PART I - GENERAL TERMS AND CONDITIONS
PART I - GENERAL TERMS AND CONDITIONS
1.1 “MAS” shall mean MAS1 Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of MAS1 Pty Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by MAS to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by MAS to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by MAS to the Client.
1.5 “Services” shall mean all Services supplied by MAS to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between MAS and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by MAS from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by MAS shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of MAS.
3.4 The Client shall give MAS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by MAS only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade. 3.6 Unless otherwise specified, all Services shall be carried out during normal business hours (7:00AM – 5:30PM, Mon-Fri).
4. Price and Payment
4.1 At MAS’ sole discretion the Price shall be either: (a) as indicated on invoices provided by MAS to the Client in respect of Goods supplied; or (b) MAS’ quoted Price (subject to clause 4.2) which shall be binding upon MAS provided that the Client shall accept MAS’ quotation in writing within 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.
4.2 MAS reserves the right to change the Price in the event of a variation to MAS’ quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseeable problems with the site which are only revealed when undertaking the Services such as any existing cabling which does not comply with Australian Standards and causes the new installation to be non-compliant or as a result of increases to MAS in the cost of materials and labour) will be charged for on the basis of MAS’ quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At MAS’ sole discretion: (a) payment shall be due on delivery of the Goods; or (b) payment shall be due before delivery of the Goods; or (c) payment for approved Clients shall be made by instalments in accordance with MAS’ payment schedule; or (d) payment for approved Clients shall be due thirty (30) days following the end of the month in which a statement is posted or emailed to the Client’s address or address for notices; or (e) payment for maintenance and Monitoring Services shall be billed quarterly and payment shall be due as per clause 4.4.
4.4 Time for payment for the Goods 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. MAS1 Pty Ltd – Terms & Conditions © Copyright – EC Credit Control Pty Ltd - 2009
4.5 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. 4.6 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.
5. Delivery and Installation
5.1 At MAS’ sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by MAS or MAS’ nominated carrier).
5.2 At MAS’ sole discretion the costs of delivery are included in the Price.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. 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.
5.4 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.
5.5 240 volt, 10 amp power point(s) shall be made available by the Client to MAS for the purpose of powering the Goods.
5.6 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 agreement.
5.7 MAS may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.8 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.
5.9 The failure of MAS to deliver shall not entitle either party to treat this contract as repudiated. 5.10 MAS shall not be liable for any loss or damage whatsoever due to failure by MAS to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of MAS.
6.1 If MAS retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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.
6.3 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.
7.1 MAS and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid MAS all amounts owing for the particular Goods; and (b) the Client has met all other obligations due by the Client to MAS in respect of all contracts between MAS and the Client.
7.2 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 and until then MAS’ ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that: (a) where practicable the Goods shall be kept separate and identifiable until MAS shall have received payment and all other obligations of the Client are met; and (b) until such time as ownership of the Goods shall pass from MAS to the Client MAS may give notice in writing to the Client to return the Goods or any of them to MAS. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and (c) MAS shall have the right of stopping the Goods in transit whether or not delivery has been made; and (d) if the Client fails to return the Goods to MAS then MAS or MAS’ agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods.
8. Defects, Errors and Omissions
8.1 The Client shall inspect the Goods on delivery and shall within five (5) days of delivery (time being of the essence) notify MAS of any alleged defect, error, omission, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford MAS an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which MAS has agreed in writing that the Client is entitled to reject, MAS’ liability is limited to either (at MAS’ discretion) MAS1 Pty Ltd – Terms & Conditions © Copyright – EC Credit Control Pty Ltd - 2009 replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.1 Returns will only be accepted provided they are exchanged for an upgraded product (and the Client shall be charged accordingly).
9.2 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
10.1 Subject to the conditions of warranty set out in clause 10.2 MAS warrants that if any defect in any workmanship of MAS becomes apparent and is reported to MAS within twelve (12) months of the date of delivery (time being of the essence) then MAS will either (at MAS’ sole discretion) replace or remedy the workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are: (a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: (i) failure on the part of the Client to properly maintain any Goods; or (ii) failure on the part of the Client to follow any instructions or guidelines provided by MAS; or (iii)any use of any Goods otherwise than for any application specified on a quote or order form; or (iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or (v) fair wear and tear, any accident or act of God. (b) at the sole discretion of MAS, the warranty shall not include labour costs or freight charges associated with repairing the Goods. (c) the warranty shall cease and MAS shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without MAS’ consent. (d) in respect of all claims MAS shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
10.3 For Goods not manufactured by MAS, the warranty shall be the current warranty provided by the manufacturer of the Goods. MAS shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer or authorised repairer of the Goods.
11. Intellectual Property
11.1 Where MAS has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in MAS, and shall only be used by the Client at MAS’ discretion.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by MAS.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify MAS from and against all costs and disbursements incurred by MAS in pursuing the debt including legal costs on a solicitor and own client basis and MAS’ collection agency costs.
12.4 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) MAS may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. 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.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of ten dollars ($10.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 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 in the event that: (a) any money payable to MAS becomes overdue, or in MAS’ opinion the Client will be unable to meet its payments as they fall due; or (b) 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 (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which MAS may have howsoever: MAS1 Pty Ltd – Terms & Conditions © Copyright – EC Credit Control Pty Ltd - 2009 (a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to MAS or MAS’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that MAS (or MAS’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should MAS elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify MAS from and against all MAS’ costs and disbursements including legal costs on a solicitor and own client basis. (c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint MAS or MAS’ nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 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 sums paid in respect of the Price. MAS shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s agree for MAS to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by MAS.
15.2 The Client and/or the Guarantor/s agree that MAS may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes: (a) to assess an application by 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 credit worthiness of Client and/or Guarantor/s.
15.3 The Client consents to MAS being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by MAS for the following purposes and for other purposes as shall be agreed between the Client and MAS or required by law from time to time: (a) provision of Goods; and/or (b) marketing of Goods by MAS, its agents or distributors in relation to the Goods; and/or (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or (e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
15.5 MAS may give information about the Client to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Client; and/or (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.1 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.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of Dubbo.
16.3 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.
16.4 In the event of any breach of this contract by MAS the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5 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.
16.6 MAS may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.7 The Client agrees that MAS may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which MAS notifies the Client of such change.
16.8 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. MAS1 Pty Ltd – Terms & Conditions © Copyright – EC Credit Control Pty Ltd - 2009
16.9 The failure by MAS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect MAS’ right to subsequently enforce that provision.
PART II - SERVICE AGREEMENT TERMS AND CONDITIONS
17.1 “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.
17.2 “Commissioning Sheet” shall mean the Client’s written instructions to MAS detailing response procedures and the Client’s voice codes and/or passwords.
17.3 “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.
18. MAS’ Responsibilities
18.1 MAS agrees to use due care and skill when providing services selected by the Client.
18.2 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 a 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.
18.3 Whilst MAS or its assignees uses due care when contacting and advising emergency services, they cannot guarantee prompt response times or attendance of such services.
19. Client’s Responsibilities
19.1 The Client shall immediately advise MAS, in writing, in the event of any changes to the Commissioning Sheet.
19.2 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.
19.3 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.
19.4 The Client cannot transfer, or attempt to transfer, any rights under this agreement to any other party.
19.5 Upon termination of alarm monitoring, 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.
19.6 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.
20. Indemnity and Limitation of Liability
20.1 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.
20.2 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.
20.3 Clause 20 survives termination of this agreement.