Our aim is to give care, skill and attention when we supply your system and our service – while this is our primary aim, we recognise the need for our relationship with you as our customer to be formally documented, to protect you and us. So please take the time to read these terms and conditions – these are the terms on which we will supply goods and/or services to you.
Your attention is particularly drawn to the provisions of Clauses 14 and 15.
TERMS APPLICABLE TO ALL OUR SYSTEMS:
The Customer (“you”) and;
SECOM Plc a company registered in England and Wales whose registered address is 52 Godstone Road, Kenley, CR8 5JF (Company No. 2585807) (“we/us/the Company”).
When the words listed below appear in this Agreement, they will have the following meanings:
the Quotation and Specification and Acceptance attached hereto together with these Terms and Conditions.
1.2 “Alarm Receiving Centre”
The place which receives and monitors the alarm signals which are transmitted from the System.
1.3 “Company’s Equipment”
(1) in an Outright Sale Agreement, the signalling equipment which communicates to the Alarm Receiving Centre which will remain the property of the Company at all times; or
(2) in a rental agreement, the items which will throughout the term of this agreement remain the property of the Company and include control and signalling equipment, power supplies, batteries, electronic detection devices, contacts and mechanical devices, as set out in the Specification.
1.4 “Connection Date”
The date when the System becomes operative with the connection to the Alarm Receiving Centre becoming live.
1.5 “Customer’s Equipment”
All items that form part of the System including component parts and the wiring as set out in the Specification, excluding the Company’s Equipment.
1.6 “Initial Period”
The period of your agreement with us as indicated on the Quotation or your Order (as the case may be), commencing on the Connection Date.
1.7 “Installation Charge”
The charge for the supply and installation of the System as set out in the Quotation.
1.8 “Installation Date”
The date we finish installing the System.
1.9 “Key Holder”
A person or third party chosen by the Customer to hold the keys to your Premises and to visit your Premises when informed by the Alarm Receiving Centre that a signal has been received from the System.
1.10 “Network Service Provider”
telecommunications provider who will provide the communications link to specific items of equipment as documented in the Quotation and Specification.
1.11 “Normal Working Hours”
are between 08.30 and 17.00 hours from Monday to Friday (excluding bank and public holidays).
1.12 “Outright Sale Agreement”
an agreement for the purchase of the System.
Your home or premises where the System is installed as indicated on the Quotation.
1.14 “Rental Agreement”
an agreement for rental of the System.
The level of service ordered by you as indicated on our Quotation and as more particularly described in clause 8.
1.16 “Service Charge”
Our charges for provision of the Service by us to you. The Service Charge is payable annually in advance or monthly by Direct Debit in advance throughout the life of the Agreement.
1.17 “Smoke Detection System”
If ordered by you, the early warning smoke detection system as set out in the Quotation or any subsequent smoke detection system equipment or component parts installed by us at your Premises, which for the avoidance of doubt is not a regulated fire system.
The specification for the System as specified on the Quotation.
All equipment and its component parts forming the system as set out in the Quotation and ordered by you or any subsequent item of equipment or component parts installed by us at the Premises.
1.20 “Warranty Period”
The period of 12 months from the Installation Date.
1.21 “Written or Writing”
Where the words written or writing appear are used in this Agreement, this includes email correspondence.
2. Purpose of these Terms and Conditions
- You have asked us to install a System at your Premises and this document sets out the Terms and Conditions upon which we are prepared to make available to you a System which is in accordance with the Specification.
- We will provide the Service, which will ensure that the System is regularly serviced and maintained.
- Your offer to accept our Quotation constitutes an offer by you to purchase or rent the System and our Services in accordance with these Terms and Conditions. Any Quotation given by us shall not constitute an offer and is only valid for a period of one month from its date of issue.
- Your order shall only be deemed accepted when we issue written acceptance of the order at which point and on which date the Agreement shall come into existence.
- You further agree that should you proceed with the installation of the System then you will be bound by the Terms and Conditions as set out in this document.
