abatement or set-off.
7.4 to re-enter the Site and repossess the equipment comprising the System, sums payable under this clause shall be payable in full together with value added tax thereon without abatement or set-off.
7.3 This agreement may be terminated immediately by either party on giving notice in writing to the other if the other:
7.3.1 being a company has a receiver or administrative receiver appointed, passes a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect, becomes subject to administrative order, enters into any voluntary arrangement with its creditors or ceases or threatens to cease to carry on business;
7.3.2 being a partnership (and whether in respect of the partnership or of any one or more of the partners) or an individual (i) is involved in any legal proceedings involving its insolvency, (ii) commits an act of bankruptcy or is adjudicated bankrupt or (iii) enters into any composition or other arrangement with its creditors generally or any class of them or (iv) has receiver, administrative receiver or other creditors’ representative appointed over any of its assets or property or (v) ceases or threatens to cease to carry on business;
7.3.3 fails to pay on its due date any sum due under this agreement.
7.3.4 commits any material breach of any item of this agreement (other than under clause 7.3.3), which, in the case of a breach capable of being remedied, is not remedied within 14 days of a written request to do so.
7.4 A termination under clause 7.3 shall discharge us from liability for further performance of this agreement and shall entitle us to enter the Installation Site or any of your premises and recover any equipment and materials, which are our property. You irrevocably license us, our employees and agents to enter the Installation Site or premises for that purpose.
7.5 Termination of this agreement shall not affect any accrued rights or liabilities of either party or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to continue in force on or after termination.
8. FORCE MAJEURE
8.1 Neither party shall have any liability to the other, or be deemed to be in breach of this
agreement, for any losses incurred as a consequence of any of the following events:
i. Flood, storm, severe weather conditions or other natural events;
ii. War, terrorists’ action, hostilities, revolution, riot or civil disorder;
iii. Any destruction, breakdown (permanent or temporary) or malfunction of, or damage to any premises, plant, equipment, or materials (including any computer hardware or software or any records);
iv. The introduction of or any amendment to, a law or regulation, or any change in your interpretation or application by any authority;
v. Any strike, lockout or other industrial action;
vi. Any obstruction of any public or private highway or road or any event which prevents or obstructs access to the Installation Site;
vii. Any breach of contract or default by, or insolvency of, a third party (including an agent or sub-contractor) other than a company in the Integrated Security Design group of companies or an officer or employee of Integrated Security Design or any company within the Integrated Security Design group of companies; or
viii. Any other event outside the other party’s reasonable control, whether similar or not to any of the foregoing.
9. ENTIRE AGREEMENT AND YOUR WARRANTY
9.1 This agreement, the Quotation, the Maintenance Schedule and the Specification supersedes all prior agreements, arrangements and understandings between the parties. Together, they constitute the entire agreement between you and us relating to the supply and/or installation of the System and/or the Maintenance Services to the exclusion of any other terms (such as those printed on purchase orders or sales order acknowledgement forms), which you may seek to impose, and any terms contained in our quote pack.
9.2 You warrant to us that you have not been induced to enter into this agreement by any prior representations whether oral or in writing, except as specifically contained in this agreement and you waive any claim for breach of prior representations.
10. CHANGES TO THE SPECIFICATION AND TO THIS AGREEMENT
10.1 Our policy is one of constant improvement and we reserve the right to alter the specifications of any component part or parts of the System at our discretion and our expense at any time without notice. We also reserve the right because of difficulties in obtaining supplies, to use at our discretion equipment and materials other than those specified provided this does not affect the performance of the System.
10.2 Save as provided in clause 10.1 no addition to, or modification of, any provision of this agreement shall be binding on us unless made by a written instrument signed by our duly authorized representative.
11. DEFINITIONS
For the purposes of this agreement the following expressions shall have the following meanings unless the context indicates otherwise:
“Contract Period” means the period from the Commencement Date until this agreement is terminated in accordance with the provisions of clauses 4.3.2 or 7.
“Commencement Date” means the date upon which you sign and return this agreement or our receipt and acceptance of some other written form of order from you on you own stationery.
“Completion Date” means the date when an installation of the System has been completed or when additional work or an extension of a Customer’s System has been completed and which shall in either case be deemed complete upon issuance of our certificate as to completion of the installation of the System and signature of the same by you which, in the absence of manifest error, shall be conclusive evidence of the same;
“Customer’s System” means an existing system operated by you at the Installation Site
“Installation Site” means the installation address detailed at the front of this agreement at which the System or a Customer’s System is either installed, extended or maintained;
“Maintenance Services” means the level of maintenance and emergency services selected by you to be provided and as are detailed in the Maintenance agreement.
“Normal Working Hours” means 08.30 to 17.00 hours subject to alteration by us upon notice, Monday to Friday except for statutory and common law, public and national holidays;
“Specification” means the description of the system including its component parts and, where relevant their operation, which forms the definition of how the system will work.
“System” means and includes the equipment and its constituent components described in the Specification together (if applicable) with ancillary materials and components provided or installed on the Installation Site by us as a new system or as an additional system to the Customer’s System.
“Warranty Period” means a period of 12 months from the commencement of beneficial use of any item of equipment in the System.
12. GENERAL
12.1 You engage us as an independent contractor. Nothing in this agreement shall create a Partnership or the relationship of principle and agent or employer and employee. If any provision of this agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability shall not affect the other provisions of this agreement and all provisions not affected by the invalidity or unenforceability shall remain in full force and effect.
12.2 No delay or indulgence by either party in enforcing this agreement shall prejudice or restrict the rights of the party. A waiver of your right shall not operate as a waiver of any subsequent breach.
12.3 You shall not transfer this agreement or any of your rights and obligations under it, whether in whole or in part, without first obtaining our prior written consent.
12.4 Subject to our confidentiality obligations to you under common law, we may disclose our relationship with you to third parties without prior reference to you.
12.5 All notices which are to be given under this agreement shall be in writing and shall be sent to the address of the recipient set out in this agreement or such other address as the recipient may designate by notice given in accordance with the provisions of this clause. Notice may be delivered personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when dispatched.
12.6 Headings to clauses are for ease of reference only and shall not affect the interpretation or construction of this agreement.
This agreement shall be governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.
