Bureau Agreement Terms and Conditions | ||
1 DEFINITIONS In this Agreement, capitalised terms are defined on the Information Sheet or in clause 19. 2 ENGAGEMENT AND TERM 2.1 SAMS agrees that, during the Term and on and subject to the terms set out in this Agreement, it will provide: (a) the Monitoring Services in respect of each of the Alarms; and (b) if requested by the Bureau Operator, the Ancillary Services to the Bureau Operator. 2.2 This Agreement will commence on the Commencement Date and, subject to the other provisions of this Agreement, will continue until the expiry of the Fixed Term. Unless a party notifies the other prior to the expiry of the Fixed Term that this Agreement is to end on such expiry, this Agreement will thereafter continue in force and effect until a party gives written notice of termination at least 90 days prior written notice of its intention to terminate. 3 EXISTING AND NEW CLIENTS 3.1 The parties acknowledge and agree that each of the Clients who were receiving Monitoring Services by SAMS as at the Commencement Date will be Monitored Clients for the purposes of this Agreement with effect from the Commencement Date. 3.2 Where the Bureau Operator enters into a Monitoring Contract with a new Client at any time during the Term, it must provide SAMS with the Written Instructions in respect of the Client. Such a Client will become a Monitored Client for the purposes of this Agreement upon: (a) the completion of the commissioning procedure for the alarm system of that Client; and (b) the entry of that Client’s details into SAMS’ data base. 4 CANCELLED CLIENTS 4.1 If any Monitored Client wishes to terminate its Monitoring Contract, the Bureau Operator must (except where SAMS otherwise agrees) give SAMS at least 30 days prior written notice of termination. In that event, the relevant Client will cease to be a Monitored Client with effect from the expiry of that notice period or such earlier date as SAMS may determine (Applicable Termination Date). If SAMS receives a notification directly from any Monitored Client that it wishes to terminate its Monitoring Contract with the Bureau Operator, SAMS will advise the Bureau Operator in writing of the receipt of that termination notification and the relevant Client will cease to be a Monitored Client as from the Applicable Termination Date. 4.2 Upon a termination being effected under clause 4.1, the Bureau Operator must decommission the applicable Alarm in accordance with the procedure detailed in the Operating Procedures. 4.3 The Bureau Operator acknowledges and agrees that: (a) SAMS does not accept responsibility for any cancellations which have not been provided in writing to SAMS; and (b) the Service Charges remain payable in respect of any Client who ceases to be a Monitored Client up until the Applicable Termination Date for that Client (unless SAMS has otherwise agreed to waive all or a part of those Service Charges). 5 SERVICE PROVISION 5.1 Subject to the other provisions of this Agreement (and, in particular, clause 5.2), SAMS will during the Term: (a) provide the Services with all due diligence and expedition; (b) will action signals emanating from an Alarm in accordance with the Written Instructions submitted by the Bureau Operator in respect of that Alarm and the Operating Procedures; (c) will advise the Bureau Operator in accordance with the requirements of the Operating Procedures of any technical problem arising with an Alarm. 5.2 The obligations of SAMS to provide the Monitoring Services under this Agreement, and to action a signal received from an Alarm, are conditional upon: (a) the applicable Alarm being operational in accordance with the manufacturer’s requirements; and (b) a signal being received by the Monitoring Station from the applicable Alarm. Accordingly, SAMS assumes no responsibility to the Bureau Operator (or any person claiming through the Bureau Operator) by reason that a third party’s equipment necessary for the communication of an Alarm signal is experiencing technical difficulties or otherwise not functioning. 5.3 The Bureau Operator acknowledges and agrees that the provision of troubleshooting assistance to the Bureau Operator or any Monitored Client is entirely at the discretion of SAMS and, if SAMS agrees to provide such assistance, SAMS has no liability to the Bureau Operator or any other person in connection with the provision of such assistance. 5.4 SAMS obligations under this Agreement to provide the Monitoring Services are automatically suspended in respect of an Alarm (without notice to the Bureau Operator or the Monitored Client in respect of that Alarm) if: (a) that Alarm becomes a “runaway” alarm or is excessively signalling the Monitoring Station without apparent reason; (b) the Bureau Operator is in default of its obligation under clause 7.3; or (c) the Bureau Operator authorises SAMS in writing to refrain from rendering the Monitoring Services in respect of that Alarm. 5.5 SAMS discloses that it may receive a rebate from the telephone service provider in connection with the provision of the Monitoring Services. 5.6 If at any time during the Term SAMS determines that any one or more of the Services it is providing under this Agreement is either uneconomic or in respect of technology which is outdated and no longer of a type that is typically monitored by alarm monitoring service providers in Australia (Subject Service) then: (a) SAMS may give notice to the Bureau Operator of that determination and of the date on which it is to cease to provide that Subject Service (which date may not, without the prior agreement of the Bureau Operator, be earlier than 90 days after the date of issue of the notice) (Subject Service Cessation Notice); (b) SAMS will be relieved from all of its obligations under this Agreement to provide the Subject Service as from the date specified in the Subject Service Cessation Notice; and (c) if the Service Cessation Notice provides that any Service Charge is to be reduced as a consequence of the cessation, that charge will be reduced accordingly. 