Your attention is particularly drawn to clause 11 of these terms and conditions (limitation of liability and indemnity)
The following definitions apply in this agreement.
Agreement or agreement: the agreement between the Customer and the Supplier for the supply of the Services in accordance with these terms and conditions, which shall come into existence when the Customer signs the Estimate.
Applicable Laws: all applicable laws, statutes and regulations from time to time in force.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 8.00 am to 5.00 pm on any Business Day.
Change Order: has the meaning given in clause 5.1.
Charges: the sums payable for the Services, as set out in the Estimate.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: you or the company receiving the Services.
Customer’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services including any such items specified in the Estimate but excluding the any equipment installed as part of the Services.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to clause 3.1(d).
Deliverables: any output of the Services to be provided by the Supplier to the Customer as specified in the Estimate and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services (excluding the Supplier’s Equipment).
Estimate: the estimate for the provision of the Services, which constitutes an offer by the Supplier to provide the Services in accordance with these terms and conditions, which shall be seemed accepted by the Customer when the Customer signs the Estimate.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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.
Party: the Customer or Supplier, as the context requires, together “the parties”.
Services: the services as set out in the Estimate, including services which are incidental or ancillary to such services.
Supplier: Amberstone Security Limited, incorporated and registered in England and Wales with company number 10259434 with registered address Regency House, 33 Wood Street, Barnet, Hertfordshire, EN5 4BE.
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Services including any such items specified in the Estimate but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.
VAT: value added tax chargeable in the UK. VAT No: GB10259434
The provisions of Schedule 1 shall apply when this agreement commences.
2.1 The Supplier shall use reasonable endeavours to supply the Services in accordance with this agreement in all material respects.
2.2 The Supplier shall use reasonable endeavours to meet any performance dates but any such dates, including any installation dates, shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.
2.3 The Supplier may appoint a manager for the Services. That person shall have authority to contractually bind the Supplier on all matters relating to the Services (including by signing Change Orders). The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s manager throughout the term of this agreement, but may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.
2.4 The Supplier shall use reasonable endeavours to observe all reasonable health and safety and security requirements that apply at any of the Customer’s premises and that have been communicated to it under clause 3.1(e), provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.
3.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) appoint a manager for the Services who shall have the authority to contractually bind the Customer on matters relating to the Services (including by signing Change Orders);
(c) provide, for the Supplier, its agents, subcontractors, consultants and employees (Supplier Personnel), in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities at all time during Business Hours;
(d) provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required under the Estimate or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects;
(e) inform the Supplier of all health and safety and security requirements that apply at any of the Customer’s premises;
(f) ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements.
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to the installation of the Supplier’s Equipment, the use of all Customer Materials and the use of the Customer’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
(h) keep and maintain the Supplier’s Equipment in good condition and in accordance with the Supplier’s instructions from time to time and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation; and
(i) comply with any additional obligations set out in the Estimate.
3.2 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, or delays by third parties not under the direct control of the Supplier, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
4.1 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of twelve months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee of the Supplier in the provision of the Services.
4.2 If the Customer commits any breach of clause 4.1, the Customer shall, on demand, pay to the Supplier a sum equal to:
(a) one year’s basic salary of the employee in question;
(b) the reasonable recruitment costs incurred by the Supplier in replacing such person.
5.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Services;
(b) the Supplier’s existing charges;
(c) the timetable of the Services; and
(d) any of the terms of this agreement.
5.2 If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
5.3 If the Customer wishes to make a change to the Services:
(a) it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
(b) the Supplier shall, as soon as reasonably practicable after receiving the information at clause 5.3(a), provide a draft Change Order to the Customer.
5.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend this agreement; or
(b) are unable to agree a Change Order, either party may escalate the matter for discussion between managers.
5.5 The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 5.3 on a time and materials basis at the Supplier’s daily rates specified in the Estimate or otherwise provided to the Customer.
6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges as set out in the Estimate.
6.2 Where the Charges are calculated on a time and materials basis:
(a) the Supplier’s daily fee rates for each individual person as set out in the Estimate are calculated on the basis of an eight-hour day, worked during Business Hours;
(b) the Supplier shall be entitled to charge the additional charges for Bank Holiday, and time outside Normal business Hours as set out in agreed charges estimate; and
(c) the Supplier shall ensure that every individual whom it engages on the Services completes time sheets to record time spent on the Services, and the Supplier shall indicate the time spent per individual in its invoices.
