Terms and Conditions

1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.

Business Hours: 8.00 am to 5.00 pm GMT each Business Day.

Call Out: an unscheduled Maintenance Visit, in order to inspect or reset the System / Equipment, requested by the Customer.

Call Out Charges: the charges to be paid by the Customer in respect of a Call Out, as set out under clause 16.9 and notified to the Customer in accordance with clause 16.11.

Certificate: a certificate provided by the Supplier in accordance with clause 5.6.

Commencement Date: has the meaning set out in clause 2.1.

Communication Centre: the place where alarm signals from the System are sent for monitoring.

Communications Link: the communications system operated by British Telecom or others for sending alarm signals between the System and the Communications Centre.

Conditions: the terms and conditions for the provision of Services, as set out in this document, together with any Special terms and conditions set out in the Schedule and the Quotation (if any).

Connection Date: the date the Supplier connects the System to the Communication Centre

Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Customer: the person or firm who purchases the Services from the Supplier under this Contract and who is identified under the Schedule as the “CUSTOMER”

Delivery Location: has the meaning set out in clause 11.2.

Equipment: the equipment of the Customer specified in the Schedule, together with any renewals or replacements of, or additions to, such equipment provided by the Supplier

Extra Maintenance: any work the Supplier Is required to undertake to bring the Customer’s Equipment up to the standards required by legislation, and which does not form part of the Maintenance Service.

Fire Authority: The Fire Authority appropriate to site.

Fire Risk Assessment: a Fire Risk Assessment of the Site in accordance with the provisions of the relevant Legislation.

Force Majeure Event: has the meaning set out under clause 24.1.

Goods: the goods (or any part of them) set out in the Order.

Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.

Inclusive Maintenance Service: a Service level which has the meaning set out in clauses 6.2 and 6.4.

Inclusive Plus Maintenance Service: a Service Level which has the meaning set out in clauses 6.2 and 6.5.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Key-holder: the person the Customer nominates to be contacted by the Supplier upon its receipt of an alarm signal.

Legislation: appropriate British Standards (or EU equivalent) relating to fire prevention equipment, and all relevant health and safety legislation (including the Regulatory Reform (Fire Safety) Order 2005).

Maintenance Service: the inspection and testing of the System and Equipment and, if necessary, the replacement of parts or items and refilling of Equipment.

Maintenance Visit: a scheduled visit to the Site to conduct the Maintenance Service.

Minimum Charge: the minimum charge the Customer must pay the Supplier for attending the Site on a Maintenance Visit (excluding the price of spares, refills and new equipment where appropriate) as notified to the Customer in accordance with clause 16.11.

Minimum Term: the minimum number of years during which the Contract is to remain in force, being 6 months for all Services, except fire extinguisher maintenance under the Premier Plus Maintenance Service, in which case a 3-year minimum term applies.

Monitoring and Monitor: checking alarm signals the Supplier receives from the System. Payments: the payments to be made by the Customer to the Supplier for the provision of the Services (dependant on the Service Level and types of Services chosen by the Customer).

Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Supplier’s order form

Premier Plus Maintenance Service: a Service Level which has the meaning set out in clauses 6.2 and 6.6.

Quotation: a written statement drafted by the Supplier and expressly identified as a Quotation, which includes details of charges and other Contract terms.

Schedule: the schedule attached to this document and signed by both parties setting out (amongst other items) the Customer’s details, details of the System and Equipment, and any special conditions agreed.

Services: the services supplied by the Supplier to the Customer as set out in the Service Specification below.

Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer as part of any Order.

Service Level: has the meaning set out in clause 6.1.

Site: the location set out in the Schedule at which the Supplier is to provide the Services to the System and Equipment.

Spend limit: automatic permission by the Customer to the Supplier to provide replacement parts (unlimited unless Stated otherwise in the Schedule).

Standard Maintenance Service: a Service level which has the meaning set out in clauses 6.2 and 6.3.

Supplier: Black & White Fire and security Ltd registered in England and Wales with company number 5673354 its authorised agents and employees.

Supplier Materials: has the meaning set out in clause 15.4.

System: the alarm system of the Customer referred to in the Schedule.

