These terms and conditions (Terms), along with the Order and the Quote, form the terms on which ART Security will supply Equipment and/or Services to the Customer under the Agreement.
In the Terms, words which are capitalised but not defined have the meaning given to them in the Company Addendum and the words below have the following meanings:
Agreement means the Offer which is accepted by ART Security under clause 2.2.
ART Security means A.R.T. Security Pty Ltd (ACN 006 154 329) in its capacity as trustee of the R and L Trust (ABN 47 044 588 084).
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Business Continuity Event means a problem or event contemplated in the Business Continuity Plan.
Business Continuity Plan means ART Security’s business continuity plan.
Business Hours means the hours of 8.30 am and 5.00 pm Monday to Friday (other than a public holiday).
Company Addendum means the ART Security Company Addendum which can be accessed at www.artsecurity.com.au/about-us/company-addendum/
Confidential Information means all information and other content disclosed by ART Security to the Customer and includes the Agreement and the prices of the Equipment or Services but excludes information that:
(a) is public knowledge or becomes available to the Customer from a source other than ART Security (otherwise than as a result of a breach of confidentiality); or
(b) is rightfully known to, or in the possession or control of, the Customer and not subject to an obligation of confidentiality in accordance with the terms of the Agreement.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Customer means the person named in the Quote who requested that Equipment and/or Services be supplied to it by ART Security.
Deposit means the amount of the deposit, being a portion of the Fees, as set out in the Quote.
Early Termination Fee means the early termination fee (if any) set out in the Quote.
Equipment means the equipment and goods set out in the Quote to be supplied by ART Security to the Customer under the Agreement.
Fees has the meaning provided to it in clause 5.1, as may be varied under clause 5.2.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party including delay in the supply of materials, pandemic, epidemic, government directions, labour difficulties, adverse weather conditions or natural disasters, acts or threats of terrorism or war or any ongoing telecommunications outage or other similar issue.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or, the occurrence of any event that has substantially the same effect to any of the preceding events.
Installation Services means the installation of the Equipment at a Site as set out in the Quote or as otherwise agreed by the parties.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and right to protect trade secrets and know how, throughout the world for the full period of the rights and renewals and extensions.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Maintenance Services means preventative maintenance of the Equipment as set out in the Quote or as otherwise agreed by the parties.
Monitoring Services means electronic monitoring and/or reporting services as set out in the Quote or as otherwise agreed by the parties.
Network means a telecommunications service or internet service that facilitates delivery of monitoring data to ART Security.
Offer has the meaning provided to it in clause 2.1.
Order means any order or other request by or for the Customer to ART Security to supply to the Customer any Equipment or provide it with any Services (or both), whether the order or request is written (including electronic), verbal or implied in the circumstances and which may have been given in response to a Quote or incorporate the Quote.
PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Protective Services means patrol and guarding services as set out in the Quote or as otherwise agreed by the parties.
Quotation or Quote means the quote or proposal provided by ART Security to the Customer in respect of the Equipment and/or Services whether the quote or proposal is written (including electronic) or verbal.
Services means the services set out in the Quote which are to be supplied by ART Security to the Customer under the Agreement, which may include Installation Services, Maintenance Services, Monitoring Services and/or Protective Services.
Site means any location owned, leased or otherwise occupied by the Customer or a third party where the Services are to be provided or where the Equipment is to be delivered or installed or is otherwise stored.
Specifications means any physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Equipment or Services which are supplied by ART Security or which may be available from the Website including as provided in any Quote or Order.
Term means the term of the Agreement set out in the Quote.
Website means www.artsecurity.com.au.
2.1 The Customer acknowledges and agrees that by submitting an Order to ART Security the Customer makes an irrevocable offer to ART Security for ART Security to supply it with the Equipment and/or provide it with the Services in accordance with these Terms, the Order, and the Quote (Offer).