6.3 The Charges exclude the following which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services; and
(b) the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services as such items and their cost are.
6.4 Maintenance and monitoring charges are stated as at the date of this agreement. The Supplier may increase such Charges with effect from the date six months after the Installation Date. The Supplier may also increase the Charges as a result of costs increases which are beyond its control, including but not limited to increases in 3rd party direct charges and changes in Applicable Laws.
6.5 The Supplier shall invoice the Customer for the Charges at the intervals in the Estimate. If no intervals are so specified the Supplier shall invoice the Customer at the end of each month for Services performed during that month.
6.6 The Customer shall pay each invoice submitted to it by the Supplier within 30 days of receipt to a bank account nominated in writing by the Supplier from time to time.
6.7 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.7(a) will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
(b) the Supplier may suspend all or part of the Services until payment has been made in full.
6.8 All sums payable to the Supplier under this agreement:
(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.1 In relation to the Deliverables:
(a) the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
(b) the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
(c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.1(b).
7.2 In relation to the Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
(b) grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Services to the Customer.
7.3 The Supplier:
(a) warrants that the receipt and use of the Services and the Deliverables by the Customer shall not infringe any rights of third parties to the extent that infringement results from copying;
(b) shall, subject to clause 11 (Limitation of liability), indemnify the Customer in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt, use or supply of the Services and the Deliverables; and
(c) shall not be in breach of the warranty at clause 7.3(a), and the Customer shall have no claim under the indemnity at clause 7.3(b), to the extent the infringement arises from:
(i) the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable;
(ii) any modification of the Deliverables or Services, other than by or on behalf of the Supplier; and
(iii) compliance with the Customer’s specifications or instructions
7.4 The Customer:
(a) warrants that the receipt and use of the Customer Materials in the performance of this agreement by the Supplier, its agents, subcontractors or consultants shall not infringe any rights of third parties to the extent that infringement results from copying; and
(b) shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.
7.5 If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this clause 7, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 7.3(b) or clause 7.4(b) (as applicable) (IPRs Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Supplier of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
8.1 In performing its obligations under this agreement, the Supplier shall comply with the Applicable Laws.
8.2 Changes to the Services required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in clause 5 (Change control).]
The parties shall comply with the provisions of Schedule 2 of these terms and conditions in respect of data privacy.
10.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.
10.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
11.1 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.2 Subject to clause 11.1, the Supplier’s total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the lower of £25,000 or ten times the maintenance and monitoring changes arising in the contract year in which the breaches occurred.
11.3 This clause 11.3 sets out specific heads of excluded loss and exceptions from them:
(a) Subject to clause 11.1, the types of loss listed in clause 11.3(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) Loss of profits
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv)Loss of anticipated savings.
(v) Loss of use or corruption of software, data or information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss;
(viii) Loss from burglary, theft, robbery, breaking and entering, malicious damage, riot or commotion or any other unauthorised entry;
(ix) Loss of production.
11.4 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 2. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
11.5 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.6 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier by a third party arising out of or in connection with the provision of the Services, including but not limited to a claim by the Police, the Fire Authorities or any other authorities save for if such claim arises as a result of the negligence of the Supplier.
12.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(d) 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 any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) 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 that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i) 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 the other party’s assets and such attachment or process is not discharged within 14 days;
(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 12.1(c) to clause 12.1(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.2 For the purposes of clause 12.1(a) material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement.
12.3 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment.
13.1 On termination or expiry of this agreement:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall, within a reasonable time, return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Equipment. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping;
(c) the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services; and
(d) the following clauses shall continue in force: clause 0 (Interpretation), clause 4 (Non-solicitation), clause 7 (Intellectual property rights), clause 10 (Confidentiality), clause 11 (Limitation of liability), clause 13 (Consequences of termination), clause 17 (Waiver), clause 19 (Severance), clause 21 (Conflict), clause 26 (Governing law) and clause 27 (Jurisdiction).
13.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
14.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts [(other than in each case by the party seeking to rely on this clause, or companies in the same group as that party)];
(h) interruption or failure of utility service.
14.2 Provided it has complied with clause 14.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
14.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
14.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 30 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
14.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 3 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 3 weeks’ written notice to the Affected Party.
