Terms & Conditions – Design & Installation
Version 1.0 – effective date: 22 June 2008
1. Application of terms These Terms:
a. apply to the design and installation of security systems, any related services we perform for you, and the supply of any equipment in relation to those services;
b. prevail over any previous terms, representations or understandings, whether written or verbal;
c. are subject to any special terms we offer you in writing.
2. Definitions Defined words have the following meanings:
a. Agreement Means the Terms, together with all related forms, schedules, letters, and other materials specifying the Services;
b. Business Hours Means the hours of 8:00am to 5:00pm on any week day that is not a public holiday;
c. Component Refers to any part of the Equipment, and includes both hardware and software;
d. Construction Work Has the meaning given to it in section 6 of the Construction Contracts Act 2002;
e. Equipment Means the equipment, including hardware and software, that forms the Security System;
f. GST Has the meaning given to it in the Goods and Services Tax Act 1985;
g. Payment Claim Means a progress payment claim made under section 20 of the Construction Contracts Act 2002;
h. Payment Schedule Means a payment schedule issued in accordance with section 21 of the Construction Contracts Act 2002;
i. PPSA Means the Personal Property Securities Act 1999;
j. Premises Means the location at which the Services will be carried out;
k. Proposal Means a document or series of documents specifying the work we will carry out for you, which may include the Services we will carry out, the equipment we will use, approximate timeframes and a quote or estimate, and may include emails, letters, or any other written document;
l. Security System Means the security system that is to be maintained, monitored and/or serviced in accordance with these Terms;
m. Services Means the services you instruct us to provide by approving the Proposal;
n. Terms Means these terms and conditions, together with any special terms we offer you in writing;
o. Tools Means the tools and equipment we use to carry out the Services;
p. us/we Means First City Care Limited, and its successors or assigns; and
q. you Means the customer for whom the Services are to be carried out.
3. Proposal Before carrying out any work for you, we will provide a Proposal, and you must approve the Proposal in writing before we commence the Services.
You must assess the suitability of the Equipment listed in the Proposal based on your intended use of the Security System, knowledge of the Premises and any other relevant factors.
Where any Components specified in the Proposal are not readily available, we may substitute products of equal or superior quality for those Components.
4. Changes to Services Where you propose any alteration to the scope of the Services:
a. you must notify us in writing of your proposed alteration to the Services;
b. we will confirm whether or not we are able to accept your proposal, and provide you with an amended quote or estimate for the Services if applicable.
5. Our responsibilities We will:
a. perform the Services with reasonable care and skill; and
b. notify you if we become aware of any likely delay in provision of the Services.
6. Your responsibilities You must:
a. provide complete and accurate information about the Premises including building specifications, number of occupants, hours of access and any other information requested by us;
b. grant us full access to the Premises during Business Hours and at any other time reasonably requested by us;
c. provide all resources necessary for us to perform the work (at no cost to us) including phone lines, power, lighting, parking, lifting equipment, scaffolding, work platforms and rubbish skips;
d. obtain and maintain all necessary building permits, consents, and approvals;
e. notify us of any proposed alteration to the Premises; and
f. notify us as soon as practicable where the Premises or the Security System suffer any damage, theft or fault.
7. Health and Safety You must take all practicable steps to ensure the safety of our employees, contractors and subcontractors while on the Premises (unless the Premises are your home), including:
a. providing a safety briefing at the commencement of the Services; and
b. providing appropriate equipment and facilities.
We will not, and you must not deem us to, control the Premises for the purposes of section 16 of the Health and Safety in Employment Act 1992.
8. Use of subcontractors We may use subcontractors to perform part or all of the Services.
9. User training and sign-off Following installation of the Security System, we will provide an operation and installation manual, and training for you and/or your personnel. Upon completion of user training, you must sign an acknowledgement of completion of the Services. By signing the acknowledgement, you confirm that:
a. you have inspected and tested the Security System and that it complies with the Proposal;
b. you have received, read and understood the operation and installation manual, and any other information provided by us;
c. you and/or your personnel have received adequate training, had the opportunity to ask questions and understand how to use the Security System; and
d. you have been provided with all pre-set alarm codes and keys.
10. Quotes and estimates We will provide either a quote or an estimate to complete the Services in our Proposal. Quotes and estimates are valid for 30 days after the date of issue and, unless specified otherwise, are exclusive of GST. We reserve the right to amend quotes or estimates where:
i. you change your instructions after approving the Proposal;
ii. you have not provided us with full information about the Premises or any other factors relevant to completion of the Services; or
iii. the Services are delayed for any reason outside of our control.
11. Deposit We may invoice you up to 10% of our quoted or estimated fee before commencing the Services.
12. Progress Payments and invoicing procedure Where we carry out Construction Work for you:
a. we will issue a Payment Claim approximately one month from the commencement of the Services, and every month thereafter;
b. Payment Claims will be calculated based on the percentage of the Services that we estimate to have been completed during the period to which the Payment Claim relates;
c. the number of Payment Claims will be determined by our estimated timeframe for completion of the Services; and
d. we may suspend the Services if a claimed amount is not paid in full by the due date for payment.
