STANDARD TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1. In this agreement, unless expressly stated otherwise, the following words mean:
“Agreement” means this Agreement which includes the Terms, the Monitoring Services Schedule and the Maintenance Services Schedule (being those documents contained in Annexure A and B to the Agreement) and the Client Data Entry Sheet;
“Agreement Date” means the date of execution of the Agreement by the parties;
“Alarm Signal(s)” means events generated from the Client’s security alarm system to the Monitoring Facility.
“Balance of Service(s)” means all charges outstanding for Services provided under this Agreement;
“Client” means the person or company named in the Agreement and its successors and permitted assigns;
“Client Data Entry Sheet” means the form that contains all of the Client data and instructions on how the Monitoring Facility should action any Alarm Signals received from the Client’s security alarm system;
“Commencement Date” means the starting date of the Services provided under the Agreement;
“Company” means Rechenberg Pty Limited (ABN 19 056 472694) trading as Rechenberg Security, and its assigns;
“Company’s Nominated Postal Address” means 7a Maryborough St, Bundaberg, Queensland, 4670 or 2/36 Curzon Street, Tennyson, Brisbane, 4105, or as current at the time;
“Comprehensive Maintenance” means system repairs as required and/or requested by the Client as outlined in the Maintenance Services Schedule;
“Contract Term” means the Term of the Agreement specified in clause 3;
“Emergency Services” means the fire brigade, police, ambulance or other relevant emergency response service or any other authority designated in writing by the Client;
“Equipment” means the individual components of the equipment required solely to enable the provision of the Services;
“False Alarm(s)” means Alarm Signals generated from the Client Premises which are of an unknown nature or client error;
“Fee(s)” means the monthly or quarterly fee specified in the Agreement for the provision of the Services, excluding any taxes payable thereon;
“GST” means any value added tax or similar tax impost or duty on goods and/or services and includes GST defined under A New Tax System (Goods and Services Tax) Act 1999;
“Installation Date” means the date of completion of the installation of the Equipment as provided by the Agreement;
“Installation Charges” means the fees charged by the Company to supply and/or install the Equipment;
“Interest Rate” means the National Australia Bank Limited business options loan base rate plus a margin of 4%;
“Keyholder” means the person(s) nominated by the Client to be contacted in the instance of an event being received from the alarm system at the telephone number advised in writing by the Client from time to time. Keyholders must have keys for, and have access to the client’s premises;
“Monitoring” means monitoring the Alarm Signals received from a security alarm system from the equipment and actioning those events as soon as practicable;
“Monitoring Facility” means the Monitoring Facility of the Company;
“Notice” means communications by a party to another party permitted or required under the Terms of the Agreement; “Patrol Response or Patrol Response Services” means dispatching the Client’s nominated Patrol response provider; “Premises” means the Premises listed on the Agreement where the Equipment is installed;
“Preventative Maintenance” means one annual system check-up as outlined in the Maintenance Services Schedule. Any repairs or parts required are at an additional cost to the Client;
“Present Value” relates to the recurring charges and means the amount payable by the Client at termination as calculated by applying to the remaining Term a discounted rate of 10% per year; “Routine Inspection” means an agreed schedule of inspection of the Equipment as outlined in the Maintenance Services Schedule. Any repairs or parts required are at an additional cost to the Client;
“Services” means the Services as set out in the Agreement, plus all equipment required solely to enable provision of the Services;
“Telephone Carrier” means the telecommunication company that provides the network to transmit the alarm system signal(s) from an electronic security system to the Monitoring Facility;
“Termination Date” means the date of termination of the Agreement in accordance with clause 3 and is subject to clause 12 of this Agreement;
“Term” means the length of the Agreement as set forth in the Security Services Agreement, in accordance with clause 3;
“Terms” means the whole of the Terms and Conditions as contained in the Agreement including the Monitoring Services Schedule and the Maintenance Services Schedule (being those documents contained in Annexure A and B to the Agreement);
1.2. This Agreement will be interpreted so as to be consistent with the law and should any provisions of the Agreement be inconsistent with the law, then the same shall be severed so as to permit the balance of the Agreement to operate to the fullest extent permitted by law.
2. TERMS
2.1. The Terms govern all of the provision of Services and the supply of Equipment ancillary thereto from the Company to the Client.
