Avantguard Terms & Conditions of Service

1.1. The signing and sending of this Agreement by the Customer to the Company constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

1.2. The offer shall only be deemed to be accepted when the Company signs the Agreement returned by the Customer and issues a copy of the executed Agreement to the Customer at which point and on which date the Contract shall come into existence.

1.3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.

1.4. These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.5. Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.

2.1. The Company shall supply the Services to the Customer in accordance with this Agreement in all material respects. In consideration of the Customer agreeing to pay the charges payable under this Agreement and observing its obligations hereunder, the Company shall perform the Services at the Premises during the term of the Agreement. 

2.2. The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.

2.3. The Company warrants to the Customer that the Services will be provided using reasonable care and skill.

3.1. The Company will train sufficient Security Officers (“Officers”) to fulfil the requirement of the contract. The Officers will not be exclusive to the contract and may be changed for comparable Officers for whatever reason at the sole discretion of the Company. Such rights are not to be exercised unreasonably.

3.2. In the event of the Company’s Officer/s being prevented from arriving at the Customer’s premises due to any event beyond the Company’s control including but not limited to adverse weather conditions, adverse traffic conditions, transport delays, accidents, mechanical breakdowns, sickness or obstruction of any public or private road or highway the Company will endeavour to provide an alternative Officer/s to fulfil the requirement as soon as possible. The Customer accepts that this Officer may not have been trained on the Customer’s assignment.

3.3. The Customer may not, without the previous consent in writing of the Company during the term of this Agreement or for the period of one year after its termination (howsoever caused or arising), knowingly appoint an alternative service provider who employs the any Officer provided by the Company in any position.

3.4. The Customer may not, without the previous consent in writing of the Company during the term of this Agreement or for the period of six months after its termination (howsoever caused or arising), knowingly offer employment in any capacity to any employee of the Company or any person who was an employee of the Company during the term of this Agreement.

3.5. The Customer agrees that in the event of such consent being granted, the Customer will pay to the Company a fee of 33% plus VAT of the annual salary offered by the Customer to such employee within one calendar month of the employee taking up employment with the Customer.

4.1. The Customer shall:

4.1.1. ensure that the terms of this Agreement are complete and accurate;

4.1.2. provide to the Company and its employees, agents and sub-contractors such access to the Premises as shall reasonably be required for the proper performance of the Services; 

4.1.3. provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

4.1.4. ensure that the Premises shall be in compliance with all the relevant health and safety and other applicable regulations, and will cooperate to provide relevant information to the Company in connection with the provision of the Services. However, the parties understand and agree that the Company will undertake its own survey although these inspections are not intended to be a full assessment and recommendation for the overall security of the Premises;

4.1.5. obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;

4.1.6. identify and consult with the Company on any specific health and safety requirements that apply, or are likely to apply, during the period of the contract;

4.1.7. keep and maintain all materials, equipment, documents and other property of the Company (“Company Materials”) at the Customer's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and

4.1.8. provide and/or maintain any specified item or service, which the Customer had agreed to provide and which is necessary for fulfilling the assignment.

4.2. If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

4.2.1. the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company's performance of any of its obligations;

4.2.2. the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 4.2; and

4.2.3. the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.

5.1. The Company shall submit invoices to the Customer for the total (weekly/monthly) charges (as appropriate) shown in part 1 of this Agreement monthly in arrears of the provision of the Services by the Company or as otherwise agreed. The Company shall submit invoices or credit notes for extra cover or Services not provided in arrears. 

5.2. The Customer shall pay each invoice submitted by the Company:

5.2.1. within 14 days of the date of the invoice; and

5.2.2. in full and in cleared funds to a bank account nominated in writing by the Customer or by cheque sent to the Company’s address stated on the invoice, and

5.2.3. time for payment shall be of the essence of the Contract.

5.3. All shift hours and any other services or equipment of any kind supplied over and above the agreement will be mutually agreed in writing and will be invoiced at the agreed charge rate on a weekly/monthly basis.

5.4. The Customer shall not be entitled to make any deductions from or to exercise any right of set off or counterclaim against the charges due to the Company unless written Agreement from the Company has been obtained.

