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Keyholding and alarm response
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“Agreement” means these terms and conditions, the Schedule and any exhibits or attachments hereto.
“Customer” means the person or company specified in the quotation.
“Effective Date” means the date this order is made..
“In writing” or “written document” shall include any written communication which has been signed by a person authorized to represent the party, including, but not limited to printed documents, facsimiles, e-mails and other electronic means of communication.
“Losses” means losses as stipulated in applicable law including, but not limited to, any and all claims, losses, liabilities, damages, actions, demands or expenses (including, but not limited to, all reasonable solicitors fees or costs of suit which a party may incur as a result of or in connection with the provision of the Services under this Agreement).
“Schedule” means the cover page to which these terms and conditions are attached.
“Scope of Work” means the specification of the Services provided by the Company to the Customer under this Agreement.
“Service Fee” means the Company’ charges to the Customer for the provision of the Services, as set out in the Service Agreement as well as charges for any additional services agreed between the parties. Such charges may be varied from time to time in accordance with the terms of this Agreement.
“Services” means the services to be provided by the Company under this Agreement, as specified in the Scope of Work.
“Company” means the Outmanage Limited t/a Keysure whose registered office is at 20-22 Wenlock Road, London, N1 7GU, under registered Company number 07554504.
“Site (-s)” means such premises at which the Services are to be performed as specified in the Scope of Work.
“Product(-s)” means any products the Company provides to the Customer in connection with its Scope of Work.
1 COMMENCEMENT AND DURATION
1.1 Commencement. Unless otherwise stated in the Schedule, this Agreement shall commence upon the Effective Date and shall, subject to Clause 9, continue to run for a term of One (1) year from the Effective Date and thereafter be automatically renewed for consecutive one (1) year periods until terminated by either party, in writing, at least Ninety (90) days before the anniversary of the Effective Date.
1.2 In the event that a property that is being serviced is closed down (sale, termination of the tenancy agreement), the Customer may terminate the contract relationship by registered letter with a notice period of one month to the last day of each calendar month. In the event of a pure relocation of the premises, a termination of the contract shall not be permissible. In the event of a relocation of premises the services shall be continued at the new (relocated) premises.
2 SCOPE AND PERFORMANCE OF SERVICES
2.1 Service and Equipment. The Company agrees to provide the Services to the Customer under the specific terms set out in this Agreement. All equipment, software, materials and/or documentation supplied by The Company shall always be the property of the Company, unless otherwise agreed in writing between the parties.
2.2 Keys and Signs. A sufficient number of keys that are required to provide the service must be provided by the Customer promptly and free of charge. The Company is entitled to attach the standard signs with the Company logo to/within properties of the Customer for the term of the Service Agreement. On termination of the Service Agreement the Company shall remove the signs at its own expense.
2.3 Instructions by the Customer. The Company shall not be obliged to follow any instructions of the Customer other than those specified in the Scope of Work. If, in the performance of the Services, the Customer gives instructions outside the Scope of Work which alter or affect the performance of the Services, the Customer shall be solely responsible for all consequences deriving from such instructions and shall indemnify and hold the Company harmless in respect thereof.
2.4 Requests for Adjustments and Additions to the Services. Subject to the terms of this Agreement, each party may request reasonable adjustments and/or additions to the Services by giving written notice thereof to the other party. Should such adjustments and/or additions in the Company’ opinion require an adjustment of the Service Fee or this Agreement, the Company shall notify the Customer of such required adjustments to the Service Fee. The parties shall negotiate in good faith on any and all requested adjustments and/or additions to the Services, the Service Fee or this Agreement. In order for any changes to the Services, Service Fees and/or this Agreement to be binding for the parties, all adjustments and/or additions must be agreed in writing with an authorized manager of the relevant party. Unless such agreement is reached, the Services, Service Fees and this Agreement will remain unchanged. For purposes of clarity, The Company’ employees providing the Services are not entitled to agree to adjustments and/or additions to the Services. The Company shall be allowed to amend the Agreement in order to comply with public instructions, orders, rules and legislation applicable to the Services to be provided hereunder. Such amendments shall be deemed to have been accepted by the Customer unless expressly opposed in writing within ten (10) working days from their communication. In case of opposition, The Company shall be entitled to terminate the Agreement for good cause as per Clause 9.1 below.
2.5 Personnel. Personnel providing the services are the Company employees or sub-contractors hired by the Company. The Company shall have the right to change personnel assigned for the Services at any time. The Customer may request changes in the Company personnel, but the Company in its sole discretion will determine any actions to be taken based upon such a request. The Customer requests to change personnel shall be made in writing, stipulating the reasons for requesting the change.
2.6 Subcontractors. The Company may use subcontractors to provide some or all of the Services. The Company will be responsible for such subcontractors subject to the limitations of liability stipulated in this Agreement.
