Terms & Conditions
ART I – GENERAL TERMS AND CONDITIONS
2. Definitions
2.1 “ES” means Endless Security Pty Ltd, its successors and assigns or any
person acting on behalf of and with the authority of Endless Security Pty Ltd.
2.2 “Client” means the person/s buying the Products as specified in any invoice,
document or order, and if there is more than one Client is a reference to each
Client jointly and severally.
2.3 “Products” means all Products or Services supplied by ES to the Client at
the Client’s request from time to time (where the context so permits the terms
‘Products’ or ‘Services’ (including Monitoring Services) shall be interchangeable
for the other).
2.4 “Price” means the Price payable for the Products as agreed between ES and
the Client in accordance with clause below.
2.5 “Client’s Documented Instructions” shall only include the Client’s written
instructions to ES detailing procedures and the Client’s details and only if
acknowledged by written reply from ES. Verbal instructions do not form part of
this contact ES can not be held responsible foe verbal instructions to ES
employees or contractors
2.6 “Extra Work” means work authorised by the Client and carried out by ES for
which an extra charge is payable at ES’ normal rates in addition to work
accepted by the Client in a written quotation. Extra Work includes:
(a) service work undertaken on a ‘do and charge’ basis and is not necessarily
specified as exclusions in any quotation;
(b) repairs and replacement parts, except in the event that such work is
completed under warranty as agreed by ES;
(c) system maintenance, unless otherwise agreed by ES in writing.
3. Acceptance
3.1 The Client is taken to have exclusively accepted and is immediately bound,
jointly and severally, by these terms and conditions if the Client places an order
for Product or Service or accepts Delivery.
3.2 These terms and conditions may only be amended with ES’ consent in
writing and shall prevail to the extent of any inconsistency with any other
document or agreement between the Client and ES.
3.3 Electronic signatures shall be deemed to be accepted by either party
providing that the parties have complied with Section 9 of the Electronic
Transactions Act 2000 or any other applicable provisions of that Act or any
Regulations referred to in that Act.
3.4 These terms and conditions may be meant to be read in conjunction with ES’
quotation, and:
(a) where the context so permits, the terms ‘’Products’ or ‘Services’ shall include
any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms
and conditions contained therein shall prevail.
3.5 The Client acknowledges that, as well as its own staff, ES uses contractors
for provision of most Services provided by ES.
Information regarding contractors is available on request.
4. Change in Control
4.1 The Client shall give ES not less than fourteen (14) days prior written notice
of any proposed change of ownership of the Client and/or any other change in
the Client’s details (including but not limited to, changes in the Client’s name,
address, contact phone or fax number/s, or business practice). The Client shall
be liable for any loss incurred by ES as a result of
the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At ES’ sole discretion the Price:
(a) is based solely on the value of Products and/or Services and are unrelated to
the value of the Client’s premises or property or the property of others located
at the Client’s premises; and
(b) is based upon the technician or installation team having complete and free
access for the duration of project to allow uninterrupted completion of the
installation. Access to the premises is required from 8:00am to 5:00pm Monday
to Friday. Out of hours work is subject to further negotiation to accommodate
the Client’s requirements; and
(c) shall be either:
(i) as indicated on any invoice provided by ES to the Client; or
(ii) ES’ quoted price (subject to clause 5.2) which will be valid for the period
stated in the quotation or otherwise for a period of thirty (30) days; after which
ES may need to re-assess the quoted Price in line with any movements in ES’
costs; and:
(d) unless specified otherwise, boring, trenching, posts, fibre and steel conduit
is not included in the quoted Price, nor are charges in connection with the
Products which are levied by distribution network supply providers or other
statutory providers, and any third-party services required for the Services (as
specified in ES’ quotation); and such will be treated
as a variation under clause 5.2.
(e) the quotation assumes that all existing equipment and cabling are in full
working order. Should such existing equipment or cabling be found to be
unserviceable, or should any additional work, repairs or replacements become
necessary during the installation of the Products, ES will submit to the Client for
approval, prior to commencement of the Services, an additional quotation for
the work required at its normal service rates.
(f) ES’s quotation is submitted on the understanding that, if based on draft
plans, a site meeting and a more accurate location of camera plan and sundry
items will be required.
5.2 Additional Services and/or upgrades are always recommended, are available
upon request, and are not limited to ES’ quotation. Independent advice should
be sort before purchase. ES reserves the right to change the Price:
(a) in the event of a variation to ES’ quotation. Any variation from the plan of
scheduled Services or specifications (including, but not limited to, any variation
as a result of Extra Work required due to unforeseeable problems with the site
which are only revealed when undertaking the Services, such as any existing
cabling which does not comply with Australian Standards and causes the new
installation to be non-compliant, or as a result of increases to ES in the cost of
materials and labour) will be detailed in writing and charged for on the basis of
ES’ quotation and will be shown as variations on the invoice.