5.5. The Company shall be entitled (without prejudice to any of its other rights) to charge interest on any amount overdue at the statutory interest rate provided for under the Late Payment of Commercial Debts (interest) Act 1998 (or any re-enactment thereof)from the due date of the invoice .

5.6. All bank and statutory holiday dates as defined by ‘gov.uk’ for England are charged at double time (i.e. 2 x the regular rate). In addition, double time will be charged on 25 December, 26 December, 01 January and Easter Sunday. 

5.7. If at any time or times the cost to the Company of providing any of the Services increases, the Company may, at any time after it has performed the Services for four months, increase the charges for the Services (in proportion to the increase costs) as determined by the Company and which determination shall be binding on the Customer by giving not less than one month’s notice in writing specifying the increased costs and the Customer shall thereafter pay such increased charges. The Customer shall be entitled to terminate this Agreement within seven days of his receipt of the Company’s notice by giving not less than one month’s notice in writing to the Company but without prejudice to any rights of either party already accrued hereunder at the time of termination.

5.8. In the event that the Customer requires any increase in personnel or other resource or such increase as recommended by the Company, then either party shall give to the other reasonable notice in writing signed by a duly authorised officer specifying details of the increased service required. Subject to the Customer and the Company reaching Agreement as to the increase in the charges payable to the Customer and to the Company agreeing to provide the increased Services, the Company shall supply the additional Services as soon as reasonably practicable where upon they shall become part of the Services.

A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 6 shall survive termination of the Contract.

7.1. Nothing in these Conditions shall limit or exclude the Company's liability for:

7.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

7.1.2. fraud or fraudulent misrepresentation; or

7.2. Except as stated in clause 8 below, the Company, its employees or agents shall not be liable for:

7.2.1. Any loss, damage, injury costs or expenses suffered by the Customer resulting from any burglary, theft, fire, flood or any other criminal or tortious act, default or omission (whether under common law, statute or otherwise) or;

7.2.2. Any economic loss incurred by the Customer or any third party which shall include without limitation loss of profits, loss of production, indirect or consequential loss, damage or injury, expenses incurred by the breach, or any civil claim made against the Customer by any other party however any such loss or damage or claim was caused and whether or not such loss, damage or claim was or ought reasonably to have been in the parties’ contemplation at the date hereof howsoever caused or arising.

7.3. The Customer is responsible for any liability which is wholly or in part the fault of the Customer and any claim would be reduced proportionately where the Customer is partly at fault.

7.4. The Customer will indemnify the Company in respect of all claims for loss, damage or injury made against the Company by any of the Company’s employees or agents or the Customer’s employees or agents or any third party arising by reason of and to the extent that the loss or damage or injury is caused by the negligence or other tortious act of the Customer, its employees or agent, by the unsafe condition of the Premises or by causes beyond the Company’s control for which the Customer is responsible. If any employee or agent of the Company is instructed by the Customer, any of its employees or agents, to do any act not within the scope of the Services he shall be deemed to do that act as the Customer’s employee or agent. All liability arising from any extraneous duties is excluded unless specifically agreed in writing prior to being carried out.

7.5. In no event shall the Company be liable for any failure to provide the Services in accordance with this Agreement to the extent that it is prevented from doing so as a result of any act, omission or breach by the Customer or its employees.

7.6. Upon the happening of any event in relation to the Services which may give rise to a claim against the Company, the Customer shall give a notice providing full details of the event within seven days of the same coming to the attention of the Customer or on the date upon which it ought reasonably to have come to the attention of the Customer whichever is earlier. Unless such notice is given the Company shall have no liability to the Customer for such event or events.

7.7. The Company reserves the right in its reasonable discretion, and without being under any liability for breach of this Agreement, to refuse to enter onto the Premises where the Company reasonably believes or holds the opinion that the state of the Premises presents a hazard due to defective structure or access or any other condition rendering the premises dangerous or any products stored or being shipped through the Premises are or may be hazardous, by the presence of amongst others, noxious, toxic, combustible, explosive or radioactive substance or may cause damage or be dangerous to the Company’s employees, servants or agents or the property, vehicles or equipment of the Company.

