Terms & Conditions
Effective 8/1/2018 (replaces all previous versions)
Secure Fire & Safety General Terms and Conditions
ALARM MONITORING SERVICES Any reference to alarm monitoring services in this Contract is included for pricing purposes only. Alarm monitoring services are performed pursuant to the terms and conditions of Secure Fire & Safety standard alarm monitoring services agreement.
ASSIGNMENT Any assignment of this Contract by Customer without the written consent of Secure Fire & Safety shall be void. Secure Fire & Safety may assign to its subsidiaries and affiliates.
CHANGES, ALTERATIONS, ADDITIONS Changes, alterations and additions to the plans, specifications, or construction schedule for a Contract shall be invalid unless approved in writing by Secure Fire & Safety. For any such changes approved by Secure Fire & Safety in this manner, which will increase or decrease the cost and expense of work to Secure Fire & Safety, there shall be a corresponding increase or decrease in the Contract price herein provided. The value of additional work shall be agreed upon prior to the performance of said work. However, if no agreement is reached prior to the performance of additional work approved in the manner herein described, and Secure Fire & Safety elects to continue performance so as to avoid delays, then the estimate of Secure Fire & Safety Estimating Department as to the value of the work shall be deemed accepted by the Customer.
CODE COMPLIANCE Secure Fire & Safety does not undertake an obligation to inspect for compliance with laws or regulations unless specifically stated in the Scope of Work. Customer acknowledges that the Authority Having Jurisdiction may establish additional requirements for compliance with local codes.
CONTRACTUAL LIMITATION PERIOD Customer expressly agrees that any claim, lawsuit, or cause of action, whether in contract, tort or other legal theory, relating in any way and/or arising out of Secure Fire & Safety’s services and/ or materials provided to Customer, its subsidiaries and/or its insurers, must be filed no more than one (1) year from the date the alleged damage(s) occurs, that is the subject of the claim, lawsuit and/or cause of action. Customer expressly waives any statutory and/or common law limitation period to the contrary.
CUSTOMER RESPONSIBILITIES Customer shall be responsible for maintaining adequate heat throughout the facility to prevent freezing or damage to the existing fire sprinkler system. The customer understands and expressly acknowledges that fire protection systems are susceptible to damage by water intrusion, ice, or other conditions inside the piping that Secure Fire & Safety cannot detect upon inspection. In the event that water, ice, or other conditions occur which render the fire protection system inoperable or damaged, Secure Fire & Safety expressly disclaims any responsibility for such conditions, and assumes no responsibility to investigate the cause, source or extent of such condition. Customer acknowledges this warning and acknowledges that under NFPA and other applicable codes and regulations, it is the responsibility of the customer to maintain its fire protection system, including but not limited to ensuring proper drainage. Failure to properly maintain or drain such systems may lead to breaks or other conditions that may render the fire protection system inoperable, or that damage to the system may result in injury, damage to property and loss of use.
DEFAULT In case of any default by Customer, Secure Fire & Safety may declare the Contract price or all unpaid installments thereof to be immediately due and payable (whether or not said work shall have been completed) or may enter Customer’s premises and remove all or any portion of materials provided by Secure Fire & Safety. All such remedies of Secure Fire & Safety are cumulative and not exclusive. Default by Customer shall consist of failure to pay any installment of price when due, no demand being necessary, or any act or omission on the part of Customer whereby Secure Fire & Safety is prevented from completing said installation, or receivership, bankruptcy, assignment for the benefit of creditors or any other form of insolvency proceedings by or against Customer or in case said premises or said system shall be attached, liened or seized by process of law and such attachment or lien shall not be vacated or seizure terminated with ten (10) days after its occurrence.
DELAYS Secure Fire & Safety shall not be liable for any damage or penalty for delays in work due to acts of God, acts of omissions of the Customer, acts of civil or military authorities, government regulations or priorities, fires, floods, epidemics, quarantine restrictions, war, riots, strikes, differences with workmen, accidents to machinery, inability to obtain necessary labor, materials or manufacturing facilities, delay in transportation, defaults of Secure Fire & Safety subcontractors, failure or delay in furnishing correct or complete information by Customer with respect to location or other details of work to be performed hereunder, impossibility, or impracticability of performance or any other cause or causes beyond the control of Secure Fire & Safety, whether or not similar to the foregoing in the event of any delay caused as aforesaid, the completion shall be extended for a period equal to any such delay and this Contract shall not be void or voidable as a result of any such delay. In case work is temporarily discontinued by reason of any of the foregoing all unpaid installments of the Contract price less an amount equal to the value of material and labor not furnished shall be due and payable upon receipt of invoice.
