MAS1 PTY LTD
T/As Macquarie Alarms & Security
Terms & Conditions of Trade
1.PREAMBLE
1.1 All Services provided by MAS, whether gratuitous or not, are supplied subject to these Terms and Conditions and:
(a) The provisions of Part I shall apply to the provision of all and any Services.
(b) The provisions of Part II shall only apply to the provision of Security Services.
PART I - GENERAL CLAUSES
2. Definitions
2.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
2.2 “MAS” means MAS1 Pty Ltd ATF MAS Unit Trust T/A Macquarie Alarms And Security, its successors and assigns or any person acting on behalf of and with the authority of MAS1 Pty Ltd ATF MAS Unit Trust T/A Macquarie Alarms And Security.
2.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting MAS to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
2.4 “Services” means all Services or Goods supplied by MAS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
2.5 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
2.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using MAS’ website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
2.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between MAS and the Client in accordance with clause 6 below.
2.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
3. Acceptance
3.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
3.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
3.4 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with MAS and it has been approved with a credit limit established for the account.
3.5 In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, MAS reserves the right to refuse delivery.
3.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.7 Unless otherwise specified, all Services shall be carried out during normal business hours (7:00AM – 5:30PM, Mon-Fri).
4. Errors and Omissions
4.1 The Client acknowledges and accepts that MAS shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by MAS in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by MAS in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of MAS; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Client shall give MAS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by MAS as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At MAS’ sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by MAS to the Client; or
(b) the Price as at the date of Delivery of the Goods according to MAS’ current price list; or
(a) MAS’ quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. Installation quotations assumes full cabling access to all areas of the site, further charges may apply if cabling requires cutting of ways, sheets of iron to be lifted, conduit or duct to be installed, or trenching. By accepting MAS’ quotation, the Client is deemed to be satisfied by means of enquiry, examination and assessment that the quality and purpose of the Goods provided meets their current needs.
6.2 MAS reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the site, obscured building defects, remedial work required due to existing workmanship being of a poor quality or non-compliant with Australian Standards, safety considerations (discovery of asbestos, etc.), work outside normal business hours, prerequisite work by any third party not being completed, etc.) which are only discovered on commencement of the Services; or
(d) in the event of increases to MAS in the cost of labour or Materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond MAS’ control.
6.3 Variations will be charged for on the basis of MAS’ quotation, and will be detailed in writing, and shown as variations on MAS’ invoice. The Client shall be required to respond to any variation submitted by MAS within ten (10) working days. Failure to do so will entitle MAS to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4 At MAS’ sole discretion, fifty percent (50%) of the contract Price is payable up front and considered a deposit, where Services are provided by MAS to:
(a) residential or non-account holders where the Services exceeds the contract Price of one-thousand-five-hundred dollars ($1500); or
(b) approved commercial account holders where the Services exceeds the Contract Price of three-thousand dollars ($3000); and
(c) the balance payable on delivery.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by MAS, which may be:
(a) before delivery of the Goods or Services; or
(b) for residential or non-account holders where the contract Price is up to one-thousand-five-hundred dollars ($1500), due on delivery of the Goods; or
(c) for approved commercial account holders where the contract Price is up to three-thousand dollars ($3000), due on delivery of the Goods; or
(d) by way of instalments/progress payments in accordance with MAS’ payment schedule; or
(e) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(f) the date specified on any invoice or other form as being the date for payment; or
(g) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by MAS.
6.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and MAS.
6.7 MAS may in its discretion allocate any payment received from the Client towards any invoice that MAS determines and may do so at the time of receipt or at any time afterwards. On any default by the Client MAS may re-allocate any payments previously received and allocated. In the absence of any payment allocation by MAS, payment will be deemed to be allocated in such manner as preserves the maximum value of MAS’ Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by MAS nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to MAS an amount equal to any GST MAS must pay for any supply by MAS under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery and Installation
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at MAS’ address; or
(b) MAS (or MAS’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 At MAS’ sole discretion, the cost of Delivery is included in the Price.
7.3 MAS may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Any time specified by MAS for Delivery of the Goods is an estimate only. The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. MAS will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. In the event that the Client is unable to take Delivery of the Goods as arranged then MAS shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.5 The Client shall provide clear and reasonable access to the premises on the date of agreed installation. Delays to MAS’ technical staff waiting for access and/or clearing of obstacles, or other Client causes, may result in additional fees to be added to the Price.
