AP Security Terms and Conditions of Trade
1.1. If applicable, capitalised terms have the meaning given to them in this agreement. In addition, the following definitions apply in this agreement:
1.2. Contractor, we, or us means ap projects limited trading as AP Security (our successors and assigns) or any person acting with the authority of AP Projects Limited.
1.3. Client, you, or your means the client purchasing goods or services from us or any person acting on your behalf (including authorised agents).
1.4. Goods means all goods required to complete the services.
1.5. Services means all services provided to you, including any provision of goods as specified in any documentation or otherwise provided under this agreement (and where the context permits, the terms goods or services’ shall be interchangeable for the other).
1.6. Premises means the building (with its land and any additional structures) you occupy or use for commercial activities where we are to provide the services.
1.7. Security system means anything designed for security (including, without limitation, any device, computer, computer system, network, camera or any form of access control technology implemented and designed to keep out any unauthorised person).
1.8. Fee means the fee for the services (in accordance with clause 6).
1.9. SLA means the service level agreement detailing the regular maintenance or repair services (including any incidental items where appropriate) to be carried out at the designated location and timeframes as agreed between both parties.
1.10. Fixed term means an agreement for ongoing services as set out in our SLA, where the initial fixed term shall be specified in our SLA documentation and agreed upon between both parties.
1.12. Amounts owing means any amount you owe to us, from time to time, including the price, any interest payable, any of your liability under this agreement and any enforcement expenses incurred by us in seeking payment of any amounts owing by you.
1.13. Business day means Monday to Friday, excluding public holidays in New Zealand.
1.14. Confidential information means all information that could be reasonably regarded in the circumstances as confidential, including information that relates to the business, interests or affairs of a party, this agreement, the goods or services (as applicable), and intellectual property rights, but excludes information which is: (a)in the public domain, other than as a result of a breach of this agreement; (b)in the possession of a party prior to the commencement of this agreement without any obligation of confidentiality; and (c)is independently developed or acquired by a party prior to the commencement of this agreement without relying on information that would itself be confidential information.
1.15. Event of default means failure to comply with this agreement (including your obligations in clause 6).
1.16. Insolvency event means an event of insolvency or bankruptcy, including: (i) the appointment of an insolvency administrator, manager, receiver or liquidator; (ii) any action related to winding up or making a material arrangement in relation to creditors; (iii) applying for any type of protection against creditors; (iv) being unable to pay your debts as they fall due; or (v) taking or suffering any similar or analogous action in any jurisdiction as a consequence of debt.
1.17. Personnel means directors, officers, employees, agents and contractors.
1.18. CCLA means the Contract and Commercial Law Act 2017.
1.19. PPSA means the Personal Property Securities Act 1999.
1.20. CCA means the Construction Contracts Act 2002.
1.21. Security agreement and security interest have the meanings given to them in part 2, sections 16 and 17 of the PPSA.
1.22. Regulator means any authority, commission, government department, court, tribunal, or similar having regulatory or supervisory authority over the parties or services.
1.23. Related company has the meaning given to it in part 1, section 2(3) of the Companies Act 1993.
2.1. In this agreement, unless the context otherwise requires: (a)headings are for convenience only and do not affect interpretation; (b)a reference to legislation includes all regulations, orders, instruments, codes, guidelines or determinations issued under that legislation or any modification, consolidation, amendment, re-enactment, replacement or codification of it; (c)a reference to in writing includes by email; (d)the words include or including or similar expressions are to be construed without limitation; (e)a reference to a party shall include that partys successors, permitted assigns and substitutes; and (f) a word importing the singular includes the plural and vice versa.
3.1. The services are provided based on specifications, information and instructions provided by you (whether written or verbal). You acknowledge that it is your responsibility to ensure that such instructions are detailed sufficiently to satisfy our requirements of interpretation and understanding. Once accepted by you, our quotation shall be deemed to interpret those specifications, information and instructions correctly. We shall not accept any liability for the supply of services contrary to your intention or errors or omissions due to insufficient or inadequate provision of detailed specifications, information or instructions by you (including where such lack of instructions leads to any inaction, loss or damage).
3.2. You acknowledge and accept that: (a)the supply of goods on credit shall not take effect until you have completed a credit application with us and it has been approved with a credit limit established for the account; (b)if the supply of goods requested exceeds your credit limit or the account exceeds the payment terms, we reserve the right to refuse further delivery; (c)where necessary, this agreement will be modified or amended to the extent required to comply with any applicable legislation; and (d)this agreement shall supersede any other document or agreement between both parties.
3.3. If you place an order for or accept any services from us, you are taken to accept this agreement and are bound jointly and severally (including if you are part of a trust, in which case you shall be bound in your capacity as a trustee). You do not need to sign any formal documentation to indicate your acceptance. It will be assumed from you continuing to order any goods or services.
3.4. Your acceptance of this agreement shall continue to all future orders, purchases or schedules (as applicable), and this agreement will be, or is deemed to be incorporated into, and form part of, each order, purchase or schedule as if this agreement was set out or implied therein in full.
3.5. Both parties shall accept electronic signatures (including acceptance by a receiving mail server) provided both parties have complied with sections in part 4, subpart 3 and all other relevant sections in part 4 of the CCLA.
3.6. Entry into this agreement by you grants us full authority to access the premises to carry out the services and generally protect your premises and possessions. Where the services are to be provided outside your regular business hours, you shall supply us with any keys and access cards necessary to enable us to access the premises to carry out the services.
4. Authorised agents
4.1. We are under no obligation to enquire as to the authority of any person placing an order on your behalf.
4.2. If you introduce any third party to us as your authorised agent, you agree that the agent shall have your full authority to order any services on your behalf, and such authority shall continue until the services have been completed or you notify us in writing that the third party is no longer your authorised agent.