5.7 If the Bureau Operator: (a) is to be materially adversely affected by SAMS’ determination to cease to provide a Subject Service, or (b) considers that the adjustment to be made to the Service Charge as a consequence of a Subject Service no longer being provided under this Agreement is inequitable, then the Bureau Operator may (by not later than 30 days after the issue of the Subject Service Cessation Notice) give notice to SAMS setting out in detail the issues that the Bureau Operator has with SAMS’ determination, and thereafter SAMS will (acting reasonably and fairly) consider those issues and notify the Bureau Operator of any changes it is prepared to make to address those issues. 6 BUREAU OPERATOR’S OBLIGATIONS 6.1 As soon as practicable after the date of this Agreement, the Bureau Operator will notify the Monitored Clients of the terms on which the Monitored Services are being provided by SAMS and, if it has not already done so, use its reasonable endeavours to enter into a written monitoring service contract with each Monitored Client in a form which has been approved in writing by SAMS. 6.2 The Bureau Operator will be solely responsible for: (a) the proper installation, connection and maintenance of all the Alarms; (b) the provision to SAMS of complete, proper and accurate monitoring and response information as is reasonably required by SAMS from time to time in order to provide the Services; and (c) the decommissioning (at its cost) of any Alarm in respect of which SAMS is no longer required to provide the Monitoring Services. 6.3 The Bureau Operator will not at any point in time: (a) hold itself out as being an agent, affiliate, employee or authorised representative of SAMS; or (b) include the name or make reference to “Security Alarm Monitoring Service Pty Ltd” in any marketing or promotional document issued by the Bureau Operator unless such naming or reference is first approved by SAMS. 6.4 If requested by SAMS as a consequence of an issue arising in relation to the provision of the Services by SAMS, the Bureau Operator will provide SAMS with the log details of a Monitored Client’s Alarm so that it is possible to establish the time elapsing between when a signal emanated from that Alarm and when that signal was actioned by SAMS. 7 SERVICE CHARGES 7.1 In consideration of SAMS agreeing to provide the Services, the Bureau Operator must pay SAMS the Service Charges in accordance with this clause. 7.2 The Service Charges will be invoiced in advance in respect of each calendar month (or such other period as the parties may agree) during Term, and each will detail: (a) the Alarms in respect of which the Monitoring Services are to be provided in that month; (b) details of each of the Ancillary Services which are to be provided; and (c) the amounts due to the SAMS under clause 7.1 for that period. 7.3 The Bureau Operator will pay to SAMS the amount due as shown by any invoice issued under clause within 30 days of the date of its issue. 7.4 In the event of a bona fide dispute arising on the correct amount owing under any invoice issued under clause 7.2, the Bureau Operator must pay the amount not in dispute. Any moneys in dispute, and subsequently found to be payable, will be due and payable 14 days after the reconciliation of the differences between the parties. 7.5 If a party to this Agreement (Supplier) is required to pay GST in respect of a Supply made under or pursuant to this Agreement, the recipient of the Supply must, in addition to any other payment in connection with the Supply, pay to the Supplier an amount equal to such GST. Terms used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act have the same meaning. 8 VARIATION OF WRITTEN INSTRUCTIONS 8.1 The Bureau Operator must notify SAMS, in writing, of changes made by a Monitored Client to the details specified in the Written Instructions of that Monitored Client. 8.2 The Bureau Operator acknowledges that SAMS: (a) requires a 24 hour period in which to update its database and to respond to an alarm signal in accordance with any variation the Written Instructions of any Monitored Client; and (b) does not accept responsibility for any variations which have not been provided in writing to SAMS. 9 VARIATION OF OPERATING PROCEDURES If at any time during the Term SAMS varies or substitutes the Operating Procedures such variation or substitution will be effective as from the date the Bureau Operator is provided with a copy of the varied or substituted Operating Procedures. 