Terms and Conditions
Terms and Conditions:
1: Pricing & Payment. Payments shall be invoiced and due in accordance with the terms and conditions set forth above. Work performed on a time and material basis shall be at the then-prevailing company rate for material, labour, and related items, in effect at the time supplied under this Agreement. Trinity Fire and Security shall invoice the Customer for progress payments to one hundred (100%) percent based upon equipment delivered or stored, and services performed, unless otherwise stated above. Customers without established satisfactory credit shall make payments of cash in advance, upon delivery or as otherwise specified by Company. Where the Customer establishes and maintains satisfactory credit, payments shall be due and payable thirty (30) days from date of invoice. If Customer fails to make any payment when due, in addition to any other rights and remedies available, Trinity Fire and Security shall have Services and/or withhold further deliveries of materials, until the account is current.
In the event payment is not received when due, Trinity Fire and Security shall charge interest on any outstanding balance at the rate of 1.5% per month (18% per annum) compounded monthly. Customer agrees to pay interest on overdue accounts as stated herein. In the event of any Judgment in favour of Trinity Fire and Security, the Customer agrees to a prejudgment and postjudgment interest rate of 18% per annum as the applicable interest rate. The Customer agrees to pay all costs of collection, including without limitation costs, fees, and lawyer’s fees. The Customer’s failure to make payment when due is a material breach of this Agreement until the account is current.
Any and all false alarm charges from local police departments incurred by the customer are the customer’s responsibility to pay. If a bill is sent to Trinity Fire and Security for a false alarm call, Trinity Fire and Security will bill the customer for said charge, unless the charges incurred were the result of Trinity personnel. Then the Trinity will be responsible for paying the charges.
2: Limitation of Liability; Limitations of Remedy. It is understood and agreed by the Customer that Trinity Fire and Security is not an insurer and that insurance coverage, if any, shall be obtained by the Customer and that amounts payable to Trinity Fire and Security hereunder are based upon the value of the services and the scope of liability set forth in this Agreement and are unrelated to the value of the Customer’s property and the property of others located on the premises. The Customer agrees to look exclusively to the Customer’s insurer to recover for injuries or damage in the event of any loss or injury and that the Customer releases and waives all right of recovery against the Company arising by way of subrogation. Trinity Fire and Security makes no guaranty or Warranty, including any implied warranty. It is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from failure on the part of Trinity Fire and Security to perform any of its obligations under this Agreement. Accordingly, the Customer agrees that, Trinity Fire and Security shall be exempt from liability for any loss, damage or injury arising directly or indirectly from occurrences, or the consequences therefrom, which the equipment or service was designed to detect or avert. If the Customer desires Trinity Fire and Security to assume greater liability, the parties shall amend this Agreement by attaching a rider setting forth the amount of additional liability and the additional amount payable by the Customer for the assumption by Trinity Fire and Security of such greater liability, provided however that such rider shall in no way be interpreted to hold Trinity Fire and Security as an insurer. IN NO EVENT SHALL TRINITY FIRE AND SECURITY BE LIABLE FOR ANY DAMAGE, LOSS, INJURY, OR ANY OTHER CLAIM ARISING FROM ANY SERVICING, ALTERATIONS, MODIFICATIONS, CHANGES, OR MOVEMENTS OF THE COVERED SYSTEM(S) OR ANY OF ITS COMPONENT PARTS BY THE CUSTOMER OR ANY THIRD PARTY. TRINITY FIRE AND SECURITY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES ARISING FROM THE USE, LOSS OF THE USE, PERFORMANCE, OR FAILURE OF THE COVERED SYSTEM(S) TO PERFORM.
3: General Provisions. Services shall be performed at the location identified in the Agreement (“Site”). Risk of loss of or damage to the Customer’s equipment, including “Equipment” (equipment, materials, components and items of any kind for which Trinity Fire and Security is to provide Services under the Agreement), shall remain with the Customer at all times during the performance of the Services hereunder. If the Customer procures or has procured property damage insurance applicable to occurrences at the Site, the Customer shall obtain a waiver by the insurers of all subrogation rights against Trinity Fire and Security.