4.3. Where your authorised agent is to have only limited authority to act on your behalf, you must explain the parameters of the limited authority to us in writing.
5. Changes to details
5.1. You agree that you will give us (addressed to the financial controller or equivalent) not less than fourteen (14) days prior written notice of any proposed change to your name or any other changes to your details (including changes to the ownership of the company, address, email, contact phone or business structure).
5.2. You acknowledge and accept that if you fail to comply with clause 5.1, you will breach this agreement and shall be liable for any expense or loss of profit suffered by us (including any related company).
6. Price and payment
6.1. You will pay us the price set out in any quotation or documentation that we provide to you under this agreement, plus any goods and services tax (as defined and imposed in part 2, section 8(1) of the Goods and Services Tax Act 1985 (gst)).
6.2. Unless otherwise agreed by us in writing, the price shall be: (a)indicated on invoices provided to you in respect of the services; (b)our estimated price (subject to clause 7), with the final price being ascertained upon completion of the services (and any variances in the estimated price of more than ten percent (10%) will be subject to your approval before we proceed with any further services); or (c)our quoted price, which will be binding, subject to your acceptance of our quotation in writing within seven (7) days.
6.3. If the price is not set out in quotations or other documentation, the price for the relevant goods or services will be at our standard rate according to our current price list or at a rate notified to you.
6.4. The price will be payable by you on the date(s) determined by us (at our sole discretion), which may be: (a)on delivery of the goods or completion of the services; (b)where you are on a sla, you are required to pay an agreed amount for the ongoing provision of the services by us as stipulated under that agreement; (c)due twenty (20) days following the end of the month in which a statement or invoice is sent to your address or address for notices; or (d)seven (7) days following the date of any invoice given to you by us if there is no notice to the contrary.
6.5. Where we pay any subcontractors account on your behalf, you agree to reimburse us for the payment of the subcontractor’s account within seven (7) days (unless otherwise agreed in writing).
6.6. No allowance has been made in the price for the deduction of retentions. If retentions are made, we reserve the right to treat all retentions as placing your account into default.
6.7. We reserve the right at any time to alter any price lists. Any alterations to any price list will be effective from the date specified by us and apply to all orders or purchases we accept on or after that date.
6.8. Payment may be made by cash, electronic/online banking, or any other method we agree to in writing.
6.9. Payment in any form other than cash shall not be taken to be payment for the amounts owing, and all ownership rights of the goods or services remain with us until that form of payment has been cleared and received (in accordance with clause 19.1).
6.10. We may require that you pay a deposit or provide a guarantee as security for paying any amounts owing.
6.11. We may (at our sole discretion) allocate any payment received from you towards any invoice that we determine and may do so at the time of receipt or at any time afterwards. On any default by you, we may reallocate any payments previously received and allocated. In the absence of any payment allocation by us, payment will be deemed to be allocated in a manner that preserves the maximum value of our security interests.
6.12. You shall not withhold payment of any amounts owing because part of the services are disputed, and if part of the services are disputed, you agree that you will: (a)perform all of your obligations to us under this agreement and pay in full any amounts owing except for the amount that is in dispute; and (b)provide a specific and detailed explanation of the dispute in writing within seven (7) days from delivery.
6.13. If an insolvency event occurs, all amounts owing will (whether or not due for payment) immediately become due and payable.
7.1. Our fee shall be reviewed and varied by us on the renewal date of this agreement (in accordance with clause 8). You acknowledge and agree that we shall be permitted to: (a)increase the fee by a percentage amount equal to the percentage increase in the labour cost index (lci) measuring changes in wages and salaries published by statistics new zealand (or any replacement index) over the preceding twelve (12) month period; and (b)increase the fee by a percentage amount equal to the percentage increase in the consumer prices index (cpi) measuring inflation for households published by statistics new zealand (or any replacement index) over the preceding twelve (12) month period.
7.2. We may adjust the fee at any time by an amount that we, in our sole discretion, determine is necessary to take account of any alterations you may make to the premises, or other factors which affect the cost to us of providing the services, including: (i) the price of the goods increase due to changes beyond our control (including any taxes imposed by any regulator, overseas transactions that may increase due to variations in foreign currency rates of exchange or international freight and insurance charges); (ii) any information supplied by you being inaccurate; (iii) any request to change plans, specifications or the services that were initially quoted; (iv) increased wages (as a result of increases in the minimum wage rate); (v) any union awards or decisions regarding employment benefits or compensation; (vi) increased contractor costs; (vii) increased fuel costs; (viii) increased equipment and equipment maintenance costs; (ix) additional services required due to hidden or unseen complications that are discovered subsequent to the commencement of the services (including prerequisite work done by a third party that is incomplete or not up to standard, faults found upon disassembling the equipment or the premises (such as covered components, pipes or wires behind walls); (x) barriers obstructing access (including hard rock or metal below the surface); (xi) the presence of asbestos or other health and safety considerations); and (xii) legislative changes (including in relation to holidays and other benefits for employees or contractors).
7.3. The price will be adjusted to reflect any extra cost or expense we incur due to any instruction received from you (or your authorised agent) or any action or inaction on your part.
7.4. Where you request us to estimate the quantity of the goods to be supplied from sketches, plans, schedules, specifications or otherwise, you agree to pay for any variation between the estimate and the actual quantities provided, and this agreement shall be deemed to be adjusted accordingly to reflect the increased price.
7.5. All systems and advice are provided to you for the activities disclosed at the time of engagement. Any additional entities or changes in business activities will require a reassessment of the sla and an adjustment in the price.
