TERMS & CONDITIONS OF SALE
1. Definitions, etc.
(i) “Applicable Standards” means those adopted by any approvals or regulatory organisation by which the Installer is for the time being Recognised or any modification or replacement thereof, current at the date of this Contract.
(ii) “Authority” means any private or public organisation, body or association which provides response service in relation to security or alarm systems, or which is otherwise involved in the monitoring of security or alarm systems.
(iii) “Corrective Maintenance” means the diagnosis and repair of faults and defects including defects discovered during Preventative Maintenance work or as a result of emergency call-out.
(iv) “Contract” means any contract for any design, supply, installation, servicing, maintenance, and/or monitoring of system between the Customer and the Installer.
(v) The “Customer” means any company, contractor, sub-contractor, Employer, firm or individual or agent thereof to whom the Installer’s Quotation or Contract is/was addressed.
(vi) The “Installation” means any fire, security, access control, CCTV or alarm or extinguishing/suppressant system and items of associated or supplemental equipment described in the system design specification and which is the subject of this Contract.
(vii) The “Installer” means FMS Fire & Security Limited (FMS).
(viii) “Maintenance Contract” means the Contract between the Customer and the Installer for the maintenance of the Installation for the duration of the Maintenance Contract Period
(ix) The “Maintenance Contract Period” is that period quoted in Section I of any Maintenance Contract and accepted by the Customer and commences initially on the date of issue by the Installer of a Certificate of Compliance for the Installation or may commence on any anniversary of that date thereafter.
(x) The “Maintenance Contract Price” is that price payable by the Customer in Section I of any Maintenance Contract, and may be subject to reasonable increase (based on the Retail Price Index or other suitable measure) on an annual basis, during the Maintenance Contract Period, to cover increases in wages, rates, travelling costs, and any other relevant prevailing factors since the date of the Contract.
(xi) “Preventive Maintenance” means inspection, testing and adjustment of the Installation to confirm satisfactory operation or to identify any faulty items or processes to the Customer.
(xii) The “Quotation Price” is that price accepted by the Customer in the FMS Fire and Security Ltd Agreement and is not subject to revision except by agreement in writing of both parties.
(i) Acceptance of the Quotation or incorporation of the quotation in whole or in part into any other Contract is an express and unconditional acceptance of the quotation/tender and these terms and conditions, despite any which may have been added by the Customer which may seek to specifically override these Terms and Conditions which will always take precedence if necessary for purposes of any perceived inconsistency or ambiguity between any further documents forming a subsequent Contract. This clause shall have effect even in the event that any more recent documents seeking to override the design requirements, specifications, scope, quantities, price or any aspect of any part of any offer by FMS is incorporated. At all times, these conditions and FMS’s offer/tender shall take precedence over any other documents regardless of any clauses seeking for FMS to rescind or withdraw any terms, conditions or qualifications to its offer regardless of when such other documents were incorporated. In the event that FMS accepts an offer to undertake works under another contract, these terms and conditions if incorporated within the contract documents shall take precedence over all other terms, regardless of any clause within such contract seeking to demote or remove the validity of these terms and regardless of the date of such documents.
(ii) Nothing in these Conditions will vitiate or reduce the Customer’s statutory rights relating to faulty and/or misdescribed goods.
3. Basis of Quotation for Installation
(i) Installing work is to be done during normal working hours, i.e. Monday to Friday 9.00 a.m. to 5.30 p.m. (statutory holidays excepted). Any extension of such hours or period directly or indirectly caused by the Customer shall entitle the Installer to charge any reasonable extra costs resulting.
(ii) Variation or additional work ordered by the Customer shall be charged on the basis of reasonable time and materials at rates and costs current at the time of such work (unless separately agreed in writing prior to the variations/additional work starting).
(iii) Unless otherwise specifically agreed, the Quotation Price does not include any extraneous work, making good, re-decoration, carpet laying, building or carpentry work etc. and is contingent on engineers having unhindered access to doors, windows, cable runs and all other areas where work has to be carried out.
(iv) Any item of equipment not actually sold to the Customer shall be denoted as such in the system design specification and shall be subject to separate rental and/or maintenance terms as may be appropriate.
4. Terms of Payment
4.1 Any specified deposit shall be due and payable by the Customer on acceptance of the Quotation.
4.2 The outstanding balance of the Quotation Price shall be due on completion of the Installation (“the Final Date for Payment”) and prior to handover of the keys or keypad combination code to the Customer.
4.3 The Installation shall remain the property of the Installer until all sums due and payable by virtue of this paragraph have been received by the Installer, but the Customer shall nevertheless at all times be responsible for loss of and damage to the Installation unless such loss and/or damage arises from the negligence of the Installer, its employees or agents.
4.4 This paragraph only applies to contracts which are subject to the Housing Grants, Construction and Regeneration Act 1996.
Payment Due date shall be 21 days from the date of the Installer’s Application for Payment. The Final Date for Payment shall be 30 days from the Installer’s Application for Payment.
