TERMS AND CONDITIONS OF SERVICES
Services provided to you (“the Client”) from POTTER & CO GLOBAL ALARM LLC #7551 (“POTTER ALARM”) are provided on the basis of these Terms and Conditions of Service (“Agreement”). By signing our Estimate, you agree that this Agreement applies to the provision of such services. Unless an authorized person of POTTER ALARM gives an acknowledgement by notice in writing, no variation of the provisions of this Agreement is permitted. A binding contract is formed between you and POTTER ALARM upon this Agreement or POTTER ALARM Monitoring Agreement (“Order”) being signed by both parties. The terms and conditions described in this Agreement shall apply to the exclusion of any other terms and conditions whatsoever.
1.1 The prices to be paid under this Agreement are as detailed in the Estimate. In the event that the price of any service is omitted, you shall pay POTTER ALARM standard price for the relevant service current at the time of performance of the services.
1.2 In the event prices are stated to include taxes, these have been calculated on rates applicable at the time of quotation. Prices shall be adjusted to take into account the amount of taxes actually paid or payable.
1.3 Any tax, impost, duty or other levies are to be borne by you. If any such sums are required by law to be withheld, collected or paid, POTTER ALARM will be entitled to add those amounts to the price.
1.4 Any charges not expressly included in the price are payable by you.
1.5 POTTER ALARM reserves the right to raise invoices to be paid for progress claims. Progress claim invoices for Services may be raised by POTTER ALARM in accordance with the payment schedule referred to in an Estimate or, in the absence of any such payment schedule, progress claims may be made by POTTER ALARM at its option.
1.6 Any quotations given by POTTER ALARM are subject to written confirmation given by POTTER ALARM.
2.1 You shall pay the full price of the Services at the time of Order unless otherwise provided in an Order or specifically agreed in writing by POTTER ALARM.
2.2 Payment shall be made within fourteen (10) days of delivery of an invoice by POTTER ALARM by:
(a) check electronic funds transfer, direct deposit, cash funds; or
(b) an irrevocable letter of credit issued or confirmed by a bank on terms and conditions acceptable to POTTER ALARM prices are in U.S. dollars.
2.4 All moneys owing to POTTER ALARM pursuant to an invoice which remains unpaid for thirty (30) days after the date such moneys become due for payment shall bear interest of 5%.
3. THE SERVICES
POTTER ALARM reserves the right to revise at any time the extent or type of Services it agrees to supply to you if it reasonably believes that such other services can fulfill the same function.
4.1 Services performed by POTTER ALARM shall be deemed to have been accepted unless within seven (7) days of completion of such Service you notify POTTER ALARM in writing of any deficiencies and provide reasonable evidence thereof.
5. WARRANTY AND LIMITATION OF LIABILITY
5.1 Where Services are defectively performed POTTER ALARM shall perform such services again to the extent necessary to correct the defect.
5.2 The liability of POTTER ALARM is expressly limited to the fee paid by you for the Services. POTTER ALARM shall not be liable to you or your servants, agents, customers or representatives for any direct, indirect, incidental or consequential loss or damages of any nature howsoever caused (whether based on tort, or contract or otherwise) including but not limited to loss of profits, loss of production, loss of sales opportunity or business reputation, direct or indirect labor costs and overhead expenses, damage to equipment or property or any other claim whatsoever arising directly or indirectly or in any way attributable to the performance of the Services and in no event shall any claim be recognized unless the claim is in writing and received by POTTER ALARM within fourteen (14) days of the date of performance.
5.3 In the event that any law implies a warranty or condition into this Agreement, which can be excluded, then POTTER ALARM’s liability for breach of any such implied warranty or condition is excluded. In the event that such warranty or condition cannot be excluded, but may be limited, POTTER ALARM expressly limits its liability to:
(a) the re-supply of the relevant Services; or
(b) the payment of the cost of having the Services re-supplied.
5.4 The liability to do any of the things referred to in clause 5.3 is conditional on the relevant services having been wholly provided by POTTER ALARM.
5.5 For the purposes of clauses 5.2 and 5.3 above, you acknowledge and represent that those provisions are fair and reasonable having regard to the nature of this Agreement. In particular, you acknowledge and represent to POTTER ALARM that, in respect of this Agreement and, in particular, clauses 5.2 and 5.3 above:
(a) POTTER ALARM is not in a position of relative bargaining superiority to you;
(b) POTTER ALARM has offered no inducement; and
(c) you are aware of the existence and extent of clauses 5.2 and 5.3.