8.1. The Customer undertakes and agrees that it will maintain in full force and effect at all times full and valid insurance cover in respect of employers liability, personal injury liability, third party liabilities, the full capital value of all plant, machinery and equipment, the invoice value of the Customer’s products and those of any third party located at the Premises, and the full reinstatement value of all the buildings at the site including the Premises.

8.2. The Customer agrees that it is best able to estimate the extent and nature of the insurance cover suitable for its business, assets and property and any third party products stored thereat from time to time and can effect at more economic rates than the Company appropriate insurance cover for its business, assets and property and any third party products stored thereat including without limitation cover against loss, damages, costs, claims and expenses referred to in this Agreement. The Customer therefore acknowledges that it is reasonable for the Company to carry out its obligations under this Agreement and fix the charges on the basis of the exclusions and limitations of liability set out in this Agreement and the Customer agrees that it will be responsible for effecting such insurance cover as may be appropriate to its business, assets and property and any third party products stored thereat including (but not limited to) such insurance cover as mentioned above.

8.3. The Customer shall use its best endeavours to procure that the Customer’s insurers shall in no circumstances whatsoever have any rights or remedies against the Company additional to those of the Customer and shall obtain a written waiver of such insurers’ rights of subrogation against the Company.

8.4. Without prejudice to clauses 8.1 and 8.2, the Company will maintain and keep in full force and effect insurance against:

8.4.1. Employers’ Liability - Legal liability for death and / or bodily injury to any employee arising during the course of his employment. The indemnity provided is £10,000,000.00.

8.4.2. Public Liability - This insurance provides indemnity in respect of legal liability for bodily injury to any person and / or damage to property arising during the course of the company’s business. The limit of indemnity provided is £5,000,000.00 any one occurrence and is unlimited during any one period of insurance.

8.4.3. Efficacy and Contractual Liability - All cover granted by public liability section above is extended to include damage to property arising out of the failure to carry out the duties which the company has contracted to perform, including the deliberate acts, wilful default or neglect by the company or their employees or their servants or their agents but excluding any consequential loss.

8.4.4. Fidelity Guarantee - If the Customer shall suffer any loss or damage arising due to an act of fraud, dishonesty or embezzlement by employees of the Company at the premises of the Customer. The limit of indemnity provided is £100,000.00 any one employee and £250,000.00 in all during any one period of insurance.

8.4.5. Loss of keys and replacement of locks - This insurance will indemnify the company against the sums which they are liable to pay in the event of loss of keys which necessitates the replacement, changing or alterations of locks. The sum insured is limited to £25,000.00

8.4.6. Consequential loss following loss of keys - The insurance will indemnify the company against the sums which they will be liable to pay in respect of consequential loss arising out of loss of keys.

8.4.7. Wrongful arrest - Cover is provided for all sums which the Company shall become legally liable to pay as damages in respect of wrongful arrest committed or alleged to have been committed by the insured or his employees arising out of the business operations of the Company.

8.5. Provided always that notice of all claims by the Customer its servants or workmen in respect of any injury loss or damage sustained by them shall be given in writing to the Head Office of the Company within seven days from discovery of such injury loss or damage otherwise the Company shall not be held liable for such claims.

8.6. Following a written request from the Customer to increase the levels of insurance set out under any part of clause 8.4 above by such sum as the Company shall in its sole discretion consider reasonable (taking into account the cost and any other detrimental effect on its policies), the Company shall as soon as reasonably practicable obtain quotes from its insurers in relation to such request, notifying the Customer of its insurers response including the associated costs and any effect on the Company’s policy excesses. Subject to the Company agreeing in its sole discretion to any increase in the levels of its insurance, and to the Customer paying in advance any increased costs associated therewith and indemnifying the Company on demand to the full extent of any excess on the policy, the Company shall use its reasonable endeavours to increase its insurance cover to such sum as shall have been agreed between the parties. If an increased level of insurance cover is obtained, then the relevant sub-clause shall be read as if the increased amount was substituted for the sum stated.