- The Agreement constitutes the entire agreement between the parties. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in the Agreement. Except as set out in these Terms and Conditions, no variation of the Agreement, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by us. This clause does not apply to Consumers.
- Any sample, drawings, descriptive matter or advertising issued by us and any descriptions of the System or illustrations or descriptions of the Service contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the System or the Service described in them. They shall not form part of the Agreement or have any contractual force.
3. Period of Agreement
This Agreement shall last for the Initial Period and shall then continue automatically but either party may terminate the Agreement once the Initial Period has expired by giving the other party 3 months’ written notice, such notice not to expire prior to the end of the Initial Period, unless terminated earlier in accordance with clause 16 or clause 17.
4. Your Obligations
- You agree in entering into this Agreement:
- to ensure that the terms of your order are complete and accurate.
- to co-operate with us in all matters relating to installation of the System and the Service.
- to obtain and pay for all necessary consents (including listed building consent) that may be necessary for the installation of the System and you shall also give us access to the Premises at all reasonable times and provide other facilities as reasonably required by us for the purpose of doing anything that we are required or entitled to do under this Agreement. We will use reasonable endeavours to carry out the work in question during Normal Working Hours and you acknowledge that it may be necessary in certain circumstances for us to carry out some work outside Normal Working Hours.
- that you have provided us with such information and materials as we may reasonably require to produce the Specification, shall provide us such information and materials as we may reasonably require to supply the Service and shall ensure that such information is accurate in all material respects, such information to include, without limitation, details of any areas of your Premises containing high value property.
- not to tamper with, misuse, neglect, wilfully damage or incorrectly use any part of the System causing damage to it or any part of it.
- not to alter or repair the System without our written consent.
- to advise us of anything that could constitute a site hazard or a risk, which could affect the safety of any person installing, servicing or responding to the System. You shall notify us as soon as possible of any faults or damage appearing in the System and shall allow us to take such steps as we consider necessary to remedy such faults and/or damage and this includes allowing us the access we would reasonably need in order to fulfil our duties under this Agreement. If it comes to light that the damage in question has occurred as a result of your negligence (irrespective of whether such negligence is wilful or not) then we shall be entitled to reimbursement for the value of the Company’s Equipment in question together with any other costs that we have incurred in attempting to repair the Company’s or Customer’s Equipment and/or rectify the damage.
- to notify us of any change in the site conditions at your Premises and any change of circumstances that may affect the ability of the System to operate as intended and as set out in the product literature.
- that you acknowledge and agree that we may access the System remotely for the purpose of performing remote diagnostics and maintenance.
- You agree to ensure that the Premises are maintained in accordance with the relevant health and safety legislation, and in particular that the Premises are sufficiently illuminated to enable us to properly install and service the System.
- If the actual link from the Premises to the Alarm Receiving Centre is through telephone lines you agree to procure the required telephone line and to pay the relevant Network Service Provider any charges that it requests in respect of (as the case may be) the installation of a communications line, a block terminal (if an existing telephone is used for monitoring) and all line and call charges throughout the term of this Agreement for monitoring the signals that the Alarm Receiving Centre may receive.
- If we are prevented or delayed from performing our obligations under the Agreement by any act or omission by you or by your failure to comply with your obligations (Your Default), we shall, without limiting our other rights and remedies, have the right to suspend performance of the Service until you remedy Your Default to the extent that Your Default prevents or delays our performance of our obligations and we shall not be liable for any costs or losses sustained or incurred by you and we may make an additional charge of a reasonable sum to cover any costs or losses sustained or incurred by us.
- Subject to clauses 14 and 15, if you order a System to a specification below the standard we recommend in order to reduce the price or for any other reason or you require specific goods or a specific supplier that we do not recommend or do no ordinarily supply, we will not be liable for any losses, costs of expenses you incur arising directly or indirectly from our compliance with your instructions
5. Customer’s Equipment
- The System and Customer’s Equipment are described in the Specification.