Any part of any payment application as required above may not be withheld by the Customer after the Final Date for Payment unless an effective Payment Notice (or Pay Less Notice) has been issued in good time (as required by the Housing Grants, Construction and Regeneration Act (1996) as amended by the Local Democracy, Economic Development and Construction Act (2009) setting out;
(i) the amount of the payment made or proposed to be made and
(ii) the basis upon which that account was calculated and
(iii) the ground or grounds for withholding payment and if more than one, the amount attributable to each ground
(iv) in the event that retention is applied at an agreed percentage to any contract, the first release of 50% retention shall be upon completion of FMS’s works with the second release of remaining retention becoming due for payment 12 months from the date of completion of FMS’s works with the final date for payment of same being one day after the due date.
(v) Any payment not made upon the Final Date for Payment shall be subject to simple interest at 10% per annum.
The Installer will use its best endeavours to effect completion of the Installation by the agreed completion date but it cannot be held liable for any loss or damage resulting from delay or non-delivery due to causes beyond its control. The Customer shall pay all reasonable costs for any delay or disruption imposed upon the Installer during installation by reasons of breach by the Customer or any others over which the Customer has control.
6. Liability for Loss or Damage
(i) The Installer does not know, and shall not be deemed to know, the true value of the Customer’s property or premises, and is not the insurer thereof.
(ii) Apart from death or personal injury, the aggregate liability of the Installer and its staff for any breach of contract, breach of statutory duty or negligence arising out of this contract, or presence at the Customers premises shall be limited to £ 5,000,000 for any kind of loss or damage whatsoever. The Customer shall notify the Installer of any claims within 30 days of the occurrence giving detailed grounds and supporting evidence for such claims.
(iii) Although an intruder detection/alarm Installation may be designed to the best of the Installer’s skill and knowledge to reduce the risks of loss or damage or to deter intruders (as the case may be) the Installer does not represent or warrant that the Installation may not be neutralised, circumvented or otherwise rendered ineffective by the Customer, intruders or other unauthorised persons, and in such event it shall not be liable for direct or indirect loss or damage suffered by the Customer, intruders or other unauthorised persons.
(iv) In view of the previous sub-paragraphs (i) to (iii) inclusive, the Customer acknowledges that he, she or it should effect appropriate insurance cover.
For one year from the date of handover of any section of completed works the Installer shall carry out replacement or repair of parts and rectification of faults within a reasonable period of time, free of charge (including call out where specified) and to the Applicable Standards except for any such things made necessary by wilful or negligent act of any person (other than the Installer, its employees, and agents), or by some other cause or peril beyond the Installer’s control.
Until full payment is received as referred to in Section 4 above, every part of the Installation and associated equipment shall remain the property of the Installer and the Customer irrevocably grants licence in the event of his, her or its default and/or insolvency or insolvency of any Employer to which the Customer is contracted, to enter upon the site premises to recover the same whether fixed or unfixed. Until recovery of the Installer’s property, the Customer shall take reasonable care of same and shall pay the Installer’s reasonable costs of replacing or repairing the same. For the avoidance of doubt, if these terms are incorporated in any contract agreement, they shall take precedence over all other terms regardless of any written terms seeking to demote or remove the validity of these terms, regardless of the date of such contract being issued subsequent to these terms. Insolvency of any Employer or other paying party in contract with the Customer shall not relieve the Customer’s liability for proper payment of all installations, goods and services provided or carried out by the Installer.
9. Installer’s Obligations
(i) In consideration of the sum paid or to be paid by the Customer, the Installer undertakes to install the Installation in accordance with the Applicable British and European Standards adopted by the approvals or regulatory organisation by which the Installer is for the time being recognised, to the best of its ability and that such equipment used in the Installation shall comply with such standards.
(ii) In consideration of any Maintenance Contract Price specified and paid or to be paid by the Customer within 21 days of the date due and annually thereafter in advance on the anniversary of that date to the Installer, the Installer will, for the duration of the Maintenance Contract Period specified, carry out maintenance inspections of the Customer’s installation together with other services where applicable as specified in para. 9(iv) below.
(iii) This Combined Quotation/Sale and Maintenance Contract document relates only to the Installation described in the system design specification which is the subject of that document, and the maintenance provisions shall only apply if agreed between Customer and Installer.
(iv) When the Contract document provides for maintenance service, the Installer agrees, subject to reasonable access to the site and installation being available, periodically to inspect, test and adjust the Installation and to carry out all necessary maintenance thereto on the number of visits set out in the Maintenance Contract document in accordance with the Applicable Standards during normal weekday working hours (except where otherwise stated), viz Monday to Friday 9.00 a.m. to 5.00 p.m., upon giving reasonable notice to the Customer of any visit for this purpose. Additional services such as various monitoring services and keyholding shall also be supplied on a 24-hour basis if included within the Maintenance contract Price and accepted by the Customer.
