Terms and Conditions
PART I – GENERAL TERMS AND CONDITIONS
1.1 “ISS” shall mean Imperial Security Services Pty Ltd T/A Imperial Security & Fire its successors and assigns or any person acting on behalf of and with the authority of Imperial Security Services Pty Ltd T/A Imperial Security & Fire.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by ISS to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Alarm System” shall mean the Alarm System supplied by ISS to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by ISS to the Customer.
1.5 “Services” shall mean all Services supplied by ISS to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Alarm System as defined above).
1.6 “Commissioning Sheet” shall mean the written instructions received by ISS from the Customer, detailing equipment response procedures and the Customer’s voice codes or passwords.
1.7 “Term” shall mean the period selected by the Customer, commencing from the date the Services are first provided by ISS.
1.8 “Price” shall mean the price payable for the Alarm System and/or the Services as agreed between ISS and the Customer in accordance with clause 4 of this contract.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Alarm System.
2.2 These terms and conditions may only be amended with ISS’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and ISS.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on ISS’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
3. Change in Control
3.1 The Customer shall give ISS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by ISS as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At ISS’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by ISS to the Customer; or
(b) ISS’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 ISS reserves the right to change the Price
(a) if a variation to the Goods which are to be supplied is requested; or
(b) in the event of a variation to ISS’ quotation at any time (provided the Customer is given three (3) months written notification by ISS); or
(c) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(d) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, safety considerations, prerequisite work by any third party not being completed etc) which are only discovered on commencement of the Services; or
(e) in the event of increases to ISS in the cost of labour or materials which are beyond ISS’s control.
4.3 At ISS’s sole discretion a deposit of twenty-five percent (25%) of the Price may be required.
4.4 Time for payment for the Alarm System being of the essence, the Price will be payable by the Customer on the date/s determined by ISS, which may be:
(a) by instalments in accordance with ISS’ payment schedule; or
(b) where no payment schedule has been specified ISS may submit detailed payment progress claims for Services performed. The value of Services so performed shall include the reasonable value of authorised variations and the value of any Alarm System delivered to the site but not yet installed; or
(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 fourteen (14) days following the date of any invoice given to the Customer by ISS.
4.5 Payment will be made by cash, cheque, bank cheque, electronic banking, direct credit, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Customer and ISS.
4.6 Unless otherwise stated the Price includes GST. In addition to the Price the Customer must pay to ISS an amount equal to any GST ISS must pay for any supply by ISS under this or any other agreement for the sale of the Alarm System. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.
4.7 In the event that a Customer’s account falls into arrears, ISS reserves the right to suspend or terminate the monitoring of the Customer’s alarm system after giving the Customer five (5) working days’ notice in writing.
5. Delivery and Installation
5.1 Delivery (“Delivery”) of the Alarm System is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Alarm System at ISS’s address; or
(b) ISS (or ISS’s nominated carrier) delivers the Alarm System to the Customer’s nominated address even if the Customer is not present at the address.
5.2 At ISS’s sole discretion the costs of Delivery are either included in the Price or in addition to the Price.
5.3 The Customer shall make all arrangements necessary to take delivery of the Alarm System whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Alarm System as arranged then ISS shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Alarm System to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 Subject to clause 5.6 it is ISS’s responsibility to ensure that the Services start as soon as it is reasonably possible.
5.6 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that ISS claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond ISS’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify ISS that the site is ready.
5.7 Any time or date given by ISS to the Customer is an estimate only. The Customer must still accept delivery of the Alarm System even if late and ISS will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1 If ISS retains ownership of the Alarm System nonetheless, all risk for the Alarm System passes to the Customer on delivery.
6.2 If the Alarm System is damaged or destroyed following delivery but prior to ownership passing to the Customer, ISS is entitled to receive all insurance proceeds payable for the Alarm System. The production of these terms and conditions by ISS is sufficient evidence of ISS’s rights to receive the insurance proceeds without the need for any person dealing with ISS to make further enquiries.