- We reserve the right to amend the Specification if required by any applicable statutory or regulatory requirements.
- We shall not be liable for any delay or failure to deliver the System that is caused by an Event Outside Our Control or your failure to provide us with adequate delivery or other relevant instructions.
- Subject to clause 3, if we fail to deliver the System, our liability will be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less, provided you have paid our Installation Charge, the price of the Customer’s Equipment.
6. Delivery/Installation – Not applicable to Consumers
- If you fail to accept or take delivery of the Customer’s Equipment or fail to allow us the necessary access to install the System within 10 Business Days of our notifying you that we are ready, then except where such failure is caused by an event outside your control or by our failure to comply with any of our obligations under the Agreement:
- Delivery of the Customer’s Equipment shall be deemed to have been completed at 9.00 am on the eleventh Business Day following the day on which we notified you that the Customer’s Equipment was ready; and
- We will store the Customer’s Equipment until delivery takes place, and charge you for all related costs and expenses (including insurance).
- If 40 Business Days after we notified you that the Customer’s Equipment were ready for installation you have not accepted delivery or permitted installation, we may resell or otherwise dispose of part or all of the Customer’s Equipment, and, in the case of a Rental Agreement, may resell or rent or otherwise dispose of part or all of the Company’s Equipment to any other person at our discretion.
7. Our Obligations Regarding Installation
- Delivery of the System, including the Customer’s Equipment, shall be completed on their arrival at your Premises.
- If we are not able to deliver the whole of the System at one time due to operational reasons or shortage of stock, we will deliver the System in instalments. We will not charge you extra delivery costs for this. However, if you ask us to deliver the System in instalments, we may charge you extra delivery costs. Each instalment shall constitute a separate contract governed by these Terms and Conditions. If we are late delivering an instalment or one instalment is faulty, that will not entitle you to cancel any other instalment.
- We will install the System at the Premises as laid down in all material respects within the Quotation and the Specification and within a reasonable time from the date of this Agreement or as agreed in writing with you. Following completion of the installation of the System, we will issue you with a Handover Certificate stating the Installation Date (which may be issued prior to connection of the communications link) and such certificate shall be conclusive evidence of the Installation Date for the purpose of this Agreement.
8. Our Obligations Regarding the System
- Subject to clause 2, 8.3 and 8.5, we warrant that on delivery and during the Warranty Period, the System shall conform in all material respects with the Specification.
- Subject to clause 3 and 8.5, if:
- you give us notice in writing during the warranty period within a reasonable time of discovery that some or all of the equipment comprising the System do not comply with the warranty set out in clause 1;
- we are given a reasonable opportunity of examining such equipment; and
- you (if asked to do so by us) return such equipment to our place of business at your cost,
we shall use our reasonable efforts to attend during Normal Working Hours on the next working day following notification of the fault by you and, at our option, repair or replace the defective equipment, or refund the price of the defective equipment in full.
- We shall not be liable for the System’s failure to comply with the warranty in clause 1 if:
- the defect arises because you failed to comply with any of your obligations set out in clause 4;
- the defect arises because you failed to follow ours or our supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the System or any item of Customer’s Equipment or Company’s Equipment or (if there are no such instructions) good practice;
- the defect arises as a result of our following any drawing, design or specification supplied by you;
- you or a third party who is not one of our authorised repairers alter or repair such equipment without our written consent;
- the defect arises as a result of fair wear and tear, abnormal storage or working conditions or from accident, wilful damage, negligence by you or by any third party; or
- the System or any Customer’s Equipment or Company’s Equipment differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
- Except as provided in this clause 8, we shall have no liability to you in respect of the System’s failure to comply with the warranty set out in clause 1.
- The terms of these Terms and Conditions shall apply to any repaired or replacement equipment supplied by us under clause 2.
- Our obligations do not extend to the replacement of infra-red, halogen and other types of lamps, batteries, camera and monitor tubes, video recording heads, access cards and all other general consumable items utilised by the System.