6. DELAY AND FORCE MAJEURE
6.1. Any Services to be supplied by POTTER ALARM will be supplied during regular business hours on Business Days. If for any reason you request POTTER ALARM to provide services outside regular business hours, any overtime or additional expenses occasioned shall be invoiced to and payable by you to POTTER ALARM at POTTER ALARM monitoring rates applicable from time to time.
6.2 Additional costs incurred by POTTER ALARM due to cessation of work occasioned by your instructions (or lack of instructions), by any interruptions, mistakes or work for which POTTER ALARM shall be reimbursed by you to POTTER ALARM upon demand.
6.3. POTTER ALARM shall not be liable for any failure to perform its obligation under this Agreement for any cause beyond its reasonable control including without limitation fire, flood, strikes, lockouts, accidents (including motor vehicle accidents), demands or requirements of Government or statutory authorities, transportation delays, fuel and energy shortages, defaults of sub-contractors or any other cause beyond its control.
6.4 In the event of any delay of the kind referred to in sub-clauses 6.2 and 6.3, the date or dates for performance of Services under this Agreement by POTTER ALARM shall be extended for a period at least equal to the time lost by reason of the delay or the delays caused.
In the event that-
7.1 you become insolvent or unable to pay your debts as they fall due or a receiver is appointed or you are subject of voluntary or involuntary bankruptcy proceedings;
7.2 you are in a material default of any obligation hereunder;
7.3 you fail to make any payment in full on the due date(s);
7.4 you purport to assign any rights or obligations under this Agreement without the prior written consent of POTTER ALARM; or
7.5 by any act or omission, cause POTTER ALARM to be in breach of any law which may result in POTTER ALARM being liable for a fine or penalty; then POTTER ALARM may, by written notice to you, either require payment in full prior to performance of any further services, suspend performance of its obligations under this Agreement or cancel any service. Such action shall be without prejudice to any other rights CPS may have, whether for damages or otherwise.
8. LICENSES AND PERMITS
8.1 All Services performed by POTTER ALARM are on the understanding that all licenses and permits under any relevant statutes, ordinances, rules and regulations have been obtained by you.
8.2 You must ensure that the performance of any Services by POTTER ALARM and you meet all statutory requirements.
9. GENERAL PROVISIONS
9.1 The delivery of an Order attaching or containing this Agreement, or the signing of this Agreement by you, constitutes an offer and is the basis of an enforceable contract.
9.2 Such offer cannot be revoked, withdrawn or cancelled by you and is not binding upon POTTER ALARM until it has been accepted and signed by its authorized representative whereupon a binding contract shall come into existence.
9.3 This Agreement together with any Order shall constitute the entire agreement between the parties.
9.4 This Agreement will be governed by the laws of the State of California.
9.5 In the event that any provision of this Agreement is declared void, invalid or illegal then such provisions that are not void, invalid or illegal will not be affected.
9.6 No waiver, change or modification of any terms or conditions set out in this Agreement or a service order, change order or other documentation provided by POTTER ALARM shall be binding on POTTER ALARM unless in writing signed by an authorized representative of POTTER ALARM.
9.7 If at any time any question, dispute or difference arises between POTTER ALARM and you in relation to or in connection with this Agreement or the Services, either party may give to the other notice in writing of the existence of such question, dispute or difference and, if the matter cannot be resolved by negotiation between the parties for a period of twenty one (21) days. In the event of civil action the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement.
10. DEFINITIONS AND INTERPRETATIONS
In this Agreement:-
10.1 Business Day means a day on which banks generally are open for trading business in the State of California.
10.2 Order means an order for Services in the form of a Monitoring Agreement or such other form approved by POTTER ALARM from time to time, whether attached to or containing this Agreement, or otherwise.
10.3 Services means any security service provided or to be provided under a CPS Monitoring Agreement which may change from to time to time without notice.
10.04 Full Package Monitoring means only the full monitoring package is renewable every two years, unless written notice is given 30 days prior to the end of the second year. Cancellation or termination of the monitoring account will result in full payment of the balance of that term and for the costs of changing alarm codes and the removal of equipment.