ENTIRE CONTRACT The parties intend these general terms and conditions together with any scope of work, proposal or quotation attached hereto (collectively the “Contract”) to be the final, complete and exclusive expression of their Contract and the terms and conditions thereof. No changes or additions hereto shall be binding upon Secure Fire & Safety unless in writing and signed by an officer of Secure Fire & Safety. Any terms or conditions of Customer’s order different, inconsistent herewith or in addition hereto shall be of no force and effect and are hereby expressly rejected and, Customer’s order shall be governed only by the Contract. A definite and seasonable expression of acceptance or a written confirmation which is sent to Secure Fire & Safety within the time specified in the Customer’s order operates as an acceptance of the terms specified herein. Every agreement or other undertaking by Secure Fire & Safety is expressly conditioned on Customer’s assent to the terms contained herein. Secure Fire & Safety assumes no liability except as expressly provided herein. Additional proposals or scope of work provided by Secure Fire & Safety to Customer shall be covered by this Contract unless and until Secure Fire & Safety and Customer execute a new contract in writing expressly superseding this Contract.
EXCAVATION When the Secure Fire & Safety does the excavating, if water, quick-sand, rock, or other unforeseen obstructions are encountered or shoring is required, Customer shall pay for as extra to the Contract price any additional work involved at Secure Fire & Safety prices for such work then in effect.
EXCLUSIVE LIMITED WARRANTY Secure Fire & Safety warrants that any new equipment provided by Secure Fire & Safety under this Contract will be free from defects in material and workmanship arising from normal usage for a period of 1 year from delivery of said equipment, or, if installed by Secure Fire & Safety, for 1 year from installation. This warranty does not extend to any equipment that others have repaired, abused, altered, misused or that has not been properly and reasonably maintained. All parts as recorded on the face of the work order or invoice are warranted for a period of 30 days, or longer, if the manufacturer’s specific warranty provides additional time. If a part installed by Secure Fire & Safety fails within 30 days of installation, Secure Fire & Safety shall furnish a replacement part free of charge. Parts furnished with a manufacturer’s specific warranty shall be furnished in accordance with the specific warranty. Secure Fire & Safety will charge for labor to repair or replace parts unless the labor is necessary to correct a repair previously made by Secure Fire & Safety within 30 days of the date of the original repair. Leak repairs are warranted for a period of 30 days. If within 30 days of the original repair a leak redevelops, Secure Fire & Safety shall furnish at no cost to Customer the necessary labor for the repair. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SECURE FIRE & SAFETY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AS TO ANY SERVICES PERFORMED OR THE PRODUCTS, SYSTEMS OR EQUIPMENT WHICH ARE FURNISHED BY SECURE FIRE & SAFETY.
No premise not contained herein or affirmation of fact made by an employee, agent or representative of Secure Fire & Safety shall constitute a warranty by Secure Fire & Safety or give rise to any liability or obligation. Any repairs, adjustments or connections performed by Customer or any third party shall void all warranties. Secure Fire & Safety liability to Customer for personal injury, death or property damage arising from performance under these terms and conditions shall be limited to an amount not to exceed one (1) year’s Contract price.
HAZARDOUS CONDITIONS Customer represent to the best of Customer’s knowledge that no hazardous conditions such as risk of infectious disease, MIC, need for air monitoring, respiratory protection, or other medical risk, asbestos, asbestos containing material or other potentially toxic or otherwise hazardous material are contained in or on the surface of the floors, walls, ceiling, insulation or other structural components of the area of any building where work is required to be performed under this Contract. If hazardous conditions are encountered by Secure Fire & Safety during the course of Secure Fire & Safety work, Secure Fire & Safety shall have no obligation to further perform in the area where the hazardous conditions exist until the area has been made safe by Customer as certified in writing by an independent testing agency, and Customer shall pay disruption and re-mobilization expenses as determined by the Secure Fire & Safety. All hazardous materials shall at all times remain the responsibility and property of Customer. Customer shall not be responsible for the testing, removal or disposal of such hazardous materials.
INDEMNIFICATION Customer agrees to indemnify, hold harmless, defend, and release Secure Fire & Safety from liability and shall reimburse Secure Fire & Safety for any liabilities, damages, losses or expenses (including but not limited to reasonable attorneys’ fees, expert fees, costs and litigation costs), injuries, claims, suits, judgments, and causes of action incurred by Secure Fire & Safety in connection with any claims, suits, judgments and causes of action which relate to the products or services Secure Fire & Safety provides. This indemnity includes claims brought by any third party, including, without limitation, Customer’s insurance company, whether the claim arises under contract, warranty, tort, or any other theory of liability.
INCIDENTIAL LOSSES All loss or damage from any cause to the materials, tools, equipment, work or workmen of the Secure Fire & Safety or its agents or subcontractors while in or about the premises of the Customer shall be borne and paid for by the Customer, except in the event that such loss or damage results from the sole negligence of Secure Fire & Safety.