- Consumers please note that this warranty is in addition to your legal rights in relation to the goods that are faulty or not as described. We have a legal obligation to supply goods that are in conformity with the contract. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office
9. Our Obligations Concerning the Provision of the Service
- Once we have received the Service Charge we will provide you with the Service. The elements of the Service are more particularly described below – only those elements ordered by you apply. Furthermore, we will ensure that the Service is delivered in accordance with the relevant standard as described by the British Standards Institution and (where appropriate) NSI Codes of Practice.
- Outright Sales Standard Maintenance
We will carry out one routine maintenance inspection on the System per annum, in line with industry standards. The maintenance inspections will alternate between a physical inspection carried out by an engineer and a remote electronic inspection carried out by our remote resolution staff based at our Service Centre. The physical inspection will be carried out during Normal Working Hours. Physical inspections that are carried out at your request outside Normal Working Hours will incur additional charges. You will be charged on a time and materials basis for all necessary repairs to and replacing faulty items in the System after the end of the Warranty Period. Where additional charges are applicable, they will be charged on the following basis:
(a) in an emergency situation outside Normal Working Hours, we will inform you of the price the next working day during Normal Working Hours; or
(b) otherwise, you will be given a quotation for the additional time and materials.
- Outright Sales Partly Comprehensive
As set out in clause 9.1.1 but you will not be charged for our engineer’s time
- Outright Sales Fully Comprehensive
As set out in clause 9.1.1 but you will not be charged for our engineer’s time or replacement equipment if the System is faulty after the end of the Warranty Period.
- Rental Contracts
The service level will be as described in clause 9.1.3.
- Monitoring – All Systems except Residential Alarm Systems
Once the signalling equipment has been connected to the Alarm Receiving Centre and tested we will monitor the signals we receive at the Alarm Receiving Centre from the System. We will carry out the actions as laid down in the Specification and/or any addendum to this Agreement
- Engineering Response
This is a twenty-four hour seven days a week service, which includes all necessary repairs to and replacing faulty items in the System, which have been caused by any inherent defect or fair wear and tear.
- Key Response
If you have chosen the Key Response Service, upon receipt of an alarm signal by the Alarm Receiving Centre, we will despatch a key response officer to your Premises. On arrival the key response officer will contact the appropriate authority.
- We have the right to make any changes to the Service which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Service, and we shall notify you in any such event.
- You agree to pay us in full and in cleared funds the deposit or the full amount of the Installation Charge as indicated in the Quotation on or before signing the Agreement and, if a deposit is payable, you shall pay us the balance of the Installation Charge on the Installation Date.
- You agree to pay the first Service Charge in full and in cleared funds on the Installation Date. Each subsequent Service Charge will be payable at monthly intervals in advance. Time for payment is of the essence.
- Where we require payment by Direct Debit, if we are unable to collect a payment by Direct Debit due to insufficient funds we may charge you a fee of up to £15 to cover our administration costs. This charge will be taken the next time we attempt to take the relevant payment.
- We reserve the right to increase the price of the System, by giving notice to you at any time before delivery, to reflect any increase in the cost of the System to us that is due to:
- Any request by you to change the delivery dates, quantities or types of goods ordered or the Specification; or
- Any delay caused by any instructions from you in respect of the System or your failure to give us adequate or accurate information in respect of the System.
- It is agreed that the Service Charge will remain fixed for the first twelve months this Agreement is in force. After this time, we reserve the right to adjust the Service Charge annually in line with the Retail Price Index and any other increase in costs that we have incurred resulting from changes to police force policies and industry legislation. We will advise you 30 days prior to the increased Service Charge taking effect. After the Initial Period, you may terminate the Agreement with immediate effect by written notice given prior to the increased Service Charge taking effect.
- We will make it clear on our Quotation whether the amounts payable are inclusive or exclusive of VAT from time to time. Where any taxable supply for VAT purposes is made under the Agreement, by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Service or System at the same time as payment is due for the supply of the System or Service.
