Terms and Conditions for Service
DEFINITIONS: “In writing” or “written document” means any written communication which has been signed by a person authorized to represent the party, including, without limitation, printed documents, facsimiles, e-mails and other electronic means of communication; “Loss” means all suits, claims, losses, damages and expenses (including, without limitation, investigative costs, reasonable attorneys’ fees and costs of suit) arising from all events or circumstances related to or in connection with the same general condition; “Site” means all premises where Services are performed under this Agreement; “Remote Guarding” means guarding and related services conducted from a remote location using electronic security equipment, including, without limitation, video and voice communication equipment, “Guard” means any duly appointed employee, affiliate, or individual of subcontractor whose responsibility is to perform the duties of watching and protecting the assets of the Contractor, under this agreement, post orders, and other attachments, in accordance to local laws or definitions.
This Agreement for Professional Security Services Management (the “Agreement”), commencing on the Effective Date described in writing, by email, and/or within the service request form, and/or in any additional exhibits or schedules attached hereto, is by and between Nationwide Security Service, Inc, a domestic corporation registered with the Secretary of State’s office for the Commonwealth of Massachusetts with its principal office at 208 Broadway, Malden, MA 02148, (hereinafter “NWSS”), and the Client, described in writing, by email, and/or the service request form, and/or in any additional exhibits or schedules attached hereto.
WHEREAS, Client finds that NWSS is willing to manage Security Guard work hereinafter described in accordance with the provisions of this Agreement; and
WHEREAS, Client finds that NWSS is qualified to manage the work, all relevant factors considered, and that such performance will be in furtherance of Client’s business.
WHEREAS, the cost to Client and scope of service provided by NWSS shall hereinafter described in any and all attachments, assignments, post orders, work orders, purchase orders, schedules, addendums, amendments, and exhibits, collectively the “Job” attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and intending to be legally bound, the parties hereto agree as follows:
- TERM & TERMINATION: (a) This Agreement will commence upon the Effective Date and continue until terminated by either party. Either party may terminate this Agreement at any time, without cause or penalty, upon 1 day’s prior written notice (24 hours) to the other party. For services cancelled less than 24 hours prior to intended service start time, the Client may liable to pay service fees including but not limited to a penalty amount equivalent to four (4) billable hours. For services cancelled less than 8 hours prior to the intended service start time, Client may be liable to pay a penalty equivalent to 8 billable hours, but no less than 4 billable hours, or the entire forfeiture of any deposits or down payments if applicable and collected, whichever is more. Either party may also terminate this Agreement for good cause upon 30 days’ prior written notice to the other party. “Good cause” for NWSS will include, without limitation, the following: (i) any material or persistent minor breach by Client of this Agreement; (ii) cancellation of or material change to any of NWSS’s insurance coverage relevant to this Agreement; (iii) a change in applicable laws or regulations that has a material effect on, or causes a material change to, the Services; or (iv) any act or omission of Client which, in NWSS’s reasonable opinion, brings or may bring NWSS’s business or reputation into disrepute. Client will be responsible for payment for all Services rendered through the termination date.(b) If Services include Remote Guarding, instead of Client’s rights of termination in Section 2(a), Client may only terminate this Agreement upon 60 days’ prior written notice to NWSS. NWSS’s rights of termination in Section 2(a) remain unchanged. (c) If Client terminates this Agreement for any reason, Client will pay for any unamortized costs related to any equipment used in connection with Services.
- SCOPE OF SERVICES; PERSONNEL: (a) NWSS will only provide Services specified in this Agreement or the Scope of Work, which is incorporated into this Agreement by reference. NWSS will not be obligated to perform, and will bear no responsibility for, any Services or duties performed that are not expressly specified in this Agreement. NWSS does not accept overall responsibility for security at the Site.
(b) NWSS may use contractors or vendors to provide some or all of the Services. NWSS (or a contractor or vendor of NWSS) may provide or install equipment in connection with the Services, and Client consents to any installation. All such equipment is for NWSS’s use and will always be NWSS property. NWSS is not selling or leasing any of the equipment to Client, and NWSS provides no warranty to Client regarding the equipment. Any implied warranties of merchantability and fitness for a particular purpose that may apply to the equipment are excluded. NWSS will be provided with reasonable time and access to remove all its equipment upon termination of this Agreement.
(c) NWSS is an independent contractor, and nothing in this Agreement creates a partnership or relationship of principal/agent or employer/employee. Personnel providing the Services are employees of NWSS or its contractors (NWSS may use contractors to provide some or all of the Services). NWSS may change such personnel at any time. Client may reasonably request changes in such personnel for lawful reasons. If NWSS makes Client’s requested changes, Client will be solely responsible for, and will defend and indemnify NWSS against, any Loss arising from such changes.
(d) If Client employs, directly or indirectly, any NWSS employee formerly assigned to the Site within one year from the last date on which the NWSS employee was employed by NWSS, Client will reimburse NWSS $2,500 per NWSS employee for costs in connection with recruitment, screening, training, etc.