INSURANCE Vendor shall name Secure Fire & Safety as an additional insured on Vendors general liability and auto liability policies.
INTEGRATION This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter
LAW AND JURISDICTION This Agreement will be governed by, construed, and enforced in accordance with the laws of the State of Wisconsin applicable to agreements made and to be performed entirely within such state, without regard to such state’s conflict of laws rules. Secure Fire & Safety and Customer agree that any action brought by any party shall be brought and resolved exclusively by the state and federal courts located in Waukesha County, Wisconsin, and the courts to which an appeal therefrom may be taken, provided that any party shall have the right, to the extent permitted by applicable law, to proceed against any other party or its property in any other location to the extent necessary for the enforcing party to enforce a judgment or other court order or arbitral award. Each of the parties hereby consents to the jurisdiction of such courts and waives all questions of jurisdiction and venue. The parties agree that either or both of them may file a copy of this Section with any court as written evidence of the knowing, voluntary and bargained Agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Legal process in any proceeding may be served on any party anywhere in the world.
LIEN LAWS (Wisconsin only) As required by the Wisconsin construction lien law, claimant hereby notifies owner that persons or companies performing, furnishing or procuring labor, services, material, plans, or specifications for the construction on owner’s land may have lien rights on owner’s land and buildings if not paid. Those entitled to lien rights, in addition to the claimant, are those who contract directly with the owner or those who give the owner notice within sixty (60) days after they first perform, furnish, or procure labor, services, materials, plans or specifications for the construction. Accordingly, owner probably will receive notices from those who perform, furnish, or procure labor, services, materials, plans, or specifications for the construction, and should give a copy of each notice received to the mortgage lender, if any. Claimant agrees to cooperate with the owner and the owner’s lender, if any, to see that all potential lien claimants are duly paid.
LEGAL NOTICE For the purpose of any notice permitted or required to be given hereunder, such notice or notices shall be deemed given when received.
LIMITATION OF LIABILITY Secure Fire & Safety makes no express or implied guarantee or warranty including any implied warranty of merchantability or fitness for a particular use of purpose of the fire protection system currently in use on the property or that the system will in all cases provide the level of protection for which is was originally intended. Secure Fire & Safety work will not include inspection of every sprinkler head, pipe or other parts of the fire protection system. This inspection/testing is not intended to be a code review, complete system or code compliance evaluation. Therefore, by conducting its inspection Secure Fire & Safety does not guarantee or warrant the condition or operation of every pipe, sprinkler head, or another part of the fire protection system. Secure Fire & Safety potential liability arising out of its inspection services must be limited. Customer acknowledges that Secure Fire & Safety is not an insurer of or against any potential or actual loss or damage to person or property, whether direct, incidental and/or consequential, that may occur in or at the premises. Secure Fire & Safety total liability to customer for damages for any claims, losses or damages arising out of or in any way related to any cause whatsoever in relation to this agreement, whether based in contract, tort (including negligence), strict liability, breach of warranty or other cause, shall not exceed $250.00. Notwithstanding the foregoing sentence, under no circumstances shall Secure Fire & Safety be liable for any damages for loss of use, interruption of business, lost profits, revenue or opportunity, claims of third parties or for injury to persons or property or for any other special, exemplary, incidental, indirect, punitive, consequential or other damages of any kind or nature. If Secure Fire & Safety is found liable for any loss or damage due to its gross negligence, Secure Fire & Safety liability shall not exceed $7,500.00.
MODIFICATIONS AND SUBSTITUTIONS Secure Fire & Safety reserves the right to modify material of Secure Fire & Safety design sold hereunder and/or the drawings and specifications relating thereto, or to substitute material of later design to fulfill this Contract providing that the modifications or substitutions will not materially affect the performance of the material or lessen in any way the utility of the material to the Customer.
OSHA COMPLIANCE Customer shall indemnify and hold Secure Fire & Safety harmless from and against any and all claims, demands, and damages arising in whole or in part from the enforcement of the Occupational Safety Health Act (and any amendments or changes thereto) unless said claims, demands or damages are a direct result of causes within the exclusive control of Secure Fire & Safety.
OVERTIME Unless otherwise specified by Secure Fire & Safety, all installation work will be performed during regular working hours. If Customer shall require any overtime labor, Customer agrees to reimburse Secure Fire & Safety for the overtime premium on the same. If overtime labor is required on an emergency basis, Customer agrees to reimburse Secure Fire & Safety for same.
PAYMENT Unless noted otherwise in the proposal, payment application, or invoice, all payments shall be due and payable within thirty (30) days from date of payment application or invoice. A service charge will be charged and added to all payments past due and owed by the Customer under this Contract, and at a rate of 18% per annum or if such rate is prohibited under applicable law, then at such lower rate as is the maximum rate permitted to be contracted for under such applicable law. Customer shall pay any reasonable attorney’s fees incurred in the collection of past due accounts. If the Customer fails to pay all or any portion of the amount due, the Secure Fire & Safety may, at its option, terminate the Contract, in which event Secure Fire & Safety will be obligated to perform no additional work until paid in full.