- In the event that any payments due pursuant to this clause 7 are not made by the due date then you agree that interest shall accrue on the outstanding sum in question on a daily basis at the rate of 3% per annum above the base rate of NatWest Bank plc from time to time, compounded monthly on all amounts or account overdue until the payment in question has been made to our satisfaction irrespective of whether judgment in respect of the sum has been entered.
- If you are a business:
- You shall pay all amounts due in full without any set-off, counterclaim, deduction or withholding except as required by law; and
- We may, without limiting our other rights and remedies, set off any amount owing to us by you against any amount payable by us to you.
- Even if the Customer’s Equipment has been delivered to the Premises and installed there, beneficial and legal title to the Customer’s Equipment will only pass to you when we have received full payment in cleared funds of the Installation Charge and any delivery charges.
- Subject to clause 5, until we have received payment of the sums due under clause 10.1, you shall:
- hold the Customer’s Equipment on a fiduciary basis as our bailee;
- store the Customer’s Equipment separately from all other goods held by you so that they remain readily identifiable as our property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Customer’s Equipment;
- maintain the System including the Customer’s Equipment in satisfactory condition and keep it insured against all risks for its full price on our behalf from the Installation Date; notifying us immediately if you suffer any of the events listed in clause 16.2.2 or clause 2; and
- give us such information relating to the System, including the Customer’s Equipment, as we may require from time to time.
- Throughout this Agreement the legal and beneficial title of the Company’s Equipment will remain with us.
- You shall not to sell, encumber, charge, or offer the title to the Company’s Equipment during the term of this Agreement to any third party and you agree to reimburse us for any cost, expense, claim, loss or damage that we may subsequently suffer as a result of your failure to abide by this covenant.
- If you are a business, you may use the Customer’s Equipment in the ordinary course of business and without any right to commit us to any contractual relationship or liability with any third party, but as between you and us on any sale of the Customer’s Equipment to a third party, you shall act as our fiduciary agent and provided that, in the event that we have not lost title to the Customer’s Equipment prior to sale by reason of their use, consumption or incorporation into other products (for the avoidance of doubt, you acknowledge and agree that the Customer’s Equipment maintain their identity when incorporated and can be separated by a simple procedure without causing damage and that we shall not lose title to the Customer’s Equipment when incorporated):
- you shall not have authority to transfer title to the Customer’s Equipment unless and until you have received payment or payments for the sale in a sum no less than the total sums due under clause 1;
- you shall hold all sums paid to you by the third party pursuant to the sale (Third Party Sale Payment) on account for our benefit and agree to pay the Third Party Sale Payment into a separate and dedicated account;
- you shall account to us for the Third Party Sale Payment and we undertake to account to you for any balance remaining from the Third Party Sale Payment after we have appropriated the total sums due under clause 1 or such sums less than the total sums due under clause 11.1 which we have appropriated.
- If before property in the Customer’s Equipment passes to you, you become subject to any of the events listed in clause 16.2.2 or clause 2, or we reasonably believe that any such event is about to happen and notify you accordingly, then, provided that the Customer’s Equipment have not been resold, or irrevocably incorporated into another product or structure, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the System and:
- if you are a business and if you fail to deliver up the System promptly, we may enter any premises of yours or of any third party where the Customer’s Equipment and/or the Company’s Equipment are stored in order to recover them; or
- if you are a Consumer, then we may apply to court to enter the Premises and remove the System.
- You agree to assume all risk in the Company’s Equipment and Customer’s Equipment from such time as the item in question has been delivered to the Premises by our agents or us.
- You agree to insure the Company’s Equipment against any loss or damage howsoever caused (which will include cover for all loss which you may suffer as a result of the System not working or any failure to provide the monitoring).
- You hereby agree to reimburse us our reasonable costs, expenses, claims, losses or damage incurred by us (irrespective of whether such cost, expense, claim, loss or damage is caused by loss of profit or damage to property), which we incur as a result of any failure, neglect or negligence by you in looking after the System.