10. Customer Obligations
(i) The Customer agrees to pay in addition to the Quotation Price and the Maintenance Contract Price (if any) for the cost of any works from time to time required to upgrade the Installation to comply with changes to the relevant Applicable Standards.
(ii) To pay for all necessary repairs and replacements to the Installation unless these are covered by guarantees or extended guarantees of the Maintenance Contract or where they are necessary due to the neglect of the Installer, its employees and or agents.
(iii) Where the Installation has been installed so as to be linked with any Authority or monitoring service and where it has operated so as to register with such Authority or monitoring service then the Customer or his agent shall immediately after being aware of the event notify the Installer.
(iv) Not to permit anyone (including the Customer himself) other than the Installer to test, adjust or reset or interfere with the Installation or any part thereof. In the event of a breach of this provision the Installer shall be entitled to terminate the Maintenance Contract forthwith upon its discovery. Any refund which may become payable to the Customer shall be after due consideration of any early expense incurred by the Installer and all additional administration costs and entitlement to loss of profit on earnings.
(v) To permit the Installer’s staff and agents (and Inspectors representing any approvals or regulatory organisation by which the Installer is for the time being recognised) from time to time to have access to the Customer’s premises at all reasonable times.
(vi) Not to charge, pledge or otherwise deal with any of the Installer’s equipment or installation which has not already been sold to the Customer nor part with possession of the same or remove or permit it to be removed from the Customer’s premises.
(vii) To notify the Installer of any proposed structural alteration to the premises or any other modification which may affect the existing Installation or system to which it may be linked. Any extension to or alteration of the Installation which may thereby become necessary shall be carried out by the Installer at the additional expense of the Customer.
(viii) To notify the Installer as soon as practical (and preferably at once) after the appearance of any defect in the Installation, and to permit the Installer to take such steps as it thinks fit to remedy such a defect.
(ix) To ensure that the external alarm bell does not cause a nuisance as defined by current Noise Pollution legislation from time to time. Arrangements must include an automatic device, limiting bell noise to 15 minutes and for two keyholders to be available within this time [current legislation includes London Local Authorities Act 1991, Environmental Protection Act 1990, Control of Pollution Act 1974 Scotland, Noise and Statutory Nuisance Act 1993].
(x) The Customer is to obtain and pay for the telephone line or other telephone company apparatus required for monitoring or remote signalling (if any) as well as other necessary facilities, consents, permits, licenses, wayleaves or approvals required for installing the system. However the Installer will assist by putting the telephone company in touch with the Customer for provision of the requisite type of service.
11. Termination of Maintenance Contract
(i) Either party may terminate the Maintenance Contract (if applicable) by not less than two months’ notice in writing to that effect to expire upon the day before any anniversary of such Maintenance Contract.
(ii) Either party may terminate the Maintenance Contract after the Maintenance Contract Period by serving a notice in writing on the other party of not less than two months.
(iii) In the event of such termination the Customer shall forthwith return to the Installer any part of the Installation and any other equipment which is rented by the Customer from the Installer. The Customer shall thereafter be responsible for making his, her or its own arrangements in regard to any monitoring or other continuing services which may be required, it being a condition that monitoring services will only be provided by the Installer or his agent when a current Maintenance Contract exists between the Installer and the Customer.
(iv) Even though the Contract may be terminated the Installer and his, her or its agents shall have the right upon reasonable notice to enter the Customer’s premises (subject to obtaining prior approval from a Court of Law) to remove any equipment belonging to the Installer and subject to reasonable disturbance only shall not be liable for any loss or damage occasioned thereby.
12. Force Majeure
Any failure by the Installer to perform any obligations by reason of any cause beyond the reasonable control of the Installer shall not be deemed a breach of this Contract.
13. Right to Refer Disputes to Adjudication in Contracts which are subject to the Housing Grants, Construction and Regeneration Act 1996
If this contract is a contract to which the Housing Grants, Construction and Regeneration Act 1996 applies then:-
13.1 If any dispute or difference arises out of or in connection with this contract, any party (“the referring party”) may by notice given to every other party to the agreement at any time refer the said dispute or difference to adjudication to be conducted in accordance with the Adjudication Provisions of the Scheme for Construction Contracts (Scotland) Regulations current at the time of dispute.
13.2 The said adjudication shall be conducted by an adjudicator appointed by agreement between the parties or in default of such agreement; the referring party shall request the RICS Dispute Resolution Service to nominate an adjudicator.
Subject always to the right of any party at any time in a contract to which the Housing Grants, Construction and Regeneration Act 1996 applies, to refer a dispute or difference arising out of or in connection with this agreement to adjudication as above, either party may request by notice in writing, with record of posting, that the dispute be referred to mediation by a person agreed between the parties.
15. Applicable Law and Category of Jurisdiction
This Contract is subject to the Law of Scotland and the parties shall submit to the jurisdiction of the Courts thereof.