Interpretation
1.1 The following definitions apply in these conditions: DRAM: DRAM Solutions Ltd (Company Number: 07438250) whose registered office is at 9 Bromells Road London Lambeth, SW4 0BN.
Business Day: a day other than a Saturday, Sunday or public holiday in England and Wales when banks in London are open for business.
Charges: the charges payable by the customer for the supply of Maintenance and Monitoring services in accordance with the clause 5.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.3.
Contract: the contract between DRAM and the customer for the supply of the Maintenance and Monitoring services in accordance with these conditions and incorporating any Maintenance and Monitoring Specification.
Customer: the person or company who purchases the Maintenance and Monitoring service from DRAM.
Data Protection Legislation: all applicable data protection and privacy legislation in force in the United Kingdom including the General Data Protection Regulation; the Data Protection Act 2018; the Privacy and Electronic Communications Directive and Privacy and Electronic Communications Regulations 2003.
Documents: all documents, products and materials developed by DRAM in relation to the Maintenance and Monitoring Services in any form or media including drawings, plans, diagrams, designs, pictures and specifications.
Industry Standards: BS EN ISO 9001:2015, NSI SSQS 101, NSI NCP 109, NSI NCP 104, PD 6662:2017, BS 7858:2019 (as updated from time to time).
Maintenance: the servicing of the system by DRAM pursuant to these Conditions as detailed in the Maintenance and Monitoring Specification.
Maintenance and Monitoring Specification: the specification for the Maintenance and Monitoring Services agreed in the writing between Customer and DRAM to which these conditions apply.
Monitoring: the monitoring of the system, including the receipt of the alarm signals at DRAM chosen central station.
Premises: the Customer’s premises as identified in the Maintenance and Monitoring Specification to which the Maintenance and Monitoring Services relate.
Maintenance and Monitoring Services: the Maintenance and Monitoring of the system to be undertaken by DRAM under the terms of this contract as detailed in the Maintenance and Monitoring Services Specification.
System: the life safety system, security system and/or the network infrastructure installed or to be installed at the premises whether by DRAM or otherwise.
1.2 A reference to a party includes its representatives, successors and permitted assigns.
1.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under the statute or statutory provision.
1.4 A reference to writing includes email.
2 Basis of Contract
2.1 These Conditions apply to the contract to the exclusion of any other terms that the customer seeks to impose or incorporate, or which are implied by the trade, customer, practice or course of dealing.
2.2 The customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents of the customer that is inconsistent with these conditions.
2.3 The Maintenance and Monitoring Specification constitutes an offer by the customer to instruct the Maintenance and Monitoring Services in accordance with these conditions.
2.4 The contract constitutes the entire agreement between the parties. The customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of DRAM which is not set in the contract.
2.5 The Maintenance and Monitoring Specification shall only be deemed to be accepted when DRAM issues written acceptance of the Maintenance and Monitoring Specification at which point, and on which date the contract shall come into existence (the commencement date).
2.6 Any quotation given by DRAM shall not constitute an offer and is only valid for a period of 20 business days from its date of issue.
3 Maintenance and Monitoring Services
3.1 DRAM shall commence the Maintenance and Monitoring Services on the commencement date stated in the Maintenance and Monitoring Specification.
3.2 DRAM shall supply the Maintenance and Monitoring Services to the customer in accordance with the Maintenance and monitoring Services Specification.
3.3 DRAM shall provide the Maintenance and Monitoring Services.
3.31 Using the level of reasonable skill and care to be expected of a property qualified and competent fire and security engineer, and
3.3.2 in accordance with the industry standers.
3.4 DRAM shall supply the Maintenance and Monitoring Services for an initial 12-month period from the commencement date stated in the Maintenance and Monitoring Specification. At the end of the initial 12-month period DRAM shall provide the Maintenance and Monitoring Services on a rolling 12 month basis.
3.5 The customer may cancel the Maintenance and Monitoring Services at any time after the initial 12-month period by giving not less than three (3) months’ notice in writing to DRAM.
3.6 DRAM shall have no liability in relation to the customer’s existing system, and in addition:
3.6.1 Unless the customer has informed DRAM prior to the date of the contract, it is assumed by DRAM that the existing system already complies with all relevant standards and is in full working order.
3.6.2 DRAM can at the request of the customer carry out an initial test of the existing system, such test will be the subject of a separate quotation and will set out the work and DRAM charges to repair, reinstate or reconnect any parts of the existing system which are not in full working order.
3.6.3 If an initial test of the existing system is requested DRAM will not be able to confirm that cables and wiring which have been installed within the fabric of the premises, or buried underground, conform to relevant standards.
3.7 The customer agrees and accepts that after the date on which the Maintenance and Monitoring Services commence there may be a delay while:
3.7.1 the telecommunication links between the premises and the alarm receiving center are set up and activated
3.7.2 intruder alarm URNs are obtained
3.7.3 the registration period set by the police, or another authority is completed to their satisfaction, during such period DRAM’s ability to provide the Maintenance and Monitoring Services will be limited.