2.2 A contract will be formed between ART Security and the Customer in respect of each Offer upon the earlier of ART Security:
(a) notifying the Customer in writing that it accepts the Offer;
(b) accepting, in full or part, payment from the Customer for any Equipment or Services the subject of the Offer; or
(c) making delivery of Equipment the subject of the Offer to the Customer or providing Services the subject of the Offer.
2.3 The Agreement formed under clause 2 will comprise these Terms, the Order (only to the extent that any additional terms in the Order are accepted by ART Security in writing) and the Quote.
2.4 ART Security is not bound to accept any Offer and may decide not to accept any Offer for any reason, particularly if an Offer is made more than 30 days after the date of the Quote for the relevant Offer.
3.1 The Agreement commences on the date the Agreement is formed under clause 2.2 except to the extent the Quote provides for any other commencement date either for the Agreement as a whole or for particular Services (Commencement Date) and will continue for the Term, unless terminated earlier in accordance with the Agreement or at law.
3.2 If the Customer continues to engage ART Security to provide Services after the end of the Term, the continuing engagement will be on the terms and conditions set out in the Agreement, except the Agreement will continue until such time as one party provides the other with not less than 30 days’ notice of termination of the Agreement.
4.1 The Customer must pay the Deposit to ART Security within 7 days of making the Offer.
4.2 The Deposit will not be refundable and ART Security will be entitled to keep the Deposit at the time it accepts the Offer.
5 Fees and payment
5.1 Unless otherwise agreed by the parties, the price and fees the Customer must pay for the Equipment and/or Services will be the price and fees for the Equipment and/or Services specified in the Quote (Fees).
5.2 ART Security may, not more than once every 12 months, increase the Fees by providing the Customer with not less than 30 days’ written notice of the increase in the Fees, however if the Customer does not wish to accept the new Fees it may:
(a) discuss the proposed increase with ART Security; and / or
(b) at any time prior to the date the new Fees take effect, terminate the Agreement by notice in writing to ART Security.
5.3 If the Customer requires ART Security to attend to any issue with the Equipment outside of Business Hours then ART Security may charge the Customer an hourly fee equal to ART Security’s then current out of hours call fee.
5.4 ART Security may set off any amount owing by the Customer to ART Security, whether or not due for payment, against any money due for payment by ART Security to the Customer under any agreement, understanding or arrangement between ART Security and the Customer.
5.5 Unless otherwise agreed in writing between the Customer and ART Security, ART Security may invoice the Customer for the Fees as set out in the Quote or, if no payment terms are included in the Quote, 7 days from the date of the provision or delivery of the relevant Goods or Services.
5.6 Unless otherwise agreed in writing between the Customer and ART Security the due date for payment by the Customer to ART Security of Fees is 14 days after the date of the invoice for the relevant Fees (Due Date).
5.7 If the Customer fails to make any payment by the Due Date, breaches any term of the Agreement or is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to ART Security and to the extent permitted by law, ART Security may, in its sole discretion, elect to do any one or more of the following:
(a) suspend any further deliveries of Equipment or provision of Services to the Customer;
(b) exercise any right to terminate the Agreement in accordance with clause 21.2;
(c) enter the property of the Customer in order to repossess the Equipment and to dismantle any other goods into which the Equipment has been installed or incorporated and in order to remove the Equipment from those goods;
(d) charge the Customer interest (both before and after any judgement) on the unpaid amount at the interest rate which is fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic), which interest will accrue and be chargeable from the first day on which an amount becomes overdue until ART Security receives payment of all amounts (including all interest) by way of cleared funds; and
(e) exercise any rights which ART Security may have under law, including the Personal Property Securities Act 2009 (Cth).
5.8 The Customer may not set off or combine any amount owing by ART Security to the Customer, whether or not due for payment, against any money due for payment by the Customer to ART Security under the Agreement and the Customer must pay, and not withhold, any amount due to ART Security under the Agreement.