2.7 No guarantee. The Company does not guarantee a function or result of the Services or accept overall responsibility for the security at the Customer’s Site(-s). Unless otherwise agreed in the Scope of Work, the Company is not engaged as a security consultant. The Company makes no representation, express or implied, that its Services will prevent any loss or damage.
3 THE CUSTOMER’S COMMITMENT
3.1 Cooperation. The Customer shall at all times cooperate with the Company to allow the Company to provide the Services under the best possible conditions. This shall include, but not be limited to, the Customer providing (i) a safe, healthy working environment for the Company personnel in accordance with applicable laws and regulations, (ii) all relevant information, access and assistance that the Company reasonably requires to perform the Services without interruption, including, without limitation, suitable office space and utilities, and (iii) prompt notice of anything that may affect the Company' safety, risk or obligations under this Agreement or which is likely to lead to an increase in the Company’ costs for providing the Services.
3.2 The parties agree that the management of the safety-related and occupational medical care, as well as the evaluation of permanent Company workplace is carried out on the premises of the Customer (e.g. security and porter services, plant security, telephone service etc.) by the committees of the Customer; this also applies to the fulfilment of the requirements according the Waste Management Act. The Customer provides the Company at least once a year with a copy of the current security and health safety documents. The authorities of the employee representatives of the Company shall not be affected by this as a result.
4 SERVICE FEES
4.1 Service Fee. The Customer shall pay the Service Fee to The Company for the provision of the Services as specified in the Scope of Work.
4.2 Service Fee Adjustments. The Company shall be entitled to adjust the Service Fee during the term of this Agreement upon thirty (30) days written notice to the Customer in case the Company’ costs for the provision of the Services increase due to (i) increased labour costs or costs related to cars or other equipment provided, (ii) changes in insurance premiums and/or (iii) changes in legislation or regulations relating to the Services.
4.3 Request For Reports. The request for any reports, including but not limited to; mobile patrols, alarm activations and incident reports, that are ordered by the customer are considered as charged services. The order of such reports incurs a £5.00 fee for each report.
4.4 Call Handling Fee. If we are called-out for an alarm activation and no alarm response service is required, for whatever reason, a call handling fee of £25.00 + VAT shall apply.
4.5 VAT and Other Taxes. All sums payable under this Agreement are exclusive of VAT and any other applicable tax or duty, which shall be payable in addition to the specified Service Fees.
4.6 Public holidays. The Company will charge the Customer 100% surcharge for public holidays and 200% surcharge for Christmas day.
5.1 Payment of the Service Fee. All invoices are payable on the subscription due date. The Customer’s failure to pay any amount when due will be considered a material breach by the Customer. A late charge of 10% per month, or partof, will be added to balances not paid prompt. The Customer must notify the Company in writing of any dispute regarding the amount of an invoice within seven (7) days from the invoice date, otherwise all disputes will be deemed waived. The Customer will bear all costs associated with the Company receiving payments due for services rendered under this Agreement. If the Company must institute collection services to collect amounts owed to the Company under this Agreement, the Customer agrees to pay the Company’s solicitor’ fees and other costs of suit or collection.
5.2 Suspension. In the event of payment delay, the Company may suspend the performance of Services rendered under this Agreement, after ten (10) days of the invoice becoming due, without notice. Suspension will not release the Customer from any of its obligations under the Agreement.
5.3 Immediate Cash Payment. In case of non-payment based on liquidity problems of the Customer, The Company may condition the continued performance of the Services on immediate cash payment for Services already rendered (whether or not invoiced) and/or for Services to be rendered.
6 LIMITATION OF LIABILITY
6.1 Liability for Losses. The Company’ liability for the Customer Losses and any other liability under this Agreement shall be limited as set out in this Clause 6. The Customer agrees that the Service Fee reflects the Company’ assessment of the risks and exposures based on information provided by the Customer and that the Agreement and the Scope of Work is conditioned upon the fact that the Company’ liability in this Agreement is limited as provided herein.
6.2 Exclude Liability. The Company exclude liability, loss, damage or expense consequential or otherwise caused to your property, goods or the like, directly or indirectly resulting from the Company negligence or delay or failure or malfunction of the systems or components or services provided by the Company for whatever reason. In the case of faulty components, we include only for the replacement, free of charge, of those defective parts, within the product warranty or hire period. As set out in Clause 8, as an alternative to our basic tender, we can provide insurance to cover the risks set out in Clause 6. The Customer should ask the Company for the extra cost of provision of this cover if required.
6.3 Liability for Injury or Death. Nothing in these terms limits or excludes the liability of either party for death or personal injury resulting from negligence.