2.2. The Terms contain the whole of the agreement and understanding between the Company and the Client and there are no other conditions, warranties or understandings affecting the arrangements between the parties (except those implied by force of law). No understanding, arrangement or provision not expressly set out in this agreement will bind the parties.
2.3. This Agreement is not valid until accepted by an Authorised Representative of the Company.
2.4. The Agreement is governed by the law of Queensland and the parties agree to submit to the nonexclusive jurisdiction of the courts of Queensland and all courts competent to hear appeals from the courts of Queensland.
3. TERM
3.1. The Agreement Term begins on Commencement Date, and shall continue for the Term indicated in the Security Services Agreement.
3.2. This Agreement shall renew automatically for successive periods of one (1) year thereafter unless either party gives the other party written notice of termination not later than the 30th day before the last day of the then existing Term.
3.3. Termination of the Agreement shall be in accordance with sub-clauses 3.1 and 3.2 and is subject to clause 12.
4. ACCEPTANCE
4.1. Once the Agreement has been signed by the Client and is approved by the Company then the Agreement is a binding agreement for the supply of the Equipment and/or the provision of the Services on the Terms. Accordingly all correspondence, negotiations and other communications between the parties in relation to the subject matter of this Agreement which precede this agreement are superseded by and merged in it.
4.2. The Company reserves the right to review and vary the Terms by notice in writing to the Client from time to time.
5. DELIVERY AND INSTALLATION
5.1. Any time for delivery and installation of the Equipment or Monitoring Services or Maintenance Services stated by the Company by written notice to the Client is an estimate only.
5.2. Whilst the Company will use all reasonable endeavours to deliver and install the Equipment or Monitoring Services or Maintenance Services by a requested delivery date, it does not warrant that such delivery or installation date will be met, and the Company is not liable for any loss or damage whether direct or consequential arising as a consequence of any such failure.
6. PATROL RESPONSE SERVICES
6.1. The Client acknowledges that while the Company dispatches and in some cases invoices the Client for Patrol Response Services, it does not necessarily employ or directly provide these services. The Company dispatches the Client’s nominated Patrol Response Company per their instructions, and on-charges the fees as a convenience to the Client. The Client further acknowledges and accepts that the Company makes no warranties or representations with respect to Patrol Response times or performance and agrees to indemnify the Company in accordance with clause 10, with regards to Patrol Response Services.
6.2. If the Client elects to have their Patrol Response charges included in their recurring billing, the Client accepts those services in accordance with clause 6.1.
7. FEES, PAYMENT AND COLLECTION
7.1. The Installation Charges are due and payable upon completion unless otherwise agreed in writing between the parties on the Agreement.
7.2. Any reasonable charges incurred by the Company directly related to the installation of the Equipment in addition to the Installation Charges will be invoiced to the Client after the Installation Date and will be payable by the Client upon invoice.
7.3. Commencing from the Agreement Date, the Client must:
(a) pay the annual, quarterly or monthly Fee as specified in the Agreement; and
(b) if no method of payment is specified in the Agreement, pay the Fee monthly, in advance commencing on the first day of each month, including all taxes and charges.
7.4. If any Fee and any other costs or Fees payable to the Company (including the costs referred to in subclause 7.6) are not paid by the due date then, in addition and without prejudice to its other rights and remedies, the Company may demand payment of that amount owing to the Company, and charge interest on the amount owing at the Interest Rate from the due date until the date of actual payment.
7.5. All payments by the Client must be made in full and without any deduction or right of set off or counterclaim, unless as agreed in writing by the Company.
7.6. All costs of debt collection (including costs incurred by any debt collection agency appointed by the Company to collect the monies owing), all expenses and legal costs incurred by the Company to enforce or attempt to enforce any of the Terms or to exercise or attempt to exercise any of the Company’s rights or remedies under the Terms shall be included in the amounts owing by the Client to the Company from the date they are incurred by the Company.
7.7. The Client acknowledges their responsibility for all Carrier charges, such as connection, data or call costs as may be required to transmit the alarm system signals to the Company.
8. ALTERATION TO THE PREMISES
8.1. The Client must notify the Company of any proposed structural alteration to the Premises where the Equipment is installed.
