TERMS AND CONDITIONS
1 Interpretation
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (‘Conditions’).
| ‘Company’ | PFS Group Limited, whose registered office is 21 Towerfield Road, Southend on Sea, Essex, SS3 9QE |
| ‘Company’s Equipment’ | any equipment including tools, systems, cabling or facilities provided by the Company or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Subscriber. |
| ‘Company’s Manager’ | the Company’s manager for the Services appointed under condition 4.3. |
| ‘Commencement Date’ | date of purchase order or written instruction |
| ‘Contract’ | Includes this document (including the schedules attached hereto) and any documents amending or replacing same; |
| ‘Contract Sum’ | The charges for the provision of the Services as detailed in Schedule II |
| ‘Deliverables’ | all Documents, products and materials developed by the Company in relation to the Services in any form including computer programs, data, reports and specifications (including drafts). |
| ‘Document’ | includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form. |
| ‘Extra Work’ | Means any work undertaken by the Company pursuant to this Contract which is excluded from the comprehensive costs as detailed in Schedule II and which is only to be undertaken on receipt of purchase order from the Subscriber. |
| ‘Input Material’ | All Documents, information and materials provided by the Subscriber relating to the Services including computer programs, data, reports and specifications. |
| ‘Intellectual Property Rights’ | All patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world. |
| ‘Maintenance Work’ | The routine maintenance of the Subscriber’s Equipment included in the comprehensive costs detailed in Schedule II, excluding the Extra Work |
| ‘Maintenance Charge’ | The annual charge for the provision of the Maintenance Work as detailed in Schedule II, excluding the Extra Work |
| ‘Pre-existing Materials’ | All Documents, information and materials provided by the Company relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications. |
| ‘Services’ | The maintenance (herein defined as the Maintenance Work and the Extra Work) by the Company of the Subscriber’s Equipment at the Subscribers Premises. |
| ‘Subscriber’ | Client Name |
| ‘Subscriber’s Equipment’ | The fire alarm system at Subscriber’s Premises as further detailed in Schedule II. |
| ‘Subscriber’s Manager’ | The Subscriber’s manager for the Services appointed in accordance with condition 5.1. |
| ‘Subscribers Premises’ | Site Name/Site Names |
| ‘Term’ | One year commencing on the Commencement Date, subject to the provisions of conditions 3 and 12. Upon completion of one year, this will automatically convert to a rolling contract with a 3% increase on each anniversary, as per condition 3.1 |
| ‘VAT’ | Value added tax chargeable under English law for the time being and any similar additional tax. |
1.2 Condition and paragraph headings shall not affect the interpretation of these Conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to writing or written includes faxes and email.
1.7 Where the words ‘include(s)’, ‘including’ or ‘in particular’ are used in these Conditions they are deemed to have the words without limitation following them and where the context permits the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.9 References to conditions and schedules are to the conditions and schedules of the Contract.
2 Application of these Conditions
2.1 These Conditions shall:
(a) Apply to and be incorporated into the Contract; and
(b) Prevail over any inconsistent terms or conditions contained or referred to in any Subscriber’s purchase order, confirmation of order or acceptance of a quotation or specification or implied by law, trade custom, practice or course of dealing.
(c) In the event of a conflict between these Conditions and the provisions contained in Schedule II, the provisions of Schedule II shall prevail.
2.2 The Subscriber’s purchase order or the Subscriber’s acceptance of a quotation for Extra Work by the Company constitutes an offer by the Subscriber to purchase the Extra Work specified in it on these Conditions. No offer placed by the Subscriber shall be accepted by the Company other than:
(a) By a written acknowledgement issued and executed by the Company; or
(b) (If earlier) by the Company starting to undertake the Extra Work,
at which point a contract for the supply and purchase of the Extra Work on these Conditions will be established. The Subscriber’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations in relation to Extra Work are given by the Company on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date.
3 Commencement and duration
3.1 The Services supplied under the Contract shall be provided by the Company to the Subscriber from the Commencement Date and shall continue to be provided during and after the expiry of the Term, subject to the provisions of conditions 3.2 and 3.3 below.
3.2 This Contract may be terminated at any time before or after the expiry of the Term by either party on the service of three months’ prior notice in accordance with clause 21.
3.3 The Contract may also be terminated at any time in accordance with condition 12.
4 Company’s obligations
4.1 The Company shall use reasonable endeavours to provide the Services and to deliver the Deliverables to the Subscriber.
