"The only way of finding the limits of the possible is by going beyond them into the impossible"
- Arthur C.Clarke
Terms and Conditions
THE SUPPLY, INSTALLATION, AND MAINTENANCE OF SECURITY SYSTEMS
“Commencement Date” means the date upon which Purchaser signs and returns these General Conditions or Seller’s receipt and acceptance of some other written form of order from Purchaser.
“Completion Date” means the date when an installation of the System has been completed or when additional work or an extension of a Purchaser’s System has been completed.
“Contract” shall have the meaning set forth in Clause 2(c).
“Facility” means Seller’s offices located at Millbrook House, 24 Millbrook Business Park, Crowborough, East Sussex, TN6 3JZ (United Kingdom).
“Force Majeure Event” shall have the meaning set forth in Clause 9.
“General Conditions” means these general conditions of trading as set forth in this document.
“Goods” means the System or Purchaser’s System and the services relating thereto including any installation of the System or additional installation work done on Purchaser’s System and any Maintenance Services as set forth in a maintenance schedule, which Seller is to supply in accordance with these General Conditions.
“Installation Charges” means the costs of the supply and/or installation of the security system equipment as set forth in the Specification.
“Installation Site” means the installation address at which the System or a Purchaser’s System is either installed, extended or maintained.
“Maintenance Service” means the services provided by Seller necessary to maintain the System in operating condition, any technical support and such other services all as described in a maintenance schedule.
“Normal Working Hours” means 09:00 to 17:30 hours subject to alteration by Seller upon notice, Monday to Friday except for statutory and common law, public and national holidays.
“Offer” shall have the meaning set forth in Clause 2(a).
“Purchaser” means the person who accepts Seller’s quotation for the supply of the Goods or whose order for the Goods is accepted by Seller.
“Purchaser’s System” means an existing system operated by Purchaser at the Installation Site.
“Seller” means Beacon Security & Communications Limited, a company incorporated and organized under the laws of the United Kingdom, under the number 2910983 whose registered office is at Millbrook House, 24 Millbrook Business Park, Crowborough, East Sussex, TN6 3JZ (United Kingdom).
“Seller’s Designed Goods“ shall have the meaning set forth in Clause 14(f).
“Software“ means Seller’s developed software products provided hereunder, in object code form only, as well as any associated written or electronic documentation and any updates, upgrades, modifications or later versions thereof, which are received or used at any time by Purchaser. “Software” does not include third party developed software such as without limitation, products of Microsoft, IBM, Sun Microsystems, Oracle or other entities (“Third Party Software“), even if provided to Purchaser by Seller or listed on a Software schedule, and the terms and conditions of any license included in or with such Third Party Software shall apply to Purchaser’s use thereof.
“Specification“ means the description of the System including its component parts and, where relevant their operation, which forms the definition of how the System will work.
“System” means the security system equipment and its constituent components described in the Specification together (if applicable) with ancillary materials and components provided or installed on the Installation Site by Seller as a new system or as an additional system to Purchaser’s System.
“Third Party Rights” shall have the meaning set forth in Clause 14(f).
2. Offer and Acceptance – Applicable Conditions
(a) Seller’s quotation constitutes an offer for the supply and installation or extension of the System and/or for the provision of Maintenance Services (the “Offer“). Unless otherwise specified in the Offer, the General Conditions apply to all Goods supplied or provided by Seller. Offers are open for acceptance within sixty (60) days from the date of issue thereof, and are subject to written confirmation of acceptance by Purchaser. Seller reserves the right to withdraw any Offer either verbally or in writing without incurring any liability whatsoever as a result of such withdrawal. Acceptance by Purchaser implies that Purchaser entirely and unconditionally accepts the Offer and these General Conditions to the exclusion of all other documents issued by Seller, such as any prospectuses or catalogues, which are deemed to be of purely indicated value.
(b) Purchaser shall be deemed to have accepted any of these General Conditions to which Purchaser has not specifically objected. Purchaser’s issuance of a purchase order which purports to reject some or all of the General Conditions by virtue of standard form language shall not be sufficient objection. Purchaser shall be required to set forth each objection to the General Conditions in a separate document signed and dated by Purchaser and delivered to Seller prior to or contemporaneous with Purchaser’s purchase orders or other form of acceptance. Seller’s failure to object to provisions in any purchase order, or other communication from Purchaser shall not be deemed a waiver of these General Conditions, nor an acceptance by Seller of any such provisions. Any terms and conditions printed, stamped, or written on any of Purchaser’s purchase orders or any other document of acceptance which contradict, supplement or are inconsistent with the Offer and/or these General Conditions shall be deemed null and void and inapplicable and are hereby rejected, irrespective of the time at which it may have been brought to Seller’s knowledge, unless specifically accepted by Seller in writing in a separate document signed by both Purchaser and Seller. No course of dealing, custom or usage, which is contrary to Seller’s General Conditions shall apply. For the avoidance of doubt, in the event of a conflict between the terms stated in the Offer and these General Conditions, the terms stated in the Offer shall apply.