6.3 The Customer acknowledges that ISS does not warrant that the Alarm System will render the alarmed premises, or any occupant of the alarmed premises, secure. ISS shall not be liable for any loss (including consequential loss) or damage suffered by the Customer, whether arising from ISS’s negligence or otherwise, resulting from the Customer’s use of or reliance upon the Alarm System and/or Services, including Alarm response.
6.4 The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that ISS, its employees or ISS’s reasonably form the opinion that the Customer’s premises is not safe for the installation of Goods to proceed then ISS shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 5.6 above) until ISS is satisfied that it is safe for the installation to proceed.
6.5 The obligations of ISS to provide the Services and to action alarm signals are conditional upon the Alarm System being operational, in accordance with the manufacturer’s requirements and to the satisfaction of ISS.
6.6 ISS shall not be held responsible or liable for any criminal activity, damage caused by break and entry, vandalism, fire, smoke, system failure, or domestic or commercial loss. The Customer understands that the installation of security, CCTV, intercom and/or fire systems does not guarantee immunity against theft, vandalism or fire.
6.7 Whilst ISS shall apply all professional care and diligence, no responsibility or liability is accepted for any damage to the Customer’s property above and beyond the amount of one thousand dollars ($1,000.00). This amount is to ensure that minor damages are rectified immediately by ISS, with all mandatory insurances (including worker’s compensation, public liability) held to cover any larger claims.
7.1 The Customer shall provide clear and reasonable access to the premises on the agreed date that Services are to be undertaken. Delays to ISS’s technical staff waiting for access and/or clearing of obstacles, or other Customer causes, may result in additional fees to be added to the Price, in accordance with clause 4.2. ISS shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of ISS.
8. Underground Locations
8.1 Prior to ISS commencing any work the Customer must advise ISS of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2 Whilst ISS will take all care to avoid damage to any underground services the Customer agrees to indemnify ISS in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9. Customer’s Responsibilities
9.1 The Customer shall be responsible:
(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.
9.2 The Customer shall provide, at the Customer’s cost, mains power connection so as to enable installation and/or service work to be undertaken at the premises.
9.3 Any telecommunications connection required for the installation and/or maintenance of a security system will be arranged and paid for by the Customer unless otherwise agreed in writing.
9.4 The Customer acknowledges that in the event asbestos or any other toxic substances are discovered during the installation that it is the Customer’s responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify ISS against any costs incurred by ISS as a consequence of such discovery. Under no circumstances will ISS handle removal of any asbestos product.
9.5 The Customer shall immediately advise ISS, in writing, of any variation(s) to the Commissioning Sheet.
10. Patrol Response Service
10.1 Whilst ISS shall use its best endeavours to engage a contractor to provide a timely response to actionable signals, ISS offers no guarantee that the Services will be available at any time, if at all, and shall not be liable for any loss or damage the Customer may suffer in connection with any, or the absence of any, patrol response Service.
10.2 The Customer acknowledges that independent contractors, where available, may provide patrol response Services. Accordingly, patrol response fees may vary from area to area during the course of the Term. The Customer agrees to promptly pay or reimburse ISS for patrol response fees, which may include an administration fee.
11.1 ISS and the Customer agree that ownership of the Alarm System shall not pass until:
(a) the Customer has paid ISS all amounts owing for the particular Alarm System; and
(b) the Customer has met all other obligations due by the Customer to ISS in respect of all contracts between ISS and the Customer.
11.2 Receipt by ISS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then ISS’s ownership or rights in respect of the Alarm System shall continue.