7.6 240 volt, 10 amp power point(s) shall be made available by the Client to MAS for the purpose of powering the Goods.
7.7 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Contract.
7.8 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy.
8.Risk
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, MAS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by MAS is sufficient evidence of MAS’ rights to receive the insurance proceeds without the need for any person dealing with MAS to make further enquiries.
8.3 If the Client requests MAS to leave Goods outside MAS’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
8.4 The Client accepts that electronic security systems, smoke, heat and like detectors installed to / at their premises:
(a) are for monitoring and detection purposes and should not be seen as a life saving device; and
(b) does not guarantee the site will be free from malicious damage or losses caused by attack, break and/or enter.
8.5 It shall be the Client’s responsibility:
(a) to ensure the security system equipment is tested and maintained to full operational condition; and
(b) for all phone calls emanating from the security system panel; and
(c) to ensure all electronically protected areas are free from obstacles which may impair the operation of the system.
9. Title
9.1 MAS and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid MAS all amounts owing to MAS; and
(b) the Client has met all of its other obligations to MAS.
9.2 Receipt by MAS 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.
9.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 9.1:
(a) the Client is only a bailee of the Goods and must return the Goods to MAS on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for MAS and must pay to MAS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for MAS and must pay or deliver the proceeds to MAS on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of MAS and must sell, dispose of or return the resulting product to MAS as it so directs;
(e) the Client irrevocably authorises MAS to enter any premises where MAS believes the Goods are kept and recover possession of the Goods;
(f) MAS may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of MAS;
(h) MAS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to MAS for Services – that have previously been supplied and that will be supplied in the future by MAS to the Client.
10.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which MAS 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 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, MAS 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 Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of MAS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of MAS;
(e) immediately advise MAS of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 MAS and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by MAS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by MAS under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of MAS agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies MAS from and against all MAS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising MAS’ rights under this clause.
11.3 The Client irrevocably appoints MAS and each director of MAS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect the Goods on Delivery and must within seven (7) days of Delivery notify MAS in writing of any evident defect/damage, error, omission, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow MAS to inspect the Goods.
12.2 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).
12.3 MAS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, MAS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. MAS’ liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, MAS’ liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If MAS is required to replace the Goods under this clause or the CCA, but is unable to do so, MAS may refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, MAS’ liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by MAS at MAS’ sole discretion;
(b) limited to any warranty to which MAS is entitled, if MAS did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) MAS has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, MAS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by MAS;
(e) fair wear and tear, any accident, or act of God.
12.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by MAS as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that MAS has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 12.10.
12.11 Notwithstanding anything contained in this clause if MAS is required by a law to accept a return then MAS will only accept a return on the conditions imposed by that law.
12.12 Subject to clause 12.1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.
13. Intellectual Property
13.1 Where MAS has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of MAS. Under no circumstances may such designs, drawings and documents be used without the express written approval of MAS.
13.2 The Client warrants that all designs, specifications or instructions given to MAS will not cause MAS to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify MAS against any action taken by a third party against MAS in respect of any such infringement.
13.3 The Client agrees that MAS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which MAS has created for the Client.
14. Default and Consequences of Default
1.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at MAS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
1.2 If the Client owes MAS any money the Client shall indemnify MAS from and against all costs and disbursements incurred by MAS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MAS’ contract default fee, and bank dishonour fees).
1.3 Further to any other rights or remedies MAS may have under this Contract, if a Client has made payment to MAS, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by MAS under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
1.4 Without prejudice to MAS’ other remedies at law MAS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to MAS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to MAS becomes overdue, or in MAS’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by MAS;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. Cancellation
15.1 Without prejudice to any other remedies MAS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions MAS may suspend or terminate the supply of Goods to the Client. MAS will not be liable to the Client for any loss or damage the Client suffers because MAS has exercised its rights under this clause.
15.2 MAS may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice MAS shall repay to the Client any money paid by the Client for the Goods. MAS shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3 In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by MAS as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.4 Cancellation of orders for non standard Goods made or ordered to the Client’s specifications, will definitely not be accepted and at MAS’ discretion, the full cost for production maybe payable and shown as a variation in accordance with clause 6.2.Notwithstanding clause 12, stock listed items cancelled after an order has been placed with MAS’ supplier/s will incur costs for freight, handling and restocking fees.