(c) Any purchase order or other form of acceptance issued by Purchaser which is accepted by Seller shall result in a contract for the purchase of the Goods at the price quoted in the Offer (the “Contract“). The General Conditions apply to all Contracts between the parties regarding the supply of the Goods unless otherwise expressly accepted by Seller pursuant to Clause 2(b).
(d) Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of the Offer, invoice, acknowledgements or other document or information issued by Seller shall be subject to correction without any liability on the part of Seller.
3. Orders and Specifications
(a) Any purchase order or other form of acceptance issued by Purchaser shall be presented to Seller in writing and shall not be considered as effective unless approved in writing by Seller.
(b) Purchaser shall be responsible to Seller for ensuring the accuracy of the terms of any purchase order (including any applicable Specification) submitted by Purchaser and for giving Seller any necessary information relating to the Goods to enable Seller to perform the Contract in accordance with its terms.
(c) The quantity, quality and description of and any Specification for the Goods shall be those set out in the Offer (if accepted by Purchaser) or in Purchaser’s purchase order (if accepted by Seller).
(d) Seller reserves the rights to make any changes in the Specifications of any component part of the System if such changes are necessary to conform with any applicable statutory or EC requirements; or if the Goods are to be supplied by Seller, to Seller’s Specifications (including the use of equipment or materials other than those specified) provided that such changes do not materially affect the quality or performance of the System.
(e) Seller shall not be held liable for any loss or damage arising from variations in or from any third party producer’s/manufacturer’s specifications or technical data of any component part of the System supplied by Seller to Purchaser, and shall not be responsible for any loss or damage resulting from curtailment of supplies following such variation; provided, however, that any third party producer’s/manufacturer’s warranties or indemnification to which Seller is entitled shall pass-through to Purchaser.
4. Mobilisation Period
On receipt of Purchaser’s order or equivalent authorization to proceed with installation of the System, a period of up to six (6) weeks will be required before commencement of such works on Installation Site.
5. Prices and Payment
(a) The price of the Goods shall be Seller’s quoted price as set forth in the Offer, or where no price has been quoted (or a quoted price is no longer valid), the price listed in Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, Seller’s published export price list shall apply. The prices are quoted in GB Pounds Sterling (£) but payment for the Goods may be made by Purchaser either in GB Pounds Sterling, in US Dollars ($) or in Euro (€), based on current exchange rates. The currency conversion shall be effected using the GB Pounds Sterling exchange rate quoted by Barclays Bank on the business day immediately proceeding the day on which payment is made plus a 3% transaction fee.
(b) Unless otherwise provided herein or otherwise agreed in writing by Seller, payment shall be due within thirty (30) days from the date of the corresponding invoice an original copy of which shall be sent by Seller to Purchaser at any time after dispatch of the System or at the respective time set forth in Clause 5(d) or after the provision of the Maintenance Services related to the System or to Purchaser’s System.
(c) Payment shall be made by wire transfer at Seller’s designated bank account. Seller may require payment to be secured by an irrevocable letter of credit or a bank guarantee acceptable to Seller. Where payment is made by letter of credit, all costs of collection shall be for Purchaser’s account.
(d) The applicable Installation Charges shall be payable in accordance with the following terms:
- Either by way of agreed monthly interim payments with 100% payable upon completion or
- In stage payments with 35% upon placement of order, 35% upon commencement on site and 30% upon completion of the work or
- In stage payments with 50% upon placement of order and 50% upon completion of the work.
The form of payment shall be agreed by the customer at the point of order or it shall be assumed that the charges will be agreed as being monthly interim valuations.
Unless specifically stated it should be assumed that all prices exclude VAT that will be charged at local rates.
(e) The maintenance charge, if any, for the first year shall be payable in advance with effect from the later of the Completion Date or the Commencement Date and annually thereafter on each anniversary of such date.
(f) In addition to the charges indicated in the Offer which are payable as detailed in this Clause 5(d) and (e), any additional charges for work performed on a time and material basis shall be payable by Purchaser upon receipt of the invoice.
(g) Seller shall reserve the right to increase the Installation Charge and/or the maintenance charge and any additional charge thereto to reflect any increase in the cost to Seller at any time before delivery if the cost increase results from: (i) any fact beyond Seller’s control or a Force Majeure Event; (ii) interruption or delays caused by Purchaser, its employees, agents or other trade during the course of installation of the System or the Maintenance Services; (iii) any delay caused by any instructions given by Purchaser or failure of Purchaser to give Seller adequate information or instructions; (iv) any change in delivery dates, quantities or Specifications for the Goods at Purchaser’s request; or (v) inability to obtain full access to the Installation Site during Normal Working Hours or other time as agreed between the parties. Purchaser shall be entitled to terminate the Contract pursuant to Clause 10(d) if it does not accept such variation of charges.