8. Fixed term
8.1. You acknowledge and accept that the price stated in the sla will remain fixed for twelve (12) months from acceptance and be subject to revision.
8.2. Any fixed term shall revert to a monthly rollover basis automatically upon completion unless agreed otherwise and shall continue until terminated by either party by giving at least thirty (30) days written notice. 8.3. Should you fail to maintain your sla fees as agreed, we reserve the right to suspend the services.
9. Security services
9.1. We will provide you with the services specified in the documentation we supply to you provided that: (a)no security technician may be requested to provide services to you for anything less than one (1) hour; (b)the charges for the services will start when the security technician leaves our premises; (c)no security technician will be deployed to your premises unless a start and end time for the services has been agreed upon; (d)once we have agreed to deploy a security technician to your premises, that deployment may not be cancelled by you unless you provide us with notice in writing of the cancellation: (i) in the case of time charged services, at least one (1) hour prior to the commencement of the services (and if you provide less than one (1) hours notice, you shall be charged for the scheduled hours, notwithstanding that such services may no longer be required and not occur); or (ii) in the case of ongoing services, at least 30 days (in accordance with clause 8); and (e)we determine (at our sole discretion) the manner and means by which the services are performed.
9.2. If we are required to provide the services urgently, which may require us to work outside regular business hours (including working through lunch breaks, weekends or public holidays), we reserve the right to charge additional costs unless otherwise agreed between the parties.
9.3. You accept that the supply of goods for accepted orders may be subject to availability, and if, for any reason, goods are not or cease to be available, we reserve the right to substitute comparable goods (or components of the goods) and vary the price (in accordance with clause 7). In all such cases, we will notify you in advance of any such substitution and reserve the right to place your order on hold until both parties agree to such changes.
9.4. Our responsibility is to ensure that the services start as soon as possible. However, the services commencement date will be postponed, and the completion date will be extended by whatever time is reasonable if the provision of the services is delayed by any event beyond our control, including: (a)your failure to obtain the required consent; or (b)your failure to have the premises ready or make a selection of goods required to complete the services.
9.5. If we cannot supply the services as agreed solely due to any action or inaction of you, then we shall be entitled to charge a reasonable fee for the re-supplying of services at a later time and date (including storage of the goods if applicable).
9.6. Any time specified by us for delivery of the goods is an estimate only, and we will not be liable for any expenses or losses incurred due to your reliance on our estimated time for delivery, nor can you cancel any order for any delay in delivery that is less than fourteen (14) days after our estimated time for delivery (or any delay in delivery due to any event beyond our control).
9.7. We may deliver the goods in separate instalments, which will be invoiced and paid as individual transactions.
10. Activation and alarm monitoring
10.1. When required, monitoring services will commence once a monitoring connection has been established and verified from the site, and all this agreement has been accepted. Once the requirements are met, we shall provide services for twenty-four (24) hours, seven (7) days per week (excluding any times both parties agree for the provision of the services to be stopped in writing), and shall: (a)monitor the alarm signals from the security system or cctv camera; and (b)use reasonable endeavours to action alarm signals as soon as possible (in accordance with your instructions).
10.2. In addition to the activation-only alarm monitoring, we shall monitor the setting and unsetting signals from the security system.
10.3. We shall only be obliged to contact a mobile patrol if your instructions contain specific directions.
10.4. Any expense associated with any emergency services requests actioned on your behalf (including charges made by the fire service or police must be paid by you directly to the specific emergency services requested).
10.5. You shall indemnify us for all the losses, damage costs and expenses suffered or incurred by us regarding a false alarm signal (including any fees charged by emergency services).
10.6. If you move premises and wish to take any of our equipment with you to the new premises, we shall be required to be engaged to ensure the security of the systems and the safety of the equipment. You shall pay us the cost of removing and re-installing the equipment (in accordance with clause 7 at our usual labour rates as applicable at the date of the request). We will not be liable for any costs relating to any damage in removing equipment from the premises (except where such damage is due to our negligence).
10.7. We may install and service the electronic alarm systems, security cameras, access control systems and gate intercoms you select (in accordance with our advice and the quote). If we provide you with any installation or servicing of electronic security systems and your premises lose the connection to the internet, we may provide general packet radio service (gprs) monitoring provided that you have requested and provided us with the opportunity to install a gprs communication module.
11. Errors and omissions
11.1. You agree that we have no liability regarding any errors or omissions: (a)resulting from any inadvertent mistake made in the formation or administration of this agreement; or (b)contained in any documentation supplied to you regarding the services.
11.2. If such an error or omission occurs that is not attributable to our negligence or wilful misconduct, all obligations or rights under or in connection with this agreement shall continue in full force and effect.
12.1. You shall inspect all goods or services immediately on delivery and shall notify us of any alleged defect, shortage in quantity, damage or any other issue within seven (7) days from the date of delivery.
12.2. If you do not notify us within the seven (7) day timeframe (in accordance with clause
12.1), the goods or services shall be presumed to be free of defects, and we will consider all goods or services to be supplied free from any defect or other issue (subject to clause
12.3. You shall allow us to inspect the goods or services within fourteen (14) days (from the date of delivery) if you believe the goods or services are defective.
13. Returns and warranties
13.1. Return of the goods will only be accepted (at our sole discretion) provided that: (a)the goods are returned to us within seven (7) days of the delivery date; (b)we have agreed in writing to accept the return of the goods; (c)the goods are returned in the condition in which they were received (including all packaging material, brochures and any instructions in as new condition as is reasonably possible); (d)we will not accept the return of goods that have not been stored or used correctly; and (e)the return of any goods for credit may incur a restocking fee of twenty-five percent (25%) of the value of the goods (and any additional freight costs we incur).