Any performance or completion dates are estimated dates only. Trinity Fire and Security is not liable for any loss or expense incurred by the Customer or the Customer’s customers if Trinity Fire and Security fails to meet any such dates.
All work to be performed by Trinity Fire and Security will be performed during normal working hours of normal working days (8:00 a.m. 5:00 p.m., Monday through Friday, excluding Company holidays), as defined by Trinity Fire and Security, unless additional times are specifically described in this Agreement. Trinity Fire and Security will perform the services described in the quote for one or more system(s) or equipment as described in the quote. The Customer shall promptly notify Trinity Fire and Security of any malfunction. This Agreement assumes the Covered System(s) are in operational and maintainable condition as of the Agreement date. If, upon initial inspection, Trinity Fire and Security determines that repairs are recommended, repair charges will be submitted for approval prior to any work. Should such repair work be declined, Trinity Fire and Security shall be relieved from any and all liability arising therefrom. UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT, ANY INSPECTION (AND, IF SPECIFIED, TESTING) PROVIDED UNDER THIS AGREEMENT DOES NOT INCLUDE ANY MAINTENANCE, REPAIRS, ALTERATIONS, REPLACEMENT OF PARTS, OR ANY FIELD ADJUSTMENTS WHATSOEVER, NOR DOES IT INCLUDE THE CORRECTION OF ANY DEFICIENCIES IDENTIFIED BY TRINITY FIRE AND SECURITY TO THE CUSTOMER. TRINITY FIRE AND SECURITY SHALL NOT BE RESPONSIBLE FOR EQUIPMENT FAILURE OCCURRING WHILE TRINITY FIRE AND SECURITY 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 AGREEMENT DOES NOT COVER SYSTEMS, EQUIPMENT, COMPONENTS OR PARTS THAT ARE BELOW GRADE, BEHIND WALLS OR OTHER OBSTRUCTIONS OR EXTERIOR TO THE BUILDING, ELECTRICAL WIRING, AND PIPING.
4: Delivery; Title; Risk of Loss of Products. Any shipping, delivery and installation dates are estimated dates only. Trinity Fire and Security is not liable for any loss or expense incurred by the Customer or Customer’s customers if Trinity Fire and Security fails to meet its delivery schedule.
5: Customer Responsibilities. The Customer shall furnish all necessary facilities for performance of its work by Trinity Fire and Security, adequate space for storage and handling of materials, light, water, heat, heat tracing, electrical service, local telephone, watchman, and crane and elevator service and necessary permits. The Customer shall promptly notify Trinity Fire and Security of any malfunction in the Covered System(s); which comes to this Agreement assumes any existing system(s) are in operational and maintainable condition as of the Agreement date. If, upon initial inspection, Trinity Fire and Security determines that repairs are recommended, repair charges will be submitted for approval prior to any work. Should such repair work be declined, Trinity Fire and Security shall be relieved from any and all liability arising therefrom.
The Customer shall further:
• Supply required schematics and drawings unless they are to be supplied by Trinity Fire and Security in accordance with this Agreement;
• Provide a safe work environment, in the event of an emergency or Covered System(s) failure, take reasonable safety precautions to protect against personal injury, death, and property damage, continue such measures until the Covered System(s) are operational, and notify Trinity Fire and Security as soon as possible under the circumstances.
• Provide Trinity Fire and Security access to any system(s) to be serviced,
• Comply with all laws, codes, and regulations pertaining to the equipment and/or services provided under this agreement.
6: Structure and Site Conditions. While employees of Trinity Fire and Security will exercise reasonable care in this respect, Trinity Fire and Security shall be under no responsibility for loss or damage due to the character, condition or use of foundations, walls, or other structures not erected by Trinity Fire and Security or resulting from the excavation in proximity thereto, or for damage resulting from concealed piping, wiring, fixtures, or other equipment or condition of water pressure. All shoring or protection of foundation, walls or other structures subject to being disturbed by any excavation required hereunder shall be the responsibility of the Customer. The Customer shall have all things in readiness for installation including, without limitation, structure to support the sprinkler system and related equipment (including tanks), other materials, floor or suitable working base, connections and facilities for erection at the time the materials are delivered. In the event the Customer fails to have all things in readiness at the time scheduled for receipt of materials, The Customer shall reimburse Trinity Fire and Security for all expenses caused by such failure. Failure to make areas available to Trinity Fire and Security during performance proposal shall be considered a failure to have things in readiness in accordance with the terms of this Agreement.
