Terms and Conditions

1. Definitions
   • "Agreement" these terms and conditions, together with any document referred to here-in;
   • "Customer" the Customer names on the Specification and Order Forms;
   • "Business Hours" business hours shall be between 9am to 5:30pm Monday to Friday (excluding public holidays);
   • "Commencement Date" the date set out on the Order Form;
   • "Equipment" means Equipment described in the Specification;
   • "Installation Address" the address of the Customer site where the equipment is to be delivered or installed as detailed on the Specification Form;
   • "Maintenance Service" means the maintenance services in respect of the Equipment provided by Solar to the Customer pursuant to this Agreement;
   • "Order Form" means Solar's order form supplied to the Customer;
   • "Rectify" and/or "Rectification" the use by Solar of reasonable efforts to repair or replace (at Solar's discretion) defective or faulty Equipment where such defects or faults arise during proper use of the Equipment or as a result of fair wear and tear;
   • "Solar" Solar Communications Limited (registered office:33 Portland Square, Bristol BS2 8RG);
   • "Response" any communication or reply by Solar to the Customer which may include a telephone response, remote diagnostics and/or an engineer visit;
   • "RPI" the Retail Price Index (excluding mortgage interest) as published by the Office for National Statistics;
   • "Services" the provision of Maintenance Services and any other service pursuant to this Agreement as set out in the Specification;
   • "Service Level" the Standard Service Level provides cover during the Business Hours or a Custom Service Level as specified in a schedule to this Agreement;
   • "Specification" the specification supplied by Solar, with the Order Form, which sets out the Equipment and Services to be provided to the Customer; and
   • "Term" a minimum period of 5 years from the Commencement Date.
2. The Maintenance Service
   1. The Customer will choose between Standard Service Level and a Custom Service Level tailored to their requirement as shown on the Order Form. If no Service Level is specified the Customer is deemed to have requested Standard Service Level. Solar reserves the right to charge at its relevant overtime rates (currant from time to time) in relation to Maintenance Service to be provided outside these hours.
   2. In providing the Maintenance Service, Solar will rectify any faults in the Equipment which have been notified to Solar's maintenance services help desk. On any terms of Equipment which are faults other than the main control unit Solar may choose to have a return to base and repair facility or it may choose to have the repairs carried out under the manufacturer's warranty, to be at Solar's discretion. Once received by Solar, the item will be returned to Solar's supplier for repair or replacement without undue delay. Some items of Equipment may be specifically identified in writing by Solar as not covered by the Maintenance Service and the Customer shall be wholly responsible for the maintenance of such items. Unless prevented by circumstances beyond Solar's control, Solar undertake to rectify 95% of catastrophic failures i.e. - total system failure within 4 Working Hours. Solar undertakes to rectify 95% of non-catastrophic failures within 2 Working Days.
   3. Solar reserves the right to make a charge in accordance with its rates from rime to time if it is requested to respond on more than one occasion in any calendar month in circumstances where there is no fault with the Equipment or where the fault is directly due to the negligence of the Customer or its servants, agent or sub-contractors.
   4. Cabling is not included in the Maintenance Service unless Solar at its own discretion agrees to replace cabling.
   5. The Customer must not alter or extend the system to which the Equipment is linked without prior written approval from Solar. If the Customer does alter or extend the system Solar has the right o charge the customer for the verification of the altered or extended system and to make an additional charge for the maintenance of the same.
   6. The Customer must provide Solar with details of the installer of the Equipment and, if demanded by Solar, a copy of its relevant Pre-Connection Inspection Certificate and access to all relevant records at the Installation Address.
3. Charges and prices for the Maintenance Service
   • The annual charge payable for the Maintenance Service shall be reviewed each year and may be increased on an anniversary of the Commencement Date. No percentage increase in the annual charge in any 12 month period ending on such anniversary shall be greater than the percentage increase in the RPI over an equivalent period. If the Customer shall during the Term, order equipment in addition to the Equipment, Solar shall have a right to increase its charges accordingly for the maintenance of such additional equipment.
4. Purchase of Goods
   1.  
      1. If the Customer wishes to withdraw an order after it has been placed, the Customer will par to Solar within 14 days a sum equal to 40% of the total amount payable under such order, by way of liquidated damages.