13.2. Subject to the conditions of the warranty set out in clause
13.3, we warrant that if any defect in any of our workmanship becomes apparent and is reported to us within twenty-four (24) months from the date of delivery (time being of the essence), we will either (at our sole discretion) replace or remedy the defect.
13.3. The conditions applicable to the warranty given under clause
13.2 are: (a)the warranty shall not cover any defect or damage which may be caused by or arise through: (i) failure on your part to properly maintain any goods or services; (ii) failure on your part to follow any instructions or guidelines we provide; (iii) any use of the goods or services for any purpose other than the appropriate applications specified on the quote, invoice or any other documentation supplied to you; (iv) the continued use of any goods or services after any defect becomes apparent (or would have become apparent to a reasonably competent operator); (v)fair wear and tear; or (vi) any accident or act of god; (b)we shall not be liable to compensate you for any delay in remedying the defect or in properly assessing your claim regarding the defective services; and (c)the warranty shall cease, and we shall in no circumstances be liable (including the warranty set out in clause
13.2) if the defect is repaired, altered or overhauled by any third party without our consent.
13.4. Any equipment covered under warranty may only be serviced, altered or adjusted by us. If the equipment we supply is tampered with, adjusted, or serviced (other than in their regular day-to-day use) by any other third party, then any warranty offered will immediately become null and void.
13.5. For goods not manufactured by us, the warranty shall be the current warranty provided by the manufacturer of the goods, and we shall not be bound by any condition, representation or warranty other than that which the manufacturer of the goods offers.
13.6. We do not represent nor warrant that the service provided will prevent security breaches or burglary, and we shall not be liable to you for any loss or damage caused by any event beyond our reasonable control.
14. Privacy act 2020
14.1. You authorise us (and our agents) to collect, use, retain and disclose personal information (as defined in part 1, section 7 of the privacy act 2020) about you and your personnel that you or they provide to us for the following purposes: (a)exercising our rights or performing our obligations under this agreement; (b)using the services of credit reporting and debt collection agencies, and you consent to us disclosing personal information (including any information about an event of default or repayment history) to a credit reporter, who may hold that information and use it to provide its credit reporting services; (c)registering any security interest under this agreement; (d)direct marketing purposes (including by email and other electronic means), unless you notify us that you do not wish to receive direct marketing from us; and (e)the use or transfer of personal information to a related company in connection with the performance of our obligations or exercise of our rights under this agreement.
14.2. Clause 14.1 is authority and consent from you in accordance with sections in part 3 and all other relevant sections in the privacy act 2020.
14.3. You (if you are an individual) have the right under information privacy principles 6 and 7, and sections in part 4, subpart
1 and part 4, subpart 2 of the privacy act 2020 to access, and request correction of, any of your personal information held by us, and if you provide any personal information about a third party (including your personnel) to us, you confirm that you are authorised to do so by the relevant individual, and you have informed the relevant individual that they have the right to contact us to access and, if applicable, request correction of any personal information that we hold about them.
14.4. If the services are expected to involve the sharing of any data sets, or other personal information, to you by us or us to you, we will enter into a separate data protection agreement with you.
14.5. If you do not provide the personal information requested, we may be unable to perform our obligations under this agreement.
15. Confidential information and intellectual property
15.1. Each party must keep confidential all confidential information, however, nothing in clause
15 prevents a party from disclosing confidential information: (a)in the circumstances expressly provided for in this agreement; (b)if the disclosure is required by law or regulator (but only to the extent necessary); or (c)if the disclosure is reasonably required to enable a party to perform its obligations or enforce its rights under this agreement.
15.2. We may disclose confidential information to a related company and their personnel on a need to know basis, provided that person is under a duty to keep the confidential information confidential in accordance with this agreement.
15.3. We own all right, title and interest (including all intellectual property rights) in the goods or services at all times.
15.4. Any new intellectual property created as a result of, or in connection with, the provision of our goods or services will be owned by us (unless otherwise agreed in writing).
15.5. If, notwithstanding clauses 15.3 and 15.4, any intellectual property rights in any of our goods or services vests in you, you assign those intellectual property rights to us with effect from creation and agree to do all things reasonably required by us to give effect to such assignment.
15.6. You warrant that the use by us of any designs, instructions, plans, specifications or other technical information provided by you will not infringe the intellectual property rights of any other person and indemnify us against any expenses or losses (including full legal costs on a solicitor client-basis) that we may incur or suffer in the event of any such infringement.
16. Consumer guarantees act 1993 & fair trading act 1986
16.1. Subject to clause 16.2, nothing in this agreement will affect any rights you may have as a consumer (as defined under the consumer guarantees act 1993 (cga)) under the cga.
16.2. For the purposes of section 2 and part 5, section 43(2) of the cga, the parties acknowledge and agree that, if you are acquiring, or hold yourself out as acquiring, the goods or services in trade: (a)to the extent permitted by law, you are contracting out of the cga (to the extent that the cga would otherwise apply to any matters covered by this agreement); and (b)it is fair and reasonable for the parties to be bound by clause 16.2.
16.3. If you are acquiring the goods or services to resupply the goods or services in trade, you undertake that you will: (a)contract out of the cga to the maximum extent permitted by law in your contracts with your clients; and (b)procure that your clients, and each person in the distribution chain thereafter, contract out of the cga to the maximum extent permitted by law in their contracts with clients.
16.4. For the purposes of section 5d of the fair trading act
1986 (fta), the parties acknowledge and agree that, if you are acquiring, or hold yourself out as acquiring, the goods or services in trade: (a)to the extent permitted by law, you are contracting out of sections 9, 12a and 13 of the fta; and (b)it is fair and reasonable for the parties to be bound by clause 16.4.
