Definitions and Agreement
1. In these Terms and Conditions, `the Company' means ART Security Pty Ltd ACN 006 154 329, `Company Addendum' means the attached ART Company Addendum, as varied by the Company from time to time, `Purchaser' means the purchaser specified in these Terms and Conditions `Terms and Conditions' means these terms and conditions including any attached Purchase Order, 'Purchase Agreement' means the agreement comprising of the Terms and Conditions (which includes the Purchase Order) and the Company Addendum, 'Company Website' means the then current website of the Company.
2. Unless withdrawn, the Company's offer set out in any quote or other similar document is valid for 30 days from the date of the offer and can be accepted by the purchaser signing and delivering the Purchase Agreement to the Company. Each Purchase Agreement shall constitute the whole of the agreement between the Company and the Purchaser in respect of its subject matter. If there is any inconsistency between these Terms and Conditions, and the Company Addendum, the Company Addendum will prevail to the extent of the inconsistency.
Equipment and Installation
3. The Company will supply and the Purchaser will purchase the equipment described in each Purchase Agreement and any additional equipment agreed by the parties in writing from time to time. The Purchaser will pay the price specified in each Purchase Agreement for the supply and installation of the equipment. The Company may increase the price by such amount as it (acting reasonably) deems necessary if:
(a) there are any changes in relevant award wages, rates for freight, insurance, customs and other duties and taxes, delivery charges or charges made by suppliers in respect of the equipment;
(b) the Purchaser requests that installation or any part of it be conducted outside normal working hours of the Company;
(c) the Company is required to conduct any unforeseen or additional installation work; or
(d) the Company is subjected to increased costs attributable to delays caused by the failure of the Purchaser or its servants, agents or contractors to meet their respective obligations under a Purchase Agreement.
4. Unless otherwise agreed in writing, a deposit of 20% of the price will be payable upon both parties signing the Purchase Agreement with the balance of the price payable on installation of the equipment. If the Purchaser wishes to vary the equipment to be supplied and installed, the Purchaser will be required to sign a variation acknowledgement. The Company reserves the right to refuse to perform any such work or supply further or other equipment.
5. Where applicable, the Company will arrange for the equipment to be installed at the installation address specified in each Purchase Agreement on a date nominated by the Company in accordance with the installation procedures detailed in the Company Addendum. The Purchaser must provide the Company with access to all relevant parts of the installation address and any other assistance reasonably requested by the Company in respect of the installation. From the time of delivery of the equipment to the installation address (or any other delivery address requested by the Purchaser) the equipment shall be at the Purchaser's risk absolutely.
6. Until payment in full of the price, ownership of the equipment will remain with the Company and will not pass to the Purchaser who will hold the equipment as bailee for the Company. If the Purchaser fails to pay the price or any other amounts payable to the Company under a Purchase Agreement, the Company shall have the right to enter upon the installation address without notice and remove all or any of the equipment, whether installed or not, and the Company shall not be responsible for any damage arising in the course of such removal.
7. The Company will provide the Purchaser with the monitoring, patrol and reporting services specified in each Purchase Agreement or agreed by the parties from time to time in accordance with the procedures in the Company Addendum or on the Company Website (as applicable). The Purchaser must provide an approved telecommunications carrier connection point to interface the equipment into the appropriate telecommunications carrier network. All telecommunications connections and usage fees will be at the Purchaser's expense.
8. If an alarm condition occurs the Company will respond in accordance with the then current alarm response procedures detailed on the Company Website or in any other way which the Company reasonably believes is appropriate at that time. Subject to and without limiting the generality of the above, the Company will have regard to any written instructions given by the Purchaser and which have been accepted by the Company. The Company does not represent that a patrol response is a full time service available in all areas.
9. Unless the parties agree otherwise, the Purchaser will pay the Company the monitoring, patrol and reporting fees specified in each Purchase Agreement quarterly in advance.
10. The Purchaser acknowledges that in providing the monitoring services the Company may from time to time request services from fire, police or other similar authorities (including, but not limited to, priority response services). The Purchaser consents to the Company requesting any such services on the Purchaser's behalf as and when the Company considers appropriate and will pay all fees and charges levied by the relevant authority in connection with such services.
11. The Purchaser must conduct regular tests of the equipment in accordance with the testing procedures set out in the Company Addendum and detailed on the Company Website (as applicable).
12. If a protection plan is specified in a Purchase Agreement or otherwise agreed by the parties in writing, the Company will maintain the equipment in accordance with the procedures specified in the Company Addendum or detailed on the Company Website (as applicable). Unless the parties agree otherwise, the Purchaser must pay the fees for the protection plan specified in the relevant Purchase Agreement quarterly in advance.
13. The Purchaser acknowledges that if it does not maintain the equipment in accordance with Australian Standard 2201.1, the Victoria Police may not guarantee to respond to an alarm condition.
Fees, Failure to Pay and GST
14. The Company may increase the fees referred to in clauses 9 or 12 from time to time by providing the Purchaser with 30 days notice of the increase.
