1 The Company is engaged in the business of monitoring and or maintaining and servicing the equipment.
2 The Client wishes to procure equipment maintenance services from the Company for the Equipment specified in Service and Maintenance Agreement and the Company agrees to provide those services for that Equipment under the terms and conditions set out in this Agreement.
IT IS AGREED as follows:
1 Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Ancillary equipment” means cabling, mains electrical wiring, pipe work and batteries
“Confidential Information” means all business, technical, financial or other information created or exchanged between the Parties throughout the Term of this Agreement;
“Commencement date and Term” means the commencement date and term in years as defined in the attached Service and Maintenance Agreement;
“Engineer” means a technical, trained and competent service or breakdown engineer provided by the Company;
“Equipment” is as defined in the attached Service and Maintenance Agreement;
“Excluded Works” means works not included within the agreed annual contract sum stipulated in the attached Service and Maintenance Agreement.
“Included Works” means works included within the agreed annual contract sum, depending upon the level of cover stipulated in the attached Service and Maintenance Agreement;
“Materials” means any component, part and ancillary equipment which may form part of the overall equipment;
“Site(s)” means the location or locations at which the Company shall provide the Services as set out in the attached Service and Maintenance Agreement;
“Services” means the equipment maintenance and servicing to be provided to the Client by the Company as defined in the attached Service and Maintenance Agreement;
“Service Fee” means a fixed sum to be paid by the Client to the Company as defined in the attached Service and Maintenance Agreement;
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to this Agreement; and
1.2.5 a Clause or paragraph is a reference to a Clause or paragraph of this agreement.
1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
2.1 The Services will be provided by the Company during the term of this agreement (the “Term”), which shall commence and will continue for a period as defined in the attached Service and Maintenance Agreement.
2.2 The contract will be automatically renewed, with the exception of the price, on the same terms and conditions as set out in this Agreement on a rolling basis for a minimum period of the original Term unless a 1 months’ written notice to terminate (pursuant to clause 16 of this Agreement) is given by either party within 3 months prior to the expiry of the original Term or as otherwise terminated in accordance with Clause 13 of this Agreement. Any such price increase shall be notified by the Company to the Client in accordance with these terms and conditions.
2.3 Should any site or equipment change during the Term, or any renewed Term, the required changes will be added to the schedule and the Company will issue this to the Client with notification of any revised contract price and payment terms.
3 Fees and Payment
3.1 Payment of 100% is required upon acceptance of the installation quotation unless otherwise agreed in writing
3.1 It is agreed that we can invoice stage payment for the installation works completed. We reserve the right to charge a restocking fee for any unwanted ordered equipment, any special order equipment or engraved equipment will not be able to be returned and full payment will still be required throughout the installation and each invoice will be subject to the terms in this agreement
3.1.1 The Client shall pay a Service Fee and or monitoring fee’s to the Company as detailed in the attached Service and Maintenance Agreement throughout the original Term or any subsequent rolling Term in consideration of the Services.
3.1.2 The Client shall be invoiced separately for any new materials, parts or equipment that are supplied by the Company at the request of the Client outside of the quotation and the Client shall pay the invoice upon presentation by bank transfer
3.1.3 Monitoring and maintenance charges are to be either paid in full upon presentation of invoice or set up a direct debit to pay any invoices monthly over the term
3.1.4 Chargeable repairs and any exclusions that fall outside the scope of this contract are payable on completion unless otherwise agreed by the Company.
3.1.5 If payment is not made on the due date in accordance with this clause 3, we shall have the right to require payment of interest on the outstanding amount at a rate of 8% above the Bank of England base rate, accruing on a daily basis from the due date until date of actual payment. We may also refuse to provide any further Services under the Agreement until such time as any outstanding payment has been made
4.1 The Services are as detailed in the above Service and maintenance agreement containing all inclusions and exclusions of Services.
4.2 The Company shall provide the Services in a timely manner and in accordance with prevailing best practices in the industry.
4.3 In compliance with this, we shall endeavour to reach all Sites within 24 hours of the call if site attendance is needed and the systems are not monitored, and reach monitored systems and life safety systems within 4 hours if site attendance is required, although telephone assistance will always be provided first within 1 hour of a call and attendance assessed after the call. However we shall not be liable if these timings cannot be achieved.
4.4 This Agreement shall not be deemed automatically to cover any additional Equipment that the Client may purchase (from the Company or a third party) during the Term. Extension of the Services to cover such new Equipment shall occur only by agreement in writing between the Parties and may result in an increase in the Service Fee, such increase being at the discretion of the Company.