Where we carry out work that is not Construction Work for you:
a. we will invoice you at month-end until completion of the Services, unless convenient to invoice upon completion; and
b. where we supply you with materials in relation to Construction Work, an invoice issued for the supply of those materials shall not be deemed to be a Payment Claim.
13. Disputing Payment Claims Where you disagree with a Payment Claim issued by us:
a. you must respond by providing us with a Payment Schedule in writing, identifying the Payment Claim to which it relates and indicating a scheduled amount;
b. where the scheduled amount is less than the amount claimed by us, you must indicate the reasons for the difference, and if you are withholding payment on any basis, your reasons for withholding payment;
c. if you do not provide us with a Payment Schedule within 20 days of issue of the Payment Claim, you are liable to pay the claimed amount on the due date specified in the Payment Claim; and
d. if you provide us with a Payment Schedule, you must pay us the scheduled amount by the due date for payment of the claimed amount.
14. Suspension of ProjectsWhere we carry out Construction Work for you, and you do not:
a. pay a claimed amount by the due date for payment; or
b. provide us with a Payment Schedule and pay the scheduled amount by the due date for payment,
we may suspend the Services until we receive payment in full, and the timeframe for completion of the Services will be extended by the length of the suspension.
15. Payment All Payment Claims and invoices issued by us are due for payment 20 days from the date of issue. All payments must be made in full without set-off, deduction or counterclaim and must not be conditional upon you receiving payment from any third party. Without limitation, we may:
a. charge you for all costs of recovery or attempted recovery of overdue payments, including debt collection costs and legal costs on a solicitor and client basis; and
b. charge interest on overdue payments at a rate of 2% per month, calculated daily, on overdue invoices.
16. PPSA Where Equipment is delivered to the Premises or otherwise into your control, until we receive full payment for the Equipment:
a. you grant us a security interest in the Equipment;
b. you agree not to sell, modify or do anything else to the Equipment that may detrimentally affect our security interest in, or the value of the Equipment, without our written consent;
c. we may register a financing statement to perfect our security interest, and you must provide any information and sign any documents necessary to enable us to register our interest; and
d. where we register a financing statement to protect our interest in the Equipment, you waive your right to receive a financing verification statement.
17. Intellectual Property Any documents produced by us (including, but not limited to schematic diagrams, plans and user manuals), and all copyright and other intellectual property rights in those documents belong exclusively to us. You must not copy or distribute those documents without our written consent.
18. Privacy Act 1993 You authorise us to collect, retain and use any personal information for any lawful purpose including marketing our services, obtaining a credit reference, or debt collection.
Where we hold information about any person, that person is entitled to request a copy of that information from us, and to request the correction of that information.
19. Our Guarantee We guarantee our workmanship for a period of 12 months following installation of the Security System. Our guarantee does not apply where the Security System has been damaged, modified or otherwise altered without our express permission.
20. Your Warranty You warrant that the Services will not breach any law or third party rights or expose us to any claim from any person, and that you have not withheld any information from us which is potentially material to:
a. whether we perform the Services; or
b. the way in which we perform the Services.
21. Exclusions and Limitations of Liability
a. Nothing in this Agreement purports to exclude, limit or modify any warranties, guarantees or remedies implied by statute, where to do so would contravene the applicable statute;
b. we do not make any express warranties or guarantees except as expressly referred to in these Terms;
c. any guarantees or warranties implied by statute, general law, or custom are excluded to the maximum extent possible;
d. we are not liable to you or to any other party or parties for:
i. any indirect losses or consequential damages of any kind including loss of goodwill, loss of reputation, or loss arising out of third party claims;
ii. any direct losses including loss of or damage to property, loss of profits, loss of business, and legal costs;
arising out of or in connection with the Agreement, and whether caused by negligence or otherwise;
e. your remedy for our breach of this Agreement is limited to damages; and
f. our aggregate liability to you for any breach or breaches of this Agreement is limited at our option to:
i. repairing or replacing the Equipment or re-supplying the Services in respect of which the liability arose; or
ii. payment of the cost of repairing or replacing the Equipment or re-supplying the Services in respect of which the liability arose,
except where such limitation would contravene any statute, in which case the minimum remedy specified in that statute will apply.
22. Consumer Guarantees Act The guarantees implied by the Consumer Guarantees Act 1993 do not apply to these Terms where you acquire goods and services from us for the purposes of a business, or you hold yourself out as acquiring goods or services from us for the purposes of a business.
23. Change of Control of Premises and Assignment of Agreement You must give us 30 days’ notice of any anticipated change in control of the Premises, or any proposed assignment of your rights and obligations under the Agreement. We may, in our sole discretion, refuse assignment of the Agreement, in which case the Agreement will automatically terminate upon change in control of the Premises.