6.4 Notification Limits for Claims. The Customer shall notify the Company of any claim arising from the Services in reasonable detail and in writing within five (5) days from the date on which the Customer became aware (or should reasonably have become aware) of the occurrence giving rise to the claim; provided, however, that if the Customer does not provide such notice to the Company within three (3) months from the occurrence, the Company shall have no obligation to pay any compensation whatsoever relating to such claim.
7 THIRD PARTY CLAIMS
7.1 Indemnification. The Customer shall indemnify and hold the Company harmless from and against any Losses, which the Company may incur or which may be made against the Company by any third party as a result of or in connection with the performance of the Services under this Agreement unless such Losses arise from any negligent act or omission on the part of the Company, its employees, agents or subcontractors.
8.1 Guarding Insurance. The Company will, at all times during the term of this Agreement, maintain insurance related to the liability accepted by the Company under this Agreement, in amounts and on such terms as the Company, in its sole discretion, decides. The liability insurance coverage held by the Company will not cover Losses resulting from the Customer’s acts or omissions. The Company will, upon written request by the Customer, supply the Customer with a certificate of insurance evidencing the above stated policies.
8.2 Hired Equipment Insurance. The Customer will keep the Hired Equipment on a comprehensive cover basis (with the Company interest noted on the policy) and if the Hired Equipment is deemed to be a Total Loss, pay the Company any shortfall between the insurance proceeds received by the Company and the book value of the Hired Equipment stated in the Company records at the time the Hired Equipment is deemed to be a Total Loss. If the Hired Equipment is not declared a Total Loss, the Customer shall be liable to replace the Hired Equipment at its own expense and must continue to make the payments as they fall due under the Agreement.
9.1 For Convenience and Cause. The Customer may terminate this Agreement upon thirty (30) days’ prior written notice to the Company in the event the Company does not cure a material breach of its obligations under this Agreement. The Company may terminate this Agreement for good cause upon ten (10) days’ prior written notice to the Customer. “Good cause” for the Company will include, without limitation: (i) any material or persistent minor breach by Customer of its obligations under this Agreement, (ii) cancellation of or a material change to any of the Company insurance coverage relevant to this Agreement, (iii) a change in applicable laws or regulations that has a material effect on, or causes a material change to the obligations of the Company under this Agreement, (iv) if the Customer becomes insolvent, an application for insolvency procedure or similar has been submitted by or against the Customer, or (v) any act, omission or conduct of the Customer, which in the Company reasonable opinion, brings or may bring the Company business or reputation into disrepute. The Customer shall be responsible for payment for all Services rendered through the termination date in accordance with this Agreement. If termination of this Agreement is due to Customer’s material breach of this Agreement, the Customer shall reimburse the Company for any costs due to such breach.
9.2 Discharge of Performance. Upon termination of this Agreement, the Company shall be discharged from all further performance under this Agreement and shall be entitled to enter the Site(-s) and recover any equipment, materials, software and/or documents (including but not limited to retrieval and/or destruction of electronic documents and data) belonging to the Company.
10 GROUNDS FOR RELIEF
10.1 Force Majeure. The following circumstances shall be considered as grounds for relief if they delay or impede the performance of this Agreement: any circumstance beyond the reasonable control of a party such as fire, war, mobilization or military call up of a comparable scope, requisition, seizure, currency restrictions, insurrection and civil commotion, hi-jacking or an act of terrorism, epidemic, pandemic, shortage of transport, general shortage of materials or personnel, strikes or other industrial disputes and defects or delays in deliveries by sub-contractors caused by any such circumstance as referred to in this Clause.
10.2 Notice. The party intending to claim relief under Clause 10.1 shall inform the other party without delay on the occurrence and on the cessation of such circumstance.
10.3 Customer’s Relief. If grounds for relief prevent the Customer from fulfilling its obligations, the Customer shall reimburse the Company for costs incurred in securing and protecting the Site(s). The Customer shall also reimburse the Company for costs incurred for personnel, sub-contractors and equipment which, with the consent of the Customer, are held in readiness to resume the Services.
10.4 Termination for Relief. Notwithstanding any other provision of this Agreement, a party shall be entitled to terminate this Agreement and the Services with immediate effect by written notice to the other party if performance of the respective undertakings is delayed more than thirty (30) days by reason of any grounds for relief as described in Clause 10.1.
11 CONFIDENTIALITY AND DATA PROTECTION
11.1 Confidential information. Each party shall keep confidential and shall not disclose any confidential information of the other party disclosed to it in connection with this Agreement except as required for the purpose of the delivery of Services and performance of any other duties under this Agreement. Information shall be considered to be confidential if it has been designated as confidential by the disclosing party at the time of disclosure, or if it, considering all the circumstances surrounding the disclosure, ought reasonably to be understood by the receiving party to be confidential. For purposes of clarity, the Company’ service plans (the “Security Manual” and/or similar documentation) shall always be considered as confidential information for the purpose of this Clause 12 and is protected by intellectual property rights. Neither party will have any duty of confidentiality under this Agreement with respect to information which: (i) is or subsequently becomes publicly available without breach of any obligation under this Agreement; (ii) was in the possession of the other party prior to the time of first disclosure hereunder; (iii) is developed by the other party without any use of or reference to any confidential information received from the disclosing party; (iv) is obtained without restriction from a third party reasonably believed by the other party to be free to provide such information without breach of any obligation owed to the disclosing party; (v) is disclosed with the prior written approval of the disclosing party; or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body.
