1- General obligation
Challenger Knight Security agrees to provide the Customer with the Products and Services, and the Customer agrees to pay Challenger Knight Security the Fees, in accordance with:
(a) the cover page;
(b) these terms and conditions;
(c) the service specific terms; and
(d) schedules, forms, specifications and other referenced materials (if any), (together, “this Agreement”).If there is an inconsistency between the documents in this clause, the document listed first prevails to the extent of the inconsistency.
2- Site charges and assumptions
(a) Unless otherwise agreed in writing, charges for work performed:
(i) are based on work being carried out from 18:00 to 06:00 Monday to Friday except for Public Holidays and subject to alteration by Challenger Knight Security);
(ii) are based on having continuous, uninterrupted, and unhindered access to the required people, equipment, facilities, and areas where the work is to be carried out; and
(iii) do not cover extraneous work, patching/painting, carpet lifting or refitting, Building work or decoration and, should Challenger Knight Security agree to carry out such work at the request of the Customer then The (iv) Customer agrees that, to the extent permitted by law, CKS Security is NOT responsible for any loss or damage,fire or theft or graffiti arising directly or indirectly out of, or in connection with, the provision of security activities by CKS Security to the customer, other than any loss or damage resulting from the wilful, unlawful or negligent acts of CKS Security or its employees
(b) All additional costs arising from clause 2(a) above and any alteration to the specifications required by the Customer including any interruption or delays by the Customer, its employees, agents, or other trades during the course of work performed may result in additional charges including the reasonable costs of delay.
(c) If it becomes necessary to pay any additional site allowances, other than a State or Federal award or amounts in excess of any current workplace agreement applicable to the type of work being performed, these costs will be added to the Fee.
(d) In the event that Challenger Knight Security has agreed to deliver the Services by a date agreed between the parties and such delivery is delayed by the occurrence of a Force Majeure Event (as set out in clause 18) or by any third party, including without limitation, the Customer or its agents, Challenger Knight Security shall be entitled to a reasonable extension of time to complete the Services and compensation for additional costs incurred.
(e) Any variations to the Services required by the Customer must be agreed in writing by both parties and will be priced in accordance with Challenger Knight Security’s standard price lists and shall include an amount for any design, management, overheads and profit.
(f) Emergency service call-outs will be charged in accordance with Challenger Knight Security’s standard fees for such emergency services.
(a) Challenger Knight Security shall use reasonable endeavours to complete delivery of the Products and Services. However, delivery dates or periods quoted are estimates only and are subject to prompt receipt of all Customer information, other material, and permits from the Customer necessary to allow Challenger Knight Security to proceed with the delivery of the Product and Services. Challenger Knight Security accepts no liability whatsoever for any loss or damage suffered by the Customer as a consequence of any delay or failure to deliver the Products and Services.
(b) Title to and ownership of the Products shall pass upon delivery to the Customer.
4- Additional services
If the Customer requests Challenger Knight Security to provide additional services in writing setting out the requested scope of such additional services beyond those described in this Agreement and Challenger Knight Security agrees, the terms of this Agreement apply to the additional services and the Customer must pay for the additional services at the following rate(s):
(a) if Challenger Knight Security has quoted an amount before providing the additional services, the amount quoted; and
b) if Challenger Knight Security has not given any quote, an amount calculated for the additional services provided at Challenger Knight Security’s standard rates for such additional services applicable at that time.