6 Delivery of Equipment and provision of Services
6.1 ART Security will deliver the Equipment and provide the Services to the Customer in the manner:
(a) determined by ART Security; or
(b) as otherwise agreed between ART Security and the Customer (including collection by the Customer).
6.2 The Customer must, prior to taking possession of the Equipment, inspect the Equipment and immediately notify ART Security in writing if the Equipment is not fit for any purpose for which the Customer intends to use the Equipment, is less than the number meant to be delivered under the Agreement, has any defect or otherwise does not meet any Specifications.
6.3 The Customer acknowledges that, after the time the Customer makes the Offer, any Equipment which is subject to an Offer may be modified by ART Security as a result of an improvement in technology or because of a requirement imposed by law.
6.4 In the event of the Customer returning or failing to accept any delivery of the Equipment (including collection by the Customer), ART Security will be entitled to:
(a) be paid for that Equipment;
(b) treat the obligation to supply the remainder of the Equipment (if any) as cancelled by the Customer; and
(c) store any Equipment which the Customer refuses to take delivery of or collect at the risk and cost to the Customer and without limiting any other rights ART Security may have.
6.5 ART Security will use its reasonable endeavours to deliver the Equipment and provide the Services on any date specified or estimated by ART Security or set out in a Quote or Order, however the Customer acknowledges that these dates are estimates only.
7 Access to Sites
7.1 The Customer must provide ART Security with unobstructed access to the Sites and all parts of the Sites to the extent necessary for ART Security to deliver the Equipment, provide the Services and comply with any other obligations under the Agreement.
7.2 The Customer must:
(a) ensure that the Sites and the condition of the Sites are suitable for the provision of any Services by ART Security; and
(b) notify ART Security in writing of anything in respect of the Sites which may be relevant to the provision of the Services.
7.3 The Customer must eliminate risks to health and safety at the Sites so far as is reasonably practicable and, if it is not reasonably practicable to eliminate risks to health and safety, reduce those risks as is reasonably practicable and notify ART Security of the risks before ART Security accesses the Sites.
7.4 The Customer expressly authorises and grants ART Security, its employees and agents an express, irrevocable licence to enter the Sites in order for ART Security to:
(a) deliver the Equipment and provide the Services; and
(b) inspect, remove, repossess or arrange for the removal of Equipment under clauses 5.7(c), 12.6(d), 12.6(e) and 21.5(e),
and the Customer indemnifies ART Security against any Loss that may be incurred or sustained by ART Security, its employees, agents or contractors, as a result of the entry or access to a Site.
8 Installation Services
8.1 ART Security will provide any Installation Services at the address for the relevant Sites specified in the Quote on a date nominated by ART Security in accordance with the installation procedures set out Section 6.0 of the Company Addendum.
8.2 The Customer acknowledges that the Equipment is not regarded as being ready for use until ART Security has commissioned the Equipment and a commissioning and acceptance form has been signed by the Customer and returned to ART Security.
8.3 The Purchaser must conduct regular tests of the Equipment in accordance with the testing procedures set out in Section 5.3 of the Company Addendum.
9 Monitoring Services
9.1 ART Security will provide the Monitoring Services in accordance with the monitoring procedures set out in Section 4.0 of the Company Addendum.
9.2 The Customer acknowledges and agrees that:
(a) Network services for use with the Equipment as part of the Monitoring Services will be acquired from a third party provider of a Network by ART Security;
(b) all connection, service and usage fees in respect of the Network will be at the Customer’s expense;
(c) the Customer must provide an approved telecommunications carrier connection point to interface the Equipment into an appropriate Network;
(d) the provision of the Services, and in particular the Monitoring Services, is dependent upon the provision of an uninterrupted and appropriate Network, which may be owned, controlled or operated by third parties, or which may be subject to statutory control, or which may operate under government granted licences or permits;
(e) the availability or quality of the Services may be interrupted, distorted, disrupted or degraded from time to time as a result of events such as, but not limited to, disruption to satellite signals, unavailability of telecommunications services or signals, disruptions to the internet or to servers, or otherwise adversely affected by the physical and geographic nature of the locality, the presence of buildings and other structures and features, natural and man-made radio interference and the effects of the atmosphere;
(f) the Customer must not interfere with or disrupt (or attempt to interfere or disrupt) any Network;
(g) whilst the third party provider of a Network may embed security in its Network, data transmitted over the Network may be intercepted by third parties; and
(h) as ART Security does not operate or provide a Network, ART Security cannot and does not guarantee that the Services will be secure, uninterrupted or error free or that there will be no inaccuracy, degradation or failure of or in the Services due to any issues in respect of a Network.