8.7. For the avoidance of doubt the Company only accepts liability to the Customer for direct loss suffered by the Customer solely as a result of the Company’s negligence in relation to the provision of the Services and save as expressly provided for in the clause 8.5 under no circumstances shall the Company’s liability to the Customer during any consecutive period of 12 months of this Agreement exceed the value of the charges paid by the Customer to the Company (save in respect of death or personal injury attributable to the Company’s negligence in relation to which this Agreement does not seek to exclude or limit the Company’s legal liability).

9.1. Without limiting its other rights or remedies, either party shall be entitled to terminate this Agreement with immediate effect by notice in writing to the other party if:

9.1.1. a material breach by the Customer of any provision of this Agreement, which is incapable of being remedied;

9.1.2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

9.1.3. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

9.1.4. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

9.1.5. a bankruptcy petition or an application for an interim order being presented by or against the Customer (being an individual);

9.1.6. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 7 days;

9.1.7. The Customer (being a Company) calling a general meeting at which a resolution for the Customer’s voluntary winding up is to be proposed;

9.1.8. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);

9.1.9. a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

9.1.10. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the other party;

9.1.11. any event occurs or proceeding is taken with respect of the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.2 to clause 9.1.10 (inclusive);

9.1.12. the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; 

9.1.13. the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation;

9.1.14. without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to remedy this within 14 days of the Company notifying the Customer of the outstanding balance;

9.1.15. Any keys appertaining to the Site will be immediately surrendered to an authorised representative of the Customer if requested by the Customer in writing;

9.1.16. Should the return of the keys not be requested by the Customer, the Company will retain the keys for a maximum of 30 days from the date of termination. After this time they shall be disposed of by means of destruction.

10.1. On termination of the Contract for any reason:

10.1.1. the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;

10.1.2. the Customer shall return all of the Company Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

10.1.3. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

10.1.4. clauses which expressly or by implication have effect after termination shall continue in full force and effect.

11.1. If any of the Services are affected by any of the events set out below, the Company shall not be obliged to provide those Services and shall not be liable for any loss damage or injury howsoever caused or arising suffered by the Customer any of its employees or agents for the Company’s failure to do so. The events are as follows:

11.1.1. strike, lock-out or other labour dispute affecting the Customer where the effect is to prevent or hinder the Company from performing the Services (No service of a strike breaking nature will be provided);

11.1.2. any event beyond the Company’s control preventing or hindering the Company’s employees or agents from travelling to the property, including but not limited to acts of God, extreme traffic conditions, or obstruction of any public or private road or highway;

11.1.3. war, government act, terrorism including acts for religious, ideological or political purposes, act of hostile forces civil disturbances or extensive disruption of public services; and

11.1.4. the presence of hazards due to defective structure of or means of access to the Premises, the presence of noxious, toxic, combustible, explosive or radioactive substances, or any other state of the Premises rendering them dangerous in the opinion of the Company (or any of its employees or agents) to any employee or agent of the Company; and

11.1.5. the breakdown whether mechanical, electrical or otherwise or presence of defects in essential security, surveillance, alarm or communications equipment installed or maintained by a third party or any other equipment whose defects were not made known to the Company and did not arise out of reason of negligence or wilful default of the Company its servants or agents; and

11.1.6. any other cause or circumstance whatsoever beyond the Company’s reasonable control.

11.2. In the event of any of the above occurrences:

11.2.1. any Services so affected may be suspended after due consultation with the Customer until circumstances permit their reinstatement; and

11.2.2. the period of such suspension shall be added to the term of this Agreement; and

11.2.3. during the period of suspension the Customer’s obligation to pay the charges pursuant to clause 2 shall not be affected.

11.2.4. Asbestos Exclusion. No indemnity will be provided in respect of any liability arising directly or indirectly from mining, processing, manufacturing, removing, handling, disposing of, treatment of, distributing or storage of asbestos.