8.2. Subject to sub-clause 8.1, the Company, at the Client’s expense must carry out any alteration to the Equipment or to its installation as required due to structural alterations to the Premises.
8.3. The Client acknowledges that alterations to the Premises including structural or the relocation of furniture, fixtures, etc may compromise or minimise the original design or effectiveness of the Equipment. It is the Client’s sole responsibility to contact the Company if such alterations have or are planned to take place. The Company is not responsible for any loss or damage associated with and alterations to the premises which have not been notified to the Company and in respect which the Company had no opportunity to confirm and ensure the continued effectiveness of the Equipment.
9. ACKNOWLEDGEMENTS, DISCLAIMERS AND CLIENT INSURANCE
9.1. The Client acknowledges that the Equipment has been selected from the range of products sold or used by the Company in the provision of the Services, having regard to the Client’s stated requirements to the Company as to:
(a) the cost;
(b) the Client’s assessment of the degree of risk of unlawful entry and theft; and
(c) the nature and contents of the Premises.
9.2. It is understood and accepted between the parties that:
(a) the Client must obtain insurance against fire, theft, damage, injury or any other cause at its own cost. The Services provided by the Company are not meant to be a substitute for insurance coverage;
(b) the costs and Fees payable by the Client are based solely on the value of the Equipment purchased/installed or the Services provided, and are unrelated to the value of the Client’s property or the property of a third party located at the Premises;
(c) the Services or Equipment and or the Services provided cannot prevent an unlawful entry from occurring on the Premises and, any loss or damage to the Client’s property or the death or injury of any person that occurs as a result of unlawful entry is not the responsibility of the Company. The Client agrees to indemnify and hold harmless the Company in respect of any liability arising under this subclause;
(d) The Company does not represent that the Equipment, the Company’s Monitoring Facility or the telecommunication lines connecting the Equipment may not be circumvented or will in all cases carry out the function for which they were designed;
(e) except as may be specified in the Agreement, the Equipment relies on a normal, non-secure (PSTN) telephone line and if such line becomes unavailable, is compromised or ceases functioning for any reason, the Equipment will only function as a local (non-monitored) alarm system. The Client acknowledges that it has been made aware of a higher standard of secure line monitoring by the Company, and unless contracted under this Agreement, has chosen not to upgrade to this enhanced level of protection.
10. COMPANY’S LIMITATION OF LIABILITY AND THIRD PARTY INDEMNITY
10.1. Subject to clause 10.2 the Company will not be liable to the Client or to any other person or third party in respect of any loss or damage arising directly or indirectly (including, without
limitation, damages for loss of business, business interruption, loss of business information, loss of goods and/or personal items and/or other indirect or consequential loss) from the performance or non- performance of the Equipment, or its use or misuse, provision of the Services, power failures, surges, lightning, blown fuses, Patrol Response Services or any breach by the Company of any of its obligations under this Agreement.
10.2. It is acknowledged by the Company and the Client that the Competition and Consumer Act 2010 and the Fair Trading Act 1989 imply certain conditions or warranties in certain contracts and also gives parties to those contracts certain other rights against suppliers of goods and services. To the extent that such conditions, warranties or other rights are implied or given by force of law in respect of the Agreement and it is not lawful to exclude or otherwise limit their operation, then such conditions, warranties and other rights shall (but only to the extent required by law) apply to the Agreement and all other conditions, warranties or rights which might be implied are expressly excluded.
10.3. Where Equipment and the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Company’s liability for any breach of a condition or warranty implied in the Competition and Consumer Act 2010 and the Fair Trading Act 1989 shall be limited to any one or more of the following, at the Company’s sole discretion:
(a) in respect of Equipment:
i. the cost of having the Equipment repaired;
ii. the cost of obtaining equivalent Equipment; or
iii. the cost of replacing of the Equipment;
(b) in respect of the Services;
i. the supplying of the Services again; or
ii. the payment of the cost of having the Services supplied again.
10.4. Subject to sub-clauses 10.2 and 10.3, if the Company is found liable for any loss or damage sustained or suffered by the Client or any other person, whether such loss or damage arises from a breach by the Company of any contractual provision or is due to or arises from any negligence or act of commission or omission on the part of the Company, its employees or agents in any respect or the failure of the Equipment to operate properly, the maximum liability of the Company under this Agreement and at common law is limited to a sum not exceeding:
(a) in the case of any claim arising from the Equipment, an amount equal to the purchase price of the Equipment; or
(b) with regard to the Services an amount not to exceed three (3) months of the Fees.