13. Your Further Obligations
- You agree to reimburse us within one calendar month of any written demand in respect of the following reasonably incurred by us for you:
- cost of damage to or engineering call-outs to the System due to fire, storm, tempest, flood, mains failure of over eight hours, riot, and civil disturbance, break-in, attempted break-in, accident, misuse or neglect of the System;
- any charges paid by us to the local police authority for the provision of a Unique Reference Number or as a result of you neglecting to use the System properly and the Key Holder being unavailable to assist the police promptly;
- any modifications required to the System due to changes of British Standards, Industry Standards, NSI Codes of Practice and Police Force Policy;
- any other exclusions in the Specification;
- any work not included in the Specification concerning redecorating, repairing, carpet laying, concealing cables, building work or carpentry work.
- You agree to arrange adequate insurance cover against any liability (including all damages, costs and expenses) we may suffer in respect of the following:
- causing death or injury to any of our employees, agents or subcontractors because you, your agents or any person on your Premises with your permission, is negligent or has not fulfilled their statutory responsibility pursuant to the Occupiers Liability Act 1957 or any successive or amending legislation of Parliament;
- loss of or damage to any property which belongs to our employees, agents or subcontractors which has been caused by your negligence or the negligence of your agents or anyone else on your Premises with your permission;
- any action brought by any third party as a result of your negligence which includes the actions of any agent.
- You accept that the System can only properly function if the wiring and electrical system at the Premises perform properly and therefore in the event that the System is unable to work properly because of any such failure of the wiring and electrical system to perform properly this will remain your responsibility and, subject to clause 14 (if you are a Consumer) or clause 15 (if you are a business), we will not be liable for any loss or damage that arises as a result of any such failure of the wiring or electrical system or both.
14. Our Liability if you are a Consumer – your attention is particularly drawn to this clause
- You agree that we have no specific knowledge of the Premises in which the System has been installed and will be serviced. In light of our lack of knowledge of any such specific risks (in addition to the requirement that you take out insurance prescribed in clause 2), our liability is hereby limited as follows:
- Subject to clause 14.1.2 and clause 14.1.3:
- If either of us fails to comply with these Terms and Conditions, neither of us shall be responsible for any losses that the other suffers as a result, except those losses which are a foreseeable consequence of a failure to comply with these Terms and Conditions or negligence. Loss or damage is foreseeable if they were an obvious consequence of a breach of the Agreement or if they were contemplated by you and us at the time we entered into the Agreement; and
- We will make good any damage to your property caused by us in the course of installation or performance. However, we are not responsible for repairing any pre-existing faults or damage to your property that we discover in the course of installation and/or performance by us; and
- If we lose keys or card keys that we hold we will pay the reasonable cost of a replacement key or card key and replacing the applicable lock; and
- Our total liability to you in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £5 million; and
- Subject to clause 1.3, where we only supply the System and the Service you have ordered for domestic and private use, you agree not to use the System and Service for any commercial, business or re-sale purpose, and we have no liability to you for losses that result from our failure to comply with these Terms and Conditions which fall into the following categories:
- Subject to clause 14.1.2 and clause 14.1.3:
- loss of income or revenue;
- loss of profit;
- loss of business;
- business interruption;
- loss of business opportunity;
- loss of anticipated savings; or
- loss of data; and
- Nothing in these Terms and Conditions excludes or limits in any way our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, defective products under the Consumer Protection Act 1987 or any other liability which is not permitted by law to exclude or limit.
- As you are a consumer, nothing in these Terms and Conditions will reduce your statutory rights relating to faulty or mis-described goods. For further information about your statutory rights, contact your local authority Trading Standards Department or Citizens Advice Bureau
15. Our Liability if you are a Business – your attention is particularly drawn to this clause
- You agree that we have no specific knowledge of the Premises or your business in respect of which the System has been installed and will be serviced. In light of our lack of knowledge of any such specific risks our liability is hereby limited as set out in this clause 15.