15.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
15.2 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
Subject to clause 5 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
19.2 If any provision or part-provision of this agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
22.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
22.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
24.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
24.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) 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 or at the time recorded by the delivery service.
24.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25.1 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
The following provisions deal with specific aspects of the Services, as indicated and will apply depending on what Service are being provided.
27.1 Specific provisions relating to Security Services
27.2 Goods: the goods delivered pursuant to this Agreement and which make up the Security System.
27.3 Installation Date: the date on which the Security System is actually installed.
27.4 Security System: the equipment that is to be installed as part of the Services and any other equipment from time to time installed as part of the Services.
27.6 The Supplier reserves the right to make any changes in the specification of the Goods or Services which are required for the Goods or Services to confirm with any applicable safety or other statutory requirements or which do not materially affect their quality or performance.
27.8 Delivery of the Goods shall be within the time agreed and if no time is agreed, within a reasonable time by the Customer collecting the Goods at the Supplier’s premises at any time after the Supplier has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed, by the Supplier delivering the Goods to that place at the Customer’s cost. The Supplier may make delivery by instalments.
27.9 Any dates for delivery and/or performance are approximate only and time of delivery and/or performance is not of the essence.
27.10 No claim for damage or shortages will be considered unless the Supplier is given written notice within seven days of delivery. If no such notice is received, the Customer is deemed to have accepted the Goods.
27.11 No claim for non-delivery will be considered unless the Supplier is given written notice within seven days of the date when the Goods would in the ordinary course of events have been received.
27.12 Any claim for damage, shortages or non-delivery must also be notified to the carrier by the Customer in the manner and within the appropriate time limits prescribed by the carrier’s terms and conditions.
27.13 In the event of failure give the appropriate notices as specified by conditions 2.3 to 2.5 any claim by the Customer is deemed to have been waived.
27.14 Where the Goods are to be delivered or Services are to be performed in instalments, each delivery or performance shall be a separate Agreement and failure by the Supplier to deliver or perform any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalment shall not entitle the Customer to treat the Agreement as a whole as repudiated.
27.15 If the Customer fails to take delivery of the Goods or the Supplier is unable to deliver the Goods on time because the Customer has not provided adequate instructions, documents, licences or authorisations, then the Goods are deemed delivered and the Supplier may:
27.16 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
27.17 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess
27.18 over the price under the Agreement or charge the Customer for any shortfall below the price under the Agreement.
27.19 Customer’s obligations
27.20 In respect of the security services the Customer must:
27.21 notify the Supplier immediately of any fault occurring in the Security System; the Supplier will repair such fault as soon as possible after receiving notification. The cost of such repairs, replacement batteries and additional visits must be paid for as a separate item by the Customer;
27.22 not alter or move from its original position any part of the Security System that is physically secured to the premises or any part thereof nor allow the same to be altered or moved;
27.23 at all times operate the Security System with proper care and in accordance with instructions given to it by the Supplier from time to time;
27.24 on the Supplier’s request, supply and fit at its own expense a suitable mains point which complies with the current Institute of Electrical Engineers Rules & Regulations and client network points, BT and/or 3rd Party Comms lines at its own cost including ongoing charges associated. If the Customer requests the Supplier to provide this service, an additional charge will be made.
27.26 During the period of 12 months, unless expressly detailed elsewhere in this Agreement, following the date of delivery or, where applicable, the Installation Date the Supplier undertakes to replace free of charge any faulty or defective Goods fitted by the Supplier but only in so far as such fault or defect arises from faulty materials or workmanship. No other guarantee, condition or warranty shall be incorporated or implied herein unless specifically agreed in writing by the Supplier. Specifically, but without prejudice to the generality of the foregoing, where the Goods purchased for the Security System is normally the subject of a maintenance contract and the Customer does not have a current maintenance contract for whatever reason then the Supplier cannot be liable for any claim whatsoever arising from failure of the equipment in any way.
27.27 Where applicable the installation will be deemed to be completed when the Supplier’s engineer commissions the Security System for online use and issues a Completion Certificate. The Customer shall not be entitled to assume that the Security System is fully operative and protective until receipt of the Completion Certificate.
