iFacility Terms and Conditions
1.1 In these Conditions:
“Alarm Monitoring Station”: premises to which alarm and video signals are transmitted and from where the response to alarm and video signals is activated whether such premises are owned and/or operated by the Company or not.
“Service Charge”:the service charge as set out in the Contract.
“Authority”: the police, fire or other services specified in a Monitoring Agreement.
“CCTV”: means Closed Circuit Television or IP surveillance.
“Communications Link(s)”:any telecommunications network, internet service provider, systems line or link connecting systems to the Alarm Monitoring Station.
“Company”: TFTG Limited Company Number 08876423 trading as “iFacility”.
“Conditions”: these Terms and Conditions of Business of the Company.
“Confidential Information” means any trade secret or other information that is confidential and/or commercially sensitive and is not in the public domain belonging to the Company or provided or disclosed to the Customer by the Company and/or any of the Company’s officers, employees or sub-contractors including but not limited to information relating to:
(a) the design of, passwords for, the programming of or any other security feature of any intruder alarm, surveillance or security system, device, hardware or software whatsoever;
(b) the Company’s secret formulae, processes, inventions, designs, know-how, discoveries, technical specifications and other technical information relating to the creation, production or supply by the Company of any past, present or future Equipment, System or Services.
“Customer”: the person, firm or company to whom the Company has agreed to sell the Equipment and/or supply the Services as set out in the Customer Contract.
“Customer Contract”: the contract between the Company and the Customer for the sale of Equipment, supply of Services including all Schedules and appended documents.
“Customer Information Database”: the database of video footage collected at the Alarm Monitoring Station from premises for which the Company is providing Services to the Customer.
“Equipment”: any equipment sold by the Company to the Customer under the terms of the Customer Contract.
¬¬“Intelligent Perimeter Protection System”: the equipment installed externally to provide detection of and visible and audible warnings to intruder activity.
“Force Majeure”: any cause beyond the Company’s reasonable control including but without limitation, act of God, explosion, storm, flood, tempest, lightening strike, fire, war or threat of war, insurrection, civil disturbance or requisition, accident, interruptions to power supply, damage by rodents, strikes, lock-outs or other industrial actions, machinery breakdown, shortage of labour or other shortages.
“Late Payment Interest and Charges”: interest at a rate equivalent to 4% over the Bank of England’s base lending rate for the time being plus all reasonable charges associated with the levying and collection of such interest.
“myFacility program”: the computer software program and/or programs (at any time and/or from time to time) by which the monitoring and storage of information by the Company is operated and controlled.
“Operational Procedures”: the administrative and operational procedures and specifications of the Systems installed by the Company and the Services provided by the Alarm Monitoring Station as detailed in the Contract.
“Order”: an Order included in or made under the terms of the Customer Contract.
“Price”: the charges of the Company to the Customer for the Equipment and/or Services as stated or otherwise determined in accordance with the Customer Contract.
“Services”: the services to be provided by the Company and the Alarm Monitoring Station in respect of the Equipment as specified in the Customer Contract.
“Specification”: the specification agreed by the Company and the Customer for the relevant Equipment set out in the Customer Contract and/or agreed or modified (as the case may be) in writing by the Company and the Customer.
“System”: the CCTV, IP surveillance, myFacility system storage and Intruder Alarm or any other equipment or Service installed or supplied by the Company.
“Writing”: by letter, facsimile or e-mail on the Company or Customer’s letter head (as the case may be).
2. BASIS OF SALE
2.1 The Company shall sell and the Customer shall purchase Equipment subject to these Conditions (so far as they are not expressly varied in Writing) which shall govern the Customer Contract to the exclusion of any other terms and conditions except as specifically otherwise provided in the Customer Contract.
2.2 All quotations and offers shall remain valid for a period of 30 days. Thereafter, the Company shall be entitled to withdraw or modify the terms.
2.3 In entering into the Customer Contract the Customer acknowledges that it does not rely on and waives any claim for breach of any representations made by the Company’s employees or agents which are not confirmed in Writing, except for claims based on fraudulent misrepresentation.