(h) Unless otherwise so stated in Seller’s Offer, the price paid by Purchaser does not include any sales, use, excise, gross receipts, value added tax, import duty (including brokerage fees) or other taxes imposed by any federal, state or local governmental authority, associated with Seller’s performance, and not based on Seller’s net income or the employment of Seller’s employees. Purchaser shall pay to Seller any such tax that may be due under the Contract unless Purchaser provides a proper tax exemption certificate.
(i) Purchaser shall not be entitled to make any deduction or withholding from the price payable to Seller in respect of any set-off or counter-claim unless: (i) both the validity and the amount therefore have been admitted by Seller in writing; and (ii) such withholding is wholly and directly related to a failure to perform by Seller under the Contract.
(j) Purchaser’s failure to pay the price, or any part thereof, on the due date shall entitle Seller, without prejudice to any other rights and remedies available at law to:
- suspend performance of any of its obligations under the Contract such as but not limited to, the non delivery of the Goods without incurring any liability for non performance or delay in the delivery; or
- Terminate the Contract.
Any amount not timely paid when due shall automatically and without prior written notice from Seller bear interest at the rate of one and one-half percent (1½ %) per month on the unpaid balance or, if such amount exceeds the authorised amount permitted by applicable law, the maximum rate permitted by such applicable law shall apply, along with any attorney’s fees and other costs of collection.
(k) Unless otherwise agreed by Seller in writing, stated prices are Ex-Works designated Seller’s Facility. If Seller has undertaken to provide or arrange carriage of the System to the Installation Site or to a destination agreed with or specified by Purchaser the cost for such carriage shall be charged in addition to the price of the System unless otherwise expressly agreed by Seller in writing.
(l) Purchaser shall be responsible for complying with any legislation or regulations governing the importation of the System into the country of destination and for the payment of any duties on them.
(a) Unless otherwise agreed by Seller in writing, Seller shall deliver the System to Purchaser Ex-Works designated Seller’s Facility.
(b) Seller shall use reasonable endeavors to adhere to agreed delivery schedules; provided, however, that any delivery of the System or performance date of the Maintenance Services related thereto stated in the Offer or the Contract are approximate only and do not constitute any guarantee of delivery of the System or performance of the Maintenance Services on any particular date. Time shall not be of the essence of the Contract and Seller shall in no event be held liable for any delay in delivery which shall not constitute sufficient cause for termination of the Contract by Purchaser.
(c) Scheduled orders will only be accepted when the period of the scheduling does not exceed twelve (12) months.
(d) Where the Goods are to be delivered in installments, each delivery shall constitute a separate Contract and failure by Seller to deliver any one or more of the installments in accordance with these General Conditions or any claim by Purchaser in respect of any one or more installments shall not entitle Purchaser to treat the Contract as a whole as repudiated.
(e) Seller shall be liable for non delivery of the Goods (or any installments) that is wholly and directly related to a failure to perform by Seller under the Contract and not beyond Seller’s reasonable control including a Force Majeure Event or Purchaser’s fault. Seller’s liability shall be limited to the excess (if any) of the cost incurred by Purchaser for obtaining similar Goods to replace those not delivered.
(f) If Purchaser fails to take delivery of the System or fails to provide any necessary information for Seller to install the System, or if Purchaser delays or defers delivery or installation of the System (whenever such failure does not arise from a cause beyond Purchaser’s reasonable control including a Force Majeure Event or from Seller’s fault) then, without prejudice to any other right or remedy available to Seller:
- Seller’s time for performance shall be correspondingly extended;
- Seller shall store the Goods until actual delivery and charge Purchaser for the reasonable costs (including insurance) of storage; or
- Seller may sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to Purchaser for the excess over the price under the Contract or charge Purchaser for any shortfall below the price under the Contract.
If Purchaser postpones or delays access or other conditions necessary to the delivery of the Maintenance Services with not more than one (1) full working day written notice, then Seller may charge Purchaser for one (1) day labour at the relevant prevailing rate and for other costs and expenses incurred as a result of the postponement.
(g) Seller shall not be liable for loss, damages, or non-performance arising from the non delivery of the Goods resulting from a Force Majeure Event or other causes beyond Seller’s reasonable control as set forth in Clause 9.
7. Transfer of Title and Risk
(a) Title and risk of loss, with respect to the System shall pass to Purchaser if not being installed by Seller, at the time the System is available for shipment at the Facility pursuant to Clause 6(a), or if being installed by Seller, upon and from installation of the System. Purchaser hereby grants to Seller a security interest in the System pursuant to Clause 11 as security for the performance by Purchaser or all its obligations hereunder.