16. Privacy Policy
16.1 All emails, documents, images or other recorded information held or used by MAS is Personal Information, as defined and referred to in clause 16.3, and therefore considered Confidential Information. MAS acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). MAS acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by MAS that may result in serious harm to the Client, MAS will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
16.2 Notwithstanding clause 16.1, privacy limitations will extend to MAS in respect of Cookies where the Client utilises MAS’ website to make enquiries. MAS agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to MAS when MAS sends an email to the Client, so MAS may collect and review that information (“collectively Personal Information”)
If the Client consents to MAS’ use of Cookies on MAS’ website and later wishes to withdraw that consent, the Client may manage and control MAS’ privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
16.3 The Client agrees that MAS may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
16.4 The Client consents to MAS being given a consumer credit report to collect overdue payment on commercial credit.
16.5 The Client agrees that personal credit information provided may be used and retained by MAS for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
16.6 MAS may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
16.7 The information given to the CRB may include:
(a) Personal Information as outlined in 16.3 above;
(b) name of the credit provider and that MAS is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and MAS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of MAS, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
16.8 The Client shall have the right to request (by e-mail) from MAS:
(a) a copy of the Personal Information about the Client retained by MAS and the right to request that MAS correct any incorrect Personal Information; and
(b) that MAS does not disclose any Personal Information about the Client for the purpose of direct marketing.
16.9 MAS will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
16.10 The Client can make a privacy complaint by contacting MAS via e-mail. MAS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
17. Unpaid Seller’s Rights
17.1 Where the Client has left any item with MAS for repair, modification, exchange or for MAS to perform any other service in relation to the item and MAS has not received or been tendered the whole of any monies owing to it by the Client, MAS shall have, until all monies owing to MAS are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
17.2 The lien of MAS shall continue despite the commencement of proceedings, or judgment for any monies owing to MAS having been obtained against the Client.
18. Service of Notices
18.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
18.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
19. Trusts
19.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not MAS may have notice of the Trust, the Client covenants with MAS as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of MAS (MAS will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
20. Building and Construction Industry Security of Payments Act 1999
20.1 At MAS’ sole discretion, if there are any disputes or claims for unpaid Services and/or Goods then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
20.2 Nothing in this Contract 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.
21. General
21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which MAS has its principal place of business, and are subject to the jurisdiction of the courts in that state.
21.3 Subject to clause 12, MAS shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by MAS of these terms and conditions (alternatively MAS’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 MAS may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
21.5 The Client cannot licence or assign without the written approval of MAS.
21.6 MAS may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of MAS’ sub-contractors without the authority of MAS.
21.7 The Client agrees that MAS may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for MAS to provide Goods to the Client.
21.8 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.
21.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
PART II – SECURITY SERVICES
22. Definitions
22.1 “Monitoring Services” shall mean around-the-clock monitoring of the security alarm system for alarm signals and, if selected by the Client, opening and closing signals and/or other security services.
22.2 “Commissioning Sheet” shall mean the Client’s written instructions to MAS detailing response procedures and the Client’s voice codes and/or passwords.
22.3 “Fee” shall mean the Fee payable for the Monitoring Services as agreed between MAS and the Client in accordance with clause 19 of this contract.
23. Monitoring Agreement Term
23.1 No fixed term is required for back to base monitoring agreements. Service cancellation fees however apply.
23.2 Monitoring Agreements will continue on a month-to-month basis, subject to termination by either party with one (1) months prior written notice.
23.3 In the event of a monitoring agreement is terminated by the Client, the Client shall incur a termination fee as per below;
a) $249 if cancelled within 12 months or,
b) $199 if cancelled within 24 months or,
c) $149 if cancelled within 36 months or,
d) $0 if cancelled after 36 months.
Note: All above includes GST.
24. Fee and Payment
24.1 At MAS’ sole discretion the Fee shall be as indicated on the Monitoring Services Agreement (subject to clause 24.2) in respect of Monitoring Services supplied.
24.2 MAS reserves the right to increase the Fee at any time, provided the Client receives one (1) months prior written notice.
24.3 At MAS’ sole discretion payment for maintenance and Monitoring Services shall be billed annually, quarterly or monthly and payment shall be due as per clause 24.4.
24.4 Time for payment for the Monitoring Services or maintenance 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.
24.5 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 Client and MAS.
24.6 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.
25. MAS’ Responsibilities
25.1 MAS agrees to use due care and skill to provide the Monitoring Services during the Contract Term for alarm signals and/or other recurring services selected by the Client.