27.28 All Goods in the Security System are subject to the Supplier’s standard tolerances for variations, details of which will be supplied to the Customer at its written request. The Supplier will not be liable for any loss or damage arising as a result of variations in the Supplier’s specifications or technical data. Any complaint that the Security System does not comply with the estimate must be made in writing to the Supplier within 28 days of the receipt of equipment or the issue of the Completion Certificate where applicable, otherwise no claim will subsist and the equipment will be deemed to be in all respects in compliance with the Agreement. The Supplier assumes no responsibility for any change in specifications requested by a Customer unless such change is confirmed in writing by the Supplier; any price variation resulting from such change will become effective immediately upon acceptance of such change.
27.29 The Supplier reserves the right to make changes in the design of equipment or add to or improve equipment without incurring any obligation to make such changes, additions or improvements in equipment already contracted for.
27.30 Retention of title
27.31 Until such time as the Customer has paid all sums due to the Supplier under this agreement, title to the Goods and Security System shall remain with the Supplier, but the Security System shall be at the Customer’s risk once installation at the Customer’s premises has commenced. Without prejudice to any other rights which the Supplier may have, the Supplier may repossess, re-sell or trace any equipment or the proceeds of sale in the Customer’s hands or in the hands of any trustee in bankruptcy, liquidator or receiver at any time after any payment has become due or immediately upon or after the commencement of any proceedings involving the Customer; for such purpose the Supplier’s servants or agents may enter the premises of the Customer where the Supplier has reason to believe any such goods are.
27.32 Specific provisions relating to the Maintenance Services
27.33 The Supplier shall carry out maintenance visits periodically to the Security System and test the same in accordance with the relevant British Standard requirements.
27.35 In the event of an alarm signal being received, the Supplier shall use its reasonable endeavours and alarm verification capabilities to establish the cause of the activation and take such reporting action as may be deemed necessary.
27.36 In the event of Police response being withdrawn from the Security System, any cost associated with additional services will be met by the Customer.
27.37 The Customer shall at all times and without delay advise the Supplier in writing of any changes in Keyholder information including codes or duress words/numbers and shall pay all costs and charges incurred in effecting any such changes. The Supplier cannot accept any liability for failure by the Customer to provide this necessary information.
27.38 This agreement may be terminated immediately by the Supplier in writing to the Customer if at any time the Supplier is unable to secure or retain the connections or privileges necessary for transmission of signals between the premises, the Central Alarm Monitoring Station, the Police or other appropriate authorities and such termination shall not give rise to any claim by the subscriber against the Supplier.
27.39 The Supplier may terminate this agreement immediately if either the Central Alarm Monitoring Station apparatus of the Customer or the connections are destroyed by fire or other catastrophe or so substantially damaged that the Supplier is reasonably unable to continue providing the Services.
27.40 The parts listed below are specifically excluded from maintenance services and must be paid for by the Customer:
27.41 Monitor tubes;
27.42 Luminaries and lamps;
27.43 Video Heads.
27.44 Specific provisions relating to Guarding Services
27.45 The Supplier may increase the Charges if and to the extent that the Supplier’s costs are increased by increases in the cost of labour in the area in which the Customer’s premises are situated or by changes in law which have an effect after the Services commencement date, or through any additional equipment costs not outlined in initial scope.
27.46 The Supplier reserves the right to charge a minimum 8 hour shift length for requests for ad hoc guarding services.
27.47 Any requests for additional uniform enhancements outside the standard as set out in customer agreements shall be charged to the Customer.
27.48 If the Customer requests that the Supplier ceases to provide guarding services at one or more of the Customer’s premises such that the Supplier is required to dismiss the Supplier’s employees engaged in provision of Services at the relevant Customer premises for reason of redundancy, to the extent that such employees are either (a) employees whose contract of employment transferred to the Supplier form the Customer pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) or (b) recruited at the request of the Customer, the Customer shall pay to the Supplier a sum equal to the costs of making such employee(s) redundant, which shall include any redundancy payment and/or pay in lieu of notice and that further the Customer shall indemnify the Supplier against all costs claims actions demands and liabilities arising to the Supplier and resulting from the dismissal of such employee(s) including professional costs, taxes and other expenses.
27.49 If the Customer requests that the Supplier removes an employee which the Supplier is not able to redeploy elsewhere and as a result the Supplier is required to dismiss the employee in question, the Customer must provide the Supplier with documentary evidence to support such request, in a form acceptable to the Supplier (acting reasonably).