(e) If Services include Remote Guarding, (i) neither NWSS nor its contractors will be responsible for any interruption or failure of power; (ii) neither NWSS nor its contractors will be responsible for any faulty, failed, interrupted, circumvented, or compromised data transmissions; (iii) Client is responsible for the design, installation, repair and maintenance of its own monitoring equipment and systems (“Monitoring System”); (iv) NWSS may, without penalty, modify, terminate or suspend Remote Guarding, shut down Client’s Monitoring System, lock Client’s panel, or render any monitoring equipment incapable of sending signals (1) if permitted, requested, or required to do so by any governmental authority, standards setting entity, or insurance interest, or (2) in NWSS’s reasonable discretion; (v) Client is responsible for (1) providing and maintaining adequate lighting for all video equipment, and (2) ensuring Client’s personnel and Monitoring System comply with all laws applicable to the use of video equipment; (vi) any Remote Guarding failure not caused by the negligence of NWSS or its contractors will not release Client from its obligations to pay any fees for Services; and (vii) any software, hardware, firmware, shareware, codes, information and documentation (“Proprietary Information”) associated with Remote Guarding are, and will remain, the property of NWSS or its contractors, as applicable, and any developments to the Proprietary Information will be the intellectual property of NWSS or its contractors, as applicable. Further, Client, on behalf of itself, its employees, agents and guests, grants consent to NWSS and its contractors to (i) intercept, record, retrieve, review, copy, disclose and use the contents of all transmissions received as part of Remote Guarding, and (ii) represent themselves as a security agent of Client and notify government agencies of suspicious or suspected criminal activities at the Site.
4. PAYMENT: (a) The terms of payment are defined above in this work order and is payable the net number of days specified on each invoice, without any setoff, to the remittance address on the invoice. Client’s failure to pay any amount when due will be a material breach by Client. A late charge of 1.5% per month will be added to balances not paid within 30 days of the date of the invoice. Client must notify NWSS in writing of any dispute regarding the amount of an invoice within 30 days from the invoice date; otherwise all disputes will be deemed waived. Client will bear all costs associated with NWSS receiving payments due for Services rendered under this Agreement. If NWSS must institute suit or collection services to collect amounts owed to NWSS, Client will pay NWSS’s attorneys’ fees and other costs of suit or collection.
(b) In the event of payment delay, NWSS may suspend the performance of Services upon 10 days’ prior written notice. Suspension will not release Client from any of its obligations under this Agreement. In case of non-payment based on Client liquidity problems, NWSS may condition continued performance on immediate cash payment for Services rendered (invoiced or not) or to be rendered.
(c) NWSS may raise the Service Fee upon 30 days’ prior written notice to account for any increases in (i) health care, benefit, or insurance costs, (ii) labor or fuel costs, (iii) costs arising from changes to laws, regulations, or insurance premiums, (iv) SUI or similar taxes, (v) contractor’s rates, or (vi) any other taxes, fees, costs or charges related to the Services.
- LIABILITY LIMITATION; INDEMNIFICATION: (a) The Service Fee is based upon the value of Services provided, not the value of the interests or property protected. Accordingly, NWSS makes no warranty or representation, express or implied, that the Services will produce a result or prevent any loss or damage. Client agrees that the limitations of liability and Client’s defense/indemnity obligations in Sections 5(c)-5(f) apply regardless of whether the Loss is alleged to arise, directly or indirectly, in whole or in part, from the negligence (active or passive) or misconduct of NWSS, its employees or agents, including that related to the hiring, training, supervision or retention of NWSS’s employees or agents, and Sections 5(c) – 5(f) apply in favor of NWSS’s contractors and vendors.
(b) NWSS will defend and indemnify Client against any Loss arising from the Services only to the extent the Loss is caused by the negligence of NWSS, its employees or agents while acting within the scope of their duties and authority. Client will defend and indemnify NWSS against any Loss in connection with this Agreement only to the extent the Loss is caused by the negligence of Client, its employees or agents.
(c) Notwithstanding anything to the contrary in this Agreement, in no event will NWSS or its insurers be liable for any (i) environmental damages, (ii) punitive, special, exemplary, liquidated, indirect, or consequential damages (including, without limitation, loss of profits or business), (iii) violent or armed action, or hi-jacking, or (iv) damages arising from or related to any circumstance beyond NWSS’s reasonable control (including, without limitation, any act of God or war, or any failure on the part of NWSS’s contractors or vendors).
(d) Notwithstanding anything to the contrary in this Agreement, in no event will either party or its insurers be liable to the other party for any Loss arising from or related to an act of terrorism. The parties intend for this waiver to “flow down” to their respective contractors.
(e) Notwithstanding anything to the contrary in this Agreement, if NWSS employees operate any vehicle other than one supplied by NWSS, Client will maintain insurance for the vehicle and the insurance will be primary, and Client will defend and indemnify NWSS against any Loss arising out of NWSS’s use of the vehicle.