11.3 It is further agreed that:
(a) where practicable the Alarm System shall be kept separate and identifiable until ISS shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Alarm System shall pass from ISS to the Customer ISS may give notice in writing to the Customer to return the Alarm System or any of them to ISS. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Alarm System shall cease; and
(c) ISS shall have the right of stopping the Alarm System in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Alarm System to ISS then ISS or ISS’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Alarm System are situated and take possession of the Alarm System; and
(e) the Customer is only a bailee of the Alarm System and until such time as ISS has received payment in full for the Alarm System then the Customer shall hold any proceeds from the sale or disposal of the Alarm System, up to and including the amount the Customer owes to ISS for the Alarm System, on trust for ISS; and
(f) the Customer shall not deal with the money of ISS in any way which may be adverse to ISS; and
(g) the Customer shall not charge the Alarm System in any way nor grant nor otherwise give any interest in the Alarm System while they remain the property of ISS; and
(h) ISS can issue proceedings to recover the Price of the Alarm System sold notwithstanding that ownership of the Alarm System may not have passed to the Customer; and
(i) until such time that ownership in the Alarm System passes to the Customer, if the Alarm System are converted into other products, the parties agree that ISS will be the owner of the end products.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in the Alarm System that has previously been supplied and that will be supplied in the future by ISS to the Customer.
12.3 The Customer 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 ISS 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 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, ISS 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 Alarm System charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of ISS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Alarm System in favour of a third party without the prior written consent of ISS;
(e) immediately advise ISS of any material change in its business practices of selling Alarm System which would result in a change in the nature of proceeds derived from such sales.
12.4 ISS and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by ISS, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by ISS under clauses 12.3 to 12.5.
12.9 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.
13. Security and Charge
13.1 In consideration of ISS agreeing to supply the Alarm System, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies ISS from and against all ISS’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ISS’s rights under this clause.
13.3 The Customer irrevocably appoints ISS and each director of ISS as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12.1 including, but not limited to, signing any document on the Customer’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Alarm System on delivery and must within seven (7) days of delivery notify ISS in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Alarm System as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow ISS to inspect the Alarm System.
14.2 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).
14.3 ISS acknowledge that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ISS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Alarm System. ISS’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, ISS’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If ISS is required to replace the Alarm System under this clause or the CCA, but is unable to do so, ISS may refund any money the Customer has paid for the Alarm System.
14.7 If the Customer is not a consumer within the meaning of the CCA, ISS’s liability for any defect or damage in the Alarm System is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by ISS at ISS’s sole discretion;
(b) limited to any warranty to which ISS is entitled, if ISS did not manufacture the Alarm System;
(c) otherwise negated absolutely.
14.8 Subject to this clause 12.1, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 12; and
(b) ISS has agreed that the Alarm System are defective; and
(c) the Alarm System are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Alarm System are returned in as close a condition to that in which they were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, ISS 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 Customer failing to properly maintain or store any Alarm System;
(b) the Customer using the Alarm System for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Alarm System after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by ISS;
(e) fair wear and tear, any accident, or act of God.
14.10 Notwithstanding anything contained in this clause if ISS is required by a law to accept a return then ISS will only accept a return on the conditions imposed by that law.
15. Intellectual Property
15.1 Where ISS has designed, drawn or written an Alarm System for the Customer, then the copyright in those designs and drawings and
Imperial Security Services Pty Ltd T/A Imperial Security & Fire – Terms & Conditions of Trade
Please note that a larger print version of these terms and conditions is available from ISS on request. © Copyright – EC Credit Control 1999 – 2014
documents shall remain vested in ISS, and shall only be used by the Customer at ISS’ discretion.
15.2 Sketches, designs, plans and specifications submitted by ISS on a speculative basis shall remain the intellectual property of ISS. They shall not be used for any purpose other than that nominated by ISS and no ideas obtained there from may be used without the consent of ISS. ISS shall be entitled to compensation from the Customer for any unauthorised use of such sketches, designs, plans and specifications.
15.3 The Customer warrants that all designs or instructions to ISS will not cause ISS to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify ISS against any action taken by a third party against ISS in respect of any such infringement.