3. ORDERS AND SPECIFICATION
3.1 No order submitted by the Customer for the supply of any Equipment or Service shall be legally binding until accepted by the Company in Writing.
3.2 The Customer shall be responsible to the Company for ensuring the accuracy of information provided to the Company about the Customer’s requirements. The Customer shall also be responsible for giving to the Company any information required by the Company from the Customer relating to the Equipment and/or Services within a sufficient time to enable the Company to perform its obligations under the Customer Contract in accordance with its terms. The time for delivery shall be extended by a reasonable period if delay is caused by instructions or lack of instructions from the Customer. If it is necessary to make modifications to the specifications provided by the Customer, the modifications will be agreed with the Customer together with any alteration to charges (including additional charges) which is required to cover modifications. The Customer will not unreasonably refuse to agree to necessary modifications and/or consequential alterations to charges.
3.3 Where necessary (but subject to reasonableness), the Company reserves the right to amend the terms of an Order agreed with the Customer once a pre-installation survey has been carried out by the Company.
3.4 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss, (including loss of profit), costs, (including the cost of all labour and materials used) damages, charges and expenses incurred by the Company as a result of cancellation.
3.5 If a Customer specifies particular Equipment, the Customer shall be responsible for ensuring that Equipment’s suitability for its intended purpose in all respects including, but not limited to, its suitability for its intended location and purpose.
3.6 The Company reserves the right at any time or in any respect to meet the Specification in the Order through the supply of equipment other than that specified in the Order if equipment specified in the Order is not then readily available to the Company or if, in the Company’s reasonable opinion, alternative equipment better complies with safety or statutory requirements, or will provide improved performance for the Customer. No equipment substituted under the provisions of this provision will be, in the Company’s reasonable opinion, of materially different specification than that specified in the Order. In any case the Company will inform the Customer of any equipment substituted or about to be substituted under this provision and will obtain the Customer’s agreement to such substitution. The Customer will not unreasonably refuse its agreement under this provision.
4. PRICE & PERFORMANCE
4.1 The terms and conditions in the Customer Contract relating to Price and Performance are subject to the Customer:
(a) providing reasonable unimpeded access and power supply to allow the Company to perform its responsibilities under the Customer Contract;
(b) using and operating the Equipment with proper care by competent personnel and in such a manner as to preserve the proper and efficient working of the Equipment;
(c) making all necessary payments to the Telecommunications provider or any service provider as may be necessary for the operation and support of the Equipment.
4.2 Where applicable and except as otherwise specifically stated in the Customer Contract the Customer shall make the following payments to the Company;
(a) the full amount of any upfront deposit in advance of commencement of the supply of any goods or services by the Company.
(b) unless included in any upfront deposit, the Service Charge and any payments due in respect of the Services within 30 days of the date of the Company’s invoice.
(c) all call out and labour charges of the Company (prevailing at the time incurred) in respect of the Services where attendance at the Customer’s premises is:
(1) excluding Public Holidays the managed support desk is open from 8.00am to 5.30pm Monday to Friday
(2) due to Force Majeure, misuse, malicious damage or neglect of the Equipment.
(3) in respect of changes in the environment or store layout e.g. overhanging branches, excessive growth of foliage or display signs or affected by the wind or sunlight or other atmospheric or weather conditions.
(4) due to adjustments in network configuration, access and or performance without prior agreement of the Company
(d) all material costs incurred by the Company where attendance is covered by (2), (3) and/or (4) of (c)
(e) all charges incurred by the Company for specialist access and lifting equipment needed to complete the installation or provide the Services.
(f) unless included in any upfront deposit, all charges due under 4.2 (c), (d) and (e) shall be due and payable within 30 days of the invoice date.
4.3 The Company reserves the right to increase all or any of its prices under the Customer Contract in respect of the Services and the Monitoring relating to particular equipment on the second anniversary of the date the relevant Equipment was installed or if not installed by the Company the Services commenced and on each succeeding anniversary such increase being notified to the Customer not less than 1 calendar months in advance or as otherwise specifically agreed by the Customer in writing.