(f) Notwithstanding anything to the contrary in this Agreement, in no event will NWSS be responsible for any theft or other loss of Client’s property not directly attributable to proven security officer thefts. In the event of allegation of security officer thefts, Client waives all right of recovery unless NWSS is notified of the allegations within 10 days, Client fully cooperates with NWSS in the investigation of the facts, Client presses formal charges, and a conviction is obtained; however, if all the foregoing conditions are satisfied, all applicable limitations of liability in this Agreement still apply.
(g) Written notice of any Loss arising out of or relating to this Agreement must be received by NWSS within 14 days following the date of the occurrence giving rise to such Loss. No action to recover any Loss will be instituted or maintained against NWSS unless such notice is received by NWSS.
(h) The Services are solely for the benefit of Client; neither this Agreement nor any Services confer any rights on any other party as a third-party beneficiary.
- INSURANCE: Client will maintain insurance to protect Client against loss or damage to its premises, business and property, and others’ property on Client’s premises. Client (on behalf of itself and its insurers) waives all rights of subrogation against NWSS, its contractors and vendors, and their respective employees, agents and insurers. If NWSS provides any insurance coverage (additional insured or otherwise) for Client or any others, such insurance coverage will only cover Client and the others for liability specifically assumed by NWSS in this Agreement. As security for Client’s defense and indemnity obligations in this Agreement, Client will name NWSS as an additional insured under Client’s relevant insurance policies, and Client will provide NWSS with a certificate of insurance evidencing such coverage upon request.
- FORCE MAJEURE: The following circumstances will be considered as grounds for relief if they delay or impede the performance of this Agreement: any circumstance beyond the reasonable control of a party such as fire, war, mobilization or military call up of a comparable scope, requisition, seizure, currency restrictions, insurrection and civil commotion, hi-jacking or an act of terrorism, shortage of transport, general shortage of materials or personnel, industrial disputes and defects or delays in deliveries by contractors caused by any such circumstance as referred to in this Section. The party desiring relief under this Section will inform the other party by written notice without delay on the occurrence and on the cessation of such circumstance. If grounds for relief prevent Client from fulfilling its obligations, Client will reimburse NWSS for costs incurred in securing and protecting the Site. Client will also reimburse NWSS for costs incurred for personnel, contractors and equipment which, with the consent of Client, are held in readiness to resume the Services.
- CLIENT’S COMMITMENT: Client will at all times cooperate with NWSS to allow NWSS to provide the Services under the best possible conditions, and failure to provide such cooperation will be a material breach by Client. Such cooperation includes, without limitation, Client providing (i) a safe, healthy working environment for NWSS personnel in accordance with applicable laws and regulations, (ii) all relevant information, access and assistance that NWSS reasonably requires to perform the Services without interruption, including, without limitation, suitable office space and utilities, and (iii) prompt notice of anything that may affect NWSS’s safety, risk or obligations under this Agreement or which may lead to an increase in NWSS’s costs of providing the Services.
- SEVERABILITY: If any provision of this Agreement is held to be unenforceable, it will be modified to be enforceable to the maximum extent permitted under applicable law and all other terms will remain in full force. If the unenforceable provision cannot be so modified, it will be excluded from this Agreement, and all other terms of this Agreement will remain in full force.
- PRECEDENCE: In the event that the different parts of this Agreement are conflicting, the written documents forming part of this Agreement will prevail in the following order: (i) this Agreement; (ii) the Scope of Work; and (iii) any other written documentation attached hereto.
- NOTICES: All official notices will be in writing and made by overnight mail or certified mail, addressed to the other party at its address set forth in this Agreement or at such other address as the other party may have designated in writing.
- ASSIGNMENT: Neither party will assign this Agreement without the other party’s prior written consent, which will not be unreasonably withheld. However, upon 30 days’ prior written notice to the other party, either party may assign this Agreement at any time to any of its affiliates, subsidiaries or successors.
- LAW & JURISDICTION: (a) This Agreement will be governed by the law of the State in which the applicable Services are performed. The parties hereby submit to the jurisdiction of the courts of such State. All terms in this Agreement are only intended to apply to the maximum extent permitted by applicable law.
- (b) NWSS complies with all applicable laws and regulations, including 29 CFR Part 471 Appendix A, Executive Order 11246 (as amended), Section 503 of the 1973 Rehabilitation Act (as amended), Section 402 of the 1974 Vietnam Era Veterans Readjustment Assistance Act, and the 1998 Veterans Employment Opportunities Act.
- ENTIRE AGREEMENT: This Agreement and anything attached to or incorporated into them, constitute the entire agreement between the parties. Any representations, promises or agreements not embodied in this Agreement will not be enforceable. All changes to this Agreement will only be binding on a party if approved in writing by an authorized representative of that party.