      2. The price for the Equipment shall be stated on the Order Form, unless otherwise noted therein. A deposit shall be due and payable on placing the order and the balance shall be due on the installation of the Equipment if installed by Solar, or otherwise on delivery. If the Customer has entered into a leasing agreement in respect of the Equipment the invoice will be submitted to the leasing company.
      3. The customer shall be deemed to have accepted the Equipment on delivery pursuant to clause 4.b below.
   2. Acceptance.
      1. No order shall be accepted by Solar until it has acknowledged acceptance of the Order Form and if the Customer is paying for Equipment other than by an immediate cash payment the acceptance of any order placed by the Customer will be subject to acceptance by the third party finance house which shall have the right to reject any order. Any financing arrangements provided by such third party finance house shall be provided strictly on their terms of business and Solar will not be responsible to the Customer in any way in respect of such finance.
      2. Solar has the right to change the Specification after the acceptance of the Equipment by the Customer if the Equipment is no longer available or has been superseded with a like or improved product.
5. Delivery and risk
   1. Delivery of the Equipment is as stated in the Order Form. Customer will be responsible for meeting all storage, insurance and other costs resulting from its inability to accept delivery of the Equipment on the agreed delivery date.
   2. All delivery dates or periods quoted by Solar are Solar's best estimates and the time shall not be of the essence in relation to such dates or periods.
   3. Risk of loss or damage to the Equipment shall pass to the Customer on delivery, which shall occur:
      1. upon Solar loading the same onto the vehicle of the Customer or its carrier; or
      2. if Solar agrees to deliver to the Customer, upon arrival at the Customer's premises of Solar's vehicle or its carrier.
   4. No claim for short or damaged delivery or, where Solar is delivering the Equipment, in respect of damage in transit will be accepted by Solar unless the shortage or damage where manifest is noted on the delivery note or in any other case is reported to Solar within 5 working days of delivery in writing. In such a case Solar will make up the shortfall or repair or at its discretion replace the damaged Equipment.
   5. If Solar has agreed to install the Equipment it will endeavour to install the Equipment as soon as practicable after delivery but does not accept liability for any delay in so doing.
6. Title
   1. The Equipment supplied by Solar shall remain the property of Solar until payment in full of all monies owing to Solar in respect of such Equipment has been received by Solar.
   2. Solar my at any time after moneys become due claim such amount rather than recovering the Equipment.
   3. All Equipment which has not been paid for in full shall be kept insured by the customer for no less than the invoice value of the Equipment and any proceeds of such insurance shall be held on trust for Solar.
   4. Solar shall be entitled at any time to repossess Equipment which remains the property of Solar and the Customer herby grants to Solar, its agents and servants a licence to enter upon any premises where it reasonably believes Equipment is stored for the time being for the purposes or repossessing the Equipment and agrees to give Solar such assistance as Solar may require.
   5. The Customer shall not pledge or in any way charge by way of security for any indebtedness any of the Equipment which remains Solar's property.
7. Payment
   1. The Customer shall pay the charges for the Maintenance Service annually or in advance. Payment for any additional services, including for the Equipment, shall be payable by the Customer on presentation of an invoice by Solar.
   2. All payments due to Solar from the customer shall be paid by the Customer without set-off, counterclaim and free of all deductions and withholding. The sums payable by the customer in accordance with the terms of this Agreement are, unless otherwise stated, exclusive of Value Added Tax which shall be payable by the Customer in addition to the relevant amounts at the rate and in the manner from time to time being prescribed by law.
   3. If the Customer fails to make any payment on the due date which shall include but shall not be limited to the price of Equipment and any rental, lease or Service payments due with regard to the Equipment or Services, then, in addition to any other right or remedy available to Solar, Solar may:
      1. demand immediate payment of all invoices then outstanding;
      2. cancel the order or suspend any Service or and further deliveries to the Customer;
      3. appropriate any payment made by the Customer to such of the Services or Equipment (or Equipment supplied under any other order) as Solar may think fit;
      4. cancel its obligations under this Agreement; and
      5. interest shall be due on all overdue payments both before and after judgement at the rate of 3% above the base rate from the time to time of Nat West Bank Plc until such time as payment in full is received by Solar.
   4. If the Customer has agreed to payment by direct debit by completion of a direct debit mandate Solar may deduct any monies due to Solar howsoever incurred by the customer by such direct debit.