10.5. To the maximum amount allowable by law, the Client agrees to indemnify, defend and hold the Company harmless from any claims and actions by any person not a party to this Agreement being claims based on any reason whatsoever, except to the extent such action occurs while an employee or agent of the Company is on the Premises and such loss, damage, expense and liability is solely and directly caused by the said employee or agent.
10.6. Express Warranty – The Equipment will be replaced or repaired by the Company during normal working hours at no cost to the Client for a period of one (1) year from the Installation Date. This obligation shall exclude:
(a) damage to the Equipment caused by any person other than a person authorised by the Company to repair or deal with the Equipment;
(b) damage to the Equipment caused by the Client or any third party;
(c) damage to the Equipment caused by power surges, lightning, blown fuses or any forces of nature outside of the Company’s control; and (d) replacement of consumables (including system batteries).
11. EQUIPMENT, REPAIRS AND FALSE ALARMS
11.1. The Client must maintain the Equipment in good order and repair at their expense, unless contracted for under this Agreement. The Company recommends that in accordance with the Australian Standard (AS) 2201, the system is checked and tested (including any battery components) every twelve (12) months by a licenced and qualified Company technician.
11.2. All related repair costs associated with False Alarms shall be the responsibility of the Client unless the Client has a contract for Comprehensive Maintenance under this Agreement.
11.3. The Company recommends regular testing of the Equipment and the Client acknowledges their responsibility to test the operation of all alarm system components regularly; this should include testing the transmission of Alarm Signals to the Monitoring Facility.
12. TERMINATION
12.1. The Company may immediately terminate the Agreement if:
(a) the Client breaches any Terms of this Agreement or any other agreement the Client may have with the Company; or
(b) the Client enters into, or threatens to enter into, or is likely to become subject to any form of insolvency, administration, whether formal or informal or threaten to cease or is likely to cease to conduct business carried on in the normal manner, or being a natural person dies or being a partnership, dissolves or resolves to dissolve, or being a corporation becomes an “externally administered body corporate” as defined in the Corporations Law Act, or in the opinion of the Company in its absolute discretion cannot or will not pay its debts as and when they fall due; or
(c) the Client vacates the Premises or fails to pay any amount under this Agreement within 10-days after the payment is due.
12.2. On the Termination Date of this Agreement or in accordance with sub-clause 12.1 the Company may pursue one or more of the following remedies (the remedies are cumulative and the exercise of one does not preclude the exercise of any other right):
(a) by written notice to the Client declaring the amount owing under the Present Value in accordance with subclause 7.5, to be immediately due and payable within 10-days of termination; and
(b) by written notice to the Client declaring the amount owing for the Balance of Service; or
(c) proceed at law to enforce performance by the Client of the Terms or recover damages for the breach of this Agreement.
12.3. The Client may terminate this Agreement at any time upon giving 30-days written notice to the Company; by
(a) paying the Present Value of the remaining Term of the Agreement within 10-days of their notification of termination; and
(b) paying any outstanding Balance of Service within 10-days of their notification of termination.
13. INCREASED FEES
13.1. The Company may increase the Fees at any time or times after the commencement of this Agreement provided that the Company has provided 14-days written notice to the Client.
13.2. The Client must notify the Company in writing within 14-days of a Fee increase notice indicating any objection to such increase, failing which the Client shall be deemed to have agreed to such increase.
13.3. Where the Client objects to any increase in the Fees, the Company may elect to either:
(a) continue this Agreement, without any notice to the Client, on the same Terms in effect immediately prior to the notice provided under sub-clause 13.1; or
(b) terminate the Agreement on 30-days written notice to the Client in accordance to subclause 12.2.
13.4. The Client may terminate this Agreement in the event of an increase by:
(a) providing written notice to the Company within 30-days of the increase notice; and
i. paying the Present Value of the remaining Term of the Agreement at the amount in effect immediately prior to the notice provided under subclause 13.1, payable within 10-days of their notification of termination; and
ii. paying any outstanding Balance of Service within 10-days of their notification of termination.