12.1. The Company shall be entitled to sub-contract the performance of all or any of its obligations under these conditions to any suitably qualified sub-contractor or any Company which is a subsidiary of the Company or of its holding Company or through any associate of the Company or of its holding Company. For purposes of these conditions the expressions ‘subsidiary’ and ‘holding Company’ shall have the meanings ascribed to them by section 1159 of the Companies Act 2006 (as amended).

12.2. The Customer shall not be entitled to assign, sub-contract or otherwise deal with its rights and obligations under this Agreement without the prior written consent of the Company such consent not to be unreasonably withheld or delayed.

12.3. The Company shall ensure that any sub-contractor assigned to the Customer in the capacity of security services, shall be an SIA Approved Contractor where appropriate.

12.4. The Customer retains the right to request that a sub-contractor is not to be used on their site(s). 

 

13.1. Any notice required to be given or correspondence to be sent to either party concerning the Services and/or this Agreement must be sent to the address or facsimile number shown in part 1 or such other correspondence address as the relevant party shall notify to the other from time to time.

13.2. All notices shall be served either personally, by facsimile transmission, by e-mail, or sent by first class pre-paid post to the appropriate address. Any notice delivered personally or by facsimile transmission shall be deemed to have been served when actually received by or on behalf of the party to be served provided that in the case of a facsimile transmission a copy is despatched by first class post to the addressee party as soon as possible after sending. Notices sent by post shall be deemed to have been served 48 hours after posting.

14.1. It is agreed and declared that if either party hereto becomes aware of any matter which might prejudice the carrying out of the Services or performance of the obligations contained in this Agreement, such party shall forthwith give written notice to the other of that matter.

14.2. No failure to exercise and no delay in exercising on the part of the Company any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any right, power or privilege. No waiver by either party shall be effective unless it is in writing.

14.3. Subject to clause 12, each party undertakes to the other that it will not, other than in the proper performance of its obligations under this Agreement or as required by law, at any time disclose or reveal any confidential information relating to the business of the other to any third party.

14.4. This Agreement shall constitute the entire Agreement and understanding between the parties in connection with the provision of the Services and all prior negotiations, documents and Agreements with regard thereto are hereby superseded.

14.5. No variation, alteration or cancellation of any of the terms and conditions of this Agreement shall be binding upon the Company unless and until it is confirmed in writing and signed by a director of the Company and it is further declared and agreed that no person other than a director of the Company has any authority to bind the Company contractually.

14.6. Each party acknowledges that in entering into this Agreement it does not do so on the basis of and does not rely on, any representation, warranty or provision except as expressly provided for in this Agreement, and all conditions warranties or other terms implied by statute, convention, directive, common law trade usage custom or otherwise are hereby excluded to the fullest extent permitted by law.

14.7. This Agreement shall be governed by English law and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.

14.8. The Company cannot enter in to any agreement which would involve assuming the powers of the civil police.

The provision of our alarm response, key holding and mobile patrol service(s) is on a shared service basis. The Mobile Patrol Officer(s) may, in executing his duties, be required to remain on a site for a specified time as part of the Alarm Response Service. This may result in a delay attending other Alarm Response Requests or patrols. Where the delay is deemed to be of an unacceptable length by the Duty Controller, every effort will be made to despatch another Mobile Patrol Officer in response”.     

16.1. The Working Time Regulations 1998 considerations.

16.2. The company reserves the right to vary this contract to keep in line with current and forthcoming changes to legislation or working time regulations. 

16.3. The company recognises that potential changes to the Working Time Regulations could have a dramatic effect on the manned security industry. 

16.4. Legislation may be forthcoming asserting a 48 hour week as the opt-out clause allowing employees to work more than 48 hours a week might not be allowed to run indefinitely. The industry may also lose the 12 hour night shift derogation in favour of 8 hour. If this happens, we estimate that manned security contracts will require up to 50% more staff, and consequently cost around 30% more. Customers will need to budget for these changes.

16.5. The company warmly welcomes anything that reduces the long hours Officers work, often in order to achieve a reasonable standard of living. The company believes that a forty-eight hour week is an essential element in the manned security business in the UK. This is a key constituent in creating more social working hours required to attract long term recruits into the industry.