9.3 If an Alarm Event occurs ART Security will respond in accordance with the current alarm response procedures set out in Section 4.0 of the Company Addendum or in any other way which ART Security consider appropriate at the time.
9.4 The Customer acknowledges and agrees that:
(a) a patrol response is not a full time service available in all areas; and
(b) in the event ART Security is not able to contact the Customer when a potential breach of security is detected, ART Security may send a patrol on behalf of the Customer to respond to the potential security breach (unless the Customer has provided ART Security with a written notice not to respond) and the Customer will be charged the attendance fee for the patrol response.
9.5 The Customer acknowledges that in providing the Monitoring Services ART Security may from time to time request a response services from fire, police or other similar authorities (including, but not limited to, priority response services) and the Customer consents to ART Security requesting any such services on the Customer’s behalf as and when ART Security considers appropriate and the Customer agrees to promptly pay any and all fees charged by the relevant authority in connect with such services.
10 Protective Services
10.1 ART Security will provide Protective Services in accordance with the procedures set out on the Website.
10.2 ART Security cannot guarantee that the police will respond to all Alarm Events.
10.3 The Customer must maintain the Equipment in accordance with Australian Standard 2201.2-2004 (or any replacement Australian Standard).
11 Customer’s Ongoing Responsibilities
The Customer must:
(a) provide accurate monitoring details and information to ART Security (including authorised contact list) and ensure such details and information is kept up to date;
(b) assist any person carrying out Installation Services to confirm that each sector is operational in accordance with the Company Addendum;
(c) confirm the response action to be followed when an Alarm Event occurs in each sector;
(d) know and use a current voice code;
(e) regularly test the system by contacting ART Security’s monitoring centre and following their instructions in respect of the testing;
(f) regularly consider the Customer’s security needs;
(g) if the Customer is notified of a security alert, not attend the relevant Site unless accompanied by ART Security personnel and / or police; and
(h) ensure that any Equipment is used and maintained in accordance with any manual or user guide provided to the Customer by ART Security.
12 Title and risk of Equipment
12.1 Title to, and property in any Equipment supplied under the Agreement, remains with ART Security and will only pass to the Customer once all moneys owing by the Customer to ART Security in respect of the Agreement and any other agreement or arrangement between the Customer and ART Security has been paid in full.
12.2 Risk in the Equipment passes to the Customer upon the Equipment being removed from ART Security’s premises (or that of ART Security’s supplier or agent) for delivery to the Customer.
12.3 The Customer is responsible for arranging and taking out in its own name and at its own cost, any insurance in respect of the Equipment from the time risk passes to the Customer under this clause and ART Security is not obliged to give the Customer a notice referred to in section 35(3) of the Sale of Equipment Act 1923 (NSW) (or any equivalent legislation).
12.4 The Customer indemnifies ART Security against any Loss or damage to the Equipment, however caused, occurring after the Equipment has been removed from and left ART Security’s premises (or the premises of ART Security’s supplier or agent).
12.5 In the event that the Customer is required to return any Equipment to ART Security, risk in the Equipment passes to ART Security on confirmation of receipt of the Equipment by ART Security.