Year: the period of 12 calendar months from the Commencement Date, and each subsequent period of 12 calendar months, during the subsistence of the Contract.

1.2 Construction. In these Conditions, the following rules apply

1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2 a reference to a party includes its personal successors or permitted assigns;

1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

1.2 4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms,

1.2.5 the singular includes the plural and vice versa, and words, importing one gender includes all genders; and

1.2.6 headings are for ease of reference only.

 

2. BASIS OF CONTRACT

The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.

2.1 The Order shall only be deemed to be accepted when the Supplier counter signs any Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in any manufacturer’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described In them. They shall not form part of the Contract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.

2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

 

3. CONTRACT TERM

The Contract comes into force on the Commencement Date and continues in force (subject to clause 21) until the last day of the Minimum Term (or any later date), when the Customer or the Supplier may terminate it by giving the other a minimum of 90 days written notice. That notice must expire before the Contract will end.

 

4. SERVICES

4.1 The Supplier shall provide the Services to the Customer in accordance with the terms of the Contract.

4.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Schedule, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

4.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

4.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

 

5. MAINTENANCE

5.1 The Supplier will carry out a Maintenance Visit, on the frequency set out in the Schedule, during the duration of the Contract. The date of the first Maintenance Visit is set out in the Schedule.

5.2 For fire extinguishers, fire blankets and hose reels only the Supplier shall carry out a Maintenance Service on each of these items of Equipment located at the Site, unless specifically instructed otherwise by the Customer.

5.3 Following any Maintenance Service, or in response to any Call Out, the Supplier will undertake any work that may be necessary to ensure that the System and Equipment comply with all legislation. In the event that this is not covered by the work the Supplier undertakes as part of the Maintenance Service, it will require Extra Maintenance.

5.4 The Supplier will notify the Customer before commencing Extra Maintenance, but will replace the appropriate parts to ensure compliance is maintained up to the Spend limit without requiring permission from the Customer. Permission from the Customer to conduct Extra Maintenance is only required where the repair work and/or parts required to complete such Extra Maintenance exceed any cap on the Spend Limit.

5.5 All Maintenance Visits will be conducted during Business Hours at times agreed between the parties.

5.6 After each Maintenance Visit or Call Out, the Supplier will, subject to clause 5.7, leave a Certificate with the Customer stating that the Supplier has left the System and/or Equipment which it has inspected or tested in proper working order to the standards required by Legislation.

5.7 In the event that any System or piece of Equipment is faulty and cannot be put into satisfactory condition as part of a Maintenance Service (or by Extra Maintenance), clause 17 will apply.

5.8 The Supplier will attend Site as soon as reasonably practicable in response to any Call Out it receives.

 

6. MAINTENANCE SERVICE LEVELS

6.1 In respect of fire extinguisher services, the Supplier offers four levels of Maintenance Service (the “Service Levels”).

6.2 Each Service level comprises a different set of Payment rates, Services provided, and materials included. The Service Level selected by the Customer and the Payment rates applicable are set out under the Schedule. Details of the Services provided, and materials included in the different Service Levels are set out in clauses 6.3 to 6.6 below.

6.3 Plus Parts Service. All servicing carried out under this Service Level is done so strictly in accordance with British Standard 5306: Part 3. The Plus Parts Service includes: the general servicing of the Equipment; greasing and making free all working parts and firing mechanisms, topping up of fluids where water and foam extinguishers are concerned; internal and external inspection to ensure no damage or corrosion is present and checking weighing of cylinders and cartridges to ensure that no loss of content has occurred.

6.4 Part Inclusive Maintenance Service. This Service level includes all servicing provided under the Plus Parts Maintenance Service together with the cost of consumable items such as safety pins, ‘O’ rings, tamper seals, full indicators, gauge seals, valve seals etc. The annual charge does not include provision for major parts or refills which are chargeable in addition, as required, at the Supplier’s standard list prices. The annual charge also does not cover consumable items required due to misuse, theft, vandalism or the like.