(b) Notwithstanding the foregoing, ownership of Software or Third Party Software shall not pass to Purchaser.
8. Warranty and Limited Liability
(a) With respect to the System Seller warrants that it shall install the System in accordance with the Specifications and that it shall be free from defects in materials and workmanship for a period of one (1) year from installation. With respect to the Maintenance Services carried out on the System and any component parts provided therewith, Seller warrants that it will perform such services during the Normal Working Hours with reasonable skill and care and that the same shall be free from defects in materials and workmanship for a period of ninety (90) days from the date service was prepared; provided, however, that Purchaser notifies Seller in writing of any asserted defect within such periods.
(b) In the event of a breach of the foregoing warranty, Seller’s sole liability and Purchaser’s sole remedy shall be at Seller’s option the repair or replacement of such defect in the System or re-performance of the Maintenance Service which proved to be defective.
(c) The warranty set forth in Clause 8(a) is given by Seller subject to the following conditions:
- Seller shall be under no liability in respect of any defect in the System arising from any drawing, design or Specifications supplied by Purchaser;
- Seller shall be under no liability in respect of any defect arising from fair wear and tear and/or obsolescence, willful damage and negligence, abnormal working conditions, failure to follow Seller’s instructions (whether oral or in writing), misuse, alteration or repair of the System without Seller’s approval;
- Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price of the Goods has not been paid by the due date required for payment pursuant to Clause 5; and
- Third party produced/manufactured component parts of the System and Third Party Software supplied by Seller are provided as is and without warranty. Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by such third party to Seller and which Seller is permitted to pass through to Purchaser.
(d) SELLER MAKES NO FURTHER WARRANTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND THE FOREGOING WARRANTIES WITH RESPECT TO THE GOODS ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED (STATUTORY OR OTHERWISE), WRITTEN OR ORAL, INCLUDING BUT WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE GOODS. SELLER SHALL IN NO EVENT HOLD HARMLESS, AND SHALL NOT BE HELD LIABLE TOWARDS, PURCHASER AND ITS CUSTOMERS FOR HIDDEN DEFECTS OF THE GOODS DISCOVERED EITHER WITHIN THE WARRANTY PERIOD OR FOLLOWING THE EXPIRATION OF SUCH WARRANTY PERIOD OR LOSSES SUFFERED AS A CONSEQUENCE OF SUCH HIDDEN DEFECTS IN CASE IT WAS IMPOSSIBLE FOR SELLER TO HAVE KNOWN THOSE DEFECTS AT THE TIME OF THE DELIVERY OF THE GOODS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE GOODS REMAINS WITH PURCHASER AND PURCHASER HEREBY EXPRESSLY WAIVES ANY AND ALL CLAIMS REGARDING HIDDEN DEFECTS. SHOULD THE GOODS PROVE TO BE DEFECTIVE OR INACCURATE PAST THE WARRANTY PERIOD, PURCHASER SHALL ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SELLER NEITHER ASSUMES NOR AUTHORISES PURCHASER TO ASSUME ON SELLER’S BEHALF ANY OTHER OBLIGATIONS OR LIABILITY IN CONNECTION WITH THE GOODS. PURCHASER SHALL BE SOLELY AND EXCLUSIVELY LIABLE FOR ANY WARRANTIES OR REPRESENTATIONS MADE BY PURCHASER CONCERNING THE GOODS BEYOND THOSE STATED IN THIS CLAUSE 8.
