TERMS & CONDITIONS

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.

(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 this contract for the installation and/or maintenance of the Installation between the Customer and the Installer.

(v)  The “Customer” means any company, firm, individual or agent thereof to whom the Installer’s Quotation, Proposal, Contract or Invoice is addressed.

(vi)  The “Installation” means the Hardware, Materials, Equipment, Specialist Services and items of associated equipment described in the Quotation and/or System Specification and which is the subject of this Contract.

(vii)  The “Installer” means Alchemy System Integration Ltd of Unit 2, Optical Park, Middlemore Lane West, Aldridge, Walsall, England, WS9 8EJ, Company number 14687628 which is undertaking to install and/or maintain the Installation which is the subject of this Contract.

(viii) “Practical Completion” means when the Installation has been completed and is operating consistent with the purpose intended whether or not there are any minor defects, being any defect that can be corrected without unreasonable disturbance to an occupier.

(ix) “Service Agreement” means the Contract between the Customer and the Installer for the maintenance of the Installation for the duration of the Service Agreement Period

(x)  The “Service Agreement Period” is that period quoted in the Service Agreement and accepted by the Customer and commences initially on the date of handover of the Installation by the Installer or on any anniversary of that date thereafter.

(xi)  The “Service Agreement Price” is that price payable by the Customer in the Service Agreement and may be subject to reasonable increase (based on the Retail Price Index or other suitable measure) on an annual basis, during the Service Agreement Period, to cover increases in wages, rates, travelling costs, and any other relevant prevailing factors since the date of the Contract.

(xii) “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.

(xiii)  The “Total Price” is that price stated on the Quotation accepted by the Customer in the Contract and is not subject to revision except by agreement in writing of both parties.

(xiv) “Guarantor” The party agreeing to guarantee and indemnify the obligations of the Customer in this agreement pursuant to Clause 12 and Guaranteed Obligations shall mean all monies, debts and liabilities of any nature from time to time due or owing from or incurred by the Customer to the Installer.

2. General

(i)  Acceptance of the Quotation includes acceptance of the following terms and conditions as well as any which have been added in the System Specification, which may specifically override these Terms and Conditions of trading and will take precedence if necessary for purposes of interpretation.  

(ii)  Nothing in these Conditions will reduce your statutory rights relating to faulty and misdescribed goods.  For further information about your statutory rights, you can contact your local authority Trading Standards Department or Citizens Advice Bureau

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 therefrom.

(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 including moving of furniture, carpet laying, making good, re-decoration, building work, electrical work, carpentry work etc. Nor does it include removal of packaging (packaging will be moved to a convenient area at the discretion of the engineer)

(iv)  Unless otherwise specifically agreed, the Quotation Price is contingent on engineers having unhindered access to all areas where work must be carried out. Any delays directly or indirectly caused by the Customer shall entitle the Installer to charge any reasonable extra costs resulting.

(v)  Any item of Hardware not actually sold to the Customer shall be denoted as such in the System Specification and shall be subject to separate rental and/or maintenance terms as may be appropriate.

 

4. Terms of Payment

(i)  Unless otherwise agreed, the specified deposit shall be due and payable by the Customer on acceptance of the Quotation followed by any interim payments when they fall due.

(ii)  The outstanding balance of the Total Price shall be due upon Practical Completion of the Installation and payment will be made not more than 14 consecutive days following Practical Completion (“the Final Date for Payment”) and prior to handover of the system and operating codes to the Customer. Any reason for payment to be withheld must be notified within 7 days of Practical Completion. Failure to make the specified payment on or before the Final Date for Payment will incur interest at the statutory interest rate plus the Bank of England base rate and may be subject to legal fees in connection with recovering any monies owed.

(iii)  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 neglect of the Installer, its employees or agents.

5. Completion

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.

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 grounds for such claims.

7. Warranty

For one year from the date of handover the Harware is under the manufacturer’s warranty for replacement or repair of parts and rectification of faults free of charge and to the Applicable Standards except for any such things made necessary by the 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. All labour costs incurred by the Installer to carry out removal, replacement or remedial repairs on-site of Hardware requiring to be replaced pursuant to any such guarantee shall be chargeable at the standard rate unless as a direct result of the workmanship of the installer.

8. Ownership

Until full payment is received as referred to in Section 4 above, every part of the Installation and associated Hardware, Materials & Equipment shall remain the property of the Installer and the Customer irrevocably grants license in the event of his, her or its default, to enter upon his, her or its premises to recover the same whether fixed or unfixed provided the Installer shall first obtain an Order from a Court of Law permitting entry into the Customer’s premises.  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.

9. Installer’s Obligations

(i)  In consideration of the Total Price specified and paid or to be paid by the Customer, the Installer undertakes to install the Installation in accordance with the Applicable 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 Hardware used in the Installation shall be fit for the purpose intended.

(ii)  In consideration of the Service Agreement 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 Service Agreement Period specified, carry out Preventative Maintenance inspections of the Customer’s installation together with other services where applicable as specified in para. 9(iv) below.

(iii)  This Contract of Sale and/or Service Agreement document relates only to the Installation described in the System 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 Service Agreement 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 5.30 p.m., upon giving reasonable notice to the Customer of any visit for this purpose. 