4.4 Unless stated otherwise in the Customer Contract the Price and all other charges made by the Company to the Customer under the Customer Contract will not include Value Added Tax or any other purchase tax in addition to or replacing Value Added Tax which will be charged if applicable at the rate ruling on the date of installation of the Equipment and/or performance of the Services.
4.5 The Company reserves the right to increase the Price to reflect any increase in cost to the Company due to any change in delivery dates, quantities or specifications of the Equipment, the Services or Monitoring or any delay caused by any instructions of the Customer or any failure by the Customer to give the Company adequate information or instructions (as the case may be).
5. TERMS OF PAYMENT
5.1 Except as otherwise provided in the Customer Contract, the Company shall be entitled to require the Customer to pay a deposit of up to 50% of the Price of any Equipment. Such deposit to be paid upon acceptance of the order for the relevant Equipment by the Company and before performance of the relevant Order by the Company. Such deposit to be deducted from the Price payable for the relevant Equipment.
5.2 The Company shall be entitled to invoice the Customer for the Price on or at any time after the Equipment has been installed or the Service has been performed unless the Customer wrongfully fails to ensure that their premises are fit for installation or fails to give the Company access to perform the Services in which event the Company shall be entitled to invoice the Customer for the Price at any time after the Company has attempted to install the Equipment and/or given notice that it is ready to perform the Services.
5.3 The Customer shall pay the Price (or such part thereof as remains outstanding) in full without any withholding, deduction, set off, counterclaim or cross demand within 30 days of the date of the Company’s invoice. unless stated otherwise on quotation or invoice.
5.4 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company the Company shall be entitled to cancel the supply of any Equipment and/or Services to the Customer by giving 30 days Notice in writing and charge Late Payment Interest and Charges to the Customer. Such Notice shall deem to have been withdrawn if payment in full is received within that period.
6.1 The Company shall in no circumstance be liable for any loss or damage arising from any delay in installation of the Equipment or completion of the Services howsoever caused. The Company shall give the Customer such reasonable notice as the Company can if delivery or performance is likely to be delayed.
6.2 If the Customer prevents the Company from installing any Equipment (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then without prejudice to any other right or remedy available to the Company the Company may store the Equipment until actual installation and charge the Customer for the reasonable costs (including insurance) of such storage.
7. THE SERVICES
7.1 Unless specified in the Customer Contract the Services do not cover malfunctions of parts or attachments which are not supplied by the Company or which have been supplied by the Company but have been altered or modified otherwise than by the Company.
7.2 It is the responsibility of the Customer to inform the Company if and when the Customer wishes to change the location of Equipment. Unless otherwise agreed in Writing by the Company the work of relocating Equipment shall be carried out by the Company and/or under the Company’s direction (as the Company shall decide). Any costs of such relocation work will be charged to the Customer at the Company’s prevailing rates. A change in the location of Equipment and any change to the specification of Equipment resulting from a relocation may give rise to an alteration in the Service Charge.
8. SERVICE DEPENDENCIES
8.1 The Communications Links may at any time or from time to time provided by independent organisations that are not under the Company’s control. This shall not affect any of the obligations of the Company to the Customer under the Customer Contract.
8.2 Neither the Company nor the Alarm Monitoring Station (whether jointly or separately) warrants or guarantees that the Authority and/or authorised personnel will respond immediately or at all to any notifications received from the Alarm Monitoring Station and neither the Company nor the Alarm Monitoring Station (whether jointly or separately) shall have liability if the Authority and/or authorised personnel fail(s) to respond. If the Alarm Monitoring Station is advised by an Authority and/or authorised personnel that it may not pass signals from a System to the Authority and/or authorised personnel the Company will notify the Customer as soon as reasonably possible and, in any event, neither the Company nor the Alarm Monitoring Station will have any obligation to the Customer to notify the Authority and/or authorised personnel.
8.3 The Customer grants to the Company full and unrestricted remote access to any Equipment installed, managed and/or serviced by the Company without prior authorisation of the Customer.
9. RISK AND PROPERTY
Risk of damage to or loss of the Equipment shall pass to the Customer at the time of the first date of installation of the Equipment or, if earlier, at the date of delivery of Equipment to the Customer’s premises for safekeeping pending installation. The Customer shall ensure that Equipment delivered to its premises is stored securely and safely pending installation.