6.5 All Inclusive Maintenance Service. This Service level includes all servicing provided under the part Inclusive Maintenance Service together with the cost of refills and replacement parts required provided that the work can be carried out at the Customers’ premises. The annual charge does not include parts or refills required due to misuse, vandalism, theft or the like.

6.6 Premier inclusive Maintenance Service. This Service Level includes all servicing provided under the all Inclusive Maintenance Service together with the cost of replacement extinguishers required. The annual charge does not include parts, refills or replacement equipment required due to misuse, vandalism, theft and the like. See minimum Term.

 

7. MONITORING

7.1 From the Connection Date the Supplier will continuously monitor signals it receives at the Communication Centre from the System.

7.2 Upon receipt of a signal from the System (including any line fault signal) the Supplier will notify the Keyholder of the type of signal received.

7.3 The Supplier will notify the Fire Authority upon receipt of an alarm signal, if applicable, (unless it has not authorised the Supplier to send alarm signals from the Site direct from the Communication Centre to the Fire Authority control room, or it has withdrawn its authorisation for any reason).

 

8. FIRE RISK ASSESSMENT

8.1 The Supplier will carry out an initial Fire Risk Assessment on the Site to ensure it is compliant with the Legislation, The Payment for that Fire Risk Assessment is set out in section 8 of the Schedule.

8.2 Following the initial Fire Risk Assessment carried out in accordance with clause 8.1, the Supplier will conduct annual Fire Risk Assessments to ensure the Site continues to remain compliant with the legislation. Subject to clause 8.3, the Payment for each such annual assessment is set out in section 8 of the Schedule.

8.3 The Supplier reserves the right to increase the Payment due in respect of each annual assessment undertaken in accordance with clause 8.2, in line with increases to the Supplier in the cost of undertaking such assessments. The Supplier will provide to the Customer reasonable notice of such increases.

8.4 Each Fire Risk Assessment will be conducted during Business Hours on a date agreed in advance by the parties.

8.5 The policy for the cancellation of fire risk assessments is as follows:

a) Cancellation on the day of booked Fire Risk Assessment – Full Invoice Value
b) Cancellation 1 working day before booked Fire Risk Assessment – 50% Invoice Value
c) Cancellation 2 working days or more before booked Fire Risk Assessment – No fee as other works can be scheduled

8.6 In the event that the Site is, following the Commencement Date, altered to the extent that the Supplier deems that, for the purposes of complying with Legislation, it has different degrees of fire risk or different requirements, the Supplier reserves the right to vary the Payments accordingly by written notice to the Customer.

 

9. CUSTOMER RIGHTS

9.1 In the event that the Supplier fails to carry out any Maintenance Visit within 30 days of the month scheduled for such Maintenance Visit, as notified to the Customer by the Supplier, the Customer must notify the Supplier of such failure. This notice must be provided by the Customer within 15 days from the Supplier’s default.

9.2 Upon receipt of notice from the Customer under clause 9.1 the Supplier will carry out the Maintenance Visit which was the subject of such notice within 10 days of receipt of the notice, unless a later date is required by the Customer.

9.3 In the event that the Supplier fails to carry out a Maintenance Visit in accordance with clause 9.2, the Customer may, subject to clause 9.6, terminate the Contract immediately upon written notice to the Supplier notifying it of such failure.

9.4 Should the Customer demonstrate to the Supplier’s reasonable satisfaction that the Supplier has failed to maintain the System and the Equipment to the standards set out under clause 5.3, the Supplier shall be entitled to re-perform the Maintenance Service to the appropriate level. This re­performance will take place within 15 days of the Supplier expressly confirming that it was in default.

9.5 If, following the re-performance of a Maintenance Service in accordance with clause 9.4, the Customer can demonstrate to the reasonable satisfaction of the Supplier that the Supplier has failed to maintain the System and the Equipment to the standards set out under clause 5.3, the Customer may (subject to clause 9.6) terminate the Contract immediately upon written notice to the Supplier of its failure in this regard.

9.6 In the event that the Customer is in breach of any of its obligations under the Contract, or the Supplier is prevented from carrying out the Services because of a Force Majeure Event, the Supplier shall not be deemed to have breached its obligations under the Contract and the Customer shall not be entitled to terminate the Contract in accordance with clauses 9.3 and 9.5.