5- Customer’s responsibilities
The Customer shall:
(a) provide Challenger Knight Security with access to the site as reasonably required for the purpose of allowing Challenger Knight Security to perform its obligations under this Agreement;
(b) and agrees to ensure that its employees, agents and other contractors shall:
(i) not interfere with or disrupt, delay or hinder Challenger Knight Security, its employees, agents, subcontractors, or other persons engaged by Challenger Knight Security or prevent them from carrying out their work or cause them to incur additional cost; and
(ii) reasonably cooperate with Challenger Knight Security and its employees, agents and subcontractors;
(c) advise Challenger Knight Security of the existence of any concealed pipes, wires and cables for water, gas, electricity, telephone or other services affecting the premises and shall confirm the location of such services to Challenger Knight Security’s technician before work commences. In the absence of such notice Challenger Knight Security accepts no liability for any loss or damage to such services or any consequence thereof and the Customer agrees to indemnify Challenger Knight Security against any claim whatsoever for any loss or liability under this clause;
(d) provide Challenger Knight Security with data, specifications and information as may be requested by Challenger Knight Security to enable it to fulfil its obligations under this Agreement;
(e) provide adequate facilities at the premises at no cost to Challenger Knight Security, including parking, power, lifting equipment, scaffolding, scissor lifts , and rubbish removal skips;
(f) ensure that the premises are at all times a safe working environment and (without limitation) will not contain asbestos or similar hazards. If Challenger Knight Security considers that the premises are unsafe it may delay or cease delivery of the Services until the premises are restored to a safe condition. Any such delay or cessation of the Services:
(i) will entitle Challenger Knight Security to an extension of time to complete the Services;
(ii) will not constitute a breach of this Agreement; and
(iii) will not entitle the Customer to the payment of a financial penalty, and
(g) indemnify Challenger Knight Security against any claims for the failure of fire alarm monitoring equipment, telecommunication carrier lines, power supply, costs relating to fire brigade charges, or relocation of equipment.
6- Warranty and Product Returns
(a) The Products supplied by Challenger Knight Security to the Customer under this Agreement are covered by a 12 month warranty which shall commence from the date of completion of installation of Products, or for Products sold on a supply only or supply and commission basis upon delivery of the Products to the Customer (“Warranty Period”).
(b) During the Warranty Period, any Products that prove to be defective will be repaired or replaced by Challenger Knight Security at its option.
(c) The warranty provided under this Agreement is dependent upon regular maintenance work being carried out to the relevant Australian Standard manufacturer’s recommendations.
(d) The parties agree that when evaluating a claim for defect, due allowance shall be made for fair wear and tear of the Product. Should the Customer or any other party attempt to install, carry out repairs, mal-operate or modify the Products in any way during the Warranty Period, Challenger Knight Security shall be relieved of its obligations under the warranty provisions. In addition, the warranty does not cover work required to be done to repair a defect or damage caused by the Customer’s negligence, fault, neglect, abuse, incorrect use or as a result of vandalism, fire, water damage, power surge or other circumstance outside of Challenger Knight Security’s control or that of the manufacturer.
(e) To the extent permitted by law, Challenger Knight Security may, at its reasonable discretion, exclude from its obligations under sub clauses (a), (b) and (g), any Products that are connected to any of the Customer’s systems.
(f) The Customer shall inspect all Products upon delivery and within 5 business days of delivery, give notice to Challenger Knight Security if any of the Products are not in accordance with the Customer’s order, including the specification.
(g) Challenger Knight Security will accept Products returned for credit where Challenger Knight Security has incorrectly supplied a Product or the Product has been damaged in transit by the Challenger Knight Security’s carrier.
(h) Customers may not return Products for credit without obtaining prior written authorisation from Challenger Knight Security.
(i) Products returned for credit, except under (g) above, shall be subject to a 15% or $20.00 (whichever is greater) restocking fee and except where Products are returned under (g) above, all freight charges for goods returned for credit shall be prepaid by the Customer unless otherwise approved by Challenger Knight Security in writing.
7- Intellectual Property Rights
7.1 Challenger Knight Security retains all rights, title and interest subsisting in any design(s), documentation, diagrams plans, or other information and materials supplied to the Customer in relation to this Agreement.
7.2 All intellectual property rights in materials supplied by the Customer at the commencement of this Agreement remains the property of the Customer but the Customer grants Challenger Knight Security a perpetual, irrevocable, royalty free, non-exclusive licence to use, reproduce and modify the Customer’s materials for any purpose related to this Agreement.