(e) NOTWITHSTANDING ANY OTHER PROVISION OF THESE GENERAL CONDITIONS, PURCHASER ACKNOWLEDGES AND AGREES THAT: (i) SELLER’S SOLE AND EXCLUSIVE LIABILITY FOR PERFORMANCE OR NON-PERFORMANCE SHALL BE AS SET FORTH IN CLAUSE 8(a) ABOVE; (ii) SELLER IS NOT AN INSURER; (iii) PAYMENTS ARE BASED SOLELY ON THE VALUE OF THE SYSTEM AND SERVICES PROVIDED AND ARE UNRELATED TO THE VALUE OF PURCHASER’S PROPERTY OR THE PROPERTY OF OTHERS LOCATED ON PURCHASER’S PREMISES, OR PLACED WITHIN THE GOODS; (iv) SELLER MAKES NO GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED, THAT THE SYSTEM WILL AVERT OR PREVENT OCCURRENCES OR CONSEQUENCES THEREFROM WHICH THE GOODS MAY BE DESIGNED TO DETECT OR AVERT AND THAT THE MAINTENANCE SERVICE WILL GUARANTEE THE CONTINUED OR UNINTERRUPTED OPERATION OF THE EQUIPMENT; AND (v) NOTWITHSTANDING ANY PROVISION OF THESE GENERAL CONDITIONS, THE CONTRACT, A SUPPLEMENT OR OTHER DOCUMENTS, IN NO EVENT SHALL SELLER OR ITS EMPLOYEES, SUBCONTRACTORS, SUPPLIERS, AGENTS OR REPRESENTATIVES BE LIABLE FOR LOSSES, DAMAGES OR EXPENSE ASSOCIATED WITH BURGLARY, ROBBERY, LOSS, TRANSFER OR MISDISPENSING OF FUNDS OR PROPERTY, OR FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF FUNDS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA, LOSS OF CLIENTELE, OR ANY OTHER PECUNIARY LOSS), EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING OR ARISING FROM, OR IN ANY WAY CONNECTED WITH, THE CONTRACT, OR THE USE OR SALE OF THE GOODS, OR FROM ANY ALLEGED BREACH OF THE CONTRACT, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER FORM OF ACTION. NOTHING IN THESE GENERAL CONDITIONS SHALL SEEK TO EXCLUDE ANY LIABILITY FOR FRAUDULENT MISREPRESENTATION AND DEATH OR PERSONAL INJURY OR DAMAGES TO TANGIBLE PERSONAL PROPERTY CAUSED BY SELLER’S NEGLIGENCE.
(f) AS A MATERIAL CONSIDERATION FOR SELLER ENTERING INTO THE CONTRACT, PURCHASER AGREES THAT IF, NOTWITHSTANDING THE FOREGOING LIMITATIONS, SELLER HAS ANY LIABILITY WHATSOEVER, SUCH LIABILITY SHALL NOT EXCEED THE PRICE OR CHARGES FOR THE GOODS DIRECTLY CONNECTED WITH SUCH LIABILITY PAID TO SELLER OVER THE PRECEDING TWELVE (12)-MONTH PERIOD, OR £5,000, WHICHEVER IS GREATER. SUCH MAXIMUM LIABILITY SHALL BE EXCLUSIVE AND SHALL APPLY IF LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSONS OR PROPERTY FROM PERFORMANCE OR NON-PERFORMANCE BY SELLER, ITS AGENTS, SUBCONTRACTORS, ASSIGNS OR EMPLOYEES OF THE OBLIGATIONS IMPOSED BY THE CONTRACT, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER FORM OF ACTION. THE PRICE CHARGED FOR THE GOODS REFLECTS THE FOREGOING ALLOCATION OF RISK.
(g) Seller will not be subject to any liquidated damages or penalties. In no event shall Seller, its employees, subcontractors, suppliers, agents or representatives be liable nor be obligated to defend Purchaser or others for any loss, cost, damage or expense that is not caused by the wrongful acts or omissions of Seller while such persons are acting within the scope of their duties for Seller.
9. Force Majeure
Should any circumstances beyond the control of Seller or Purchaser and not occasioned by their fault or negligence (“Force Majeure Event“) occur that delay or render impossible the performance of an obligation due under the Contract, such obligation will be postponed for a period of time equal to the duration of such delay. Seller shall not be held liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to a Force Majeure Event and Purchaser shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of such delay. If, as a result of any such cause, any scheduled delivery is delayed for period in excess of one-hundred-twenty (120) days, Seller or Purchaser shall have the right by written notice to the other to cancel the order for the Goods subject to the delayed delivery without further liability of any kind. Events of Force Majeure shall include, without limitation, acts of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, laws, rules or regulations, prohibitions, or measures of any kind on the part of any government or government agency or local authority; import or export regulations or embargoes; strikes, lockouts, or other industrial actions or trade disputes (whether involving employees of Seller or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; and power failure or breakdown in machinery. Notwithstanding the foregoing, the inability to pay amounts owed shall not constitute a Force Majeure Event.
10. Cancellation of Order – Termination of Contract
(a) Cancellation or suspension of a purchase order by Purchaser after acceptance by Seller may be made by written notice to Seller and only on terms which will compensate Seller for loss due to the cancellation. In this respect, Purchaser shall indemnify Seller in full against all economic loss (including, but not limited to, loss of profits, revenues or goodwill), work undertaken (including, but not limited to, cost of all labour) and costs committed (including, but not limited to, cost of materials used, long lead time component parts ordered to fulfil the order, any component parts consumed in work in progress and any component parts purchased specifically for Purchaser), damages, charges and expenses incurred by Seller as a result of cancellation whether foreseeable or not.
(b) The Contract may be terminated by either party upon written notice to the other party without liability as follows:
- Immediately upon substantial breach of any material term or provision of the Contract, provided that due written notice specifying the nature and character of the alleged breach has been sent to the defaulting party and such party has not cured the breach within thirty (30) days from the date of receipt of such notice; or
- Immediately if the other party becomes bankrupt, or is the subject of proceedings for liquidation or dissolution, or makes an assignment for the benefit of creditors, or ceases to carry on business or becomes unable to pay its debts as they come due;
- In the event of a Force Majeure Event pursuant to Clause 9.