8. Warranty
   1. The Equipment will materially meet the Specification contained in the Order Form. Solar gives no warranty that the Equipment will be fit for the Customer's intended purposes.
   2. All Equipment will be new, unless otherwise notified to the Customer by Solar.
   3. Solar makes no representations as to the compatibility of the Equipment.
9. Customer Obligations
   1. The Customer shall be responsible to Solar for ensuring the accuracy of the details in the Specification, and for giving Solar any necessary information within a sufficient time to enable Solar to provide the Maintenance Service and the Equipment (if any) in accordance with this Agreement. If the Customer has requested an additional service which requires Customer information the Customer agrees to supply all such information, in a true and complete form to Solar and if the Customer fails to do so, Solar shall have no liability whatsoever to the Customer for any failure or delay in delivering such additional services.
   2. The customer will allow Solar's servants, agents and sub-contractors, full free and safe access to the Equipment during Business Hours and outside Business Hours (if Solar require such continued access) to complete any repair to enable maintenance of the Equipment to be carried out.
   3. The customer shall pay Solar's charges from time to time for reprogramming the Equipment which is caused by:
      1. the act or omission of the Customer or the Customer's breach of the terms of this Agreement; or
      2. malfunction or failure of any equipment or facility provided by the Customer or its agents, employees or suppliers.
   4. c. The Customer shall identify, monitor, remove and dispose of any hazardous materials prior to any work being performed by Solar at the Installation Address, and the Customer shall indemnify, defend, and hold Solar harmless from any liability incurred in the use of or in connect with hazardous materials at the Installation Address.
   5. The customer warrants and undertakes that it shall:
      1. house the Equipment required to be housed at the Installation Address in accordance with Solar's reasonable instructions as may be given from time to time;
      2. not move, modify, relocate or in any way interfere with the Equipment;
      3. not cause the Equipment to be repaired, serviced, or otherwise adjusted except by an authorised representative of Solar;
      4. not remove, tamper with, or obliterate any words or labels on the Equipment; and
      5. permit Solar to inspect or test the Equipment at all reasonable times.
10. Exclusions
    1. The Maintenance Service does not include and maintenance of the Equipment which is necessitated as a result of any cause other than fair wear and tear or Solar's neglect of fault including without limitation:
       1. failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; or
       2. accident, transportation, neglect, misuse, or default of the Customer, its employees or agents or any third party; or
       3. any fault in any attachments or associated equipment (whether of not supplied by Solar) which do not form part of the Equipment; or
       4. act of God, inclement weather, fire, flood, war, act of violence, or any other occurrence beyond reasonable control of Solar; or
       5. any attempt by any person other than Solar's personnel to change, reconfigure, reprogram, revise the size or specification of or otherwise adjust, repair or maintain the Equipment or any cabling attached thereto; or
       6. any head crash or failure of fixed or removable storage media.
    2. Solar will (if it is able to do so) at the request and expense of the Customer repair or replace any part of the Equipment which has failed due to a cause other than fair wear and tear or due to the Supplier's neglect or fault subject to the Customer accepting Solar's written quotation prior to the commencement of work.
    3. Further, the Maintenance Service does not include:
       1. service other than at the Installation Address;
       2. repair or renewal of tapes, disk packs, printing cartridges or other consumable supplies;
       3. maintenance or support of the operating system of any computer;
       4. electrical or other environmental work external to the Equipment;
       5. maintenance of any attachments or associated equipment (whether or not supplied by the Supplier) which do not form part of the Equipment; or
       6. recovery or reconstruction of any data or programs lost or spoiled as a result of any breakdown of or fault in the Equipment.
       Solar shall not be liable whether in contract or otherwise under or in connection with this Agreement for any delay in the execution of any repair of the Equipment.
    4. Solar reserves the right to make changes in the Service or the Equipment (if any) which are required to conform with any applicable statutory or EC requirements or telecommunication authorities or other competent authority's requirements.
    5. All warranties, conditions, terms, undertakings and obligations implied by statue, common law, custom, trade, usage, course of dealing or otherwise arising out of or in connection with the supply of the Service and the Equipment (if any) or their use by the Customer are excluded to the fullest extent permitted by law.
    6. The Customer shall indemnify Solar and keep Solar fully and effectively indemnified on demand against any loss of or damage to any property of Solar or injury to or death of any of Solar's employees subcontractors or agents caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or subcontractors. The provisions of the Clause 10 shall survive the termination of this Agreement.