3.8 DRAM will as part of the Maintenance and Monitoring Services, visit the Premises on an annual basis at a date and time agreed in advance with the customer as detailed in the Maintenance and Monitoring Service Specification. In the event that DRAM is prevented from accessing the system at the agreed date and time then the customer shall re-book the visit at an extra cost. If the customer does not re-book the visit within 5 Business days, then the visit and that part of the Maintenance and Monitoring Services shall be deemed to have been completed.
4 Customer’s Obligations.
4.1 The Customer shall obtain all necessary approvals and permissions (including but not limited to any planning permission) for DRAM to provide the Maintenance and Monitoring Services.
4.2 The Customer shall obtain the approval or permission from the fire services, police or any other relevant authority to all DRAM to provide the Maintenance and Monitoring services and shall:
4.2.1 enter into all necessary agreements with such authorities.
4.2.2 promptly provide any information such authorities require.
4.2.3 make all necessary payments for relevant approval or permission;
4.2.4 meet the requirements of all such authorities at all times to maintain the approval of such authorities.
4.2.5 inform such authorities promptly if any information you have given them changes; and
4.2.6 if any approval or permission granted by such authorities is amended or ends write to DRAM confirming the same as soon as possible.
4.3 If the Customer does not have and maintain the approval and/or permission of the relevant authorities as required under clause 4.2 DRAM shall only be obliged to provide those parts of the Maintenance and Monitoring Services which do not require such approval and/or permission.
4.4 The Customer shall be responsible for notifying and updating its insurance of the System and any changes to the System.
4.5 The Customer shall allow DRAM unobstructed access to the premises for the purpose of providing the Maintenance and Monitoring Services.
4.6 The Customer shall
4.6.1 supply the Customer’s equipment as detailed in Maintenance and Monitoring Services Specification.
4.6.2 identify to DRAM the location of all known risks at the premises including hazardous materials, concealed pipes, wires and Maintenance and Monitoring Services which may affect the Maintenance and Monitoring Services.
4.6.3 provide and maintain Maintenance and Monitoring Services Specification: and
4.6.4 write to DRAM as soon as reasonably practicable informing it of any changes to the information supplied under the clause.
4.7 Where the customer engages its own security team at the Premises, DRAM I entitled to assume when carryinh out the Maintenance and Monitoring Services that such security team is competent and experienced in operating a system similar in nature and complexity to the System.
4.8 The customer shall obtain DRAM’s prior written consent to adjust, rest, alter or otherwise interfere with the system and shall not permit any other person to do so.
4.9 The customer shall immediately inform DRAM in writing if there is failure or irregular operation of the system or the telephone lines which connect to the System.
4.10 If the performance by DRAM of any of its obligations under this Contract is prevented or delayed by any act or omission by the customer or failure by the customer to perform any relevant obligation (a customer defaults):
4.10.1 DRAM shall, without limiting its other rights or remedies, have the right to suspend performance of its obligations under this contract until the customer remedies the customer Default.
4.10.2 DRAM shall not be liable for any costs or losses sustained or incurred by the customer arising directly or indirectly from failure or delay of DRAM to perform any of its obligations as set out in this clause 4.10 and
4.10.3 the customer shall reimburse DRAM on written demand for any costs or losses sustained or incurred by DRAM arising directly or indirectly as a result of a customer default.
5 Charges
5.1 The charges exclude amounts in respect of value added tax (VAT), which the customer shall additionally be liable to pay to DRAM at the prevailing rate.
5.2 The charges for the Maintenance and Monitoring Services shall be set out in the Maintenance and Monitoring Specification and shall be:
5.2.1 based on a time and materials basis; and
5.2.2 calculated in accordance with the standard daily fee rates set out in the Maintenance and Monitoring Specification (based on an eight-hour day from 9:00 to 17:00 on business days).
5.3 DRAM shall be entitled include in the charges:
5.3.1 an overtime rate of 150% of the standard daily fee rate on the pro-rata basis for any time worked on the Maintenance and Monitoring Services outside the hours referred to in clause 5.2.2:
5.3.2 any expenses reasonably incurred by DRAM in connection with the Maintenance and Monitoring Services including, but not limited to , travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of Maintenance and Monitoring Services provided by third parties and required by DRAM for the performance of the Maintenance and Monitoring Services.
5.3.3 the cost of any materials required for the Maintenance and Monitoring Services; and
5.3.4 any cost payable by DRAM to the fire services, police or any other relevant authority as a result of providing the Maintenance and Monitoring Services.
5.4 DRAM reserves the right to increase its standard daily fee rates used for the calculation of the changes provided that such charges cannot be increased more than once in any 12 month period. DRAM shall give the Customer written notice of any such increase 30 days before the proposed date of the increase. The issue of renewal invoice shall be deemed as written notice of an increase.
5.5 The Maintenance and Monitoring Specification shall set out when payments of the charges shall become due from the customer. If not set out in the Maintenance and Monitoring Specification, the charges shall be paid annually on or before the anniversary of the date of the commencement of the Maintenance and Monitoring Services.