16.5. You will indemnify us against any expenses or losses incurred by us due to your breach of clause 16.
17.1. Either party may terminate this agreement by giving the other party thirty (30) days notice in writing (with such notice not to expire before the end of the initial term when on a sla).
17.2. We may cancel any contract to which this agreement applies or cancel delivery of services at any time before the services are commenced by giving written notice to you. On giving such notice, we shall repay you any sums paid in respect of the price, less any amounts owing to us for services already performed. We shall not be liable for any loss or damage arising from such cancellation prior to performing the services.
17.3. Should you cancel all or part of any order, you shall be liable for all amounts owing to us prior to cancellation (including any direct or indirect expenses incurred by us due to you cancelling any part of any order).
17.4. We shall be entitled to cancel all or part of any order of yours which remains unperformed, and all amounts owing to us shall (whether or not due) become immediately payable if: (a)any amounts owing to us become overdue, or in our opinion, you will be unable to meet your payments as they fall due; or (b)an insolvency event occurs, and you become insolvent or bankrupt, convene a meeting with your creditors or a liquidator or similar person is appointed in respect of you or any of your assets.
17.5. Orders made to your specifications or non-stock-list items cannot be cancelled once production has commenced.
18. Event of default
18.1. Unless waived by us in writing, we may charge interest at a rate of two and a half percent (2.5%) per calendar month on any outstanding amounts owing from the due date of payment until the date the outstanding amount is paid (and interest shall compound monthly at such a rate).
18.2. You agree to reimburse us for any fees or expenses we incur in recovering any amounts owing (including, without limitation, administration fees, debt collection agency fees, disbursements and full legal costs on a solicitor-client basis).
18.3. Should you fail to pay any account, we may withhold the release of any producer statement, certification, or documentation relating to the services provided until all amounts owing are paid in full.
19. Retention of title
19.1. Ownership (including all right, title and interest) of the goods and services remains with us until: (a)we have received all amounts owing; and (b)you have performed all of your obligations under this agreement.
19.2. If any amounts owing is overdue, or an insolvency event occurs, you give irrevocable authority to us to use reasonable force to enter anywhere goods may be stored, to remove any goods. We shall not be liable in contract, tort or otherwise for any damages, expenses, or losses incurred by you or any third party, and you indemnify us against any liability we may have to any third party (including full legal costs on a solicitor-client basis), as a result of us exercising our rights under clause 20.2 (except where damages, costs or losses are due to our negligence or fraud).
19.3. If you resell or use any goods before ownership of the goods has passed to you (including combining or processing the goods), the proceeds of such sale or use will be received and held by you (in whatever form) in trust for us to the extent of the amounts owing (where our interest as beneficiary under that trust will be that portion of the proceeds which is equivalent to the amounts owing to us and the balance of the proceeds (if any) will be your beneficial interest under that trust).
19.4. It is further agreed that: (a)where possible, the goods shall be kept separate and identifiable until we have received full payment and you have fulfilled all of your obligations under this agreement; and (b)until ownership of the goods passes to you, we may give notice in writing to return the goods (or any accessories or components), and your rights to obtain ownership or any other interest in the goods shall cease.
19.5. If any goods are damaged where full payment has not been received, you agree that we are entitled to: (a)receive all insurance proceeds paid for the goods; and (b)deal directly with the insurance company to receive all insurance proceeds paid for the goods we own (in accordance with clause 19.1).
19.6. We may commence proceedings to recover the price of the services provided, notwithstanding that ownership of the goods or services has not passed to you.
20. Security and lien
20.1. Subject to us providing any goods or services, you charge all of your right, title and interest (whether joint or several) in any land, real estate or other assets capable of being legally charged with a lien, owned by you either now or in the future, to secure the performance of all obligations (including full payment of all amounts owing) under this agreement.
20.2. You irrevocably appoint all directors of our companies (including any related company) as your true and lawful attorney(s) and agree that the appointed attorney(s) may perform all necessary acts to enforce our rights provided in clause
20.1 of this agreement (including signing any document on your behalf).
20.3. You are liable for all our disbursements and expenses (including full legal expenses on a solicitor-client basis) incurred in exercising our rights under clause 20 to secure the performance of your obligations under this agreement.
20.4. In accordance with part 5, subpart 5 of the ccla, we hold a lien for work done and may sell at public auction any property that has been left by you for services if any amounts owing are outstanding.
20.5. It is fair and reasonable for the parties to be bound by clause 20.
21. Personal property securities act 1999
21.1. You acknowledge and agree that: (a)this agreement constitutes, in favour of us, a security agreement creating a security interest in the goods or services or the proceeds of such goods or services; and (b)the security interest granted to us secures the payment of all amounts owing (all present and after-acquired personal property) you may owe us from time to time and at any time.
21.2. You agree that you will sign any further documentation and provide any information which we may reasonably require to ensure we are paid all amounts owing due to us and otherwise to protect our interests under this agreement, including by registration of a financing statement and to ensure that we have a first ranking perfected security interest in the goods or services, or a security interest in the proceeds of any goods or services (a security interest taken in all collateral and any proceeds of any collateral).
21.3. To the extent permitted by law, we each contract out of: (a)sections 114(1)(a), 133 and 134 of the ppsa; and (b)your rights referred to in sections 107(2)(a), (c), (d), (e), (f), (g), (h) and (i) of the ppsa.
21.4. You waive your right to receive a verification statement under section 148 of the ppsa regarding any financing statement relating to a security interest.