1. TUPE on entry
1.1 In this Schedule 1 the following definitions apply:
Effective Date: the date of this agreement.
Employees: those employees whose contract of employment transfer to the Supplier from the Customer as at the Effective Date.
Employee Liability Information: in respect of each of the Employees:
(a) the identity and age of the Employee;
(b) those particulars of employment that an employer is obliged to give the Employee under section 1 of the Employment Rights Act 1996;
(c) information about any disciplinary action taken against the Employee and any grievances raised by the Employee, where a Code of Practice issued under Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 relating exclusively or primarily to the resolution of disputes or any other applicable code or statutory procedure applied, within the previous two years;
(d) information about any court or tribunal case, claim or action either brought by the Employee against the Customer within the previous two years or where the Customer has reasonable grounds to believe that such action may be brought against the Supplier arising out of the Employee’s employment with the Customer; and
(e) information about any collective agreement which will have effect after the Effective Date in relation to the Employee pursuant to regulation 5(a) of the Employment Regulations.
Employment Regulations: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).
1.2 The Customer and the Supplier believe that, pursuant to the Employment Regulations, at the Effective Date, the Supplier will become the employer of the Employees.
1.3 The Customer represents, warrants and undertakes to the Supplier that:
(a) no persons are employed or engaged in the provision of the Services other than the Employees;
(b) none of the Employees has given or received notice terminating their employment or will be entitled to give notice as a result of the provisions of this agreement;
(c) full particulars of the terms of employment of all the Employees (including all remuneration, incentives, bonuses, expenses and other payments and benefits whatsoever payable other than the pension benefits of any Employees disclosed in accordance with relevant locations) have been provided to the Supplier;
(d) there is not in existence any contract of employment with directors or employees of the Customer (or any contract for services with any individual) relating to the Services which cannot be terminated by three months’ notice or less without giving rise to the making of a payment in lieu of notice or a claim for damages or compensation (other than a statutory redundancy payment or statutory compensation for unfair dismissal);
(e) in relation to each of the Employees (and so far as relevant to each of its former employees who were employed or engaged in the provision of the Services) the Customer has:
(i) complied with all obligations imposed on it by Articles of the Treaty on the Functioning of the European Union, European Commission Regulations and Directives and all statutes, regulations and codes of conduct relevant to the relations between it and its employees or it and any recognised trade union or appropriate representatives;
(ii) maintained adequate and suitable records regarding the service of each of its employees;
(iii) calculated and paid all holiday pay for periods of holiday taken under regulation 13 of the Working Time Regulations 1998 (SI 1998/1833) in accordance with the Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time;
(iv) complied with all collective agreements and customs and practices for the time being dealing with such relations or the conditions of service of its employees; and
(v) complied with all relevant orders and awards made under any statute affecting their conditions of service;
(f)the Customer has not been involved in any industrial or trade disputes in the last three years and to the best of the Customer’s knowledge, information and belief there are no circumstances which may result in any industrial dispute involving any of the Employees and none of the provisions of this agreement including the identity of the Supplier is likely to lead to any industrial dispute;
(g) there is not outstanding any agreement or arrangement to which the Customer is party in relation to the Employees for profit sharing or for payment to any of the Employees of bonuses or for incentive payments or other similar matters;
(h) the Customer has not entered into any recognition agreement with a trade union in relation to the Employees nor has it done any act which may be construed as recognition;
(i) the Customer has complied with all recommendations made by the Advisory Conciliation and Arbitration Service in relation to the Employees and with all awards and declarations made by the Central Arbitration Committee in relation to the Employees;
(j) there is no agreement, arrangement, scheme or obligation (whether legal or moral) for the payment of any pensions, allowances, lump sums or other like benefits on redundancy, on retirement or on death or during periods of sickness or disablement for the benefit of any of the Employees or former employees employed or engaged in the provision of the Services or for the benefit of dependants of such persons;
(k) no amounts due to or in respect of any of the Employees (including PAYE and National Insurance and pension contributions) are in arrears or unpaid;
(l) no monies or benefits other than in respect of contractual emoluments are payable to any of the Employees and there is not at present a claim, occurrence or state or affairs which may hereafter give rise to a claim against the Customer arising out of the employment or termination of employment of any of the Employees for compensation for loss of office or employment or otherwise and whether under contract or any statute or regulations or otherwise;
(m) the Customer has provided the Employee Liability Information to the Supplier regarding each of the Employees either in writing or by making it available to the Supplier in a readily accessible form;
(n) the Employee Liability Information contains information as at a specified date not more than 14 days before the date on which the information was provided to the Supplier;
(o) the Customer has notified the Supplier in writing of any change in the Employee Liability Information since the date on which it was provided; and
(p) the Employee Liability Information was provided not less than 28 days before the Effective Date.