24. Dispute Resolution Where a dispute arises between the parties in relation to the Agreement, the parties will attempt to resolve the dispute in good faith. If the dispute is not resolved within 10 working days, the parties will be free to take legal action. This clause does not prevent either party from seeking urgent interlocutory relief in relation to a dispute.
25. Force Majeure If either party becomes unable to perform its obligations under these Terms due to any event outside that party’s reasonable control including, but not limited to failure of telecommunication or electricity networks, fire, flood, strike, sabotage, or political disturbance (“force majeure”), the Services will be suspended until that party is able to perform its obligations under these Terms.
Where, due to an event of force majeure, the Services are suspended for more than 30 days, or it becomes impossible to complete the Services, either party may terminate the Services by written notice to the other party.
If the Services are terminated as a result of force majeure, our fees for work carried out up until termination will become due and payable.
26. Termination for cause Either party may terminate the Services immediately where:
a. the other party has committed a material breach of the Terms, been notified of the breach in writing and has not remedied the breach within 30 days of notification; or
b. the other party becomes insolvent, or the cancelling party has good reason to believe that the other party does not satisfy the solvency test set out in section 4(1) of the Companies Act 1993.
We may terminate the Services immediately where:
a. you do not provide a safe and healthy working environment for our personnel; or
b. you have not accurately disclosed to us the full nature and scope of the Services.
27. Consequences of Termination Where the Agreement is terminated in accordance with the Terms:
a. you must pay our fees for work carried out up until the date of termination, the value of any Equipment or Tools left on the Premises after termination, and the value of the depreciation of any Equipment that is returned to, or recovered by us; and
b. we may invoice you up to 10% of the value of the Services that would otherwise have been provided to cover losses incurred by us as a result of our reliance on the Agreement.
If you purport to terminate the Agreement other than in accordance with the Terms, we may seek recovery from you of any losses we suffer as a result of the termination, including:
a. the value of any Equipment or Tools left on the Premises after termination, and the value of the depreciation of any Equipment that is returned to or recovered by us;
b. the contract value of the Agreement; and
c. all costs for recovery of the above losses, including debt collection costs and legal costs on a solicitor and client basis.
28. Amendment to Terms These Terms may be reasonably amended by us by notification to you in writing, and any such amendments shall be deemed to be accepted by you unless you notify us of any objection in writing within 10 working days.
If you object to any amendment notified to you, the parties must attempt to negotiate a solution in good faith. If a solution is not negotiated within 10 working days, these Terms will continue to apply until the conclusion of the Agreement.
You cannot object to any amendment notified to you if that amendment is reasonably necessary to prevent these Terms from purporting to contravene any statute or regulation, and any such purported objection shall be invalid.
29. General In these Terms:
a. defined words have the meanings given to them in these Terms;
b. you may not assign your rights or obligations under these Terms without our express written consent;
c. a reference to any Act of Parliament in these Terms includes that Act as from time to time amended, re-enacted or substituted;
d. a reference in these Terms to a prohibition or restriction on you doing any thing includes a reference to not permitting, suffering or causing that thing to be done;
e. a provision in these Terms must not be construed to the disadvantage of a party merely because that party was responsible for the inclusion of that provision in these Terms;
f. if any part of these Terms is or becomes invalid, void or unenforceable, then the other part of the Terms will remain in full force and effect to the maximum extent permitted by law; and
g. these Terms shall be construed in accordance with and governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms.
30. Customer acknowledgement
a. I have read and understood these Terms, and acknowledge that they apply to all work that First City Care Limited does for me;
b. I grant First City Care Limited a security interest in any Equipment supplied to me by First City Care Limited; and
c. If this acknowledgement is signed for and on behalf of a company, trust, incorporated society or any other entity, I confirm that I have the requisite authority to bind that entity to these Terms.
purporting to contravene any statute or regulation, and any such purported objection shall be invalid.
31. General In these Terms:
a. defined words have the meanings given to them in these Terms;
b. you may not assign your rights or obligations under these Terms without our express written consent;
c. a reference to any Act of Parliament in these Terms includes that Act as from time to time amended, re-enacted or substituted;
d. a reference in these Terms to a prohibition or restriction on you doing any thing includes a reference to not permitting, suffering or causing that thing to be done;
e. a provision in these Terms must not be construed to the disadvantage of a party merely because that party was responsible for the inclusion of that provision in these Terms;
f. if any part of these Terms is or becomes invalid, void or unenforceable, then the other part of the Terms will remain in full force and effect to the maximum extent permitted by law; and
g. these Terms shall be construed in accordance with and governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms.
32. Building Consents – New Build and Changes to Existing Build [Security Systems]
a. submission of and the administration of the building consent process for new build and changes to existing build applications for security systems and access control installation is the responsibility of the client / owner or nominated compliance service agent representing the client / owner.