4.2 In relation to Extra Work, the Company shall use reasonable endeavours to meet any performance dates specified in the Subscriber’s purchase order or in the quotation for Extra Work by the Company, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.3 The Company shall appoint the Company’s Manager who shall have authority contractually to bind the Company on all matters relating to the Services. The Company shall use reasonable endeavours to ensure that the same person acts as the Company’s Manager throughout the term of the Contract, but may replace him from time to time where reasonably necessary in the interests of the Company’s business.
4.4 The Company shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Subscriber’s Premises and that have been communicated to it under condition 5.1(e) provided that it shall not be liable under the Contract if as a result of such observation it is in breach of any of its obligations under the Contract.
4.5 The Company shall maintain insurance with a reputable insurance company which shall be limited to ten million pounds (£10,000,000), against public liability and other third party liability in connection with any injury, death, loss or damage to any persons or property belonging to any third party arising out of the exercise by the Company, its employees, agents or any person under its control of the rights hereby granted, and will provide details of such insurance to the Grantor upon request and evidence that it is in force;
4.6 The Company shall indemnify the Grantor, which shall be limited to a maximum of one million pounds (£1,000,000) in aggregate, against all losses, actions, claims, demands, compensation, damages, costs and expenses and increased costs and expenses in respect of each claim or series of connected claims, relating to or arising from the provision of the Services.
5 Subscriber’s obligations
5.1 The Subscriber shall:
(a) Co-operate with the Company in all matters relating to the Services and appoint the Subscriber’s Manager who shall have the authority contractually to bind the Subscriber on matters relating to the Services;
(b) provide for the Company and its officers, employees, agents and sub-contractors in a timely manner and at no charge access to the Subscriber’s Premises, office accommodation, data and other facilities as requested by the Company;
(c) Provide in a timely manner such In-put Material and other information as the Company may request and ensure that it is accurate in all material respects;
(d) Be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services including identifying, monitoring, removing and disposing of any hazardous materials from any of its premises in accordance with all applicable laws before and during the supply of the Services at those premises and informing the Company of all of it obligations and actions under this condition 5.1(d);
(e) Inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Subscriber’s premises;
(g) Obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of In-put Material. From the Commencement Date
5.2
(a) If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Subscriber or any of its officers, employees, agents or sub-contractors the Company shall not be liable for any costs, charges or losses sustained or incurred by the Subscriber arising directly or indirectly from such prevention or delay.
(b) Note: We will contact you/your client to confirm a booking for our engineer to attend and service the site each time a service visit is displayed as due on our system.
Whenever a service visit is displayed as due on our system, we will make an attempt to book this service visit in with a representative of the site. We will make a total of 3 attempts, with at least two of these being written attempts. There will be a 5-business day cooling off period between attempts before the next attempt is made. If after three attempts the service has not been successfully booked in PFS Group Ltd reserves the right to mark this service visit as Deemed Done. PFS Group Ltd reserves the right to charge for the service visit regardless of whether access can be gained.
6 Change control
6.1 Either party may from time to time require that the Subscriber’s Manager and the Company’s Manager meet not more than once every calendar month to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services it shall submit details of the requested change to the other in writing.
6.2 Either party may from time to time require a change to the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of or the charges for the Services.
6.3 If either party requests a material change to the scope or execution of the Services the Company shall within a reasonable time provide a written estimate to the Subscriber of:
(a) The likely time required to implement the change;
(b) Any variations to the Company’s charges arising from the change; and
(c) The likely impact of the change on the terms of the Contract.
6.4 Neither party has any obligation to proceed with the change unless and until the parties have agreed in writing on the necessary variations to the Contract to take account of the change.
7 Charges and payment
All charges and payments are detailed in Schedule II
8 Intellectual Property Rights
8.1 As between the Subscriber and the Company all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Company. Subject to condition 8.2, the Company licenses all such rights to the Subscriber free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the
Subscriber to make reasonable use of the Deliverables and the Services. If the Contract is terminated this licence will automatically terminate.
8.2 The Subscriber acknowledges that where the Company does not own any Pre-existing Materials the Subscriber’s use of rights in Pre-existing Materials is conditional on the Company obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Company to license such rights to the Subscriber.
9 Confidentiality and the Company’s property
9.1 The Subscriber shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Subscriber by the Company or any of its officers, employees, agents or sub-contractors and any other confidential information concerning the Company’s business or its products which the Subscriber may obtain. The Subscriber shall restrict disclosure of such confidential material to such of its officers, employees, agents or sub-contractors as need to know the same for the purpose of discharging the Subscriber’s obligations to the Company and shall ensure that such officers, employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Subscriber.
