SCOPE OF SERVICES AND LIMITS OF LIABILITY
- Fawcett’s shall not be liable to The Hirer for any loss or damage sustained by The Hirer as a consequence of any act or omission of Fawcett’s employees, unless such act or omission was wilful or grossly negligent and was committed in the course or scope of the employment of the employee concerned.
- Should it prove necessary, in the opinion of Fawcett’s, to supplement any services provided in terms of this Agreement with a guard service because of any failure or destruction of or damage to any equipment, whether caused accidentally or maliciously by any occurrence or person, the Hirer agrees that Fawcett’s may provide such guard service at the Hirer’s expense for such period as may be necessary.
- It is recorded and agreed that, in undertaking to provide its services to The Hirer, Fawcett’s does not warrant that it will succeed in preventing any loss, damage, injury or other event that The Hirer fears might occur.
- Fawcett’s shall not be liable for any loss attributable to any delay or failure by Fawcett’s to carry out its services by reason of the failure of electricity supply, telephone failure, computer failure, riots, strikes, lock-outs, labour disputes, weather conditions, traffic congestion, mechanical breakdown or the condition of any road, or from any cause beyond Fawcett’s control, provided that, notwithstanding the foregoing, Fawcett’s shall take all reasonable steps to overcome any delay or obstruction encountered by it, and Fawcett’s reserves the right to raise additional charges in order to recover any additional costs that may necessarily result from such steps taken to overcome such delay or obstruction.
- Under no circumstances whatsoever shall Fawcett’s be liable for any consequential or economic damages, including any loss in the value of money, caused wholly or contributorily or arising directly or indirectly out of any physical or direct loss of or damage to property or injury to person.
- If, despite the foregoing disclaimers, Fawcetts is found by a competent tribunal to be legally liable to compensate The Hirer, its liability shall be confined to claims which are notified in writing at Fawcett’s domicilium citandi et executandi within 7 (seven) days of the happening of the event and, subject to the provisions of Paragraph 8, shall be limited in any one calendar month to a sum not exceeding US$25,000.00 or the equivalent in Zimbabwe Dollars at the official rate of the day, subject to a standard 10% excess. Furthermore, it is recorded that claims will be settled in the currency of the account.
FAWCETTS NOT INSURER, AND MITIGATION OF DAMAGES
- Fawcetts is not the insurer of The Hirer and therefore The Hirer agrees to take out such insurance as it may deem fit against any harm or loss as it may consider appropriate, whether despite or in consequence of the service provided by Fawcett’s, and Fawcett’s agrees that the Hirer may cede any right of action it may have against Fawcett’s to any insurer with whom the Hirer may have insured any risk arising out of this Agreement.
- The Hirer recognises that in times of inflation costs increase rapidly and, accordingly, the Hirer undertakes, in the event of any loss suffered by it, to mitigate its loss without delay and, in giving this undertaking, agrees that any damages it may be granted, notwithstanding the disclaimers contained in this Agreement and without derogation from the limit set out in Paragraph 6, shall be limited to the value of such damages as at the date of the loss.
PURCHASE AND OWNERSHIP OF EQUIPMENT
- It is recorded that, unless specifically agreed by the parties, The Hirer shall purchase and remain the owner of all equipment necessary for the provision of the services covered by this Agreement with the exception of the electronic radio transmitter installed by Fawcett’s at the Hirer’s premises and the monitoring equipment installed at Fawcett’s Control Room, provided that, if any other equipment is leased by Fawcett’s to the Hirer, Fawcett’s shall remain the owner thereof and, in the event of any loss of or damage to any of such equipment from any cause whatsoever beyond the control of Fawcett’s, the Hirer undertakes to reimburse Fawcett’s with the full replacement cost of such equipment or, in the case of part damage or loss, with the proportionate amount calculated to make good any loss which such partial damage or loss has caused to Fawcett’s.
UNDERTAKINGS BY HIRER
- The Hirer undertakes that during the period of this Agreement and for one year after the termination thereof, it will not offer or give employment in any security capacity to any person who is or has been an officer or servant of Fawcett’s, nor employ any security company promoted or directed by such person.
- The Hirer irrevocably indemnifies Fawcett’s, its Directors, employees and representatives against any claim that may be instituted against any one or more of them, and which arises out of or is in connection with any search conducted by any of Fawcett’s’ personnel, or any arrest made in good faith in the course of the duties provided by Fawcett’s in terms of this Agreement.
FINANCIAL AND ESCALATION OF COSTS
- The Hirer agrees to pay interest on any overdue or outstanding accounts at the rate charged from time to time by Fawcett’s bankers in respect of overdraft facilities.
- The Hirer undertakes that it will not withhold the payment of fees in consequence of any claim for any loss, or in terms of any claim for set-off unless agreed in writing by Fawcetts.
- In the event of any increase in wages, other direct costs or any change in the Consumer Price Index which impacts adversely on Fawcett’s operations, Fawcetts shall have the right to increase its charges without notice, provided that Fawcetts shall use its best endeavours to give the Hirer as much notice of any pending increase as is possible. The Hirer, if it does not accept such increase in charges, shall have the right to cancel the services provided by giving one calendar’s month notice in writing during which notice period the Hirer will be invoiced at the rate existing prior to the increase.
RESOLUTIONS OF DISPUTES AND JURISDICTION
- Fawcetts will not enter into dispute over any matter arising from the services provided in terms of this Agreement with anyone other than the Hirer or its legally appointed representative.
- Should it be necessary, for any reason, for Fawcetts to engage Legal Practitioners to pursue any action, the costs of such Legal Practitioner shall be payable by The Hirer on the scale as between Legal Practitioner and Client, including any commission at Law Society Tariff Rates.
- The terms and conditions set out herein shall apply to any additional services, provided to The Hirer from time to time, whether temporary or permanent and whether set out as an amendment or addition to the Agreement or not.