14. POST TERMINATION
14.1. After termination of the Agreement for any reason, the Client is responsible for ensuring that any Equipment remaining at the Premise is no longer communicating with the Company. Any cost required to disconnect the Equipment from the Company or other costs relating to Equipment still communicating with the Company (including Carrier charges such as connection, data or call costs billed directly or indirectly to the Client) is the responsibility of the Client.
15. ASSIGNMENT
15.1. The Client’s rights, interests and obligations under this Agreement are personal to it and may not be assigned, transferred, charged or otherwise dealt with by the Client without the prior written consent of the Company.
15.2. The Client acknowledges and agrees that the Company may, without the Client’s consent, assign, transfer subcontract or charge all or part of its rights, interests or obligations under this Agreement to any person including, without limitation, any person in which the company has an interest whether by way of ownership or control, and that no such assignment, transfer or charge prevents the Company from exercising any rights or claiming the benefit of any exclusions, limitations, indemnities or other protections under this Agreement.
16. SEVERANCE
16.1. If any of these Terms are held to be invalid, void or illegal, the enforceability of the remaining Terms shall not be affected, prejudiced or impaired.
17. PRIVACY
17.1. The Company collects the personal information (if any) in this Agreement in order to provide security services and equipment to its Clients. Without this personal information being provided we may be unable to assess credit applications, administer the services or manage the client’s account. Some of the personal information collected by the Company may be disclosed to third parties so that we may manage the security services being provided to the Client including Patrol providers and Banks. You may request access to the personal information that the Company holds about the Client or request a copy of the Company Privacy Policy by contacting 1300 852 138.
18. REFERRAL FEE
18.1. The Client acknowledges that on entering into the Agreement, the Company may pay a commission or referral fee to a third party in consideration for any referral or introduction of the Client by that third party.
19. GUARANTEE
19.1. In consideration of the Company agreeing to supply the Services to the Client, the person(s) signing this Agreement (or others on your behalf) hereby jointly and severally guarantee the payment on demand of all monies which are or shall hereafter become due. This guarantee shall be a continuing guarantee and shall not be affected by the Company giving time or any other indulgence to the Client, nor shall any of the Company’s rights to sue the Client be affected hereby.
20. VARIATION
20.1. The Company may vary any provision of these Terms and Conditions at any time or times after the commencement of this Agreement provided the Company has given 14 days written notice to the Client.
20.2. The Client may terminate this Agreement if it does not accept the variation by: providing written notice to the Company within 30 days of the variation notice; and
(a) by paying the Present Value of the remaining term of the Agreement at the amount in effect immediately prior to notice provided under sub-clause 2.1, payable within 10 days of its notification of termination; and
(b) paying any outstanding Balance of Service within 10 days of its notification of termination.
21. ACKNOWLEDGEMENT
21.1. By signing this Agreement, the Client acknowledges and agrees that the Client has read and understood the Terms, as well as the Monitoring Services Schedule and Maintenance Services Schedule (if applicable).
22. MAINTENANCE SERVICE SCHEDULE
22.1. The Company shall provide to the Client Preventative Maintenance Services, as ordered on the signature page of the Agreement, as follows:
Preventative Maintenance
(a) Preventative Maintenance comprises scheduled, on-site inspections of the Client’s Security system by licenced technicians. The technician will advise the current state of the security system, and any recommended repairs/upgrades that are required to ensure the ongoing optimal functionality of the security system.
(b) Preventative Maintenance includes the travel, labour, service and inspection of equipment as specified on the Security Services Agreement and the findings of the inspection, but does not include the cost of any repairs, equipment or consumable products that may be required to return the system to optimal functionality.
(c) Preventative Maintenance is only available during normal working hours, Monday to Friday but excluding public holidays.
(d) Any further repairs or service required to the security system is only available during normal working hours, Monday to Friday but excluding public holidays, unless otherwise agreed to.
(e) Any further repairs or service required will be charged for at the Company’s standard rates.
(f) Any repairs or service required outside of normal working hours will be charged for at the Company’s after hour’s rates.
22.2. The company reserves the right to cancel the Preventative Maintenance Service at the end of the term if the Company deems the Equipment to be in a condition that it can no longer be maintained to an optimal functioning state.