15.4 The Customer hereby authorises ISS to utilise images of the Alarm System designed or drawn by ISS in advertising, marketing, or competition material by ISS.
16. Default and Consequences of Default
16.1 If the Customer owes ISS any money the Customer shall indemnify ISS from and against all costs and disbursements incurred by ISS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ISS’s contract default fee, and bank dishonour fees).
16.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by ISS.
16.3 Without prejudice to any other remedies ISS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions ISS may suspend or terminate the supply of Alarm System to the Customer. ISS will not be liable to the Customer for any loss or damage the Customer suffers because ISS has exercised its rights under this clause.
16.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of one hundred and fifty dollars ($150.00)) shall be levied for administration fees which sum shall become immediately due and payable.
16.5 Without prejudice to ISS’s other remedies at law ISS shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ISS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to ISS becomes overdue, or in ISS’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer 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 Customer or any asset of the Customer.
17.1 ISS may cancel any contract to which these terms and conditions apply or cancel any time before delivery of the Alarm or commencement of the Services by giving written notice to the Customer. On giving such notice ISS shall repay to the Customer any sums paid in respect of the Price. ISS shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event of cancellation by the Customer, ISS shall be entitled to charge the Customer for any loss incurred (including, but not limited to, any loss of profits) up to the time of cancellation.
17.3 Cancellation of orders for Alarms made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once the order has been placed.
17.4 Upon expiration of the Term, this agreement shall continue on a month-to-month basis, subject to termination by either party with one (1) months written notice.
18. Privacy Act 1988
18.1 The Customer agrees for ISS 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 Customer in relation to credit provided by ISS.
18.2 The Customer agrees that ISS may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
18.3 The Customer consents to ISS being given a consumer credit report to collect overdue payment on commercial credit.
18.4 The Customer agrees that personal credit information provided may be used and retained by ISS for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
18.5 ISS may give information about the Customer 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 Customer including credit history.
18.6 The information given to the CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that ISS is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’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 Customer no longer has any overdue accounts and ISS has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of ISS, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.7 The Customer shall have the right to request (by e-mail) from ISS:
(a) a copy of the information about the Customer retained by ISS and the right to request that ISS correct any incorrect information; and
(b) that ISS does not disclose any personal information about the Customer for the purpose of direct marketing.
18.8 ISS will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
18.9 The Customer can make a privacy complaint by contacting ISS via e-mail. ISS 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Building and Construction Industry Security of Payments Act 1999
19.1 At ISS’s sole discretion, if there are any disputes or claims for unpaid Alarm Systems and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
19.2 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.
20.1 The failure by ISS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ISS’s 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.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the of New South Wales state in which ISS has its principal place of business, and are subject to the jurisdiction of the courts in New South Wales.
20.3 Subject to clause 14 ISS shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ISS of these terms and conditions (alternatively ISS’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Alarm System).
20.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by ISS nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 ISS may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.6 The Customer agrees that ISS may amend these terms and conditions at any time. If ISS makes a change to these terms and conditions, then that change will take effect from the date on which ISS notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for ISS to provide Alarm System to the Customer.
20.7 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.
20.8 The Customer warrants that it has the power to engage ISS’s 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.
PART II – MONITORING, PATROL AND ALARM RESPONSE SERVICES – TERMS AND CONDITIONS
21.1 “Monitoring Services” shall mean around-the-clock monitoring of the security alarm system for alarm signals and, if selected by the Customer, opening and closing signals and/or other security services:
21.2 “Customer Information Sheet” shall include the Customer’s written instructions to ISS detailing response procedures and the Customer’s voice codes and/or passwords.
21.3 “Fee” shall mean the Fee payable for the Monitoring Services as agreed between ISS and the Customer in accordance with clause 22 of this contract.
22. Price and Payment
22.1 At ISS’s sole discretion the Price shall be as indicated to the Customer in the quotation (subject to clause 22.2) in respect of Monitoring Services supplied.