12.6 Until full title, property and ownership of the Equipment passes to the Customer in accordance with clause 12.1:
(a) the Customer must hold the Equipment as ART Security’s fiduciary agent and bailee and must not sell, lease, dispose of or otherwise deal with the Equipment in any way without ART Security’s prior written consent;
(b) the Customer must keep and maintain the Equipment in good and substantial repair;
(c) the Customer must insure the Equipment for its full replacement value;
(d) ART Security may enter the premises of the Customer or any third party where the Equipment is stored during Business Hours to inspect the Equipment;
(e) ART Security may at any time after payment is overdue require the Customer to deliver up the Equipment to ART Security and, if the Customer fails to deliver up the Equipment immediately, ART Security may enter the premises of the Customer or any third party where the Equipment is stored and repossess the Equipment (and ART Security shall not be liable to the Customer for any damage it may cause arising from such repossession);
(f) the Customer must not pledge or grant a security interest in, or in any way charge by way of security for any indebtedness, any of the Equipment; and
(g) the Customer must not remove, deface, alter, obliterate or cover up any names, marks, designs, numbers, code or writing on the Equipment.
12.7 In the event that the Equipment (or any portion of it) is processed, incorporated, transformed or installed into any other equipment, goods, buildings or land then the Customer must:
(a) keep and maintain records in relation to the Equipment which has been processed, incorporated, transformed or installed and the equipment, goods, buildings or land in which the Equipment has been processed, incorporated, transformed or installed; and
(b) hold a proportion of any payment (Relevant Proportion) received by the Customer for that equipment, goods, buildings or land on trust for ART Security and the Customer acknowledges that the Relevant Proportion must be not less than the dollar value of the portion of the Equipment processed, incorporated, transformed or installed.
12.8 If an Insolvency Event occurs in respect of the Customer then, without the need for notice or demand by ART Security, the Customer acknowledges that any sale or purported sale of the Equipment will not be in the ordinary course of the Customer’s business and the proceeds of any Equipment sold in those circumstances will, to the extent of any money owing by the Customer to ART Security, be held on trust for ART Security by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the Customer.
13.1 Words and expressions used in this clause 13 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.
13.2 Unless a Customer has paid for Equipment before it is delivered to the Customer, the Customer acknowledges that:
(a) the Agreement for the supply of Equipment is a security agreement for the purposes of the PPSA, under which the Customer grants ART Security a security interest in the Equipment and over any amount owed to the Customer in respect of the Equipment (Account) to secure all monies owing by the Customer to ART Security from time to time;
(b) where ART Security has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and
(c) ART Security is not obliged to act in any way to dispose of or to retain any Equipment which has been seized by ART Security or any person nominated by ART Security under its rights under the PPSA.
13.3 Without limiting anything else in the Agreement, the Customer consents to ART Security effecting a registration on the register in relation to any security interest created by or arising in connection with, or contemplated by the Agreement, including in relation to the Equipment and any Account. The Customer agrees to promptly do all things necessary to ensure that any security interest created under the Agreement is perfected and remains continuously perfected and that ART Security’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.
13.4 The Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by ART Security for that purpose in relation to the Equipment or the Account). Without limiting the foregoing, the Customer must:
(a) register a security interest in relation to the Equipment where the Customer on sells the Equipment to a third party or incorporates the Equipment into another good or product;
(b) where appropriate take reasonable steps to identify security interests in relation to the Equipment in the Customer’s favour and to perfect and protect them with the highest priority reasonably available; and
(c) not register a financing change statement in relation to any registration made under paragraphs (a) or (b) without ART Security’s prior written consent.
13.5 The Customer must indemnify and, on demand, reimburse ART Security for all expenses incurred in registering a financing statement or financing change statement on the register and for the enforcement of any rights arising out of any of ART Security’s security interests.
13.6 The Customer must not change its name, address or contact details without providing prior written notice to ART Security.