7.3 The Customer agrees to accept full responsibility for the Customer’s materials and to indemnify Challenger Knight Security for any action, claim, liability, cost or expense arising out of any threatened or actual claim of intellectual property infringement arising out of Challenger Knight Security’s use of the Customer’s materials.
8- Quotation validity
Unless otherwise agreed in writing, a quotation provided by Challenger Knight Security may be accepted up to 30 days from the quotation date, after which Challenger Knight Security reserves the right to amend or withdraw it. If any amounts are quoted in a foreign currency, the applicable exchange rate (as published by the Reserve Bank of Australia) shall be as at the date of the quotation
9- Credit Information
The Customer acknowledges and agrees that if Challenger Knight Security requires financial information about the Customer for any credit application which attracts the operation of the Privacy Act 1988 (Cth), Challenger Knight Security may:
(a) disclose and collect commercial credit information about the Customer (and if the Customer is a company, about its directors and officers) for the purpose of determining the Customer’s credit worthiness;
(b) obtain a credit report from a credit reporting agency (which may contain personal credit information, information about commercial activities or commercial worthiness) for the purpose of assessing an application for credit and any later request for credit;
(c) provide to, or obtain from any credit provider(s) named in a credit report information about the Customer’s personal or commercial credit arrangements (including information relating to credit worthiness, credit standing, credit history and credit capacity); and
(d) disclose personal information about the Customer to a credit provider other than Challenger Knight Security or to a credit reporting agency, for the purpose of collecting outstanding amounts owed by the Customer to Challenger Knight Security. Challenger Knight Security’s obligations hereunder are subject to satisfactory credit evaluation and Challenger Knight Security reserves the right to withdraw any quotation, cancel the services, and terminate this Agreement should such credit evaluation be or become unsatisfactory.
11- Fees and charges
(a) Challenger Knight will invoice the Customer for the Fees specified in this Agreement. In accordance with the payment section in the Contract Details and upon the completion of a milestone set out therein.
(b) The Customer agrees to pay Challenger Knight Security the amount specified in the invoice within 30 days of the date of invoice without set-off, deduction or discount of any kind. Should the Customer delay in making payment, Challenger Knight Security shall have the right to charge interest on the outstanding amount at either:
(i) the rate published by the Commonwealth Bank of Australia for overdrafts under $100,000, interest to be calculated on a daily basis; or
(ii) 2% above the 30 day bank bill rate specified by Westpac Banking Corporation at the relevant time. Interest accrues daily from (and including) the due date to (but excluding) the date of actual payment and is calculated on actual days elapsed and a year of 365 days. The Customer will also be liable for the payment all expenses that are reasonably incurred by Challenger Knight Security in the recovery of any payment, including legal costs incurred in the enforcement of the notice of default.
(c) The Customer acknowledges that Challenger Knight Security may issue progress payment invoices for materials or equipment purchased, and/or labour expended on work in progress, and to place into bond materials which cannot be accepted for delivery on site and invoice the full value thereof.
(d) Challenger Knight Security shall have the right to issue a notice of default requesting the Customer to pay the amount of any Fee within the time specified in the notice. The Customer will be required to pay Challenger Knight Security the Fees due upon receipt of this notice and pay all reasonable expenses, including legal costs incurred in the enforcement of the notice of default.
(e) Where any supply of Products or Services is or becomes subject to GST, an amount equal to GST paid or payable for that supply will be added to the amount exclusive of GST paid or payable for that supply under this Agreement.
(f) Payment of fees by the Customer within the specified period is a fundamental term of this Agreement and to the maximum extent permitted by law, Challenger Knight Security will have no liability to the Customer for acts or omissions or for work required to be undertaken by Challenger Knight Security if the circumstance or event which would otherwise give rise to liability occurs at a time when the Customer is in breach of payment obligations to Challenger Knight Security.