 

10. GOODS

10.1 The Goods are described in the Order as modified by any applicable Goods Specification.

10.2 To the extent that the Goods are to be installed in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 10.2 shall survive termination of the Contract.

10.3 The Supplier reserves the right to amend any Goods Specification if required by any applicable statutory or regulatory requirements.

 

11. DELIVERY OF GOODS

11.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order and all other information reasonably relevant to such Order.

11.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery location.

11.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

11.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

11.5 If the Customer fails to accept or take delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:

a) Delivery of the Goods shall be deemed to have been completed at 9.00 am on the Fifth Business Day following the day on which the
b) Supplier notified the Customer that the Goods were ready, and the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).

11.6 If 10 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.

 

12. QUALITY OF GOODS

12.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:

a) conform in all material respects with their description and any applicable Goods Specification;
b) be free from material defects in design, material and workmanship;
c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
d) be fit for any purpose held out by the Supplier.

12.2 Subject to clause 12.3 if:

a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 12.1,
b) the Supplier is given a reasonable opportunity of examining such Goods, and
c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

12.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 12.1 if:

a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 12.2;
b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
d) the Customer alters or repairs such Goods without the written consent of the Supplier;
e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or the Goods differ from their description or any Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

12.4 Except as provided in this clause 12, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 12.1.

12.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 12.2.

 

13. TITLE AND RISK

13.1 The risk in the Goods shall pass to the Customer on completion of delivery.

13.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full for the Goods. Until title to the Goods has passed to the Customer, the Customer shall:

a) store the Goods separately from other goods held by the Customer so they remain readily identifiable;
b) not remove or obscure any identifying mark or packaging on the Goods;
c) maintain the Goods in satisfactory condition and insure them against all risks at full price on the Supplier’s behalf;
d) notify the Supplier immediately if It becomes subject to any of the events listed in clause 21.1b) to clause 21.1l); and
e) give the Supplier such information relating to the Goods as the Supplier may require.

13.3 Subject to clause 13.4, the Customer may use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods.

13.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 21.1b) to clause 21.1l), then, without limiting any other right or remedy the Supplier may have:

a) the Customer’s right to use the Goods ceases immediately; and
b) the Supplier may at any time:
i) require the Customer to deliver up all Goods in its possession; and
ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

 

14. SUPPLY OF SERVICES

14.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.

14.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

14.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

14.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

 

15. CUSTOMER OBLIGATIONS

15.1 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services.

15.2 The customer shall prepare the Customer’s premises for the supply of the Services,

15.3 The customer shall obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

15.4 The customer shall ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate.

15.5 The customer shall co-operate with the Supplier in all matters relating to the Services.

15.6 The customer shall provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

15.7 Upon notification from the Supplier that ladders, scaffolding or other access equipment is required by the Supplier to carry out the Services, the Customer will provide such access equipment at no charge. The Customer shall ensure that all such access equipment provided is safe to use and meets all health and safety regulations.

15.8 The Customer must advise the Supplier in advance of the provision of any Services if it is aware that there is a risk or potential risk to the Supplier’s employees or agents of exposure to asbestos or other hazardous substances. The Customer agrees to indemnify the Supplier in full for any loss or damage the Supplier or its employees or agents may suffer as a result of the Customer’s failure to advise of any such risks,

15.9 The Customer must notify the Supplier of any changes at the Site which may affect the Equipment or System (such as extensions, alterations in internal layout, or the layout of the system). Such notice must be provided a minimum of 30 days prior to any Maintenance Visit.

15.10 In relation to Monitoring, the Customer must complete and return the Supplier’s Key-holder information form. The Customer must also notify the Supplier promptly in writing of any change in information provided under the Key-holder information form.

15.11 If the System is connected to the Communication Centre, it must be installed, maintained and used by the Customer in accordance with the current British Standard. If the Fire Authority asks the Customer to complete its indemnity form in respect of false (or unwanted) alarm signals, the Customer must return it to the Fire Authority and pay their charges resulting from such false or unwanted signals. The Customer must indemnify the Supplier against loss, penalty, fine or other claim it may suffer if the Fire Authority enters the Site as a result of genuine, false or unwanted fire alarm signals.