- Nothing in these Terms and Conditions shall limit or exclude our liability for:
- death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
- defective products under the Consumer Protection Act 1987.
- Subject to clause 2:
- We shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the contract; and
- Our total liability to you in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £5 million.
- Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.
16. Your termination rights where you are a Consumer
This clause only applies if you are a Consumer.
- Before we begin to provide the Service or the Customer’s Equipment is delivered or installed, you have rights to cancel as indicated in the box section labelled “IMPORTANT – YOUR CONSUMER RIGHT OF RETURN AND REFUND”.
- Once we have begun to install the System:
- If any party breaches this Agreement then the other can elect to duly terminate by giving the party in breach seven days written notice.
- Without limiting its other rights or remedies, each party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) the other party (being a company) goes into liquidation or a receiver or administrative receiver or administrator is appointed over its assets;
(b) the other party commences negotiations with all or any class of its creditors with a view to entering into any kind of arrangement or settlement with its creditors;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company);
(d) the other party (being an individual) is the subject of a bankruptcy petition or order;
(e) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (d) (inclusive) of this clause 16.2;
(f) the other party (being an individual) dies.
- Without limiting any other remedies or rights we may have, if you are in breach (and this includes a payment due to us being more than one month in arrears) or if you become subject to any of the events listed in clause 2.2 (b), clause 16.2.2 (d) to clause 16.2.2 (f) (or we reasonably believe that you are about to become subject to any of them), then we can elect to cancel or delay the installation and/or withdraw the Service until you have paid the outstanding amounts, remedied the breach or the circumstances in clause 16.2.2 (b), clause 16.2.2 (d) to clause 16.2.2 (f) have ceased (as the case may be) and may use our remote access to disable the Service remotely (this does not damage or prevent the Customer’s Equipment from functioning as a system). You will receive written notice of this.
- Unless this Agreement is terminated by you under clauses 2.1 or 16.2.2, if you terminate this Agreement with effect from a date during the Initial Period, such termination will be a breach of this Agreement. If this Agreement is terminated due to your breach of this Agreement during the Initial Period then you will not be entitled to a refund of any amount paid for the System or any amount paid for the Service to the date of termination and you agree to pay us two thirds of the Service Charges for the period from the date of termination to the end of the Initial Period. This represents a fair estimate of the loss of profit we would have suffered in those circumstances as for this period of time we would not be able to make appropriate alternative use of the Company’s Equipment or the resources that we put in place to provide you with the Service but takes into account that we do not have to monitor and inspect the System and that we are being paid earlier than expected.
- If this Agreement is terminated you agree to deliver the Company’s Equipment to us within two calendar weeks of the termination date and if this does not occur you will allow us the necessary access to enable us to remove the Company’s Equipment from your Premises and we will charge you for our reasonable costs incurred in removing the Company’s Equipment from your Premises, except that if you terminate this Agreement as a result of a breach by us, you will not be liable for this charge.
- In the event of termination by you under clause 2.2, you will pay us for any Services that have been provided to you and any costs we reasonably incurred in fulfilling our obligations under this Agreement. We will tell you what these costs are when you contact us. Any advance payment you have made for Services that have not been provided will be refunded to you, subject to deduction of our reasonable costs.
17. Termination where you are a business
This clause only applies if you are a business.
- If any party breaches this Agreement and (if remediable) fails to remedy the breach within seven days after notice in writing to do so, the other party can elect to terminate the Agreement with immediate effect by giving written notice to the party in breach.
- Without limiting its other rights or remedies, each party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) 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 (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party (being an individual) is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) 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);
(g) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (h) (inclusive) of this clause 17.2;
(j) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(k) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
- Without limiting any other remedies or rights we may have, if you are in breach (and this includes a payment due to us being more than one month in arrears) or become subject to any of the events listed in clause 2 (a) to (k), or we reasonably believe that you are about to become subject to any of them, then we can elect to cancel or delay the installation and/or withdraw the Service. You will receive written notice of this.