7: Hazardous Materials. The Customer represents that, except to the extent that Trinity Fire and Security has been given written notice of the following hazards prior to the execution of this Agreement, to the best of the Customer’s knowledge there is no:
• Space in which work must be performed that, because of its construction, location, contents or work activity therein, accumulation of a hazardous gas, vapour, dust or fume or the creation of an oxygen-deficient atmosphere may occur,
• Risk of infectious disease,
• Need for air monitoring, respiratory protection, or other medical risk,
• Asbestos, asbestos-containing material, formaldehyde or other potentially toxic or otherwise hazardous material contained in or on the surface of the floors, walls, ceilings, insulation or other structural components of the area of any building where work is required to be performed under this Agreement.
All of the above are hereinafter referred to as “Hazardous Conditions”. Trinity Fire and Security shall have the right to rely on the representations listed above. If hazardous conditions are encountered by Trinity Fire and Security during the course of Trinity Fire and Security’s work, the discovery of such materials shall constitute an event beyond such materials shall control and Trinity Fire and Security shall have no obligation to further perform in the area where the hazardous conditions exist until the area has been made safe by the Customer as certified in writing by an independent testing agency, and the Customer shall pay disruption expenses and re-mobilization expenses as determined by Trinity Fire and Security. This Agreement does not provide for the cost of capture, containment or disposal of any hazardous waste materials, or hazardous materials, encountered in any of the Covered System(s) and/or during performance of the Services. Said materials shall at all times remain the responsibility and property of the Customer. Trinity Fire and Security shall not be responsible for the testing, removal or disposal of such hazardous materials.
8: Modifications and Substitutions. Trinity Fire and Security reserves the right to modify materials, including substituting materials of later design, providing that such modifications or substitutions will not materially affect the performance of the Covered System(s).
9: Changes, Alterations, Additions. Changes, alterations and additions to the Scope of Work, plans, specifications or construction schedule shall be invalid unless approved in writing by Trinity Fire and Security. Should changes be approved by Trinity Fire and Security, that increase or decrease the cost of the work to Company, the parties shall agree, in writing, to the change in price prior to performance of any work. However, if no agreement is reached prior to the time for performance of said work, and Trinity Fire and Security elects to perform said work so as to avoid delays, then all be deemed accepted by the Customer. In addition, the Customer shall pay for all extra work requested by the Customer or made necessary because of incompleteness or inaccuracy of plans or other information submitted by the Customer with respect to the location, type of occupancy, or other details of the work to be performed. In the event the layout of the Customer’s facilities has been altered, or is altered by the Customer prior to the completion of the Work, the Customer shall advise Trinity Fire and Security, and prices, delivery and completion dates shall be changed by Trinity Fire and Security as may be required.
10: Commodities Availability. Trinity Fire and Security shall not be responsible for failure to provide services, deliver products, or otherwise perform work required by this Agreement due to lack of available products or products on the part of the supplier. 1) In the event Trinity Fire and Security is unable, after reasonable commercial efforts, to acquire and provide said products, if required to perform work required by this Agreement, the Customer hereby agrees that Trinity Fire and Security may terminate the Agreement, or the relevant portion of the Agreement, at no additional cost and without penalty. The Customer agrees to pay Company in full for all work performed up to the time of any such termination. 2) If Trinity Fire and Security is able to obtain the products or materials, but the price of any of the products has risen by more than 10% from the date of the bid, proposal or date Trinity Fire and Security executed this Agreement, whichever occurred first, then Trinity Fire and Security may pass through that increase through a reasonable price increase to reflect increased cost of materials.