25.2 MAS shall action alarm signals emanating from the alarm in accordance with the Commissioning Sheet.
25.3 Whilst MAS shall endeavour to engage a patrol response contractor to provide a timely response to actionable alarm signals, no warranty is given by MAS that patrol response will be available at any time, if at all. MAS shall not be liable for any loss or damage the Client may suffer in connection with any response or the absence of any alarm response.
25.4 Whilst MAS uses due care when contacting and advising emergency services, they cannot guarantee prompt response times or attendance of such services.
26. Client’s Responsibilities
26.1 The Client shall immediately advise MAS, in writing, in the event of any changes to the Commissioning Sheet.
26.2 The Client shall, at their own cost, maintain the alarm in good working order and in accordance with the manufacturer’s requirements (including, but not limited to, recharging or replacing batteries on a timely basis). The obligation of MAS 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 MAS.
26.3 The Client shall ensure that all voice codes, passwords, radio keys and other security devices are kept secure and provided only to those persons who reasonably require access to the alarmed premises.
26.4 The Client cannot transfer, or attempt to transfer, the right to receive the Monitoring Services or any other right under this agreement to any other party.
26.5 Upon termination of the agreement, it is the Client’s responsibility to ensure that an alternative service is arranged, if required, and the panel is deprogrammed to stop reporting to MAS.
26.6 The Client agrees that any costs associated with the delivery of services by the Police, Ambulance, Fire or other emergency services to the Client’s monitored premises shall be met by the Client.
27. Monitoring Services
27.1 The Client acknowledges that MAS does not warrant that the Monitoring Services will render the alarmed premises, or any occupant of the alarmed premises, secure.
27.2 MAS shall endeavour to action the following alarm system signals generally as described below or as otherwise agreed or interpreted:
(a) duress / panic – MAS shall call the monitored site, as required by the New South Wales Police Force (NSWPF) first to verify the event. If deemed necessary MAS shall contact and advise the NSWPF; and
(b) hold up – MAS shall notify the NSWPF, and make a follow up call to the monitored site after thirty (30) minutes (this clause assumes that the Client’s premises comply with NSWPF’s protocols for hold up alarms); and
(c) fire / smoke – MAS shall call the site to verify event, if no answer MAS will advise Fire Department and contacts (MAS will dispatch guard if no contacts are available and keys are held); and
(d) medical – MAS shall call the site to verify event, if no answer MAS will advise Ambulance Service and contacts (MAS will dispatch guard if no contacts are available); and
(e) system events – MAS shall contact the Client and contacts and shall advise service department if necessary (this type of event is not necessarily auctioned immediately).
27.3 The Client acknowledges that independent contractors, where available, may provide patrol response. Accordingly, patrol response fees may vary from area to area and during the course of the Contract Term. The Client agrees to pay or reimburse MAS for patrol response fees, which may include an administration fee. MAS shall advise the Client of applicable patrol response fees upon request by the Client.
27.4 MAS may be unable to monitor the system in the event of a communication failure between the alarm panel in the Client’s premises and the monitoring centre, Failures of this nature may be malicious or otherwise. The Client acknowledges that MAS’ obligation to action alarm events is suspended at any time the communications link is disrupted between the Client’s premises and MAS’ monitoring room.
27.5 The Client agrees that MAS may record all telephone conversations or other communications with the monitoring station.
28. Indemnity and Limitation of Liability
28.1 The Client is solely responsible for all direct and consequential loss or damage which the Client may suffer, whether arising from MAS’ negligence or otherwise resulting from:
(a) any cause whatever, including provision of, or failure to, provide the Monitoring Services; or
(b) the Clients use or, or reliance upon, the Monitoring Services, including patrol response.
28.2 The Australian Standard AS/NZS 2201 Part 1 – 2008 recommends that “arrangements be put in place to demonstrate to interested parties that the intruder alarm system remains operational in accordance with this Standard. This shall occur at intervals determined by the interested parties and may be achieved through data provided by the intruder alarm system or through periodic report by appropriately qualified personnel”. The Client accepts that notification of the maintenance recommendations of their security system has been provided by MAS and that they will make all arrangements with MAS to have maintenance carried out at regular intervals. The Client also accepts that the cost of providing such maintenance is additional to any other recurring fees, unless otherwise agreed.
28.3 Clause 28 survives termination of this agreement.