10. WARRANTIES AND LIABILITIES
10.1 All implied terms relating to quality, fitness for purpose or description of the Equipment apply to any supply of Equipment by the Company to the Customer.
10.2 The Company may from time to time make changes to the Specification to ensure compliance with any applicable safety or statutory requirements provided that the Company will notify the Customer of any such changes.
10.3 The Company shall not be liable to the Customer or be deemed to be in breach of the Customer Contract by reason of any delay in performing or any failure to perform any of the Company’s obligations in relation to the Equipment and/or Services if the delay or failure was due to Force Majeure.
10.4 Except in the case of loss or damage to Equipment supplied to a Customer who is a consumer as defined in the Unfair Contract Terms Act 1977 section 12 due to the negligence of the Company or the manufacturer, where the Equipment (or any part thereof) is shown to the reasonable satisfaction of the Company to be defective by reason of faulty materials (other than those supplied by the Customer), workmanship or design (other than a design made furnished or specified by the Customer) the Company shall at its sole discretion:-
10.4.1 deliver and install replacement Equipment to the Customer or upgrade the Equipment free of charge; and/or
10.4.2 refund to the Customer the price of such Equipment; and/or
10.4.3 require the Customer to retain the Equipment and grant to the Customer a reasonable allowance of such defects;
provided the Customer notifies the Company in Writing detailing the alleged defect within seven days of the date when the Customer reasonably became aware of it and in any event within a period of twelve calendar months from the date of completion of installation of the relevant Equipment.
10.5 The Company shall be under no liability in respect of any defect arising from wear and tear, accidental or wilful damage, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse, alterations or repair of the Equipment without the Company’s approval.
10.6 The Company shall be under no liability under the above warranty (or any other warranty condition or guarantee) if and for so long as the Price for the relevant Equipment and/or any other Equipment or Services provided under the Customer Contract has not been paid by the due date for the payment and/or for so long as the Customer is in breach of any of its obligations under the Customer Contract.
10.7 Where parts, materials or equipment are supplied by third parties to the Company the Customer shall in lieu of the above warranty be entitled to any warranty or guarantee given by that third party to the Company in respect of such parts, materials or equipment.
10.8 If so required by the Company all defective Equipment shall be made available for collection from the Customer at such time and place as is reasonable in all of the circumstances.
10.9 The liability of the Company under Clause 10 hereof shall be accepted by the Customer in substitution for and to the exclusion of any other claims for direct loss, which the Customer may have.
10.10 Unless otherwise specified in the contract or agreed by the Company in writing and subject to 10.12 the total aggregate liability of the Company in respect of any claims or demands made by the Customer under the Contract or otherwise relating to any single incident or a connected series of incidents at one set of premises arising out of the installation or use of Equipment and/or the provision or failure to provide any Service shall be limited to £10,000 for each set of premises.
10.11 The Company shall not be liable to any party other than the Customer as defined in this Agreement.
10.12 The Company shall not be liable to the Customer under the Customer Contract or otherwise (except in respect of death or personal injury caused by the Company’s negligence) in respect of the Equipment, Services and/or the Monitoring for any of the following:
10.12.1 any loss of profit, special, indirect or consequential loss or damages howsoever arising;
10.12.2 any liability to third parties incurred by the Customer;
10.12.3 any statement or representation made by any officer, employee, agent or sub-contractor of the Company unless such statement or representation is approved and confirmed in Writing by the Company, except for claims based on fraudulent misrepresentation.
10.13 The Price for the Equipment and/or the Services (as applicable) has been quoted and agreed commercially on the basis of the Company’s liability to the Customer as set out in the Customer Contract including these Conditions. The Company does not guarantee that the Equipment and Services will prevent or protect against occurrences of criminal and malicious intent. Since the potential loss or damage which the Customer might suffer is likely to be disproportionate to the sums that can be reasonably charged by the Company, the Customer acknowledges that it is fair and reasonable for the Company to limit or exclude this liability, and the proposed exclusions are fair and reasonable having regard to circumstances as at the date of the Customer Contract and any subsequent order based on the Customer Contract.