11: Cancellation. Any termination under the terms of this Agreement shall be made in writing. In the event the Customer terminates this Agreement prior to completion for any reason not arising solely from Trinity Fire and Security’s or failure to perform. The Customer understands and agrees that Trinity Fire and Security will incur costs of administration and preparation that are difficult to estimate or determine. Accordingly, should the Customer terminate this Agreement as described above, the Customer agrees to pay all charges incurred for products and equipment installed and services performed, and in addition pay an amount equal to twenty (20%) percent of the price of products and equipment not yet delivered and Services not yet performed, return all products and equipment delivered and pay a restocking fee of twenty (20%) percent the price of products or equipment returned. Trinity Fire and Security may terminate this Agreement immediately at its sole discretion upon the occurrence of any Event of Default as hereinafter defined. Trinity Fire and Security may also terminate this Agreement at its sole discretion upon notice to the Customer if Trinity Fire and Security’s performance of its obligations under this Agreement becomes impracticable due to obsolescence of equipment at the Customer’s premises or unavailability of parts.
12: Force Majeure / Delays. If either party is unable to perform or suffers delay in performance, due to any cause beyond its reasonable control (regardless of whether the cause was foreseeable), including without limitation acts of God, inclement or unusually severe weather conditions, strikes, labour shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, cyber-attacks, terrorist attacks, failure of normal sources of supply, or acts or inaction of government, the time of performance will be extended by a period equal to the length of time it takes to overcome the effect of the event.
(a) Warranties. Trinity Fire and Security warrants that: (i) it will perform the Services in a professional and workmanlike manner; (ii) each Product is free from defects in material and workmanship; (iii) each Product materially conforms to manufacture’s specifications that are included with the material; and (iv) at the time of delivery, Trinity Fire and Security has title to each Product free and clear of liens and encumbrances (the “Warranties”). The Warranties do not apply to software furnished by manufacturers.
(b) Remedies. If the Services or Product fail to meet the warranty standards set forth in Article 13(a) within the applicable Warranty period defined in Article 13(c), and the Customer promptly reports such non-conformance to Trinity Fire and Security during the above mentioned Warranty period, Trinity Fire and Security shall at its own expense as the Customer’s sole and exclusive remedies for breach of the Warranties: (i) for Services, re-perform the relevant Services or, in Trinity Fire and Security’s sole discretion, refund the Customer the pro rata portion of the fees paid to Trinity Fire and Security under this Agreement allocable to the nonconforming Services; and (ii) for Product, at Trinity Fire and Security’s discretion, repair or replace the Product, or its non-conforming parts, within a reasonable time period, or refund of all or part of the purchase price. The warranty on repaired or replaced Product, Services or parts is limited to the remainder of the original Warranty period. Unless Trinity Fire and Security agrees otherwise in writing, The Customer will be responsible for any costs associated with: (i) gaining access to the Product or Services; (ii) removal, disassembly, replacement, installation, or re-installation of any equipment, materials or structures to permit Siemens to perform its warranty obligations; (iii) transportation to and from the Trinity Fire and Security factory or repair facility; and (iv) damage to equipment components or parts resulting in whole or in part from non-compliance by the Customer with Article 10(d) or from their deteriorated condition. All exchanged Products replaced under this Warranty will become the property of Trinity Fire and Security.
(c) Warranty Period. The Customer must provide written notice of any claims for breach of the Warranties by: (i) for Services, within three (3) months from completion of the Services; and (ii) for Product, the earlier of twelve (12) months from initial operation of the Product. Additionally, absent written notice within the applicable Warranty period, any use or possession of the Product or Services after expiration of the applicable Warranty period is conclusive evidence that the applicable Warranties have been satisfied.