21.5. Nothing in this agreement is to be construed as an agreement that: (i) a security interest in the goods (collateral) attaches at a later time than the time specified in part 3, section 40(1) of the ppsa; (ii) a security interest is perfected in accordance with part 3, section 41(1) of the ppsa; (iii) a security interest in all after-acquired property attaches at the time specified in part 4, section 44(1) of the ppsa; and (iv) a security interest in collateral shall extend to the proceeds as specified in part 4, section 45(1) of the ppsa.
21.6. Each security interest is a continuing security, notwithstanding any intermediate payments, settlement of accounts or anything else.
21.7. You must provide us with information and any associated documentation reasonably requested by us from time to time relating to your financial status.
21.8. If at any time we consider that your financial status is unsatisfactory, we may require you to grant additional security interests as security for the amounts owing, and we may suspend or cancel further supply of goods or services until you have provided such security interests.
21.9. You shall unconditionally ratify any actions taken by us under clause 21.
22. Premises access
22.1. It is your responsibility to ensure that: (a)we have clear and free access to the premises to deliver the goods or undertake the services (including carrying out any inspections or for the delivery or installation of the goods). We shall not be liable for any loss or damage to the premises (including damage to pathways, driveways, concrete, paved tiles or grassed areas) unless due to our negligence; and (b)access is suitable to accept the weight of laden trucks, front-end loaders, or other equipment we deem necessary.
22.2. You are responsible for organising temporary fencing to protect the premises from damage or theft if any fencing or other boundary is removed.
23. Clients responsibilities
23.1. You shall be responsible for keeping the security system in good order and repair and capable of being monitored.
23.2. You will provide, at your own cost, an appropriate source of electricity for the security system and a suitable internet connection between the premises and our monitoring servers. You shall immediately notify us of any failure or disconnection of the power supply or internet connection.
23.3. If you have indicated in your instructions that you will do so, you agree to provide (at your cost) keys to the premises, and deliver these to us to enable the performance of our obligations under this agreement.
23.4. You will immediately notify us if at any time during this agreement, the use or layout of the premises is altered or the level of security risk changes from that applicable at the commencement date (or if you alter or add to the security system in any way).
23.5. You agree not to write keypad codes in public or insecure places and to ensure that codes, keys and other security access devices are kept under safe care at all times. For commercial clients, when authorised code or key holders resign, you acknowledge that it is your responsibility to request new codes from us to ensure the security codes’ integrity.
23.6. You acknowledge that the services provided under this agreement may not prevent unlawful entry to the premises occurring, and accordingly, you accept that loss or damage to the property and death or injury to persons may occur even though our obligations under this agreement have been provided with due care and to a satisfactory standard.
23.7. You shall ensure our personnel, employees, agents, and contractors have full and safe access to the premises at all times to provide the services.
23.8. You agree to indemnify us against any loss, damage, cost or expense we suffer due to your failure to perform your obligations under this agreement.
23.9. You will not require us to provide performance records, history or other reports to any other party.
23.10. We can record all telephone conversations to and from our phone lines or servers, and you hereby and irrevocably authorise and agree to us recording such communication.
23.11. You agree to remove any furniture, furnishings or other property from the vicinity where the services will be completed and accept that we shall not be liable for any damage caused by your failure to remove any property unless due to our negligence.
23.12. If you are a tenant (and not the owner of the land and premises where we provide the services), you warrant that consent for the services has been obtained from the owner (or the owner’s agent) and will supply contact information for us to verify such consent before the commencement of any services. Should you fail to obtain consent or notify us that you are not the owner of the land and premises, you acknowledge and agree that you shall be personally liable for all amounts owing and indemnify us against any claim made by the owner in relation to the services (except where such claim has occurred because of our negligence).
23.13. You warrant that you have sufficient funds available to honour your obligations of payment and will, on request, provide us with evidence verifying such funds through a letter of credit from your banking institution.
24. Our obligations
24.1. If we receive a signal from your security system which indicates or suggests the presence of a malfunction or fault in that system, we shall be entitled (but not obliged) to treat the signal as an actionable alarm signal and respond in accordance with your instructions.
24.2. We shall erect and maintain at the premises adequate signage and warning stickers on the wall and perimeter fences (in accordance with your instructions).
25. Insurance and risk
25.1. Where we retain ownership of the goods or services (in accordance with clause 19.1), you acknowledge and accept that: (a)if we supply goods only, all risk for the goods shall immediately pass to you on the delivery (by us or our nominated carrier), and you must insure the goods on or before delivery; or (b)if we are to supply and install goods, we shall maintain an insurance policy for the services until completion, at which point all risks shall immediately pass to you.
25.2. Any advice, recommendation or information that we provide in relation to the goods or services supplied by us is given in good faith, is based on our knowledge and experience and shall be accepted without liability.
25.3. If you have requested us to diagnose a fault that requires investigation, disassembly or testing, all costs will be charged to you, irrespective of whether or not the repair goes ahead.
25.4. In the event the electrical wiring is required to be repositioned at the request of any third party, you agree to notify us immediately of any proposed changes and indemnify us against any additional costs incurred (and such variations shall be invoiced in addition to the price in accordance with clause 7).
25.5. If damages are caused by power overloads or exceeding existing system capacities that are beyond our control, you shall be liable for any claims, losses, damages, costs or expenses however caused or arising with the clean-up or any expenses that may be applicable (unless due to our negligence).
25.6. Where we have provided information or figures regarding the performance of the goods, you acknowledge that we have given these in good faith and are estimates based on information provided by the energy efficiency and conservation authority (eeca) or industry prescribed estimates. The efficiency of the goods may be less than estimated due to factors out of our control (including the age of existing wiring or weather conditions).