Payment for all variations must be made in full at their time of completion; or
(b) if a variation to the Services originally scheduled (including any applicable
plans or specifications) is requested, including any additional costs incurred by
ES where the Client requests the acceleration of the existing work schedule (as
per clause 6.6); or
(c) as a result of an increase in ES’ costs due to changes in statutory,
government, or local body charges, taxes, levies, etc.
with respect to the Services, fluctuations in currency exchange rates or due to
relevant industry awards (e.g. special site allowances applicable to the premises
where the Services are carried out and severance pay), which are outside the
control of ES; or
(d) at any time, provided the Client receives one (1) months prior written notice.
5.3 Variations will be detailed in writing and charged for on the basis of ES’
quotation, and will be shown as variations on ES’ invoice. The Client shall be
required to respond to any variation submitted by ES within ten (10) working
days, and failure to do so will entitle ES to add the cost of the variation to the
Price. Payment for all variations must be made in full at their time of
completion. The Client shall not, without the prior written consent of ES, have
any variation work carried out by any other party during the performance of the
Services by ES.
5.4 At ES’ sole discretion, a deposit may be required.
5.5 Time for payment for the Products being of the essence, the Price will be
payable by the Client on the date/s determined by ES, which may be:
(a) on Delivery;
(b) by way of instalments/progress payments in accordance with ES’ payment
schedule;
(c) the date specified on any invoice or other form as being the date for
payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following
the date of any invoice given to the Client by ES.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line
banking, credit card (plus a surcharge of up to three percent (2%) of the Price),
or by any other method as agreed to between ES and the Client.
5.7 Unless otherwise stated the Price includes GST. In addition to the Price the
Client must pay to ES an amount equal to any GST ES must pay for any supply
by ES under this or any other agreement for the sale of the Products. The Client
must pay GST, without deduction or set off of any other amounts, at the same
time and on the same basis as the Client pays the Price. In addition the Client
must pay any other taxes and duties that may be applicable in addition to the
Price except where they are expressly included in the Price.
5.8 In the event that a Client’s account falls into arrears, ES reserves the right to
suspend or terminate the Services or monitoring of the Client’s alarm system
after giving the Client seven (7) days’ notice in writing.
5.9 No allowance has been made in the Price for the deduction of retentions. In
the event that retentions are made, ES reserves the right to treat all retentions
as placing the Client’s account into default.
6. Delivery and Installation
6.1 Delivery of the Products (“Delivery”) is taken to occur at the time that ES (or
ES’ nominated carrier) delivers the Products to the Client’s nominated address,
even if the Client is not present at the address.
6.2 At ES’ sole discretion, the costs of Delivery are either included in, or in
addition to, the Price.
6.3 ES may deliver the Products in separate installments. Each separate
instalment shall be invoiced and paid in accordance with the provisions in these
terms and conditions.
6.4 Any time specified by ES for supply of the Products is an estimate only and
ES will not be liable for any loss or damage incurred by the Client as a result of
any delay. However, both parties agree that they shall make every endeavour to
enable the Products to be supplied at the time and place as was arranged
between both parties. In the event that ES is unable to supply the Products as
agreed solely due to:
a) any action or inaction of the Client (including any delays caused in
consequence of proceedings being taken or threatened by, or disputes with,
adjoining or neighbouring landowners, where ES’ technical staff is waiting for
access and/or clearing of obstacles, or other Client causes), then ES shall be
entitled to charge a reasonable fee for re-supplying the Goods at a later time
and date, and ES shall be entitled to charge a reasonable fee for redelivery
and/or storage of any Products; or (b) any reason beyond the control of ES
(including inclement weather, additional time required on prior jobs, emergency
or force majeure events, latent conditions requiring additional works, etc.), then
the Client agrees to indemnify, and hold harmless, ES against all claims of
consequential loss resulting from such delay.
6.5 The Client shall provide, at the Client’s cost, all 240Volt AC power, power
outlets, ADSL, telephone points and network points for the installation and
operation of the installed systems. ES may provide separate quotes for
electrical services if requested by the Client.
6.6 In the event that ES is required to provide the Services urgently, requiring
ES’ staff to work outside normal business hours (including but not limited to
working, through lunch breaks, weekends and/or public holidays), then ES
reserves the right to charge the Client additional labour costs (penalty rates will
apply) as per clause 5.2(b), unless otherwise agreed between ES and the Client.