(d) Conditions to the Warranties. The Warranties are conditioned on: (i) no repairs, modifications or alterations being made to the Product and Equipment other than by Trinity Fire and Security or other certified technicians; (ii) The Customer handling, using, storing, installing, operating and maintaining the Product and Equipment in compliance with any parameters or instructions in any specifications attached to, or incorporated into this Agreement, (iii) or in the absence of such conditions, parameters or instructions or to the extent not applicable, in accordance with the generally accepted industry standards applicable in the locale where the Services are being performed and having regard to the nature of the Product and Services; (iv) The Customer discontinuing use of the Product and Equipment after it has, or should have had knowledge of any defect in the Product or Equipment; (v) The Customer providing Trinity Fire and Security with reasonable access to operating and maintenance data as requested by Trinity Fire and Security, (which may include secure broadband connection). Without expense to Trinity Fire and Security, The Customer shall provide to Trinity Fire and Security and its respective employees and agents on a twenty four (24) hours a day, seven (7) days a week basis, access to the Site, and each unit, including rights of way and easements required for safe access of such persons and equipment, as well as, to the extent applicable, online access to the Site, including to an installed remote monitoring system and to all units, as necessary to permit Trinity Fire and Security to perform the Services; (vi) The Customer providing prompt written notice of any warranty claims within the Warranty Period; (vii) at Trinity Fire and Security’s discretion, the Customer either removing and shipping Product or Equipment or non-conforming part thereof to Trinity Fire and Security, at the Customer’s expense, or granting Trinity Fire and Security reasonable access to Products or Equipment to assess the warranty claims; (viii) Product and Equipment not having been subjected to accident (including force majeure), alteration, abuse or misuse; and (ix) the Customer not being in default of any payment obligation. The Customer shall provide, without cost to Trinity Fire and Security, access to the nonconformity by disassembling, removing, replacing and reinstalling any Equipment, materials or structures to the extent necessary to permit Trinity Fire and Security to perform its warranty obligations.
(e) Exclusions from Warranty Coverage. The Warranties do not apply to (i) any product not supplied by Trinity Fire and Security; (ii) any Third Party Parts or Equipment; or (iii) to services not performed by Trinity Fire and Security pursuant to this Agreement. Trinity Fire and Security will have no liability to the Customer under any legal theory for such products, Third Party Parts, Equipment, services or any related assignment of warranties. Any Product that is described as being experimental, developmental, prototype, or pilot is specifically excluded from the Warranties and is provided to the Customer “as is” with no warranties of any kind. Normal wear and tear is excluded, including any expendable items that comprise part of the Product (such as fuses, light bulbs and lamps). Trinity Fire and Security does not warrant or guarantee that any Product will be secure from cyber threats, hacking or similar malicious activity. Products that are networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Buyer and/or end user against unauthorized access.
(f) Transferability. The Warranties are only transferable during the warranty period and only to the Product’s initial end-user upon and subject to the same terms and conditions as are expressed herein.
(g) Extended warranties. In some cases extended warranties are available from the manufacturer that goes beyond Trinity Fire and Security’s installer warrantee. However Trinity Fire and Security is responsible, as the installer, for these warranties but will try to access them on behalf of the Customer.
14: Limitations of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TRINITY FIRE AND SECURITY IS NOT LIABLE, WHETHER BASED IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR: LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR OPPORTUNITY, LOSS OF PRODUCTION, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA, LOSS OF POWER, VOLTAGE IRREGULARITIES OR FREQUENCY FLUCTUATION, CLAIMS ARISING FROM THE CUSTOMER’S THIRD PARTY CONTRACTS, AND FOR ANY TYPE OF INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE.
TRINITY FIRE AND SECURITY’S MAXIMUM LIABILITY UNDER DUTY OF CARE AND THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE RECEIVED BY TRINITY FIRE AND SECURITY UNDER THIS AGREEMENT.
THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES. THE CUSTOMER AGREES THAT THE EXCLUSIONS AND LIMITATIONS IN THIS AGREEMENT WILL PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE AND EFFECT WHETHER OR NOT ANY OR ALL SUCH REMEDIES ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE IN THE EVENT OF AND NOTWITHSTANDING TRINITY FIRE AND SECURITY BEING ADVISED BY THE CUSTOMER OF THE POSSIBILITY OF SUCH DAMAGES IN WHICH CASE THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS AGREEMENT.