25.7. Where you have supplied goods for us to complete the services, you accept responsibility for the suitability of purpose, quality and any faults inherent in those goods, and if (in our opinion) it is believed that the goods supplied will not conform to new zealand regulations, set out by any regulator, then we shall be entitled to halt all services until the appropriate conforming goods are sourced (and you will be solely liable for all additional expenses incurred, which will be invoiced as a variation to the services under clause 7).
25.8. We may, at our discretion, notify you that we require you to store goods or tools required for the completion of the services at the premises, in which case you agree to provide us with a safe area for storage and shall take all reasonable efforts to protect any goods or tools from theft or damage (and the cost of repair or replacement of any goods or tools that are stolen or damaged while stored at the premises shall be your responsibility).
25.9. You accept that we are only responsible for goods or services that are provided or replaced by us, and we do not accept any responsibility for previous services carried out by any third party or for any loss or damage to the goods or services that are caused by any other third party after the completion of the services.
25.10. You warrant that any structures to which the goods are to be affixed can withstand the installation of the goods and that any electrical connections (including meter boxes, main switches, circuit breakers, and electrical cables) 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), we reasonably form the opinion that your premises are not safe for the installation of the goods to proceed, we shall be entitled to delay the installation of the goods until we are satisfied that it is safe.
25.11. We may, at our sole discretion, agree to bring the premises up to a standard suitable for installation to proceed, but all such services undertaken and any additional goods supplied shall be treated as a variation (in accordance with clause 7).
25.12. You acknowledge that if asbestos or other toxic substances are discovered on the premises, your responsibility is to ensure safe removal. You further agree to indemnify us against any costs incurred due to such discovery. Under no circumstances will we handle removing any asbestos product unless otherwise agreed by us in writing.
25.13. If we are required to switch off the electrical supply when providing the services, you agree that should you experience any loss of data or internet service, we shall not be held liable for any impact this may have.
25.14. You acknowledge and accept that: (a)all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in our fact sheets, price lists, or advertising material are indicative only; (b)where we have performed temporary repairs that: (i) we offer no guarantee against the reoccurrence of the initial fault or any further damage caused; and (ii) we will immediately advise you of the fault and shall provide you with an estimate for the complete repair; and (c)the goods supplied may: (i) fade or change colour over time; (ii) expand, contract or distort as a result of exposure to heat, cold, or weather conditions; (iii) mark or stain if exposed to certain substances (including those stated by the manufacturer); and (iv) be damaged or scratched by impact.
25.15. Should you request us to leave goods outside our premises for collection or deliver the goods to an unattended location, you agree that those goods shall be left at your sole risk.
26. Notification of services
26.1. You must precisely locate all unseen or underground services on the premises and mark the same prior to us commencing any of the services (including electrical services, gas services, sewer services, water mains, telephone cables, fibre optic cables, or any other services that may be present on the premises).
26.2. You agree that we are in no way liable for any damages, expenses or fines incurred due to unseen or underground services that are not precisely located and marked by you (in accordance with clause
26.3. If you request us to engage a service locator, this shall be in addition to the price and dial before you dig must be consulted and any possible underground services marked on the site. Whilst we will take all care to avoid damage to any underground services, you agree to indemnify us in respect of all liability claims, loss, damage, costs, and fines resulting from damage to services not precisely located and marked.
27. Health and safety at work act 2015
27.1. Each party will comply with the health and safety at work act
2015 (hsw act), including all health and safety duties specified in part
2 of the hsw act and all other applicable standards and codes of practice relating to health and safety. In addition, each party will comply with the other partys pre-notified and reasonable health and safety policies when on the partys premises.
27.2. You must notify us of any known hazards arising from your premises to which any person may be exposed, as well as inform us of any notifiable injury, illness, incident or event (as defined in part
3 of the hsw act) to ensure that your workplace is without risks to the health and safety of any person.
27.3. Each party must consult, cooperate and coordinate activities with all other persons with a health and safety duty in relation to the same matter in providing the goods or services (including in connection with the delivery of the goods or services).
28. Plans and specifications
28.1. Where you supply us with any plans, specifications or other technical information (such as cad drawings or any other electronic software that provides detailed and specific technical information), you shall be responsible for providing accurate data, and we shall be entitled to rely on the accuracy of any plans, specifications or other technical information supplied by you.
28.2. We are not responsible for any errors in the goods or services or for additional expenses caused by you supplying inaccurate plans, specifications or other technical information.
29. Compliance and consents
29.1. You are responsible for obtaining any consent or other authority necessary for the services and providing that to us upon request. Where building consent is required, and you have failed to obtain it, we may lodge a building consent application as your agent at your expense.
29.2. Both parties acknowledge and agree to comply with the building act 2004 regarding all building work (as defined in part 1, section 7 of the building act 2004) supplied under this agreement.
30. Construction contracts act 2002
30.1. If you are a residential occupier (as defined in part 1, section 5 of the cca), then you agree that we shall have the right to suspend any services by providing five (5) days written notice should a payment claim be served on you, and an event of default occurs (in accordance with section 24a in part 2, subpart 4 of the cca).
30.2. Should we suspend the services, it shall not be considered a breach of this agreement, and we are not liable for any losses or expenses you incur due to the suspension of services under clause 30.1.
30.3. In the event the services are suspended, we shall be entitled to an extension of time to complete any services that remain incomplete under this agreement, and you agree that: (a)we retain the right to cancel this agreement whilst the services are suspended, and all other rights available to us in this agreement shall remain in full force and effect; and (b)we may exercise any rights for payments or adjudication of disputes under part 2 and part 3 of the cca.