6.7 Sections of the Services will be handed over to the Client (or the Client’s
representative) onsite when the applicable stage is completed. The Client shall
accept such sections, which shall thereafter be at the Client’s risk and deemed
as practically completed. Where the Client requests ES to suspend or delay the
Services prior to completion of any stage, ES shall hand over that section to the
Client as per this clause 6.7.
6.8 Completion of the Services shall be effected when installation of the
Products is suitable for the Client’s commercial operation, and the Client has
signed the “Commissioning and Acceptance Certificate”.
6.9 If insurance discounts are being sought, and the installation is subject to
approval by the Client’s insurers, any further protection or detection required,
will be carried out at the Client’s cost.
7. Risk
7.1 If ES retains ownership of the Products under clause 10.1 then:
(a) where ES is supplying Products only, all risk for the Products shall
immediately pass to the Client on Delivery and the Client must insure the
Products on or before delivery. If any of the Products are damaged or
destroyed following Delivery but prior to ownership passing to the Client, ES is
entitled to receive all insurance proceeds payable for the Products. The
production of these terms and conditions by ES is sufficient evidence of ES’
rights to receive the insurance proceeds without the need for any person
dealing with ES to make further enquiries. If the Client requests ES to deliver the
Products to an unattended address, then such Products shall be left at the
Client’s sole risk; or (b) where ES is to both supply and install Products then ES
shall maintain Workers’ Compensation Insurance, Public Liability Insurance and
insurance in respect of risk of damage to the Products for the duration of the
Services. It is the Client’s responsibility to ensure that they are similarly insured.
7.2 Notwithstanding the provisions of clause 7.1(b), where ES requires that
Products, fittings and appliances, or plant and tools required for the Services
be stored at the site, the Client shall supply ES a safe area for storage and shall
take all reasonable efforts to protect all items from possible destruction, theft
or damage. In the event that any of the stored items are destroyed, stolen or
damaged, then the cost of repair or replacement shall be the Client’s
responsibility.
7.3 The Client acknowledges that in the event asbestos or any other toxic
substances are discovered during the installation that it is the Client’s
responsibility to ensure the safe removal of the same. The Client further agrees
to indemnify ES against any costs incurred by ES as a consequence of such
discovery. Under no circumstances will ES handle removal of
any asbestos product.
7.4 The Client acknowledges and accepts that:
(a) ES is not an insurer and any insurance against fire, theft, damage, loss, loss
or reputation, death, injury or any other cause to the premises, property or
persons must be obtained by the Client at its own coats; and (b) all electronic
security systems, smoke detectors, heat detectors and any similar devices
installed at or attached to the address are:
(i) for monitoring and detection purposes only and should not be regarded as
life saving devices; and (ii) do not guarantee that the address will be free from
malicious damage or loss caused by attack and/or breaking or entering.
7.5 It shall be the Client’s responsibility:
(a) to ensure the security system equipment is tested and maintained to full
operational condition; and (b) for all phone calls emanating from the security
system panel; and (c) to ensure all electronically protected areas are free from
obstacles which may impair the operation of the system.
8. Access and Damage
8.1 It shall be the Client’s responsibility to:
(a) ensure that ES has clear and free access to the nominated address at all
times to enable them to deliver the Services.
ES shall not be liable for any loss or damage to the address (including, without
limitation, damage to pathways, driveways and concreted or paved or grassed
areas) unless due to the negligence of ES. The Client agrees to ensure that the
premises shall at all times be a safe working environment and (without
limitation) shall not contain asbestos or any other such similar hazard of any
infections or building disease; and (b) make the site available on the agreed
dates and times. If the Services are delayed or interrupted by the failure of the
Client to adhere to the installation schedule agreed to between ES and the
Client, any additional costs will be invoiced to the Client as per clause 5.2(a);
(c) advise ES in the event of any changed circumstances, or planned changes, to
the premises which might affect ES’ ability to provide Services in a safe manner.
8.2 ES shall not be held responsible for any damage to the Products (including
dug up/cut cabling) caused by outside agents. Where the Client requests ES to
provide additional Services where such damage occurs, then ES reserves the
right to charge the Client for any costs incurred in doing so.
9. Compliance with Laws
9.1 The Client and ES shall comply with the provisions of all statutes,
regulations and bylaws of government, local and other public authorities that
may be applicable to the Services, including any occupational health and safety
laws relating to building/construction sites and any other relevant safety
standards or legislation.
9.2 The Client shall:
(a) be liable for any costs incurred by ES due to the Client’s failure to comply
with clause 9.1; and (b) obtain (at the expense of the Client) all licenses and
approvals that may be required for the Service.