13.7 To the extent that the PPSA permits, the Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.
13.8 The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if ART Security has given prior written consent.
14.1 If the Customer is a consumer (as defined in section 3 of the Australian Consumer Law) (Consumer) and ART Security supplies PDH Goods or Services to the Customer, ART Security acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the guarantees provided under Division 1 of Part 3-2 of the Australian Consumer Law (Consumer Guarantees) as they apply to the PDH Goods or Services supplied by ART Security and nothing in the Agreement should be interpreted as attempting to exclude, restrict or modify the application of those rights.
14.2 If the Customer is a Consumer and any goods or services supplied by ART Security to the Customer are non PDH Goods or Services, ART Security’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at ART Security’s discretion) to:
(a) in the case of goods: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and
(b) in the case of services: (i) the supplying the services again; or (ii) the payment of the cost of having the services supplied again.
14.3 If the Customer makes a claim against ART Security which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law ART Security’s aggregate liability to the Customer in respect of all such claims will not exceed the Fees received by ART Security from the Customer under the Agreement.
14.4 Subject to clauses 1 and 14.2, ART Security will not be liable to the Customer for any Consequential Loss that may be suffered or incurred by the Customer arising out of or in connection with the Agreement.
14.5 The Customer must notify ART Security immediately if it becomes aware of:
(a) any claim; or
(b) any death, serious injury or serious illness,
in respect of, or caused by, the Equipment or other equipment or goods of which the Equipment is a component or mixed with and the Customer must take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
15 Intellectual Property
15.1 The parties acknowledge and agree that as between ART Security and the Customer all Intellectual Property Rights in the Equipment and any material (including audio-visual, visual, and audio recordings) created as part of the Services vests in and exclusively belongs to and are irrevocably assigned to ART Security and the Customer agrees that it must not infringe or use the Intellectual Property Rights of ART Security which exist in the Equipment or materials created as part of the Services without the prior written consent of ART Security.
15.2 The Customer must not modify, adapt, vary, reverse engineer, disassemble or copy all or any part of any Equipment without the prior written consent of ART Security.
15.3 The Customer must not remove, deface, change, distort, delete or cover up:
(a) any name plate or mark on the Equipment which indicates that ART Security is the owner of the Equipment; or
(b) any patent, copyright or other proprietary notices which appear in writing on or in any part of the Equipment.
The Customer indemnifies ART Security and holds ART Security harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which ART Security incurs as a direct or indirect result of:
(a) recovering any amounts the Customer owes to ART Security (including any fees or commission paid to a debt collector, mercantile agent or similar) and costs incurred by ART Security in exercising any right to repossess or remove any Equipment;
(b) any breach of the Agreement by the Customer; and
(c) any negligent or wilful act or omission by the Customer, the Customer’s employees, agents, servants, contractors or others for whom the Customer is legally responsible.
17.1 If an Offer has been accepted by ART Security, the Customer acknowledges that the Offer was accepted by ART Security on the basis of, and in reliance upon, any information, drawings, specifications, data, representations, statements and documents provided by the Customer, set out in an Order or otherwise approved by the Customer (Customer Specifications).
17.2 Where any instructions, materials or information in whatever form (including any Customer Specifications) are required to be provided by the Customer to ART Security before ART Security can proceed with or complete the provision of the Equipment or Services, those instructions, materials or information must be supplied by the Customer to ART Security within a reasonable time so as to enable ART Security to deliver the Equipment or Services within any agreed time frame.
17.3 The Specifications are approximate only and ART Security makes no representation or warranty as to the completeness or accuracy of the Specifications and the Customer is responsible for making its own enquiries in relation to the completeness and accuracy of the Specifications.
17.4 ART Security may make changes to the specifications, dimensions, weights or other particulars of the Equipment as may be required from time to time by law or by any safety or manufacturing requirements.
18.1 The Customer:
(a) may use Confidential Information solely for the purposes of the Agreement;
(b) must keep confidential all Confidential Information; and
(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by ART Security; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of ART Security.
18.2 The Customer must notify ART Security immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.
19.1 In this clause, words and expressions which are defined in the A New Tax System (Equipment and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.