11.2 Data Protection. The parties acknowledge that access and distribution of personal information of the other party or its employees, agents or related parties may be necessary for the proper performance of the Services as set out in this Agreement. Both parties agree to use any personal information obtained throughout the performance of this Agreement with care, in keeping with all applicable rules and regulations and to use such information only for the purpose of performing their duties as set out in this Agreement. The Customer shall grant their consent that personal data are automatically saved, processed and transferred to third parties as necessary (e.g. communication with executives, etc.) in fulfilment of this contract. The Company is obligated to take reasonable technical and organisational measures to protect the Customer’s data in the meaning prescribed by the Data Protection Act and shall expressly obligate its employees to keep the data confidential in accordance with the relevant current Data Protection Act.
12 CONSUMER PROTECTION
12.1 These terms and conditions shall be applicable for Customers, who are consumers in the sense of the Consumer Protection Law based on admissibility in accordance with Consumer Protection Law.
13.1 Non-Solicitation. The Customer agrees that, during the term of this Agreement and for a period of twelve (12) months after its termination, if it employs, directly or indirectly, any person employed or formerly employed by the Company who is or was engaged in providing Services under this Agreement, the Customer will pay the Company a flat fee of £4000.00 GBP, excluding value added tax, for each such person employed by the Customer in recognition of the cost incurred by the Company for the recruitment and training of this employee. The parties acknowledge that this is a legitimate pre-estimate of the costs for the Company’ loss and not a penalty.
14.1 Independence. The Company is an independent contractor. Nothing in this Agreement shall create a partnership or relationship of principal or agent or employer and employees.
14.2 Severability. If any provision of this Agreement is held to be unenforceable, it shall be modified to that it is enforceable to the maximum extent permitted under applicable law and all other terms shall remain in full force. If the unenforceable provision cannot be so modified, it will be excluded from this Agreement, and all other terms of this Agreement will remain in full force.
14.3 Order of Precedence. In the event that the different parts of this Agreement are conflicting, the documents forming part of this Agreement shall prevail in the following order: (i) offer / contract; (ii) these terms and conditions; (iii) instruction manual; (iv) scope of work, Exhibit A and (v) any other documentation attached hereto.
14.4 Notices. All notices to be delivered under this Agreement shall be in writing and made by courier, facsimile, overnight mail or certified mail, addressed to the other party at its address set forth in the Schedule or at such other address as the other party may have designated in writing. Any notice so sent shall be deemed received as follows: (i) if hand delivered, on delivery, (ii) if by commercial courier, on delivery, (iii) if by registered mail, three (3) business days after mailing, and (iv) if by facsimile, upon receipt.
14.5 Assignment. Neither party will assign this Agreement without the other party’s written consent, which shall not be unreasonably withheld. However, the Company may assign this Agreement at any time to any of its affiliates, subsidiaries or successors.
14.6 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements and correspondence, oral or written, between the Company and the Customer. Any representations, promises or agreements not embodied in this Agreement will not be enforceable.
14.7 Changes and amendments. All changes and amendments to this Agreement, or any part hereof, will be binding on either party only if approved in writing by an authorized representative of that party.
14.8 Survival. This Agreement shall terminate by expiry or by termination of the Agreement in accordance with its terms. Clauses that by their wording have effect after the termination shall continue to apply between the parties according to the terms of that Clause.
14.9 Retention of title. Goods delivered by the Company shall remain the property of the Company until they have been paid in full. The Purchaser is not entitled to resell the goods before the purchase price has been paid in full.
14.10 Fair use policy. Hired Equipment and the monitoring of security systems both fall under the fair use policy – this means if the alarm system exceeds 10 false alarms in a 24-hour period the Company may disconnect from the panel pending investigation. The Customer shall be responsible for investigating the false alarms.
14.11 General provision of service. In the event that the services are carried out outside of the business premises of the Company and as far as these are not engineering services, the services shall be carried out by uniformed security staff that shall be equipped with the agreed technical tools. With regard to the patrolling duties, the checks agreed with the customer shall be carried out at irregular intervals as far as there are not contrary agreements. In the event of unforeseen obstructions (traffic situation, weather conditions and similar) individual rounds and the associated checks may be cancelled. The customer shall not be entitled to a payment reduction as a result.
15 GOVERNING LAW AND JURISDICTION.
15.1 This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.