10. Product Title
10.1 ES and the Client agree that ownership of the Products shall not pass until:
(a) the Client has paid ES all amounts owing for the particular Products; and (b)
the Client has met all other obligations due by the Client to ES in respect of all
contracts between ES and the Client.
10.2 Receipt by ES of any form of payment shall not be deemed to be payment
until that form of payment has been honoured, cleared or recognised and until
then ES’ ownership or rights in respect of the Products, and this agreement,
shall continue.
(a) the Client is only a bailee of the Products and must return the Products to ES
on request.
(b) the Client holds the benefit of the Client’s insurance of the Products on trust
for ES and must pay to ES the proceeds of any insurance in the event of the
Products being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the
Products other than in the ordinary course of business and for market value. If
the Client sells, disposes or parts with possession of the Products then the
Client must hold the proceeds of any such act on trust for ES and must pay or
deliver the proceeds to ES on demand.
(d) the Client should not convert or process the Products or intermix them with
other Products but if the Client does so then the Client holds the resulting
product on trust for the benefit of ES and must sell, dispose of or return the
resulting product to ES as it so directs.
(e) the Client irrevocably authorises ES to enter any premises where ES believes
the Products are kept and recover possession of the Products.
(f) ES may recover possession of any Products in transit whether or not Delivery
has occurred.
(g) the Client shall not charge or grant an encumbrance over the Products nor
grant nor otherwise give away any interest in the Products while they remain
the property of ES.
(h) ES may commence proceedings to recover the Price notwithstanding that
ownership of the Products has not passed to the Client.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security
agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Buyer
acknowledges and agrees that these terms and conditions constitute a security
agreement for the purposes of the PPSA and creates a security interest in:
(a) all Products previously supplied by ES to the Client;
(b) all Products will be supplied in the future by ES to the Client; and
(c) all the Client’s present and after acquired property being a charge, including
anything in respect of which the Client has at any time a sufficient right, interest
or power to grant a security interest in for the purposes of securing repayment
of all monetary obligations of the Client to ES for Services – that have
previously been provided and that will be provided in the future by ES to the
Client.
11.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further
information (such information to be complete, accurate and up-to-date in all
respects) which ES may reasonably require to;
(i) register a financing statement or financing change statement in relation to a
security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.2(a)(i) or 11.2(a)(ii);
(b) indemnify, and upon demand reimburse, ES for all expenses incurred in
registering a financing statement or financing change statement on the Personal
Property Securities Register established by the PPSA or
releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest
without the prior written consent of ES;
(d) not register, or permit to be registered, a financing statement or a financing
change statement in relation to the registration in favour of a third party
without the prior written consent of ES;
(e) immediately advise ES of any material change in its business practices of
selling Products which would result in a change in the nature of proceeds
derived from such sales.
11.4 ES and the Client agree that sections 96, 115 and 125 of the PPSA do not
apply to the security agreement created by these terms and conditions.
11.5 The Client waives their rights to receive notices under sections 95, 118,
121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections
142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by ES, the Client waives their right to
receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by ES under
clauses 11.2 to 11.5.
11.9 Subject to any express provisions to the contrary nothing in these terms
and conditions is intended to have the effect of contracting out of any of the
provisions the PPSA.
12. Security and Charge
12.1 In consideration of ES agreeing to supply the Products, the Client charges
all of its rights, title and interest
(whether joint or several) in any land, realty or other assets capable of being
charged, owned by the Client either
now or in the future, to secure the performance by the Client of its obligations
under these terms and conditions
(including, but not limited to, the payment of any money).
12.2 The Client indemnifies ES from and against all ES’ costs and disbursements
including legal costs on a solicitor
and own client basis incurred in exercising ES’ rights under this clause.
12.3 The Client irrevocably appoints ES and each director of ES as the Client’s
true and lawful attorney/s to perform
all necessary acts to give effect to the provisions of this clause 10 including, but
not limited to, signing any
document on the Client’s behalf.
13. Defects,Warranties,Returns,Competition & Consumer Act 2010 (CCA)
13.1 The Client must inspect the Products on Delivery and must within seven (7)
days of such time notify ES in writing of any evident defect/damage, error or
omission, shortage in quantity, or failure to comply with the
description or quote. The Client must notify any other alleged defect in the
Products as soon as reasonably possible after any such defect becomes
evident. Upon such notification the Client must allow ES to inspect/review the
Products.
13.2 Under applicable State, Territory and Commonwealth Law (including,
without limitation the CCA), certain statutory implied guarantees and
warranties (including, without limitation the statutory guarantees under the
CCA) may be implied into these terms and conditions (“Non-Excluded
Guarantees”).