19.2 Unless otherwise expressly stated in writing in the Agreement, all amounts payable by the Customer in connection with the Agreement do not include an amount for GST. If GST is payable on any supply made by ART Security under the Agreement, the Customer must pay to ART Security, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required by the Agreement to reimburse or indemnify ART Security for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that ART Security will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by ART Security in respect of the reimbursement or payment.
20 Force Majeure and Business Continuity Events
20.1 ART Security will not be liable for any failure to perform or delay in performing its obligations under the Agreement if that failure or delay is due to a Force Majeure Event.
20.2 If a Force Majeure Event under clause 20.1 exceeds 30 days, ART Security may immediately terminate the Agreement by written notice to the Customer.
20.3 The Customer acknowledges and agrees that if a Business Continuity Event occurs:
(a) ART Security may act in accordance with its Business Continuity Plan and that this may impact on the provision of the Equipment and / or Services; and
(b) ART Security may, in accordance with its Business Continuity Plan, suspend or vary any of the Services impacted by the Business Continuity Event (Impacted Services) and ART Security will not be liable for any failure or delay in providing the Impacted Services as a result of the suspension or variation.
21.1 Either party may terminate the Agreement by providing the other party with not less than three months’ notice.
21.2 Without limiting ART Security’s other rights under the Agreement, and to the extent permitted by law, ART Security may terminate the Agreement with immediate effect by written notice to the Customer if:
(a) ART Security reasonably believes that a fault or other issue with the Customer’s equipment will materially impede ART Security’s ability to provide monitoring services to other customers;
(b) the Customer fails to make any payment under the Agreement to ART Security by the due date for that payment and has still failed to make that payment 10 days after ART Security gives the Customer notice of the failed payment;
(c) the Customer is the subject of an Insolvency Event;
(d) the Customer has breached any material term of the Agreement which is not capable of remedy;
(e) the Customer has breached a term of the Agreement which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; or
(f) in accordance with clause 20.2.
21.3 Without limiting the Customer’s other rights under the Agreement, and to the extent permitted by law, the Customer may terminate the Agreement with immediate effect by written notice to ART Security if:
(a) ART Security is the subject of an Insolvency Event;
(b) ART Security has breached any material term of the Agreement which is not capable of remedy; or
(c) ART Security has breached a term of the Agreement which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied.
21.4 If the Agreement is terminated less than the minimum terms specified in the Quote (or if no minimum term is specified, the Term) (Minimum Term), then the Customer must immediately upon termination of the Agreement pay to ART Security an amount equal to the Early Termination Fee (if any) for each month (including any part month) remaining of the Minimum Term.
21.5 On expiry or termination of the Agreement:
(a) ART Security will cease providing any Services at 12:00pm on the date of expiry or termination;
(b) ART Security may retain any Fees which have already been paid by the Customer;
(c) the Customer must not sell or part with possession (other than as required under clause 21.5(d)) of any Equipment which is the subject of the Agreement (other than any Equipment which has been paid for);
(d) the Customer must, at its cost, immediately return to ART Security:
(i) all Equipment which is the subject of the Agreement (other than any Equipment which has been paid for); and
(ii) any equipment which is specified in the Quote as being rental equipment (including any equipment owned by a third party provider of any relevant Network services which is on a Site or has otherwise been provided to the Customer) (Rental Equipment);
(e) ART Security may enter the premises of the Customer or any third party to repossess any Equipment not returned under clause 5(d) and ART Security shall not be liable to the Customer for any damage it may cause arising from such repossession; and
(f) all money owed by the Customer to ART Security will become immediately due and payable.
(g) All Rental Equipment must be returned to ART Security in the same condition and working order as the Rental Equipment was in when it was first provided to the Customer, fair wear and tear excepted.
21.6 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
22 Acknowledgements and representations
22.1 By making an Offer, the Customer warrants and represents to ART Security that it has read and understood the Agreement (including these Terms) prior to making the Offer, and agrees to be bound by them in full.