9.2 All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Subscriber (including Pre-existing Materials and the Company’s Equipment) shall at all times be and remain the exclusive property of the Company but shall be held by the Subscriber in safe custody at its own risk and maintained and kept in good condition by the Subscriber until returned to the Company and shall not be disposed of or used other than in accordance with the Company’s written instructions or authorisation.
9.3 This condition 9 shall survive termination of the Contract however arising.
10 Limitation of liability – the Subscriber’s attention is particularly drawn to the provisions of this condition
10.1 Subject to conditions 4.5 and 4.6, this condition 10 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Subscriber in respect of:
(a) Any breach of the Contract;
(b) Any use made by the Subscriber of the Services, the Deliverables or any part of them; and
(c) Any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law excluded from the Contract.
10.3 Nothing in these Conditions limits or excludes the liability of the Company:
(a) For death or personal injury resulting from negligence; or
(b) For any damage or liability incurred as a result of fraud or fraudulent misrepresentation by the Company.
10.4 Subject to condition 10.2 and condition 10.3:
(a) The Company shall not be liable for:
(i) Loss of profits;
(ii) Loss of business;
(iii) Depletion of goodwill and/or similar losses;
(iv) Loss of anticipated savings;
(v) Loss of goods;
(vi) Loss of contract;
(vii) Loss of use;
(viii) Loss of corruption of data or information; or
(ix) Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11 Data protection
The Subscriber acknowledges and agrees that details of the Subscriber’s name, address and payment record may be submitted to a credit reference agency and personal data will be processed by and on behalf of the Company in connection with the Services.
12 Termination
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) The other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) An order is made or a resolution is passed for the winding up of the other party or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
(c) An order is made for the appointment of an administrator to manage the affairs, business and property of the other party or documents are filed with a court ofcompetent jurisdiction for the appointment of an administrator of the other party or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
(d) A receiver is appointed of any of the other party’s assets or undertaking or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party or if any other person takes possession of or sells the other party’s assets;
(e) The other party makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
(f) The other party ceases or threatens to cease to trade;
(g) There is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or
(h) The other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
12.2 On termination of the Contract for any reason:
(a) the Subscriber shall immediately pay to the Company all of the Company’s outstanding unpaid invoices (to the extent that they are not the subject of a bona fide dispute between the parties) and in respect of Services supplied but for which no invoice has been submitted the Company may submit an invoice which shall be payable immediately on receipt, unless it is the subject of a bona fide dispute;
(b) The Subscriber shall allow the Company to enter the premises at a covenant date to obtain the Equipment, Pre-existing Materials and Deliverables. If the Subscriber fails to do so then the Company may enter the Subscriber’s premises and take possession of them. Until they have been returned or repossessed the Subscriber shall be solely responsible for their safe keeping;
(c) The accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
13 Force majeure
Neither party shall have any liability to the other under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, tsunami, storm or default of suppliers or sub-contractors.
14 Variation
Subject to condition 6, no variation of the Contract or these Conditions or of any of the documents referred to in they shall be valid unless it is in writing and signed by or on behalf of each of the parties.
15 Waiver
15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
15.2 Unless specifically provided otherwise rights arising under the Contract are cumulative and do not exclude rights provided by law.
16 Severance
16.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal the other provisions will remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
16.3 The parties agree in the circumstances referred to in condition 16.1 and if condition 16.2 does not apply to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the parties under any invalid or unenforceable provision of the Contract shall be suspended while an attempt at such substitution is made.
17 Status of pre-contractual statements
Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Conditions or not) relating to the subject matter of the Contract other than as expressly set out in the Contract.
18 No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties or to authorise either party to act as agent for the other and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
19 Rights of third parties
Nothing in this Contract will create any rights in favour of any person pursuant to the Contracts (Rights of Third Parties) Act 1999.
20 Notices
Notice given under the Contract shall be in writing sent for the attention of the person and to the postal address, fax number or email address given in the Contract (or such other person, postal address, fax number or email address as the relevant party may notify to the other party) and shall be delivered personally or sent by recorded delivery post, fax or email. A notice is deemed to have been received if delivered personally at the time of delivery, if sent by recorded delivery post 48 hours from the date of posting, if sent by fax at the time of transmission and if sent by email at the time of sending, and if deemed receipt under this condition 21 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day) at 9.00 am on the first business day following delivery. To prove service it is sufficient to prove that in the case of post the envelope containing the notice was properly addressed and posted, that in the case of fax the notice was transmitted by fax to the fax number of the party or in the case of email the notice was sent by email to the email address of the party.
21 Governing law and jurisdiction
22.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales.
22.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.