22.2 ISS reserves the right to increase the Fee at any time, provided the Customer receives one (1) month’s prior written notice.
22.3 At ISS’s sole discretion and unless otherwise agreed by ISS, payment for Monitoring Services shall be billed quarterly and payment shall be due as per clause 22.5.
22.4 Alarm responses are charged at ISS’ normal rates, subject to clause 27.7.
22.5 Time for payment for the Monitoring Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
22.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and ISS.
22.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
23. Provision of Patrol Services
23.1 The Customer acknowledges that ISS patrol services are shared with other Customers. There may be occasions when individual patrols are late or missed due to the need to respond to high priority events such as break and enters. Other unforeseen circumstances such as storms or vehicle breakdown may also cause individual patrol calls not to be undertaken. This is taken into consideration when setting patrol pricing. Any on-going problems related to ISS’ inability to complete agreed patrols for more than ten (10%) of the agreed contract. Service will be notified to the Customer and adjustments will be negotiated to patrol services and/or credit/refunds given for the undelivered Services exceeding ten percent (10%).
23.2 The Customer will inform ISS if there are any changes to the site being patrolled if these changes have the potential to restrict the provision of the patrol Services or cause any harm to the Patrol Officers.
24.1 The Customer shall ensure that ISS has clear and free access to the designated area for monitoring at all times to enable ISS to carry out the prescribed Monitoring Services. The Customer 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.
24.2 The Customer shall advise ISS in the event of any changed circumstances, or planned changes, to the premises which might affect ISS’s ability to provide Services in a safe manner.
25. ISS’s Responsibilities
25.1 ISS agrees to use due care and skill to provide the Monitoring Services for alarm signals and/or other recurring services selected by the Customer.
25.2 ISS shall action alarm signals emanating from the alarm in accordance with the documented Customer instructions and ISS’s Standard Operating Procedures.
25.3 Whilst ISS shall endeavour to provide a timely response to actionable alarm signals, no warranty is given by ISS that patrol response will be available at any time, if at all. ISS shall not be liable for any loss or damage the Customer may suffer in connection with any response or the absence of any alarm response.
25.4 Whilst ISS uses due care when contacting and advising emergency services, they cannot guarantee prompt response times or attendance of such services.
26. Customer’s Responsibilities
26.1 The Customer shall immediately advise ISS, in writing, in the event of any changes to their contact details or alarm response requirements
26.2 The Customer 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 ISS 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 ISS.
26.3 The Customer shall supply at the Customer’s expense keys, swipe cards, alarm codes, electronic access controls to the site, to ISS to enable ISS to carry out alarm responses and/or patrols. ISS’s liability for loss or damage of the Customer’s keys, swipe cards etc are limited to the costs of obtaining a replacement or $5,000 whichever is the lesser.
26.4 In the event that the Customer does not claim their keys, swipe cards, alarm codes, electronic access controls within thirty (30) days of the termination or expiration of the Monitoring Service, ISS shall destroy them.
26.5 The Customer 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 premises.
26.6 The Customer cannot transfer, or attempt to transfer, the right to receive the Monitoring Services or any other right to any other party.
26.7 Upon termination of the monitoring services, it is the Customer’s responsibility to ensure that an alternative service is arranged, if required, and the panel is deprogrammed to stop reporting to ISS.
26.8 ISS will not be responsible for any communication costs post cancellation
26.9 Any signals received by ISS after termination of the Services shall not be treated as critical and shall not be actioned by ISS.
26.10 The Customer agrees that any costs associated with the delivery of services by the Police, Ambulance, Fire or other emergency services to the Customer’s monitored premises shall be met by the Customer.
27. Monitoring Service
27.1 The Monitoring Service provided by ISS shall consist of monitoring all signals received at ISS’s Monitoring Station from the alarm system designated in the Customer Information Sheet hereto.