(g) The Fees shall be adjusted annually to take into account any changes in the national consumer price index. In addition, Challenger Knight Security may adjust the Fees on an annual basis in respect of an increase/fall in the cost of any annual services and increased/decreased costs.
(h) Challenger Knight Security may set off any amounts that Challenger Knight Security reasonably considers is due to Challenger Knight Security from the Customer against any amounts payable by Challenger Knight Security to the Customer under this Agreement .
12- Challenger Knight Security’s Liability
(a) Nothing in this Agreement excludes, restricts or modifies the application of the provisions of any statute (including the Trade Practices Act 1974) where to do so would contravene that statute or cause any part of this Agreement to be void.
(b) The Customer acknowledges and agrees that Challenger Knight Security will have no liability for any statements, representations, guarantees, conditions or warranties that are not expressly contained in this Agreement.
(c) Where Challenger Knight Security breaches its obligations under this Agreement, Challenger Knight Security shall at its election, re-supply the Products or Services or pay to have those Services supplied again or the replacement, repair or repayment of the Products to a maximum total value of the Fees paid by the Customer under this Agreement.
(d) To the extent permitted by law, the Customer agrees that any liability of Challenger Knight Security under this clause will be reduced to the extent that any loss, damage or expense was caused by the Customer or a third party including through breach of this agreement, negligence, fault, lack of care or through any other act or omission of the Customer, its employees, subcontractors and agents or a third party and, in any event, Challenger Knight Security’s aggregate liability to the Customer, whether in contract, tort (including negligence) or otherwise,will be limited to four times the total value of payments received by Challenger Knight Security from the Customer under this Agreement
(e) Notwithstanding anything else in this Agreement, Challenger Knight Security will not be liable for:
(i) any indirect, consequential or special or economic loss, cost, liability,damage or expense howsoever arising; or
(ii) loss of profit , loss of use, loss of income, loss of rental or other benefit, loss of production, loss of actual or potential business opportunity or loss of reputation.
(f) The Customer acknowledges and agrees that it is reasonable for Challenger Knight Security to limit its liability under this Agreement and that the fees charged by Challenger Knight Security are based solely on the value of the Services or Products supplied.
(g) To the extent permitted by law, Challenger Knight Security will not be liable to the Customer for matters not notified to Challenger Knight Security within three months of the date of completion of this Agreement.
(a) Either party may terminate this Agreement if the other party commits any material or persistent breach of its obligations under this Agreement (which in the case of a breach capable of remedy, shall not have been remedied within 14 days of receipt by the party in breach of a notice identifying the breach and requiring its remedy, or such reasonable period depending on the circumstances) or if a party becomes insolvent, bankrupt or enters into a scheme or arrangement with creditors. Termination under this clause must be effected by written notice to the other party.
(b) In the event that a Customer wishes to terminate this Agreement for maintenance services prior to the expiry of the Term, the Customer will be required to pay the remaining payments up to the end of the contract Term.
(c) If the Customer terminates this Agreement prior to the completion of the works, the Customer will be required to pay Challenger Knight Security any cost incurred by Challenger Knight Security arising from the termination, a fair amount for overheads and profit which will be agreed by the parties, and 10% of the total Fees payable under this Agreement.
(d) Challenger Knight Security may terminate this Agreement immediately if the Customer becomes insolvent, bankrupt or enters into a scheme of arrangement with creditors.
(e) Challenger Knight Security may terminate this Agreement in whole or in part at its convenience upon the provision of 14 days’ notice in writing to the Customer.
(f) Termination under this clause shall be without prejudice to any rights that may have accrued for either of the parties before termination and all sums. due under this Agreement shall become payable in full when termination takes effect.
(g) The parties agree that if the Services continue beyond the initial Term, this Agreement will remain in force until a party gives three (3) months written notice to the other party of its intention to terminate in which event the Agreement will terminate on the expiry of the three (3) month period.