13.3 ES acknowledges that nothing in these terms and conditions purports to
modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of
the Non-Excluded Guarantees, ES makes no warranties or other representations
under these terms and conditions including but not limited to the quality or
suitability of the Products. ES’ liability in respect of these warranties is limited
to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, ES’ liability is
limited to the extent permitted by section 64A of Schedule 2.
13.6 If ES is required to replace the Products under this clause or the CCA, but is
unable to do so, ES may refund any money the Client has paid for the Products.
13.7 If the Client is not a consumer within the meaning of the CCA, ES’ liability
for any defect or damage in the Products is:
(a) limited to the value of any express warranty or warranty card provided to
the Client by ES at ES’ sole discretion;
(b) limited to any warranty to which ES is entitled, if ES did not manufacture the
Products;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and (b) ES has
agreed that the Products are defective; and (c) the Products are returned within
a reasonable time at the Client’s cost (if that cost is not significant); and (d) the
Products are returned in as close a condition to that in which they were
delivered as is possible.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, ES shall not be
liable for any defect or damage which may be caused or partly caused by or
arise as a result of:
(a) the Client failing to properly maintain or store the Products;
(b) the Client using the Products for any purpose other than that for which they
were designed;
(c) the Client continuing the use of the Products after any defect became
apparent or should have become apparent to a reasonably prudent operator or
user;
(d) the Client failing to follow any instructions or guidelines provided by ES;
(e) fair wear and tear, any accident, or act of God.
13.10 In the case of second-hand Products, unless the Client is a consumer
under the CCA, the Client acknowledges that it has had full opportunity to
inspect the Products prior to Delivery and accepts them with all faults and that
to the extent permitted by law no warranty is given by ES as to the quality or
suitability for any purpose and any implied warranty, statutory or otherwise, is
expressly excluded. The Client acknowledges and agrees that ES has agreed to
provide the Client with the Products, and calculated the Price thereof, in
reliance of this clause 13.10.
13.11 Notwithstanding anything contained in this clause if ES is required by a
law to accept a return then ES will only accept a return on the conditions
imposed by that law.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when
payment becomes due, until the date of payment, at a rate of two and a half
percent (2.5%) per calendar month (and at ES’ sole discretion such interest shall
compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes ES any money the Client shall indemnify ES from and
against all costs and disbursements incurred by ES in recovering the debt
(including but not limited to internal administration fees, legal costs on a
solicitor and own client basis, ES’ contract default fees, and bank dishonour
fees).
14.3 Further to any other rights or remedies ES may have under this agreement,
if the Client has made payment to ES by credit card, and the transaction is
subsequently reversed, the Client shall be liable for the amount of the reversed
transaction, in addition to any further costs incurred by ES under this clause 14
where it can be proven that such reversal is found to be illegal, fraudulent or in
contravention to the Client’s obligations under this agreement.
14.4 Without prejudice to any other remedies ES may have, if at any time the
Client is in breach of any obligation (including those relating to payment) under
these terms and conditions ES may suspend or terminate the supply of
Products to the Client. ES will not be liable to the Client for any loss or damage
the Client suffers because ES has exercised its rights under this clause.
14.5 Without prejudice to ES’ other remedies at law ES shall be entitled to
cancel all or any part of any order of the Client which remains unfulfilled and all
amounts owing to ES shall, whether or not due for payment, become
immediately payable if:
(a) any money payable to ES becomes overdue, or in ES’ opinion the Client will
be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or
proposes or enters into an arrangement with creditors, or makes an assignment
for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional
or otherwise) or similar person is appointed in respect of the
Client or any asset of the Client.
15. Cancellation
15.1 In the event the Client wishes to cancel the Services, the Client must
provide ES with two (2) weeks written notification, or in lieu of such, pay to ES
two (2) months charges which would have otherwise been payable to ES for that
period so. Ad hoc and event guards require at least forty-eight (48) hours’
notice of cancellation in writing; if less than this notice is provided, then a
minimum charge of four (4) hours, per guard, will be charged to the Client.
These chares represent a genuine pre-estimate of Endless Security loses 15.2 ES
may cancel Delivery at any time before the Products are delivered by giving
48hrs written notice to the Client. On giving such notice ES shall repay to the
Client any sums paid in respect of the Price. ES shall not be liable for any loss or
damage whatsoever arising from such cancellation.
15.3 In the event that the Client cancels Delivery, the Client agrees to notify ES
in writing and accepts that they shall be liable for any loss incurred by ES
(including, but not limited to, any loss of profits) up to the time of cancellation.
However, cancellation of orders for Products made to the Client’s
specifications, or for non- stocklist items, will definitely not be accepted once
an order has been placed.