4.5 The following are expressly excluded from the Services and the Company will only undertake them at its discretion and at extra cost to the Client:
4.5.1 Repairs to Equipment which has been misused, abused or damaged deliberately or negligently by the Client or any third party;
4.5.2 Repairs to Equipment damaged as a result of war, terrorism, fire, explosion or natural disaster;
4.5.3 Repairs to electrical equipment or infrastructure that is external to the Equipment;
4.5.4 Repairs to equipment that is ancillary to the Equipment unless expressly included in Service and Maintenance Agreement; and
4.5.5 Repairs to Equipment which has been modified, moved, reinstalled or repaired by the Client or any third Party without the prior written approval of the Company.
4.6 If, in its reasonable opinion, the Company considers that any Equipment cannot be repaired economically so as to put it in a maintainable condition and it notifies the Client accordingly, the Company will thereupon not be required to carry out any Services in relation to that Equipment and it will be deemed to be no longer listed In Service and Maintenance Agreement.
5 Client’s Obligations
5.1 The Client will enable the Company to access the Sites at all times during which the Company reasonably requires such access in order to provide the Services. Such access shall include use of and access to lighting, electrical infrastructure and outlets, and any other facilities which the Company reasonably requires.
5.2 Should the Company be unable to access the site or facilities as they may reasonably require, this shall count as an aborted visit and shall be chargeable as such at our usual rates in place at the time. Should the Company have an unproductive visit, whereupon the Equipment is working on arrival, the Company shall check any diagnostics available to the Company. The Company reserves the right to charge for this visit, based on the Engineer’s reasonable opinion, upon their findings in the diagnostics.
5.3 The Client shall ensure that all Equipment is stored and used in an appropriate manner and, where relevant, in accordance with any and all guidelines and instructions issued by the manufacturer.
5.4 The Client ensure that any and all employees of the Company are not abused by the Client or their employees during the term of this Agreement;
5.5 The Client shall maintain electrical supplies in compliance with the current regulations;
5.6 The Client shall keep all accessible parts of the equipment as clean as practical;
5.7 The Client shall provide the Company with detailed reports of any and all previous problems that may require remedy within the Services. Such reports shall be in the form provided by the Company or, where no such form is specified, in such a form that clearly sets out all known details relating to the problem, such details to include any specifically requested by the Company;
5.8 The Client shall ensure that any materials or equipment is stored and used in an appropriate manner and, where relevant, in accordance with any and all guidelines and instructions issued by the manufacturer; and
5.9 Not to permit themselves, nor anyone else other than Silver (UK) Ltd to test, adjust, reset or interfere with the installation or any part thereof. In the event of a breach of this provision, Silver (UK) Ltd shall be entitled to terminate the Maintenance Contract fore with upon its discovery.
5.10 The Client agrees to pay in addition to the Maintenance Agreement fees, for the cost of any works from time to time required to upgrade the installation to a state which complies with the relevant NSI standards.
5.11 Should the Client fail to carry out any of the above obligations, any aborted visits will be chargeable at the Company’s discretion.
6 Monitoring Charges
6.1 If BT Redcare, DUALCOM or Southern Monitoring increases any of their charges for monitoring at any time throughout the year, we will notify you of the increase and any amount due. This increased amount will be payable by you.
7 Electrical Power and Telephone Lines
7.1 The Customer is responsible for any issues that may arise from power or telephone lines, any faults with the system resulting from telephone lines or broadband and internet issues are not covered under the contract and any issues resulting in a callout due to any of these will be a chargeable visit at the discounted rate.
7.2 Where a communicator (for monitoring) or any speech dialler is to be fitted, the Customer must ensure that there is an adequate telephone point installed as specified by us.
7.3 If BT Redcare is required, then the customer must ensure there is a BT phone line installed which is capable of and ready to take BT Redcare.
8.1 The Company offers a 1 year parts only guarantee on any repaired equipment or replaced parts from the date of repair or replacement. This is limited to the extent of the guarantee provided to the Company by the manufacturer’s guarantee or warranty.
9.1 We resolve to provide a response within 24 working hours and to repair the covered system as quickly as possible but we are unable to account for all situations which may arise including staffing schedules and parts availability. The Company does not accept any liability for any incident that may arise from a system being faulty during the period of the repair.
9.2 The Company shall during the term of this Agreement, maintain employer’s liability and public liability insurance cover in respect of its liabilities arising out of or connected with this Agreement and with an insurance company of repute. The Company shall on request supply copies of the relevant certificates of insurance to the Client as evidence that such policies remain in force. The Company undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.