22.2 The Customer 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 laws relating to the use of the Equipment, ART Security in no way provides advice to the Customer on compliance with such laws and ART Security recommends that the Customer seeks legal advice about using the Equipment before using the Equipment;
(c) the Equipment and Services are not designed or intended to monitor the supply of any utility services (including electricity) to the Customer or any Site and ART Security is under no obligation to notify the Customer if there is any interruption to, or other issue with, any utility services to the Customer or any Site;
(d) any duress, panic or hold up alarms are not life saving devices and do not guarantee that the Customer or any other person will not suffer any harm;
(e) the Customer must not use the Equipment for an unlawful purpose;
(f) the Customer must only use the Equipment and Monitoring Services for the purpose for which they were supplied;
(g) ART Security does not represent that the Equipment or Services comply in part or in full with any written standard regulation or requirement of any association, Government or other body; and
(h) if ART Security is providing Services in respect of equipment supplied or installed by another person, ART Security will use reasonable endeavours to provide such Services but does not provide any warranties regarding the provision or availability of such Services or the reliability of such equipment.
23.1 In the event of an inconsistency between any of the documents listed in clause 2.3, the following order of precedence will apply to the extent of the inconsistency:
(a) the prices, fees, quantity and description of Equipment and/or Services set out in a Quote;
(b) these Terms;
(c) any other terms of the Quote (if applicable); and
(d) without limiting clause 23.2, any terms in the Order which are accepted by ART Security in writing.
23.2 These Terms will prevail over any Customer terms and conditions, except to the extent specifically agreed by ART Security in writing, and any terms or conditions included in an Order or other document provided or issued by the Customer will only be binding on ART Security if expressly agreed by ART Security in writing.
24.1 In the Agreement:
(a) the singular includes the plural and vice versa;
(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;
(e) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(f) headings are inserted for convenience and do not affect the interpretation of the Agreement;
(g) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement; and
(h) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
24.2 The Customer must maintain and keep current and complete records of the Equipment which ART Security has supplied to the Customer (in sufficient detail so as to be readily identified as equipment or goods supplied by ART Security) and must, immediately upon written request from ART Security, provide ART Security with access to, or copies of, those records.
24.3 The Customer must not assign or otherwise deal with any of its rights or obligations under the Agreement without ART Security’s prior written consent. ART Security may, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under the Agreement (including any right to be paid or chose in action) at any time in circumstances where the assignment will not adversely affect the rights of the Customer. The Customer acknowledges that ART Security routinely subcontracts persons for the provision of installation, maintenance, third party IT and network management services.
24.4 The Agreement may only be amended or varied by a document in writing signed by each party.
24.5 A failure to exercise or delay in exercising any right under the Agreement does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under the Agreement must be in writing and is only effective to the extent set out in that written waiver.
24.6 If any provision of the Agreement is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from the Agreement without affecting the validity or enforceability of the remaining provisions.
24.7 The termination or expiry of the Agreement does not operate to terminate any rights or obligations under the Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 7.4, 12, 13, 14, 15, 16, 18, 19, 21, 23 and 24.
24.8 Each party must:
(a) do all acts necessary or desirable to give full effect to the Agreement; and
(b) refrain from doing anything which might prevent full effect being given to the Agreement.
24.9 The relationship between the parties is and will remain that of independent contractors and nothing in the Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or (except as expressly provided for) gives rise to any other form of fiduciary relationship between the parties.
24.10 Notices by a party must be delivered by hand, prepaid post or email and sent to the address of the receiving party specified in the Quote or, if none are specified, those specified in any other part of the Agreement. Notices will be deemed to have been received: by hand upon delivery; by post within six days of sending; and by email one hour after the email is sent (unless the sender knows that email has failed to send).
24.11 The Agreement is governed by the laws in force in Victoria, and the Customer and ART Security submit to the exclusive jurisdiction of the courts of Victoria.