6 Payment
6.1 The customer shall pay invoices in full within 7 days of receipt by the customer of each invoice.
6.2 If the customer fails to pay an amount due to DRAM by the final date for payment, then the Customer shall pay interest on the overdue amount at the rate of 7% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before of after judgment. The Customer shall pay the interest together with the overdue amount.
6.3 The Customer shall pay all amounts due under the contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). DRAM may at any time, without limiting its other rights or remedies, set off any amount owing to it by the customer against any amount payable by DRAM to the Customer.
7 Limitation on Liability
7.1 The limitations on liability in this clause 7 apply to every liability arising under or in connection with the contract, including liability in contract, tort (including negligence). Misrepresentation, restitution or otherwise.
7.2 Nothing in this contract limits any liability which cannot be legally limited.
7.3 DRAM does not warrant or guarantee that the provision of the Maintenance and Monitoring Services will.
7.3.1 prevent the Customer from suffering losses; and/or
7.3.2 remove the requirement for the Customer to insure the premises.
7.4 DRAM’s total liability to the customer arising under or in connection with the contract shall not exceed the lesser of:
7.4.1 the aggregate of the charges; or
7.4.2 two hundred and fifty thousand pounds (£250,000).
7.5 DRAM shall not be liable for any losses suffered by the customer as a result of any delay in responding or any failure to respond by any emergency Maintenance and Monitoring Services.
7.6 DRAM’s liability for the following types of loss are wholly excluded: loss of use or corruption of software, data or information; loss of damage to goodwill and indirect or consequential loss.
7.7 This Clause 7 shall survive the termination of the contract.
8 Termination
8.1 Without affecting any other right or remedy available to it, DRAM may terminate the contract with immediate effect by giving written notice to the customer where:
8.1.1 the Customer commits a material breach of any term of the contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so.
8.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up, having a receiver appointed to any of its assets or ceasing to carry on business.
8.1.3 the customer takes any step or action in connection with the customer being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business.
8.1.4 the Customer’s financial position deteriorates to the extent that in DRAM’s opinion the Customer’s capability to adequately fulfill its obligations under the contract has been placed in jeopardy.
8.2 Termination of the contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
8.3 On termination of the contract the Customer shall immediately pay to DRAM all of DRAM’s outstanding unpaid invoices and interest and, in respect of Maintenance and Monitoring Services provided for which no invoice has been submitted, DRAM shall submit an invoice, which shall be payable by the customer immediately on receipt.
9 Intellectual Property, Confidentiality, Data Protection
9.1 All rights including (without limitation) copyright in all the Documents shall remain vested in DRAM.
9.2 Subject to all sums due and payable under the contract to DRAM having been paid, the customer shall have an irrevocable, royalty-free, non-exclusive licence to copy and use the documents for purpose of using the system.
9.3 DRAM shall not be liable for any use by the customer of any of the documents for any purpose other than that for which they were prepared.
9.4 The customer undertakes that it shall not at any time disclose to any person the documents or any confidential information concerning the business, affairs, customers. Clients or suppliers of the other party, except as permitted by clause 9.5.
9.5 The Customer may disclose the Documents or the confidential information to it clients, employees, officers, representatives, sub-contractors or advisers who need to know such information for the purposes of carrying out Customer’s obligations under the contract. The Customer shall ensure that its clients, employees, officers, representatives, subcontractors or advisers to whom it discloses the Documents or confidential information comply whit clauses 9.4 and 9.5.
9.6 The Customer will comply with all applicable requirements of the Data Protection Legislation in relation to the system including, but not limited to, the erection of signage and the secure storage of data collected by the system.
10 Force Majeure
Neither party shall be in breach of the contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the contract by giving 7 days written notice to the affected party.
11 Entire Agreement
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12 Notices
12.1 Any notices or other communication given to a party under or in connection with the contract shall be in writing, addresses to that party at its principal place of business or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
12.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second business day after posting ; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, at the time of transmission.
12.3 This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
13 Assignment and variation
13.1 DRAM may at any time assign mortgage, charge, sub-contract, delegated, declare a trust over or deal in any other manner with any or all of its rights and obligations under the contract.
13.2 The Customer shall not assign, transfer, mortgage, charge or deal in any other manner with any of its rights and obligations under the contract without the prior written consent of DRAM.
13.3 Except as set out in these conditions, no variation of the contract shall be effective unless it is agreed in writing and signed by the parties (or their authorized representatives).
14 Severance
If any provision or part-provision of the contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 14 shall not affect the validity and enforceability of the rest of the contract.
15 Third Party Rights
The contract does not give rise to any rights under the contracts (Rights of Third Parties) Act 1999 to enforce any term of the contract.
16 Governing Law and Jurisdiction
16.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the contract or its subject matter or information.
16.2 The contract and any disputes or claims (including non-contractual disputes or claims) arising out of or in connection with its or its subject matter or information shall be governed by and construed in accordance with the law of England and Wales.