9.3 The Company shall indemnify the Client for personal injury or death caused by the negligence of its employees in connection with the performance of the Services under this Agreement or by defects in any Equipment or other equipment supplied pursuant to this Agreement.
9.4 The Company shall indemnify the Client for direct damage to tangible property caused by the negligence of its employees or its subcontractors in connection with the performance of the Services under this Agreement or by defects in any materials or equipment supplied pursuant to this Agreement. The Company’s total liability under this Clause shall be limited to the value of any necessary insurance for any one event or series of connected events as detailed in clause 12.5.
9.5 Save in respect of claims for death or personal injury arising from the Company’s negligence, in no event will the Company be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, loss of contracts, nor for any damages that are an indirect or secondary consequence of any act or omission of the Company, whether such damages were reasonably foreseeable or actually foreseen.
9.6 Except as provided above in the case of personal injury, death and damage to tangible property, the Company’s maximum liability to the Client under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the greater of:
9.6.1 the sum for which the Company carries comprehensive insurance cover pursuant to clause 12.1; or
9.6.2 a sum equivalent to the price paid up until the point of claim to the Company for the Services, Equipment or other products that are the subject of the Client’s claim, plus damages limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Client in obtaining alternative products and/or services.
9.7 The Parties acknowledge and agree that the limitations contained in this Clause 12 are reasonable in the light of all the circumstances.
9.8 All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort, including negligence, or any other form of action. For the purposes of this clause, ‘the Company’ includes its employees and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999.
9.9 The Client’s statutory rights as a consumer (if any) are not affected.
10.1 The Company shall be entitled to terminate this Agreement in the event that:
10.1.1 The Client fails to pay the Service Fee to the Company for a period exceeding 14 days and fails or refuses to do so following the expiry of a written notice from the Company requesting such payment within 7 days; or
10.1.2 The Client demands services which do not form part of the Services and which are not covered by this Agreement.
10.1.3 the Alarm Receiving Centre or the System is destroyed or so badly damaged that we cannot reasonably continue to provide the Services;
10.1.4 we cannot arrange or keep the telecommunications facilities needed to transmit the signals between your Premises, the Alarm Receiving Centre and any police, fire or other authority
10.1.5 you commit a serious breach of your agreement with SILVER (UK) LTD, or one which has serious consequences; you commit any breach of your agreement with SILVER(UK)LTD which can be corrected by you, and you do not put matters right within 30 days of our telling you that you have broken the agreement and must put it right
10.1.6 if any legal proceedings are taken against the System or your Premises or any part of the Premises;
10.1.7 If your agreement with SILVER (UK) LTD ends, we will stop providing our services and will also advise the alarm receiving centre to terminate the monitoring of the system
10.1.8 If the monitoring is cancelled mid-term, No refund of any monitoring charges or maintenance charges will be due upon cancellation of the contract
10.1.9 In the event of termination for default committed by the Client, all payments required under this Agreement shall become due and immediately payable. Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Agreement shall survive termination under this clause.
10.1.10 If the police, fire or other authority take away their approval, or will only give their approval depending on conditions, which we believe make it no longer practical to carry on providing our Services. If we give you written notice of suspension, this suspends what we have to do under your agreement with SILVER (UK) LTD and we have no responsibility until the suspension is lifted or the agreement ends. We will tell you in writing if we lift the suspension.
10.1.11 If you do not follow the operating instructions or if, for any other reason which should be within your control, there are an excessive number of false alarm
10.1.12 If you fail to follow any recommendation we make for repairing or replacing faulty or old parts of the System, or for repairs to your premises necessary for the system to work properly
11.1 Should the Client cancel the order, the Company reserves the right to levy reasonable cancellation charges, including but not limited to, any administration costs, procurement costs and loss of profit, against the Client and these shall fall due for payment immediately
12 Relationship of Parties
12.1 Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Company and the Client
13 Sub-Contracting and Assignment
13.1 The Company can without the consent of the Client sub-contract the services to be performed pursuant to this Agreement provided such sub- contractor is a suitably qualified, trained and competent technical engineer able to carry out the works.
13.2 The Client cannot assign, transfer or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.
14 Force Majeure
14.1 Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, pandemics, governmental action or any other event that is beyond the control of the Party in question.
15.1 The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of this agreement. The remainder of this Agreement shall be valid and enforceable.
16 Entire Agreement
16.1 This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.
16.2 Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.
17 No Waiver
17.1 The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
18.1 The relationship between the Parties under this Agreement is and shall remain non-exclusive. Both Parties are free to enter into similar relationships with other parties.
19 Law and Jurisdiction
19.1 This Agreement shall be governed by the laws of England and Wales. Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of England and Wales