14- Dispute resolution
The parties agree that they will initially use all reasonable endeavors to resolve any dispute arising under this Agreement within 10 business days of a party being advised by written notice of such a dispute. If the parties are unable to resolve the dispute within that time frame they must refer the dispute to an executive officer from each party to resolve. The parties will again use all reasonable endeavors to resolve the dispute within a further 10 business days or such other reasonable period agreed between the parties. If the dispute is not resolved in accordance with the above, the parties may agree to refer the matter to mediation or some other form of alternative dispute resolution or commence legal proceedings.
15- Force majeure
Challenger Knight Security will not be in breach of this Agreement or liable to the Customer if its fails to perform or delays in performance of an obligation as a result of an event beyond its reasonable control, including but not limited to strikes, industrial disputes, fire, flood, acts of God, war, insurrection, vandalism, sabotage, riot ,national emergency, piracy, hijack, terrorism, embargoes or restraints, extreme weather or traffic conditions, temporary closure of goads, legislation, regulation, order or other act of government or governmental agency.
(a) If the Customer purports to cancel any order, contract or agreement prior to its commencement or prior to the completion of the Term, then the Customer shall pay to Challenger Knight Security on demand a sum equivalent to all Challenger Knight Security’s costs, fees and expenses incurred up to the date of such purported cancellation including any damages payable to Challenger Knight Security’s sub-contractors or suppliers together with a reasonable proportion of Challenger Knight Security’s loss of anticipated profits.
(b) Challenger Knight Security may assign this agreement without consent, and may perform any of its obligations through sub-contractors.
(c) This agreement shall be subject to the laws of New South Wales or and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
(d) This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, contracts, statements and understandings, whether verbal or in writing. All other terms and conditions are excluded to the fullest extent permitted by law including any terms and conditions which the Customer may seek to impose. The terms, provisions and conditions of this Agreement may only be varied by agreement in writing between the parties.
(e) No right under this Agreement will be deemed to be waived except by notice in writing signed by each party and any failure by Challenger Knight Security to enforce any clause of this Agreement will not be construed as a waiver of Challenger Knight Security’s rights under this Agreement.
(f) The Agreement is entered into subject to satisfactory credit approval of the Customer by Challenger Knight Security.
(g) Challenger Knight Security may subcontract its rights and obligations under this Agreement.
(a) Definitions Additional Services means the additional services or equipment provided by Challenger Knight Security to the Customer that is not specifically requested by the Customer at the date of this Agreement but offered by Challenger Knight Security as part of the Services.
Customer means the customer identified in the Contract Details.
Fees means the Fees specified in the Contract Details and clause 11.
Product means the products described in the service specific terms and schedules.
Services means the services described in the service specific terms and schedules.
The section headings in this Agreement are used for convenience only, are not substantive, and shall not be interpreted to define, describe, or otherwise limit the interpretation of the provision under the section headings or of the Agreement as a whole.
18- Where Services include installation:
(a) the Customer agrees to pay to Challenger Knight Security a non-refundable deposit of 20% of the total Fees payable under this Agreement within 14 days of the date of this Agreement, or if works are to commence prior to 14 days elapsing, then upon commencement of the works; and
(b) each progress payment invoice is due and payable within (30) days of the date of invoice.
19- Where the Services includes monitoring and/or maintenance:
(a) the Customer agrees to promptly pay the Fees either by direct debit of the Customer’s nominated account or other automated payment system selected by the Customer in the Payment Schedule and the Customer agrees to sign the Payment Schedule to give effect to this undertaking;
(b) the Customer acknowledges and agrees that Challenger Knight Security may adjust the Fees annually for monitoring and/or maintenance services under this Agreement; and
(c) the Customer is advised that any security system installed by T Challenger Knight Security must be decommissioned upon termination or expiration of this Agreement.
Challenger Knight Security Pty Ltd Standard Terms & Conditions – 2016