1.4 The Customer shall indemnify the Supplier in full for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising incurred or suffered by the Supplier including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to:
(a) the termination by the Customer of the employment of any of the Employees;
(b) anything done or omitted to be done in respect of any of the Employees which is deemed to have been done by the Supplier by virtue of the Employment Regulations; and
(c) any claim made at any time by any employee of the Customer other than the Employees who claim to have become an employee of or have rights against the Supplier by virtue of the Employment Regulations (Claims); provided that such costs, claims, expenses and liabilities are not payable as a result of any act or omission of the Supplier.
1.5 The Supplier shall procure that its employees, agents and successors in title shall promptly:
(a) take such action in connection with the Claims as the Customer shall from time to time reasonably request;
(b) provide free of charge all such assistance and information as the Customer may reasonably request relating to the Claims to enable the Claims to be pursued;
(c) subject to any restriction imposed by law, provide the Customer, its legal and other advisers with access to all documents, records or other information held by the Supplier relating to the Claims;
(d) provide the Customer and/or its professional advisers and experts with access from time to time to such members of staff as may be necessary to assist the Customer with the preparation of its cases in relation to the Claims;
(e) permit and require such employees as the Customer and/or its professional advisers may reasonably request to meet with the Customer and/or its legal advisers in normal working hours to prepare witness statements for trial, attend meetings with Counsel or experts and/or to attend any court hearing or trial in connection with the Claims for so long and as frequently as the Customer and/or its legal or other professional advisers may reasonably require;
(f) provide such other assistance as the Customer may reasonably request in order to ensure the due and timely prosecution of the Claims;
(g) resist in connection with the Claims any request for documents, information, access to relevant premises or to employees of the business by any third party without first informing the Customer and obtaining its agreement to any approval of the request; and
(h) preserve and not waive legal professional privilege or any other privilege attaching to any of the documents or other information relating to the Claims in their possession without first obtaining the Customer’s consent to such waiver, such consent not to be unreasonably withheld.
1.6 All salaries and other emoluments including holiday pay, taxation and National Insurance contributions and contributions to retirement benefit schemes relating to the Employees shall be borne by the Customer up to and including the Effective Date and by the Supplier with effect from the Effective Date.
1.7 The Supplier shall indemnify the Customer in full for and against all claims, costs expenses or liabilities whatsoever and howsoever arising, incurred or suffered by the Customer including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to:
(a) any failure by the Supplier to comply with its obligations pursuant to the Employment Regulations; and
(b) anything done or omitted to be done by the Supplier in respect of any of the Employees whether before or after the Effective Date.
Agreed Purposes: Business data uses including, but not limited to the employment of staff, all customer communications, risk modelling, human and technology-based security services and the prevention and detection of criminality on company and customer locations. DPIA’s exist for these data purposes. Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the UK Data Protection Legislation in force at the time.
Data Discloser: a party that discloses Shared Personal Data to the other party.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); [and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party].
Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement.
Shared Personal Data: the personal data to be shared between the parties under clause 1.1 of this agreement. Shared Personal Data shall be confined to the following categories (or category elements) of information relevant to the following categories of data subject:
a) Workplace data;
b) Biometric data, and
c) Special category data.
1. DATA PROTECTION
1.1 Shared Personal Data. This schedule sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (referred to in this clause as the Data Discloser) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
1.2 Effect of non-compliance with UK Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the UK Data Protection Legislation, and any material breach of the UK Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
1.3 Particular obligations relating to data sharing. Each party shall:
(a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;
(f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
(g) not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
(i) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
(ii) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) Binding corporate rules are in place or (iv) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
1.4 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the UK Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject access request;
(c) provide the other party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the UK Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the UK Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the other party or the other party’s designated auditor]; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the UK Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the UK Data Protection Legislation.
1.5 Indemnity. Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the UK Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. The liability of the indemnifying party under this clause shall be subject to the limits set out in clause 11.