15.12 The customer shall keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.

15.13 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 15.13; and
c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

 

16. CHARGES AND PAYMENT

16.1 The price for Goods shall be the price set out in the Order or, if no price Is quoted, the price set out m the Supplier’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.

16.2 The charges for Services shall be as specified in the relevant Order.

16.3 ln respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer monthly in arrears.

16.4 The Customer shall pay each invoice submitted by the Supplier:

a) within 30 days of the date of the invoice; and
b) In full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

16.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT).

16.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier can (without prejudice to any other rights or remedies it may have): (i) cancel the Contract so far as any Services remain to be performed under it, or suspend any further performance of any of the Services; and (ii) charge the Customer interest (both before and after any Judgement) on the amount unpaid at the rate of 8% above the Bank of England base rate under the Late Payment of Commercial Debts (Interest) Act 1998.

16.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

16.8 Maintenance Service and Extra Maintenance.

16.8.1 Where the Supplier provides the Standard Maintenance Service, the Customer must pay the Supplier, in respect of Maintenance Services and Extra Maintenance, the Minimum Charge for the work undertaken (in respect of fire extinguishers, fire blankets and hose reels only) and if applicable, charges for replacing consumable items, spares and refills

16.8.2 In respect of Systems only, the Supplier will charge the Customer for the Call Out charges, together with any extra labour charges not covered by the Call Out charges, and any charges for spares or replacement parts.

16.8.3 Where the Supplier provides a Service Level other than the Standard Maintenance Service, the Customer must pay the Supplier at least the Minimum Charge for the work undertaken in respect of the Maintenance Service and Extra Maintenance.

The Customer must also pay the Supplier’s charges for any replacement fire extinguishers, spares or refills, supplied as part of Extra Maintenance, but does not have to pay for these items if provided as part of the Maintenance Service, unless they are extinguishers which have been tampered with, neglected or used.

16.9 Call Out. The Customer will pay the Supplier’s basic rate Call Out Charge if the Supplier attends the Site during Business Hours and the Supplier’s premium rate Call Out Charge if the Supplier attends the Site outside of Business Hours. These charges, as notified to the Customer in accordance with clause 16.11, exclude the provision of spares, which will be charged in addition.

16.10 Monitoring. The Customer must pay·

16.10.1 British Telecom or any other party charges for installing a new telephone line or a block terminal (in the event that an existing line can be used for monitoring) and all call charges relating to Monitoring;

16.10.2 charges for the connection of the System to the Communications Link;

16.10.3 charges for any work the Supplier has to undertake in order for the System to meet any new conditions set by British Telecom or other party or the Fire Authority;

16.10.4 charges for re-setting the System if it has not been properly used; and

16.10.5 charges that are equal to the amount the Supplier has to pay to the Fire Authority in respect of the Supplier’s Monitoring of the System.

16.11 The charges the Supplier will levy under this Contract are those prevailing at the time the relevant Service is provided. The Supplier will notify the Customer of its Minimum Charge, basic Call Out Charge, premium Call Out Charge and other applicable charges at the Commencement Date. These will remain valid for 12 months. Thereafter, the Supplier reserves the right to increase or alter any charges payable under this Contract by providing the Customer with not less than 2 weeks’ written notice of such changes

16.12 Parking and congestion charges will be charged by the Supplier at the prevailing cost at time of visits where applicable.

 

17. UNSERVICEABLE EQUIPMENT

17.1 In the event that any Equipment is faulty and cannot be put into a satisfactory condition as part of the Maintenance Service or by Extra Maintenance, the Supplier shall notify the Customer using a Certificate and shall provide a Quotation for replacing it. Equipment noted as faulty on a Certificate will not be covered by the Maintenance Service.

17.2 The Supplier may terminate the Contract by written notice if the Customer does do not accept a Quotation provided under clause 17.1 and let the Supplier carry out the necessary work.

17.3 The Customer may be in breach of fire regulations for the Site if any Equipment, which is not subsequently replaced, is marked as faulty on a Certificate or, for fire extinguishers only, marked as unfit for service, condemned or not maintained.