(c) The Contract may be terminated immediately by Seller if Purchaser fails to pay on its due date any sum due under the Contract pursuant to Clause 5.
(d) Purchaser may request termination of Maintenance Services provided in connection with the System: (i) upon a three (3)-month written notice on or at any time after the first anniversary of the Commencement Date or Completion Date as applicable; provided that failure to comply with the written notice period shall result in the payment by Purchaser of a sum equal to three (3) months of the maintenance charges stated in the Offer; or (ii) immediately pursuant to Clause 5(g) if it does not accept the variation of charges for Maintenance Services.
(e) Except if the Contract is terminated pursuant to Seller’s fault or at Seller’s request or following a Force Majeure Event, if any work performed by Seller for the installation of a System has not been completed prior to termination, Purchaser shall be required to pay a sum equal to the greater of: (i) 75% of the Installation Charge; or (ii) such costs losses and damages actually incurred by Seller in the performance of the Contract to the date of termination. Seller will refund the charges paid by Purchaser on a pro rata basis for each complete month falling after termination of the Contract originated by Seller’s fault.
(f) Termination of the Contract shall not affect any accrued rights or liabilities of either party or affect the coming into force or the continuance in force of any provision of the General Conditions which is expressly or by implication intended to continue in force on or after termination.
11. Security Interest
In addition to any other right or lien given by law, Seller shall have a security interest upon all Goods of Purchaser in Seller’s possession whether worked on or not to be supplied to Purchaser in respect of all sums due from or claims against Purchaser and not paid pursuant to Clause 5. Without prejudice to any other legal rights afforded by law to Seller, Seller may upon fourteen (14) days notice to Purchaser sell any Goods of Purchaser upon which Seller has a security interest and, where the property in such Goods is at the time of such sale in Purchaser, shall be deemed to be its agent for the purpose of effecting such sale. Seller may apply the proceeds of such sale towards the satisfaction of sums due from or claims against Purchaser, without prejudice to Seller’s right to recover the balance thereof from Purchaser.
12. Purchaser’s Responsibilities
(a) Purchaser is solely responsible for determining the suitability of locations in which the System is installed. Purchasers are responsible for all Installation Site preparation and clean up, and the provision of utility and communication services as are necessary for Seller to install the System. Installation and/or Maintenance Services will be done by Seller only during Normal Working Hours and if Purchaser requests that the work be done at any other times, there will be additional charges. The pricing for the System and/or Maintenance Services is based on Seller being able to use its regular employees or contractors to perform any installation services and/or Maintenance Services. In the event any local conditions require that other than Seller’s personnel be used for such work, Purchaser agrees to pay any additional expenses that Seller may incur because of such local conditions. Purchaser shall be solely responsible for securing items of value on its premises while installation services and/or Maintenance Services are being performed.
(b) Purchaser shall at all times:
- Promptly provide Seller with any information, which Seller reasonably requires to enable Seller to proceed without interruption with the performance of the Contract;
- Obtain and pay for all necessary consents including listed building consent for the installation of the System;
- Comply with and require its agents and employees to comply with all directions, safety notices, warnings, and other instructions furnished by Seller, and shall use and require its agents and employees to use reasonable care in the operation of the System;
- Notify Seller as soon as reasonably practicable (confirming such notice in writing) of any defect appearing in the System and shall permit Seller to take such reasonable steps as Seller shall consider necessary to remedy such defect in accordance with these General Conditions. Seller shall not be liable for any loss arising from failure of the System if Purchaser fails to notify Seller as soon as reasonably practicable upon Purchaser becoming aware of the same;
- Advise Seller of the existence of concealed pipes, wires and cables of water, gas, electricity, telephone or other services affecting the Installation Site and shall confirm the location of such services in writing to Seller technician before work commences. In the absence of such notice, Seller accepts no liability for damage to such services or any loss damage or injury whatsoever incurred or sustained in consequence thereof as Purchaser hereby acknowledges and Purchaser shall indemnify Seller against any claim whatsoever for loss damage or injury resulting from damage to such services;
- Comply with all statutory requirements (including those relating to health and safety) which apply to the System.
(a) Purchaser shall defend, indemnify and hold Seller harmless against all damage injury or loss occurring to any person or property against all actions, suits, claims, demands, charges or expenses in connection therewith arising from the condition or use of the System in the event and to the extent that the damage, injury or loss shall have been occasioned partly or wholly by the carelessness of Purchaser, his servants, agents or by reason of any alteration or modification of the System without Seller’s prior written consent or by any breach by Purchaser of its responsibilities and obligations made to Seller there under.