31. Third party suppliers
31.1. We shall be entitled to engage third-party suppliers (including subcontractors), and you agree that we have the authority to enter into contracts with such third-party suppliers in your name.
31.2. If you request and authorise us to arrange the provision of goods or services directly to you by a third-party supplier (whether or not such arrangement involves us contracting as your agent), to the extent applicable, this agreement shall apply to our services in arranging such supply, provided that we exclude all liability in connection with the supply of goods or services to you directly by a third party supplier. You agree to pay all amounts owing in accordance with this agreement in the event we arrange any supply of goods or services that are provided directly to you by a third-party supplier.
31.3. We offer no warranty regarding the quality of the third-party supplier’s workmanship, including whether their recommendations are appropriate or accurate.
32.1. To the extent permitted by law, we shall have no liability whatsoever to you for any direct or indirect expense or loss of profit suffered by you arising out of a breach by us of this agreement (including any unintentional misrepresentation made to you by us regarding any of the goods or services).
32.2. To the extent permitted by law, our liability shall not exceed the price of the services provided by us under this agreement.
32.3. To the extent permitted by law, our total liability under or in connection with this agreement and the goods or services is limited to, at our option: (a)in the case of goods, any one or more of the following: (i) the replacement of the good(s) or the supply of equivalent good(s); (ii) the repair of the good(s); (iii) the payment of the expense of replacing the good(s) or of acquiring equivalent good(s); or (iv) the payment of the expense of having the good(s) repaired; or (b)in the case of services: (i) resupplying the services; or (ii) the payment of the expense of having the services resupplied.
32.4. If, notwithstanding clause 31, we have any liability under or in connection with this agreement, to the maximum extent permitted by law: (a)our total aggregate liability to you for any loss, damage or liability arising out of or in connection with this agreement will be limited to the lesser of: (i) the price paid by you to us for the applicable goods or services; or (ii) the actual loss or damage suffered by you; and (b)we will not be liable for any: (i) indirect, special or consequential loss or damage whatsoever; or (ii) loss of profits, revenue, data, goodwill, clients, opportunities or loss of or damage to reputation.
32.5. The limitations and exclusions on liability in this clause
32 will apply irrespective of the legal basis for the applicable claim, including contract, equity, tort or statute, except negligence and fraud.
32.6. In no circumstances will we have any liability whatsoever under or in connection with this agreement: (a)for the acts or omissions of any third party; (b)any act or omissions performance in accordance with your instructions (or instructions from your authorised agents); or (c)to any third party.
33.1. Governing law: this agreement is governed by and to be construed in accordance with the laws of new zealand, and each party submits to the exclusive jurisdiction of the courts of new zealand.
33.2. Entire agreement: this agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, representations and understandings.
33.3. Priority: to the extent of an inconsistency between: (a)this agreement; (b)all other schedules to this agreement; (c)any privacy or data agreement (if applicable); and (d)the order of priority set out above will apply (with (a) having the highest priority).
33.4. Subcontracting: we may subcontract the performance of our obligations (including to a related company) on the basis that we remain solely liable to you for the performance of our obligations.
33.5. Assignment: you must not assign, novate or transfer your rights or obligations under this agreement without our prior written consent (which may be withheld at our sole discretion). We may assign this agreement to any other person. Without limiting the foregoing, we may assign to any other person all or part of the amounts owing by you.
33.6. Amendments: except where stated otherwise in this agreement, any amendment to this agreement must be in writing, signed by both parties, except where we are required to make changes to ensure compliance with applicable laws, in which case we can give you notice of any such amendments required, and you will be bound by the same.
33.7. Notices: any notice, demand or other communication to be served on a party must be in writing and sent by personal delivery, pre-paid post or email to the address of the relevant party (or otherwise notified to the other party from time to time). Any notice or other communication is deemed to be received (i) if personally delivered, on receipt, (ii) if posted by pre-paid official postal service, on the fifth business day after posting (or seven business days after posting if sent from one country to another), and (iii) if sent by email on the date and time that the email was sent (as evidenced in the sender’s email sent history). Notices received after 5pm on a business day will be deemed received on the next business day.
33.8. Force majeure: we will not be liable to you for any failure or delay in performing our obligations under this agreement where such failure or delay is caused by events or circumstances beyond our reasonable control (including any strike, lockout, labour dispute, delay in transit, embargo, epidemic, pandemic, accident, emergency, order of government or other authority or act of god).
33.9. Severability: if any part of this agreement is illegal or unenforceable, you agree that part shall be amended to the extent permitted by law to allow the enforceability of any rights, and if it is not able to be modified, then it will be severed, and all remaining rights in this agreement will continue in full force and effect.
33.10. Waiver: a single or partial exercise or waiver of a right relating to this agreement does not prevent any other exercise of that right or the exercise of any other right.
33.11. Termination: either party may terminate this agreement immediately by written notice if the other party breaches a term of this agreement which is not capable of remedy or, where the breach is capable of remedy, fails to remedy the breach within
20 business days of written notice of the breach.
33.12. Survival: any rights or obligations under or in connection with this agreement, which is by nature a continuing obligation, will survive termination of this agreement by either party.
33.13. Rights of third parties: this agreement is not intended to confer a benefit on any person other than the parties to this agreement.
33.14. Relationship: we will provide goods or services to you as an independent contractor. Nothing in this agreement creates any partnership, joint venture or employment relationship between the parties.
33.15. Non-exclusive: this agreement is not exclusive, and you agree that there are no restrictions on us to provide any goods or services to any other person.
33.16. Counterparts: this agreement may be executed in any number of counterparts (including by electronic signature or email exchange of pdf copies), constituting one instrument.