 

18. INTELLECTUAL PROPERTY RIGHTS

18.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

18.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

18.3 All Supplier Materials are the exclusive property of the Supplier.

 

19. CONFIDENTIALITY

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 19 shall survive termination of the Contract.

 

20. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

20.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for any liability which cannot be excluded by law, including but not limited to death or personal injury caused by its negligence or fraud or fraudulent misrepresentation.

20.2 Subject to clause 20.1:

a) the Supplier shall under no circumstances whatever be liable to the Customer, 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
b) the Supplier’s total liability to the Customer 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 £100,000 for each claim or series of related claims, or £1,000,000 in total for any and all claims hereunder, except for any claims for loss or damage arising from loss of gas in fixed fire extinguishers where the Supplier’s total liability shall not exceed £10,000.

20.3 The Supplier is unaware of the value of the contents of the Customer’s premises. Given that the loss of damage that the Customer might suffer in relation to the Contract may be higher than the amounts the Supplier will charge for the Services, the Supplier has provided the Customer with the opportunity to discuss and agree the sums set out in clause 20.2.(b). The liability of the Supplier is therefore limited to the amounts set out in clause 20.2b). It is recommended that:

a) the Customer insures against all loss which it could suffer as a result of any system or equipment of the Customer, for which Services have been provided, not working, or if the Supplier does not respond to any signal it receives from such system or equipment; and
b) the Customer should use, maintain and store any relevant equipment according to those instructions provided with it. The Supplier will not be held responsible for any consequences of the Customer failing to follow any such relevant instructions.

20.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

20.5 This clause 20 shall survive termination of the Contract.

 

21. TERMINATION

21.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
b) 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;
c) 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;
d) 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);
e) the other party (being an individual) is the subject of a bankruptcy petition or order,
f) 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;
g) 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;
h) the holder of a qualifying charge over the assets of the other party has become entitled to appoint or has appointed an administrative receiver;
i) 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;
j) 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 clause 21.1b) to clause 21.1i) (inclusive);
k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
l) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

21.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

21.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 21.1b) to clause 21.1i), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

21.4 On termination of the Contract for any reason.

a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
b) the Customer shall return all of the Supplier Materials which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

 

22. CONSEQUENCES OF TERMINATION

22.1 If the Customer attempts to terminate the Contract before the expiry of the Minimum Term otherwise than in accordance with clauses 21.2 or 21.3, or if the Supplier terminates the Contract in accordance with clause 21.1, the Customer shall pay the Supplier on demand the sums set out in clauses 22.2 to 22.4 (inclusive) as liquidated damages. The parties confirm that these sums represent a genuine pre-estimate of the Supplier’s loss.

22.2 Maintenance Services and Monitoring. The yearly Payments the Customer would have incurred if the Contract had not ended ahead of time, discounted by 50%, or (if it applies and if more) the Minimum Charge which would have been payable if the Contract had ended upon expiry of the Minimum Term, discounted by 50%.

22.3 Services other than Maintenance Services and Monitoring. The percentage of the Supplier’s yearly charges as set out below:

22.3.1 0% if at least 3 years have passed since the Commencement Date;

22.3.2 5% if between 1 and 3 years have passed since the Commencement Date, and

22.3.3 50% if less than 1 year has passed since the Commencement Date.

22.4 On termination (howsoever arising) the Customer shall, in addition to the sums referred to in clauses 22.2 and 22.3, pay all arrears of sums due for Services provided and charges for Equipment, spares or refills supplied by the Supplier, together with interest on outstanding sums due in accordance with clause 16.

22.5 The sums due under this clause 22 are separate and severable. In the event that any sum set out under this clause 22 is invalid, unenforceable or unlawful, then its invalidity, unenforceability or illegality shall not prejudice or affect the remaining provisions of this clause 22 or the Contract as a whole, which shall continue in full force and effect.