10.14 Without prejudice to any claim for breach of contract or negligence which the Customer may have against the Company under the Customer Contract, the Customer confirms that it will effect and maintain in force, for the duration of the Customer Contract, adequate property, public liability, product liability and Employers liability insurance and any other insurance which it may be prudent to hold in respect of any potential loss, damage or liability which it may suffer or incur at any of its premises for which the Company has provided or is providing Equipment and or Services and shall upon the request of the Company provide the Company with reasonable evidence of such insurance.
11. PROTECTION OF CONFIDENTIAL INFORMATION
Each party acknowledges that in the course of providing or being provided (as the case may be) with Equipment and/or Services under the Customer Contract, that party may have access to and/or become aware of Confidential Information of the other party and each party, therefore, agrees to accept the following restrictions.
A party will not at any time, directly or indirectly, use or disclose to any person (and will use its best endeavours to prevent the publication or disclosure of) Confidential Information of the other party, except as required by law or with the other party’s prior written approval or where, other than through the relevant party’s unauthorised disclosure, such information is already publicly available.
The Customer shall be provided with software licenses necessary for use of any hardware supplied under the Customer Contract free of charge for the lifetime of the equipment in the possession of the Customer. The Customer shall not have any right or licence over any of the software used in the operation of the Alarm Monitoring Station and/or collection and storing of the Customer’s Information Database and, in particular but without prejudice to the generality of the foregoing exclusions, the Customer shall not have any right or licence over the MyFacility program.
13. INSOLVENCY OF THE CUSTOMER
13.1 Upon the occurrence of any of the events listed below and without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Customer Contract or, suspend any further supply and/or installation of Equipment and/or Service under the Customer Contract without any liability to the Company:
13.1.1 the Customer entering into a voluntary arrangement with its creditors or becoming subject to an administration order or becoming bankrupt or going into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
13.1.2 a petition being presented for or an administration order or a winding up order being made in relation to the Customer pursuant to the Insolvency Act 1986; or
13.1.3 an encumbrancer taking possession or receiver being appointed of any of the property or assets of the Customer; or
13.1.4 the Customer ceasing or threatening to cease to carry on business; or
13.1.5 the Company reasonably apprehending that any of the events mentioned above are about to occur in relation to the Customer and notifying the Customer accordingly in writing.
13.2 If the Price or any part of it, or any other sums, remain unpaid by the Customer when any of the circumstances in clause 13.1 above occurs then all such outstanding amounts shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Subject to clause 13.1, the Customer Contract shall commence on the Commencement Date specified in it and shall continue in force until one party gives to the other not less than 3 calendar months prior written notice to terminate the Customer Contract from the date of specified Contract expiry .
15. OWNERSHIP OF CUSTOMER INFORMATION DATABASE
The Customer Information Database shall belong to the Customer absolutely. Except as otherwise required by Law, the Company shall not knowingly release, copy and/or provide access to the Customer Information Database or any part of it without the prior written agreement of the Customer.
16.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing (and shall be sent by hand delivery or first class pre-paid post) addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. If the notice is hand delivered the notice shall be deemed served at the time of delivery. If the notice is sent first class pre-paid post the notice is deemed served 48 hours after posting.
16.2 The rights and remedies of the Company under the Customer Contract shall not be diminished, waived or extinguished by the granting of any indulgence forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.
16.3 The Company shall be entitled without the prior approval of the Customer to sub-contract performance of the Customer Contract or any part thereof to any sub-contractor or sub-contractors provided that the Customer shall adequately ensure that any such sub-contractor is trained for carrying out the duties sub-contracted to the sub-contractor.
16.4 These Conditions, the Customer Contract and each and every contract made pursuant to them shall be governed by the laws of England and the Customer and the Company agree to submit to the exclusive jurisdiction of the English Courts.
16.5 Except as otherwise provided in these Conditions a person who is not a party to the Customer Contract has no right under the Contract (Right of Third Parties) Act 1999 to enforce any term of the Customer Contract including (but not limited to) any of the these Conditions.