16. Privacy Act 1988
16.1 The Client agrees for ES to obtain from a credit reporting body (CRB) a
credit report containing personal credit information (e.g. name, address, D.O.B,
occupation, previous credit applications, credit history) about the Client
in relation to credit provided by ES.
16.2 The Client agrees that ES may exchange information about the Client with
those credit providers and with related body corporates for the following
purposes:
(a) to assess an application by the Client; and/or (b) to notify other credit
providers of a default by the Client; and/or (c) to exchange information with
other credit providers as to the status of this credit account, where the Client is
in default with other credit providers; and/or (d) to assess the creditworthiness
of the Client including the Client’s repayment history in the preceding two (2)
years.
16.3 The Client consents to ES being given a consumer credit report to collect
overdue payment on commercial credit.
16.4 The Client agrees that personal credit information provided may be used
and retained by ES for the following purposes (and for other agreed purposes or
required by):
(a) the provision of Products; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or
status in relation to the provision of Products; and/or (c) processing of any
payment instructions, direct debit facilities and/or credit facilities requested by
the Client; and/or s
16.5 ES may give information about the Client to a CRB for the following
purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client
including credit history.
16.6 The information given to the CRB may include:
(a) personal information as outlined in 16.1 above;
(b) name of the credit provider and that ES is a current credit provider to the
Client
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit
(e.g. date of commencement/termination of the credit account and the amount
requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or
outstanding monies which are overdue by more than sixty (60) days and for
which written notice for request of payment has been made
and debt recovery action commenced or alternatively that the Client no longer
has any overdue accounts and ES has been paid or otherwise discharged and all
details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of ES, the Client has committed a serious
credit infringement;
16.7 The Client can make a privacy complaint by contacting ES via e-mail. ES will
respond to that complaint within seven (7) days of receipt and will take all
reasonable steps to make a decision as to the complaint within thirty (30) days
of receipt of the complaint. In the event that the Client is not satisfied with the
resolution provided, the Client can make a complaint to the Information
Commissioner at www.oaic.gov.au.
17. Building and Construction Industry Security of Payments Act 1999
17.1 At ES’ sole discretion, if there are any disputes or claims for unpaid
Products then the provisions of the Building and Construction Industry Security
of Payments Act 1999 may apply.
17.2 Nothing in this agreement is intended to have the effect of contracting out
of any applicable provisions of the Building and Construction Industry Security
of Payments Act 1999 of New South Wales, except to the extent permitted by
the Act where applicable.
18. General
18.1 The failure by ES to enforce any provision of these terms and conditions
shall not be treated as a waiver of that provision, nor shall it affect ES’ right to
subsequently enforce that provision. If any provision of these terms and
conditions shall be invalid, void, illegal or unenforceable the validity, existence,
legality and enforceability of the remaining provisions shall not be affected,
prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be
governed by the laws of New South Wales, the state in which ES has its principal
place of business, and are subject to the jurisdiction of the Courts in that State.
18.3 Subject to clause 13, ES shall be under no liability whatsoever to the Client
for any indirect and/or consequential loss and/or expense (including loss of
profit) suffered by the Client arising out of a breach by ES of these terms and
conditions (alternatively ES’ liability shall be limited to damages which under no
circumstances shall exceed the Price). Unless otherwise agreed in writing, ES
shall not be liable to pay any pre- ascertained or liquidated damages.
18.4 The Client shall not be entitled to set off against, or deduct from the Price,
any sums owed or claimed to be owed to the Client by ES nor to withhold
payment of any invoice because part of that invoice is in dispute.
18.5 Neither party shall assign this agreement in whole or in part without the
prior written approval of the other party, but the Client acknowledges that ES
shall be entitled to sub-contract this agreement wholly or in part.
18.6 The Client agrees that ES may amend these terms and conditions at any
time. If ES makes a change to these terms and conditions, then that change will
take effect from the date on which ES notifies the Client of such change. The
Client will be taken to have accepted such changes if the Client makes a further
request for ES to provide Products to the Client.
18.7 Neither party shall be liable for any default due to any act of God, war,
terrorism, strike, lock-out, industrial action, fire, flood, storm or other event
beyond the reasonable control of either party.
18.8 The Client warrants that it has the power to engage ES’ services and has
obtained all necessary authorisations to allow it to do so, it is not insolvent and
that such engagement creates binding and valid legal obligations on it.
19. PART II ALARM, MONITORING, GUARD, PATROL & RESPONSE SERVICE
20. ES’ Responsibilities
20.1 ES agrees to use due care and skill to facilitate the Monitoring Services for
alarm signals and/or other recurring
services selected by the Client.