 

23. LIABILITY

23.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for;

23.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors,

23.1.2 fraud or fraudulent misrepresentation; or

23.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

23.2 Subject to clause 23.1 and clause 23.5:

23.2.1 the Supplier shall under no circumstances whatsoever be liable to the Customer, 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, such as loss of data, contracts or business interruption, regulatory penalties or fines or loss of savings or any loss or damage arising from the accidental exposure by the Supplier or its agents of asbestos or any other hazardous substance of which the Customer has not made the Supplier aware; and

23.2.2 the Supplier’s total liability to the Customer 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 £100,000 for each claim, or £1,000,000 in total for all claims, except for any claims for loss or damage arising from loss of gas in fixed fire extinguishers where the Supplier’s total liability shall not exceed £10,000.

23.3 The Supplier is unaware of the value of the contents of the Site. Given that the loss or damage that the Customer might suffer in relation to this Contract may be higher than the amounts the Supplier will charge for the provision of the Services, the Supplier has provided the Customer with the opportunity to discuss and agree the sums set out in clause 23.2.2. The liability of the Supplier is therefore limited to the amounts set out in clause 23.2.2 unless otherwise agreed in writing. It is recommended therefore that:

23.3.1 the Customer insures against all loss which it could suffer as a result of its System or Equipment not working, or if the Supplier does not respond to any signal it receives from the System at the Communication Centre; and

23.3.2 the Customer should use, maintain and store Equipment according to the instructions supplied with it. The Supplier will not be held responsible for any consequences of the Customer failing to follow these instructions.

23.4 The Supplier warrants that any goods supplied under this agreement are of satisfactory quality and fit for the purpose that the Customer has advised the Supplier that they are to be used for. The Supplier further warrants that all workmanship carried by or on its behalf will be carried out with reasonable skill and care.

23.5 The Supplier will not be liable for any damage caused to property as a result of the failure of any component(s) in any Dry Riser System during the testing process. The Supplier recommends that the Customer checks the adequacy of its insurance cover in this regard.

23.6 In the event that the Customer has any claim against the Supplier under this Contract, the Customer must give written notice to the Supplier as soon as reasonably possible and in any event not later than six months of the Customer becoming aware of the circumstances of any claim, and in as much detail as reasonably possible. However, if the Customer’s claim is only based on quality of service, it must provide the Supplier with written details of such complaint within 30 days of the date the work was carried out. (And time of notification is of the essence.)

23.7 For Monitoring Services, the Communications Line between the System and the Communications Centre is provided by British Telecom or others. The Communications Centre and British Telecom or others are not under the Supplier’s supervision or control.

23.8 Under the terms of the Contract, starting on the Connection Date, the Supplier must tell the Fire Authority when it receives a signal at the Communication Centre which shows that the System has gone into an alarm condition. There is a risk that alarm signals from the System at the Site might not reach the Supplier at the Communications Centre because of failure or other problems with the Communications Link. It is recommended that the Customer insures against damage or destruction of property or valuables which may result from such failure.

23.9 Save as set out above, all conditions and warranties (whether express or implied) concerning the Services, or any equipment or goods supplied by the Supplier, are excluded to the fullest extent permitted by law.

23.10 The Customer confirms that it has read and fully understands the terms of this clause 23 and accepts the limitations upon liability contained therein. The limitations of liability contained in this clause 23 continue to apply if the Customer makes a claim against the Supplier after termination of the Contract.

 

24. FORCE MAJEURE

24.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

24.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

24.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 6 months, either party shall, without limiting its other rights or remedies, have the right to terminate this Contract by giving 7 days written notice to the other party In the event of termination in accordance with this clause 24.3, charges outstanding for Services actually performed remain payable by the Customer.

 

25. GENERAL

25.1 Assignment and Subcontracting.

a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

25.2 Notices

a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (many other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 20.2(a); 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, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or, if sent by fax or e-mail, one Business Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. It shall be the responsibility of the Customer to confirm receipt, within 7 days of such notice being given, of any notice provided by it to the Supplier.

25.3 Severance.

a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable
b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable.

25.4 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

25.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

25.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

25.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.

25.8 Governing law. This 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 construed in accordance with the law of England and Wales.

25.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

25.10 Customer liability, If the Customer comprises more than one legal person, its liability is joint and several.