(b) Seller shall be under no liability, nor shall Purchaser be entitled to any remedy, by reason of the provisions of the Misrepresentations Act 1967 except to the extent (if any) that the court or any Arbitrator may allow reliance on it as being fair and reasonable in the circumstances of the case.
(c) If any process is applied by Seller to Purchaser’s System, Purchaser shall indemnify Seller against all loss, damages, cost and expenses incurred by Seller in relation to Purchaser’s System for any reason including but not limited to the components parts and any material supplied by Purchaser being unsuitable for the order submitted or the quotation accepted by Purchaser.
14. Licenses, Patents, Design and Copyright
(a) Seller grants to Purchaser a non-exclusive, non-transferable license to load and run each Software copy which has been licensed under the Contract in one computing device having a single processor that is owned and operated by Purchaser. To qualify as a licensed Software copy, Purchaser must have previously paid to Seller the corresponding license fee for that copy. After the licensed Software copy has been loaded onto a processor, any media delivered with the licensed Software copy may be used only for backup purposes by Purchaser. If no media was provided, Purchaser is allowed to make one (1) backup copy of the Software for each licensed copy, which may be used for recovery purposes only. No other rights are granted to Purchaser and all other rights in the Software are reserved by Seller. The license rights granted to Purchaser under the Contract shall extend for as long as Purchaser abides by all the terms of the Contract.
(b) Purchaser agrees not to do any of the following:
- Copy any portion of the Software except as expressly authorised in Clause 14(a) above;
- Transfer any portion of the Software to anyone other than Seller with or without the hardware it was originally provided with;
- Lend, rent, lease or allow a third party to access any portion of the Software;
- Move a Software copy from one piece of hardware to another, or make available any portion of the Software in a network so that multiple computing devices may operate using a single Software copy unless Seller expressly permits in writing the use of the Software on a server;
- Disclose, reverse engineer or reverse compile the Software (except as expressly authorised by applicable law without the possibility of contractual waiver); or
- Create derivative works of the Software.
(c) Purchaser acknowledges that Software and any Third Party Software is licensed and not sold and that the Software and any Third Party Software constitutes valuable trade secret information and copyrighted material which is owned exclusively by Seller or its suppliers, and that any threatened violation of this Agreement shall cause irreparable harm to Seller.
(d) With respect to Purchaser’s System manufactured according to Purchaser’s designs and configurations or by process specified or supplied by third parties to Purchaser, Purchaser represents and warrants to Seller that Purchaser’s System so designed or configured and the process used do not infringe the rights of any person, whether in respect of any patent, trademark, registered design, copyright, confidential disclosure or otherwise howsoever to prevent or restrict the sale or use of Purchaser’s System or materials or the use of such processes in any part of the world. Purchaser shall indemnify Seller against all actions, suits, claims, demands, losses charges, costs and expenses which Seller may suffer or incur in connection with any claim by any third party alleging facts which if established would indicate breach of the representations and warranties contained in this paragraph.
(e) Seller makes no representations or warranties with respect to the infringement or non-infringement of any third party hardware or Third Party Software supplied by Seller pursuant to the Contract.
(f) Seller represents and warrants that the Software and any Seller-designed goods or component included in the System or in Purchaser’s System provided to Purchaser pursuant to the Contract (the “Seller’s Designed Goods“) do not infringe the patents, trademarks or copyrights of third parties (“Third Party Rights“). Notwithstanding the foregoing, Seller does not represent or warrant that use of such Seller’s Designed Goods in combination with other equipment, computer programs or software, methods or systems will not infringe Third Party Rights. Seller shall defend claims that may be brought against Purchaser that allege such Seller’s Designed Goods infringe Third Party Rights, provided Seller is given prompt notice of such claim and is permitted to control the defense or settlement of any legal action. In the event that any of such Seller’s Designed Goods are alleged or held to infringe, and further sale, sublicense or use thereof by Purchaser is prevented by a court or other legal authority, or, in Seller’s opinion the same may be prevented, Seller may elect, at its sole option, to do any one (1) of the following, which shall constitute Purchaser’s sole and exclusive remedy:
- acquire a license to such Third Party Rights which authorises Purchaser to continue to use Seller’s Designed Goods; or
- modify Seller’s Designed Goods alleged or held to infringe so as to make them noninfringing; or
- accept return of Seller’s Designed Goods subject to such Third Party Rights and refund the purchase price or license fees paid by Purchaser for Seller’s Designed Goods, less a reasonable allowance for the use made thereof prior to such return, calculated as if depreciated on a straight-line basis over sixty (60) months from the date of shipment to the date of return to Seller.