27.2 ISS 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 Customer’s instructions.
27.3 ISS shall endeavour to action the following alarm system signals generally as described below or as otherwise agreed or interpreted:
(a) duress / panic – ISS shall call the monitored site, as required by the New South Wales Police Force (NSWPF) first to verify the event. If deemed necessary ISS shall contact and advise the NSWPF; and
(b) hold up – ISS shall notify the NSWPF, and make a follow up call to the monitored site after thirty (30) minutes (this clause assumes that the Customer’s premises comply with NSWPF’s protocols for hold up alarms); and
(c) fire / smoke – ISS shall call the site to verify event, if no answer ISS will advise Fire Department and contacts (ISS will dispatch guard if no contacts are available and keys are held); and
(d) medical – ISS shall call the site to verify event, if no answer ISS will advise Ambulance Service and contacts (ISS will dispatch guard if no contacts are available and keys are held); and
(e) system events – ISS shall contact the Customer and contacts and shall advise service department if necessary (this type of event is not necessarily actioned immediately).
27.4 In the event that the premises is found to have been violated and the Customer contact is unable to be contacted by telephone, the Customer authorises ISS to arrange for a security guard to attend and remain on the premises as an agent if necessary, if ISS considers it necessary until the Customer is contacted and ISS is given instructions. Alternatively, ISS is authorised to arrange temporary work to secure the premises with the customer agreeing to pay for such work as per clause 27.5.
27.5 The Customer accepts and acknowledges that in the event ISS acts as an Agent on behalf of the Customer with a third party, (including but not limited to locksmiths and/or glaziers) the Customer 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 ISS in their obligations for payment as Agents acting on behalf of the Customer to third parties.
27.6 If the Customer 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.
27.7 The Customer acknowledges that independent contractors, where available, may provide patrol response. Accordingly, patrol response fees may vary from area to area and over time. The Customer agrees to pay or reimburse ISS for patrol response fees, which may include an administration fee. ISS shall advise the Customer of applicable patrol response fees upon request by the Customer.
27.8 ISS may be unable to monitor the system in the event of a communication failure between the alarm panel in the Customer’s premises and the monitoring centre, Failures of this nature may be malicious or otherwise. The Customer acknowledges that ISS’s obligation to action alarm events is suspended at any time the communications link is disrupted between the Customer’s premises and ISS’s monitoring room.
28. Customer’s Acknowledgements
28.1 The Customer acknowledges that the provision of Monitoring Services may not prevent unlawful entry to the designated site occurring and accordingly the Customer accepts that loss or damage to property and death or injury to persons may occur even though ISS’s obligations under this agreement have been satisfied.
28.2 Unless stated otherwise in this agreement the supply of performance records, history or other reports shall only be issued direct to the Customer.
28.3 The Customer accepts and acknowledges that ISS during the course of the Monitoring Service:
(a) telephone conversations shall be recorded between ISS and the Customer and the Customer hereby authorises ISS to implement this procedure; and
(b) ISS’s employees shall not be required to carry out any duties of an illegal or strike breaking nature; and
(c) ISS is not an insurer of the premises and it is advisable for the Customer 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 Alarm System relating to security of premises are deterrents only and ISS does not represent that the Alarm System will protect the Customer against theft, burglary and house breaking; and
(e) the Alarm System relating to fire is a fire detection Alarm System only and ISS does not represent that the Alarm System will protect the Customer or his property against fire. The Alarm System relating to medical alarms is for notification purposes only and does not represent that the Alarm System will protect the Customer from a medical emergency.
29. Limitation of Liability
29.1 The Customer hereby disclaims any right to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by ISS and the Customer acknowledges that the Alarm System is bought relying solely upon the Customer’s skill and judgment.
29.2 Insofar as the Customer, notwithstanding provisions of this clause, may have any claim for damages against ISS, 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 three months fees actually paid by the Customer in respect of that