20.2 ES shall instruct the alarm monitoring centre to action alarm signals
emanating from the alarm in accordance with the Client’s Documented
Instructions and the Control Rooms Standard Operating Procedures.
20.3 Whilst ES shall endeavour to provide a timely response to actionable alarm
signals, no warranty is given by ES that patrol response will be available at any
time, if at all. ES shall not be liable for any loss or damage the Client may suffer
in connection with any response or the absence of any alarm response.
20.4 Alarm responses, patrols and guard services are normally carried out by
security personnel that do not have full knowledge of a premises, often at night
with poor visibility, break-in or damages do get missed ES shall not be liable for
any loss or damage the Client may suffer due failure to detect a break-in or
damage
20.5 Whilst ES uses due care when contacting and advising emergency services,
they cannot guarantee prompt response times or attendance of such services.
20.6 ES recommends that the client or clients representative attends the
property on alarm activations. ES shall not be liable for any loss or damage if
the clients chooses to only send a ES guard or contractor.
21. Client’s Responsibilities
21.1 The Client shall immediately advise ES, in writing, in the event of any
changes to their contact details or alarm response requirements.
21.2 The Client shall, at their own cost, maintain the alarm in good working order
and in accordance with the manufacturer’s requirements (including, but not
limited to, recharging or replacing batteries on a timely basis).
The obligation of ES to provide the Monitoring Services and to action alarm
signals, are conditional upon the alarm being operational, in accordance with
the manufacturer’s requirements, and to the satisfaction of ES.
21.3 The Client shall supply at the Client’s expense keys, swipe cards, alarm
codes, electronic access controls to the address, to ES to enable ES to carry out
alarm responses and/or patrols. ES’ liability for loss or damage of the Client’s
keys, swipe cards, etc. is limited to the costs of obtaining a replacement or five
thousand dollars ($5,000), whichever is the lesser.
21.4 In the event that the Client does not claim their keys, swipe cards, alarm
codes, electronic access controls within thirty (30) days of the termination or
expiration of the Monitoring Services, ES shall be entitled to destroy them.
21.5 The Client shall ensure that all voice codes, passwords, radio keys and
other security devices are kept secure and provided only to those persons who
reasonably require access to the alarmed address.
21.6 The Client cannot transfer, or attempt to transfer, the right to receive the
Monitoring Services or any other right to any other party.
21.7 Upon termination of the Monitoring Services, it is the Client’s responsibility
to ensure that an alternative service is arranged, if required, and the panel is
deprogrammed to stop reporting to ES.
21.8 ES will not be responsible for any communication costs post cancellation.
21.9 Any signals received after the termination of the Monitoring Services will
not be actioned by ES.
21.10 The Client agrees that any costs associated with the delivery of services
by the Police, Ambulance, Fire or other emergency services to the Client’s
monitored address shall be met by the Client.
22. Monitoring Services
22.1 The Monitoring Services provided by ES shall consist of the monitoring of
all signals that have been programmed into the Client’s system at ES’
monitoring station from the alarm system designated by the Client’s
Documented Instructions.
22.2 ES shall respond to such signals received in accordance with its normal
operating practices and by making such telephone calls as may be required in
accordance with the Client’s instructions. The Client acknowledges that alarm
responses are considered as Extra Work and charged at ES’ normal rates,
subject to clause 22.8.
22.3 ES shall endeavour to action the following alarm signals generally as
described below or as otherwise agreed:
(a) duress / panic – The monitoring centre shall call the monitored address, as
required by the NSW Police (“Police”) first to verify the event. If deemed
necessary ES shall contact and advise the Police; and (b) hold up – ES shall
notify the Police, and make a follow up call to the monitored address after
thirty (30) minutes (this clause assumes that the Client’s address comply with
Police’s protocols for hold up alarms); and
(c) fire / smoke – The monitoring centre shall call the address to verify event, if
no answer ES will advise the fire department and contacts; and (d) medical –
The monitoring centre shall call the address to verify event, if no answer ES will
advise the ambulance service and contacts; and (e) system events – ES shall
contact the Client (this type of event is not necessarily actioned immediately).
(f) detection events – The monitoring centre shall contact the Client and
contacts (g) fail to test – ES contact client Monday to Friday during normal
business hours as some as practical 22.4 In the event that the address is found
to have been violated and the Client contact is unable to be contacted by
telephone, the Client authorises ES to arrange for a security guard to attend
and remain at the address as an agent if necessary, if ES considers it necessary
until the Client is contacted and ES is given instructions. Alternatively, ES is
authorised to arrange temporary work to secure the address with the Client
agreeing to pay for such work as per clause 22.6.