11. Liability
    1. Solar shall not be liable for any loss or damage sustained or incurred by the Customer or any third party (including without limitation any loss of use of the Equipment or loss of or spoiling of the Customer's programs or data) resulting from any breakdown of or fault in the Equipment unless such breakdown or fault is caused by the negligence or wilful misconduct of Solar, its employees, agents or sub-contractors and nothing in this Agreement shall limit or exclude liability for the same.
    2. Both parties will accept unlimited liability for death or personal injury caused by their negligence or the negligence of their employees, agent or sub-contractors and nothing in this Agreement shall limit or exclude liability for the same.
    3. Both parties will accept liability for physical damage to the other's tangible property resulting from their negligence or the negligence of their employees, agents or subcontractors subject to clause 11.e.
    4. Except as provided in sub-clause 11.c Solar will not be liable for the following loss or damage however caused and even if foreseeable by Solar:
       1. any special, indirect or consequential loss other than direct physical damage to tangible property under sub-clause 11.c including (without limitation) direct or indirect loss of profits, business, contracts, revenue, goodwill, savings or anticipated revenues, contracts or savings;
       2. loss arising from any claim made against the Customer by any third party; and
       3. loss or damage arising from any failure by the Customer to keep full and up-to-date security copies of the computer programs and data it uses in accordance with best computing practice.
    5. Except in respect of the liabilities accepted under sub-clause 11.b the parties' entire liability shall be limited to £250,000 per year.
12. Duration and Termination
    1. Solar shall provide the Maintenance Service for the Term and thereafter shall continue to do so unless this Agreement is terminated by either party on an anniversary of the Commencement Date provided that 90 days prior written notice has been given to the other. If this Agreement is terminated by the Customer before the end of the Term in accordance with this clause then the Customer shall immediately pay to Solar all arrears and other sums when they become due to Solar.
    2. Without prejudice to any other right or remedy, Solar shall be entitled to terminate its obligations hereunder if the Customer:
       1. fails to make any payment in full on the due date; pr
       2. commits any breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed within 28 days of written notice to do so; or
       3. ceases or threatens to cease to carry on business; or
       4. Has a petition for bankruptcy order presented or has a receiver or administrative receiver appointed over it or over any party of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of bona fide scheme or solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the Customer shall enter into or propose to enter into any voluntary arrangement with its creditors or shall become subject to an administrative order.
    3. Solar may terminate this Agreement on 90 days' written notice to the Customer.
    4. Any termination hereof (howsoever occasioned shall not affect any accrued rights or liabilities of either party.
    5. Any termination of this agreement for any reason other than by the Customer in accordance with 12.b.iv above the Customer shall not be entitled to reimbursement of any pro-rata part of any maintenance charge paid in advance.
13. General
    1. any notice to a party under this Agreement shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at, or sent by prepaid recorded delivery to the address of the party as set out on the Order Form or as otherwise notified in writing from time to time.
    2. This Agreement is the entire agreement between the parties on the subject matter contained herein and supersedes all representations, communications and prior agreements (oral or written).
    3. Each party acknowledges that:
       1. Upon entering into this Agreement, it does not rely, and has not relied, upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether party to this Agreement or not) except those expressly repeated or referred to in this Agreement; and
       2. The only remedy available in respect of any misrepresentation or untrue statement made to it shall be a claim for damages for breach of contract under this Agreement; and
       3. This clause shall not apply to any statement, representation, or warranty made fraudulently, or to any provision of this Agreement which was induced by fraud for which the remedies available shall be all those available under the law governing this Agreement.
    4. c. Solar shall have no liability to the Customer for any delay or failure in performance where such failure or delay arises from causes beyond the control of Solar including but limited to, power cuts, fire, storms, floods, acts of God, acts or regulations of any governmental or supranational authority, any delay, default, omission, act or refusal to act of any third party supplier, war, riot, strikes, lock outs and industrial disputes.
    5. Notwithstanding that the whole or any part of any provisions of this Agreement may prove to be unenforceable the remaining provisions of this Agreement and the remainder of any provision in question shall remain in full effect.
    6. Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not party to it.
    7. When the Services are provided under a consumer transaction (as defined by the Consumer Transaction (restrictions or statements) Order 1978) the statutory rights of the consumer are not affected by this Agreement.
    8. This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England.

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