Seller’s liability to Purchaser for infringement of Third Party Rights (including attorney fees) shall in no event exceed the amount paid to Seller by Purchaser for Seller’s Designed Goods in question. This constitutes the entire agreement of the parties concerning intellectual property rights and the remedies provided to Purchaser herein shall be Purchaser’s sole and exclusive remedies for infringement of intellectual property rights.
(g) Purchaser’s use of the Software and any Third Party Software shall be governed by (i) these General Conditions, (ii) any additional terms provided in or with the Software and/or Third Party Software, and (iii) any additional terms posted at www.legaltermsatm.com as of the date that Purchaser submits a purchase order. Purchaser confirms that it has access to the Internet, that it has reviewed the terms posted at this web site prior and that Purchase shall be subject to the additional terms posted at the web site as of the date such purchase order is accepted by Seller.
Any oral advice or representations made by Seller, its employees or agents shall be provided for guidance only and no liability shall be attached to such advice or representations. Where expert advice is sought by Purchaser for a particular project or Goods or of the use of the System, no liability shall attach to such expert advice requested unless full disclosure of the relevant facts is made in writing by Purchaser to Seller and the advice given under these circumstances, then the Seller’s liability shall be limited as set out in Clause 8 above.
Seller will provide certificates of insurance if desired by Purchaser, but shall not be obligated to name any entity as an additional insured under any of its insurance policies, nor to modify its standard certificate of insurance. The cost of any performance or payment bond if not specifically and separately listed in the Contract will be an additional charge and subject to availability.
17. Employee Background Checks
Seller shall not be obligated to require its employees to be subject to any screening mechanisms or background checks beyond those which Seller routinely engages in as part of its pre-employment screening process. If Purchaser chooses to request Seller’s employees engage in such additional checks, Purchaser shall be solely responsible for compliance with all laws and regulations applying thereto and shall defend and indemnify Seller from all liability resulting from Purchaser’s actions relating to any checks.
18. Disclosure of Information/Data Protection
(a) Any information, suggestions, or ideas given by Purchaser to Seller in connection with Seller’s performance hereunder are not secret or submitted in confidence, except as may be otherwise provided pursuant to a separate written agreement signed by both Seller and Purchaser. Seller is not obligated to provide confidential technical information and any such information needed by Purchaser will only be provided pursuant to a separate written agreement.
(b) All records concerning the relationship between Seller and Purchaser shall be processed by both parties in accordance with applicable data protection laws. Purchaser acknowledges and agrees that Seller may, subject to applicable data protection laws, enter personal details and other information into its customer database for the purposes of the Contract and for general customer management, such database to be maintained by Seller in accordance with applicable data protection laws.
No right accruing to Purchaser by virtue of the relationship between Seller and Purchaser or any duty of Seller resulting from that relationship shall be assignable without Seller’s prior written consent.
Invalidity of any provision of these General Conditions shall not affect the validity of any other provision hereof and any invalid provision shall be, to the extent possible, modified to accomplish the same objectives in a valid way without affecting the surviving provisions.
No failure by Seller to exercise any right accruing to it by virtue of the Seller-Purchaser relationship or under any contract of sales entered into with Purchaser shall operate as a waiver thereof or preclude the exercise of any other right or privilege by Seller.
Any notice required or contemplated hereunder shall be in writing and shall be sent by facsimile or by prepaid registered mail (i) in the case of a notice to be given to Purchaser at the address shown on the Contract or invoice (or if none its registered office for the time being) to the attention of its legal counsel/corporate representative and in the case of Seller at its registered office mentioned in Clause 1 above to the attention of Beacon Security and Communication’s legal counsel/corporate representative. Notice by facsimile shall be deemed to have been received when dispatched and any notice sent by registered mail (with air mail postage paid if mailed to a recipient in a different country) shall be deemed to have been received on the second day following the date mailed if mailed within the same country as the recipient, and on the seventh day following the date mailed if the recipient is in a different country.
23. Entire Agreement and Amendments
These General Conditions, the Offer, the Specifications and any maintenance schedule supersede all prior agreement, arrangements and understandings between the parties and there are no other terms and conditions applicable to the supply of Goods by Seller. Together they constitute the entire agreement between Seller and Purchaser relating to the supply and/or installation of the System and/or the Maintenance Services to the exclusion of any other terms. No modification, amendment, waiver or other change of any provision of the General Condition shall be binding on Seller without Seller’s written consent.
24. Applicable Law
(a) These General Conditions shall be construed and governed in all respects by English Law without reference to provisions relating to conflicts of laws and, unless otherwise stated in writing, the Goods shall not be required to comply with any provisions of any other law. All disputes arising under or relating to these General Conditions shall be subject to the jurisdiction of the Courts of England.
(b) The indemnities given herein shall survive termination of these General Conditions in accordance with the terms of such indemnities.
(c) The United National Convention on Contracts for the International Sale of Goods 1980 shall not apply to these General Conditions.