22.5 The Client acknowledges and accepts that, for various lawful reasons
(including, security, training and monitoring purposes), phone calls made to ES
may be recorded.
22.6 The Client accepts and acknowledges that in the event ES acts as an agent
on behalf of the Client with a third party, (including but not limited to
locksmiths and/or glaziers) the Client agrees to honour their obligation for
payment for such transactions invoiced by the third party and shall ensure
payment is made by the due date, thereby not limiting ES in their obligations for
payment as Agents acting on behalf of the Client to third parties.
22.7 If the Client believes that they have any claim in relation to Services
undertaken by that third party then said claim must be made against the third
party contractor in the first instance.
22.8 The Client acknowledges that independent contractors, where available,
may provide patrol response. Accordingly, patrol response fees may vary from
area to area and over time. The Client agrees to pay or reimburse ES for patrol
response fees, which may include an administration fee. ES shall advise the
Client of applicable patrol response fees upon request by the Client.
22.9 ES may be unable to monitor the system in the event of a communication
failure between the alarm panel in the Client’s address and the monitoring
centre, Failures of this nature may be malicious or otherwise. The Client
acknowledges that ES’ obligation to action alarm events is suspended at any
time the communications link is disrupted between the Client’s address and ES’
monitoring room.
22.10 The Client is required to pay for Services whilst there is a communication
failure, unless the Client advises to suspend its account until the issue has been
rectified.
23. Provision of Guard and/or Patrol Services
23.1 The Client acknowledges that:
(a) the Services are shared with other Clients. There may be occasions when
individual guards/patrols are late or missed due to the need to respond to high
priority events such as break and enters, fire, flood, accident, traffic, delays,
break down, Police or emergency service activities. Other unforeseen
circumstances such as storms or vehicle breakdown may also cause individual
calls not to be undertaken. This is taken into consideration when setting pricing.
ES cannot be held responsible loss or damage due a patrol or guard being
delayed. Any lateness greater than ten minutes to the commencement of a shift
is to be communicated to the Client by the communication book including an
explanation. Any missed shifts are to be communicated to the Client by phone
to the nominated emergency contact as soon as practicable with an
explanation.
(b) Any on-going problems related to ES’ inability to complete agreed
guards/patrols for more than ten (10%) of the agreed contract will be notified to
the Client and adjustments will be negotiated to Services and/or credit/refunds
given for the undelivered Services exceeding this percentage;
(c) any associated services shall be charged additionally to the Client.
23.2 The Client will inform ES if there are any changes to the address being
patrolled if these changes have the potential to restrict the provision of the
Services or cause any harm to the guards/patrol officers.
24. Client’s Acknowledgements
24.1 The Client acknowledges that the provision of Monitoring Services may not
prevent unlawful entry to the nominated address from occurring, and
accordingly the Client accepts that loss or damage to address, and death
or injury to persons, may occur even though ES’ obligations under this
agreement have been satisfied.
24.2 Unless stated otherwise in this agreement the supply of performance
records, history or other reports shall only be issued direct to the Client.
24.3 The Client accepts and acknowledges that ES during the course of the
Monitoring Services:
(a) telephone conversations shall be recorded between ES and the Client and
the Client hereby authorises ES to implement this procedure; and (b) ES’
employees shall not be required to carry out any duties of an illegal or strike
breaking nature; and (c) ES is not an insurer of the address and it is advisable for
the Client to effect and maintain all normal and prudent insurance policies in
respect of all usual risks including fire, burglary, theft and consequential loss
or damage; and (d) the Products relating to security of the address are
deterrents only and ES does not represent that the Products will protect the
Client against theft, burglary, loss or break-in; (e) the Products relating to fire
are fire detection Products only and ES does not represent that the Products
will protect the Client or their property against fire; (f) the Products relating to
medical alarms are for notification purposes only and does not represent that
the Products will protect the Client from a medical emergency.
25. Limitation of Liability
25.1 The Client hereby disclaims any right to sue for damages or to claim
restitution arising out of any inadvertent misrepresentation made to the Client
by ES and the Client acknowledges that the Services are bought relying solely
upon the Client’s skill and judgment. 25.2 Insofar as the Client, notwithstanding
provisions of this clause, may have any claim for damages against ES, its
servants or agents either in contract or in tort and whether arising from
negligence or otherwise (it being the intention of this clause that no such
damages may be recovered) the same shall be limited to an amount equal to the
sum of two (2) months fees actually paid by the Client in respect of that portion
of the particular ongoing Services which gave rise to such claim, for ad hoc
services limited to an amount of the shift price for the ad hoc guard or service
work ES was engaged to provide