15. If the Purchaser fails to pay an amount due under a Purchase Agreement on time, the Company may charge interest on all amounts overdue from the time the amount is due until that amount is paid in full at the interest rate fixed from time to time under the Penalty Interest Rates Act 1983 (Vic). Without limiting the Company's right to charge interest, if any amounts are more than 30 days overdue the Company may suspend its provision of monitoring, patrol, reporting, maintenance or other services until all outstanding amounts are paid in full.
16. Unless stated otherwise, all fees or other amounts payable under a Purchase Agreement are inclusive of GST.
17. The services provided by the Company or other obligations of the Company under a Purchase Agreement may be terminated:
(a) by either party providing 3 months notice of termination, provided that if the Purchaser terminates under this clause the Company will be entitled to retain the balance of any payment already made for the quarter;
(b) on a day nominated by the Company not less than 10 days after the Company gives the Purchaser notice in writing of its intention to terminate on the grounds that the Purchaser has failed to pay the whole or any amount due to the Company within 30 days of receiving an invoice or statement;
(c) immediately upon a party providing written notice of termination to the other party if a liquidator, administrator, receiver and/or manager or bankruptcy trustee is appointed to the other party or the other party breaches any provision of a Purchase Agreement and fails to remedy the breach within 14 days of the other party proving written notice specifying the breach and the remedy required; or
(d) on a day nominated by the Company not less than 24 hours after the Company has notified the Purchaser of its decision to terminate, on the grounds that the Company reasonably believes that a fault or other issue with the Purchaser's equipment will materially impede the Company's ability to provide monitoring services to other clients.
18. Upon termination of a Purchase Agreement for whatever reason the Company may enter the Purchaser's premises and remove any equipment or any part thereof owned by the Company and the Company shall not be liable for any loss or damage to the premises arising in the course of such removal.
19. Upon termination, the Company will terminate the contracted service at 12 noon on the day nominated by the Company under clauses 17(a), 17(b), 17(c) or 17(d) (as applicable) or any other relevant day of termination.
20. The equipment is not regarded as being ready for use until the Company has commissioned the system and a commissioning and acceptance form has been signed by the Purchaser and returned to the Company.
21. The warranties provided by the Company are set out in each Purchase Agreement and in the Company Addendum. The warranties provided by the Company do not apply to the extent that any fault or other issue arises as a result of security or other equipment that has been supplied, installed or serviced by anyone other than the Company. If the Purchaser requires a warranty call out outside business hours the Purchaser will be charged the Company's then current out of hours call out fee.
22. Subject to the provisions of the Trade Practices Act ("the Act") or other applicable legislation, the liability of the Company for a breach of any condition or warranty specified in a Purchase Agreement, the Company Addendum or implied by the Act shall be limited (at the election of the Company) to, in the case of goods to the replacement of the goods, or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired, or in the case of services, to the supplying of the services again, or the payment of the cost of having the services supplied again. The Company expressly excludes all liability to the Purchaser for consequential, special or indirect loss or damage arising out of or in connection with any Purchase Agreement including (without limitation) damages for loss of profits, loss of opportunity or additional expenses. This clause applies even if the Company knew or ought to have known that such loss or damage would be incurred.
23. Neither party will be liable for any loss suffered by the other party as a result of any failure or delay to perform its obligations under a Purchase Agreement if the failure or delay arises due to circumstances beyond its control, including (without limitation) delays in the supply of materials, labour difficulties, adverse weather conditions or natural disasters, acts or threats of terrorism or war or any ongoing telecommunications outage or other similar issue. If the delay or failure to perform exceeds 30 days in duration, either party may terminate the relevant Purchase Agreement by written notice to the other party.
24. The Purchaser acknowledges that:
(a) the purchase and installation of the equipment is in addition to and not intended to take the place of other usual security precautions and insurances;
(b) in supplying and/or installing the equipment and commenting on Federal and/or State laws relating to the use of the equipment, the Company in no way provides advice to the Purchaser on compliance with such laws and the Company recommends that the Purchaser seeks legal advice about using the equipment before using it;
(c) the Purchaser must not use the equipment for an unlawful purpose; and
(d) the Company does not represent that the equipment or its services comply in part or in full with any written standard regulation or requirement of any association, Government or other body.
25. If the Company is required to provide monitoring, reporting, patrol or protection plan/maintenance services in respect of equipment supplied or installed by any other party, the Company will use reasonable endeavours to provide such services but does not provide any warranties regarding the provision or availability of such services.
26. The failure by the Company to enforce any term of a Purchase Agreement or any right arising there under shall not be construed as a waiver of the same, or of its right thereafter to enforce at any time each and every provision hereof.
27. Each Purchase Agreement shall be governed and construed in accordance with the law of the State of Victoria and the parties submit to the jurisdiction of the Courts of that State which shall have exclusive jurisdiction to determine any dispute between the parties arising out of the Purchase Agreement.
28. Should any term of a Purchase Agreement be unenforceable or invalid that term shall be considered, to the extent of such unenforceability or invalidity, independently of and severable from any other term contained herein and shall not affect the enforceability or validity of any other term hereof.
29. Any notice, demand, invoice or statement required to be in writing shall be deemed to be duly given if delivered to or sent by pre-paid mail addressed, in the case of the Company, to its address set out herein and, in the case of the purchaser, to the installation address set out herein.