PROPOSALS AND CONTRACT Secure Fire & Safety proposal or quotation are not subject to cancellation, suspension or reduction in amount except with Secure Fire & Safety written consent and upon terms which reimburse Secure Fire & Safety for work performed, plus reasonable overhead and profit.
PRICES In addition to the prices specified herein, Customer shall pay for all extra work requested by Customer or made necessary because of incompleteness of or inaccuracy in plans or other information submitted by Customer with respect to location, type or occupancy, or other details of work to be performed hereunder. If the work to be furnished hereunder constitutes an addition to Customer’s existing facilities, prices and delivery and completion dates quoted herein are based on information, if any with respect to layout of such facilities now contained in Secure Fire & Safety engineering records. In the event the layout of Customer’s facilities has been altered, or is altered by Customer prior to completion of this Contract, Customer shall advise Secure Fire & Safety of any such alterations and prices and delivery and completion dates quoted herein shall be changed by Secure Fire & Safety as may be required because of such alterations. Unless prices are stated by Secure Fire & Safety in this or other documents forming a part of this Contract, the prices applicable to the extra work performed shall be Secure Fire & Safety prices in effect at that time.
REPORTS When inspection and/or test services are selected such inspection and/or test shall be completed on Secure Fire & Safety then current inspection form which shall be given to Customer, and, where applicable, Secure Fire & Safety may submit a copy thereof to the local Authority Having Jurisdiction. The inspection form and recommendations by Secure Fire & Safety are only advisory in nature and are intended to assist Customer in reducing the risk of loss to property by indicating obvious defects or impairments noted on the system and equipment inspected and/or tested. Final responsibility for the condition and operation of the system, equipment and components lies with Customer. The Customer shall promptly notify Secure Fire & Safety of any malfunction in the system which comes to Customer’s attention. If upon inspection Secure Fire & Safety determines that repairs are recommended repair charges will be submitted for approval prior to any work. Should such repair work be declined Secure Fire & Safety shall be relieved from any and all liability arising therefrom.
UNLESS OTHERWISE SPECIFICED IN THIS AGREEMENT, ANY INSPECTION (AND IF SPECIFIED TESTING) PROVIDED UNDER THIS AGREEMENT DOES NOT INLCUDE ANY MAINTENANCE, REPAIRS, ALTERATIONS, REPLACEMENT OF PARTS, OR ANY FIELD ADJUSTMENTS WHATSOEVER, NOR DOES IT INCLUDE THE CORRECTION OF ANY DEFICIENCIES IDENTIFIED BY SECURE FIRE & SAFETY TO CUSTOMER. SECURE FIRE & SAFETY SHALL NOT BE RESPONSIBLE FOR EQUIPMENT FAILURE OCCURING WHILE SECURE FIRE & SAFETY IS IN THE PROCESS OF FOLLOWING ITS INSPECTION TECHNIQUES, WHERE THE FAILURE ALSO RESULTS FROM THE AGE OR OBSOLESCENCE OF THE ITEM OR DUE TO NORMAL WEAR AND TEAR. THIS CONTRACT DOES NOT COVER SYSTEMS, EQUIPMENT, COMPONENTS OR PARTS THAT ARE BELOW GRADE, BEHIND WALLS OR OTHER OBSTRUCTIONS.
SEVERABILITY If any provision of this Agreement is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Agreement shall remain operative and binding on the Parties.
SITE FACILITIES Customer shall furnish all necessary facilities for performance of its work by Secure Fire & Safety, adequate space for storage and handling of material, light, water, heat, local telephone, watchman and crane and elevator service, if available, and necessary permits. Where wet pipe system is installed Customer shall supply and maintain sufficient heat to prevent freezing of the system.
TERMS AND CONDITIONS/TECHNICAL SPECIFICATIONS The terms and conditions specified herein shall be in addition to those set out in Secure Fire & Safety technical specifications and any inconsistencies shall be resolved by Secure Fire & Safety authorized representative.
WAIVER OF SUBROGATION In case of any claim or loss, Customer agrees that it is responsible to maintain, and has sufficient insurance coverage to cover any potential claim or loss. Customer further agrees to look to its property and/or general liability insurance carrier for reimbursement. Customer and Secure Fire & Safety mutually agree to release one another from any and all claims with respect to any loss covered by (or which should have been covered) the insurance coverages which were required and/or recommended that may be applicable to any property where Secure Fire & Safety performs services and/or provides materials for Customer. For purposes of this Section, all deductibles shall be considered insured losses. They further mutually agreed that their respective insurance companies shall have no right of subrogation against the other on account thereof.