10. Customer Obligations

(i)  The Customer agrees to pay in addition to the Quotation Price and the Service Agreement Price (if any) for any further works required by the Customer to upgrade the Installation to a state which complies with 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 Service Agreement 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 Guarantees or Service Agreement forthwith upon its discovery.   

(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 Hardware 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)  The Customer is to obtain and pay for the telephone line, internet connection or other communication apparatus required for streaming, monitoring, remote access or signaling (if any) as well as other necessary facilities, consents, permits, licenses, wayleaves or approvals required for the Installation.

11. Termination of Service Agreement

(i)  Either party may terminate the Service Agreement (if applicable) by not less than two months’ notice in writing to that effect to expire upon the day before any anniversary of such Service Agreement.  

(ii)  Either party may terminate the Service Agreement after the Service Agreement 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 Service Agreement 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. Guarantee

(i) In consideration of the Installer entering into this agreement, the Guarantor guarantees to the Installer and its successors, transferees and assigns that whenever the Customer does not pay any of the Guaranteed Obligations as and when they fall due the Guarantor shall make due and punctual payment to the Installer on demand of the Guaranteed Obligations.

(ii) If the Guaranteed Obligations are, or become, unenforceable, invalid or illegal, the Guarantor agrees to indemnify and keep indemnified the Installer in full and on demand from and against all and any losses, costs and expenses suffered or incurred by the Installer arising out of, or in connection with, any failure of the Customer to perform or discharge the Guaranteed Obligations.

(iii) The Guarantor as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under Clause 12 (ii) agrees to indemnify and keep indemnified the Installer in full and on demand from and against all and any losses, costs and expenses suffered or incurred by the Installer arising out of, or in connection with, any failure of the Customer to perform or discharge the Guaranteed Obligations except where the Customers failure to perform or discharge the Guaranteed Obligations results from the Installer’s failure to comply with its obligations under this agreement.

(iv) This guarantee is and shall at all times be a continuing security and shall cover the ultimate balance of all monies payable under this agreement, irrespective of any intermediate payment or discharge in full or in part of the Guaranteed Obligations.

(v) The liability of the Guarantor under this guarantee shall not be reduced, discharged or otherwise adversely affected by:

1. any act, omission, matter or thing which would have discharged or affected the liability of the Guarantor had it been a principal debtor instead of a guarantor or indemnifier; or
2. anything done or omitted by any person which, but for this provision, might operate or exonerate or discharge the Guarantor or otherwise reduce or extinguish its liability under this guarantee.

(vi) The Guarantor waives any right it may have to require the Installer (or any trustee or agent on its behalf) to proceed against or enforce any other right or claim for payment against the Customer before claiming from the Guarantor. 

(vii) The Guarantor shall on a full indemnity basis pay to the Installer on demand the amount of all costs and expenses (including legal and out-of-pocket expenses and any value added tax on those costs and expenses) which the Installer incurs in connection with:

1. the preservation, or exercise and enforcement, of any rights under or in connection with this guarantee or any attempt so to do; and
2. any discharge or release of this guarantee.

(viii) Until all amounts which may be or become payable by the Customer under or in connection with this agreement have been irrevocably paid in full, and unless the Installer otherwise directs in writing, the Guarantor shall not exercise any security or other rights which it may have by reason of performance by it of its obligations under this clause, whether such rights arise by way of set-off, counterclaim, subrogation, indemnity or otherwise.

(ix) This guarantee shall be in addition to and independent of all other security which the Installer may hold from time to time in respect of the discharge and performance by the Customer of the Guaranteed Obligations.

13. Force Majeure

Any failure by the Installer to perform any of its obligations by reason of any cause beyond the control of the Installer shall be deemed not to be a breach of this Contract.

14. Mediation

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.  Should the parties agree to mediation but fail to agree upon the person to mediate within seven days of such a request being made, then either party may apply for the appointment of a Mediator and such mediation will be conducted in accordance with guidelines for mediation published by the Centre for Effective Dispute Resolution.

(Note: Mediation does not result in a resolution being imposed or enforceable upon any party.  It aims to assist the parties in reaching a mutually agreed resolution of their dispute or differences)

15. Waiver 

No failure by either party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

16. Data Protection

Both parties will comply with all applicable requirements of the Data Protection Legislation. 

17. Third Party Rights 

The Agreement is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of the Agreement.

18. Entire Agreement

18.1 This agreement constitutes the entire agreement and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings, whether written or oral, relating to its subject matter.

18.2 The parties 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 and we shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

19. Right to Cancel

19.1 If you are a Consumer you have the right to cancel this contract within 14 days without giving any reason. The cancellation period will expire after 14 days from the day of the conclusion of the contract. To exercise the right to cancel, you must inform us of your decision to cancel this contract by a clear statement (e.g. a letter sent by post, fax or e-mail). To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.

19.2 If you cancel this contract, we will reimburse to you all payments received from you. We will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel this contract. We will make the reimbursement using the same means of payment as you used for the initial transaction, unless we have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement. If you requested us to begin the performance of services during the cancellation period, you shall pay us an amount which is in proportion to what has been performed until you have communicated to us your cancellation from this contract, in comparison with the full coverage of the contract.