- Unless this Agreement is terminated by you under clause 1 or clause 17.2, if you terminate this Agreement with effect from a date during the Initial Period, such termination will be a breach of this Agreement. If this Agreement is terminated due to your breach of this Agreement, you shall pay us two thirds of the Service Charges for the period from the date of termination to the end of the Initial Period. This represents a fair estimate of the loss of profit we would have suffered in those circumstances as for this period of time we would not be able to make appropriate alternative use of the Company’s Equipment or the resources that we put in place to provide you with the Service but takes into account that we do not have to monitor and inspect the System and that we are being paid earlier than expected.
- If this Agreement is terminated:
- you shall immediately pay to us all of our outstanding unpaid Service Charge instalments that have not been paid on their due date for payment and interest; and
- you agree to deliver the Company’s Equipment and any Customer’s Equipment which have not been fully paid for to us within two calendar weeks of the termination date. If this does not occur, we may enter your Premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement. We will charge you for our reasonable costs incurred in removing the Company’s Equipment from your Premises, except that if you terminate this Agreement as a result of a breach by us, you will not be liable for this charge
18. Effect of Termination – Businesses and Consumers
- On termination of the Agreement for any reason the accrued rights and remedies of you and us as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry, and clauses which expressly or by implication have effect after termination shall continue in full force and effect.
- Where our Service includes an NSI certificate and competence, on termination of the Agreement for any reason:
- the NSI certificate shall be deemed to be cancelled;
- we will notify the local police; and
- we recommend that you inform your insurer and the cost of your premiums may increase
- We may transfer all or any of our rights under this Agreement and perform any of our obligations through selected persons, but this will not affect your rights under this Agreement.
- This Agreement is personal to you and may not be assigned or otherwise transferred by you unless you have obtained our prior written consent, which shall not be unreasonably withheld.
Should you have any problems with the System or our Service which you are unable to resolve with our sales person or the branch/department manager please write to the Director of the area/department in question. This complaint will be acknowledged within three working days of receipt and an investigation undertaken. A formal written outcome of the investigation will be sent to you within 15 working days
If you wish to contact us in writing, or if any clause in these Terms and Conditions requires you to give us notice in writing, you can send this to us by e-mail, by hand, or by pre-paid post to our registered office as set out above or email@example.com. If we have to contact you or give you notice in writing, we will do so by e-mail, by hand, or by pre-paid post to the address you provide to us in the Quotation form. Any notice shall be deemed to be served if sent by fax or e-mail, one Business Day after transmission; if delivered personally, when left at the address referred to in this clause; or if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
22. Events Outside Our Control
Any delay or failure by us to perform any or our obligations by reason of any cause beyond our control, including without limitation, strikes, lock-outs, labour disputes (whether involving our workforce or any other party), failure of a utility service or transport network, act of God, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, weather conditions, traffic congestion, breakdown of plant or machinery, obstruction of any public or private roads or highway, epidemic or default of suppliers or subcontractors, shall not be deemed to be a breach of this Agreement.
23. Third Party Rights
This contract is between you and us. No other person shall have any rights to enforce any of its terms.
24. Requested Dates
We will use our reasonable endeavours to meet any times, dates, or periods requested by you for delivery, installation or provision of the Service but any such dates shall be estimates only and time for delivery or for the performance of the installation or provision of the Service shall not entitle you to terminate the Agreement.
If any court or competent authority decides that any of the provisions of these Terms and Conditions or any provisions of the Agreement are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.
If we fail to insist that you perform any of your obligations under the Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
27. Governing Law and Jurisdiction
- The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and interpreted in accordance with English law.
- If you are a Consumer, you and we both agree to the non-exclusive jurisdiction of the English courts. If you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland and if you are a resident of Scotland, you may also bring proceedings in Scotland.
- If you are a business, you and we both agree to the exclusive jurisdiction of the courts of England and Wales to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
Issue 2 April 2014