10 INSURANCE 10.1 During the Term, SAMS must: maintain in force and effect a comprehensive general liability insurance policy covering all liability to third parties for personal injury, death, property damage and economic loss arising out of the performance of the Services, for an amount not less than $10 million for any one event; and 10.2 During the Term, the Bureau Operator must: 10.3 Upon request, a party must provide a copy of the insurance policy taken out under clauses 10.1 or 10.2 (as applicable) together with a certificate of its currency 11 LIMITATION OF LIABILITY 11.1 SAMS will not be liable to the Bureau Operator (or any person claiming through the Bureau Operator) for any Loss suffered by the Bureau Operator or any of the Monitored Clients which arises out of or in connection with this Agreement except (subject to clause 11.3) where and to the extent that such Loss arises out of a breach of this Agreement or any negligent act or omission in connection with this Agreement on the part of SAMS. 11.2 The Bureau Operator releases and forever discharges SAMS from all claims which it may have in the future against SAMS which arise out of (directly or indirectly) this Agreement other than any claim which may be brought by the Bureau Operator against SAMS under clause 11.3 11.3 SAMS’ sole liability to the Bureau Operator will be limited to compensating the Bureau Operator for any Losses arising out of a breach of this Agreement or any negligent act or omission by SAMS in connection with this Agreement to a maximum amount equal to: (a) where the breach or negligence is an Insurable Event under an insurance policy taken out by SAMS under clause 10.1, the amount which is paid for or payable by any insurer who is a party to that insurance policy, up to the limit specified in clause 10.1; and (b) where the breach or negligence is not an Insurable Event under an insurance policy taken out by SAMS under clause 10.1, $10,000 per breach or negligent act or omission. 11.4 The Bureau Operator is solely responsible for, and will indemnify and keep indemnified SAMS against all Losses suffered by SAMS that arise by reason of: (a) the installation and maintenance of any security system; (b) the failure of any alarm system to operate in accordance with the manufacturer’s specifications; or (c) any Loss being suffered by a Monitored Client in connection with provision of, or any failure or defect in the provision of, the Services to that Monitored Client (other than where and to the extent SAMS is liable to Bureau Operator for that loss under clause 11.3). 11.5 To avoid doubt, SAMS is not liable to the Bureau Operator under clause 11.3 if and to the extent SAMS, in performing the Monitoring Services, acted in accordance with the written instructions provided by the Bureau Operator. 12 DEFAULT AND TERMINATION 12.1 This Agreement may be immediately terminated by a party (Terminating Party): (a) if the other party has failed to perform any obligation under this Agreement and the Terminating Party has given notice to the other party that it requires the default to be remedied within 14 days and the claimed default has not been remedied within that 14 day period; or (b) immediately upon a party becoming the subject of bankruptcy, liquidation or winding up procedures or otherwise becomes or threatens to become insolvent. 12.2 In addition to clause 12.1, this Agreement may be immediately terminated by SAMS in the event that the Bureau Operator ceases to hold all licences and approvals which it is required to have to lawfully carry on the Bureau Operator’s Business. 12.3 The Bureau Operator acknowledges and agrees that: (a) if it is in default of its obligations to pay the Service Charges under clause 7 (and prior to SAMS exercising its rights under clause 12.1), SAMS is authorised to communicate the non-payment to each of the Monitored Clients and to otherwise inform the Monitored Client of SAMS’ intention to cease providing the Monitoring Services; and (b) if as a consequence of such communication, any Monitored Client elects to terminate its Monitoring Contract with the Bureau Operator, SAMS may provide the Monitoring Services directly to that person. 12.4 Upon termination of this Agreement SAMS may request the Bureau Operator to decommission all the Alarms (which decommissioning will be at the Bureau Operator’s sole cost). 12.5 Any termination of this Agreement shall not affect the rights or remedies of either party accrued to the effective termination date under this clause. 13 EARLY TERMINATION 13.1 Subject to clause 13.2 the Bureau Operator may elect to terminate this Agreement at any time during the Fixed Term by giving not less than 21 days prior written notice to SAMS. 13.2 If this Agreement is terminated pursuant to clause 13.1, the Bureau Operator must pay SAMS on the date of termination: (a) the Early Termination Fee; and (b) all other amounts owing under this Agreement as at the date of termination. 14 FORCE MAJEURE A party will be relieved from performing an obligation under this Agreement (other than an obligation to pay money) if and to the extent such performance is adversely affected by an event beyond its reasonable control and which it is not able to prevent or overcome by the exercise of reasonable care. 15 CONFIDENTIALITY AND TELEPHONE RECORDING 15.1 All commercially sensitive information exchanged under this Agreement (including the Operating Procedure and all voice codes and passwords) must be held strictly confidential and must not be disclosed to any other person except: (a) with the consent of the party who supplied the information; or (b) if required by law, or any government authority having jurisdiction over either party or this Agreement, or in connection with legal proceedings relating to this Agreement; or (c) if the information is generally and publicly available other than as a result of breach of confidentiality by the person receiving the information. 15.2 The Bureau Operator acknowledges that SAMS’s records all telephone conversations or other communications with the Monitoring Station and the Bureau Operator undertakes to ensure that all of the Monitored Clients are advised of this practice. 15.3 This clause 15 shall survive termination of the Agreement. 16 FIRST RIGHT OF REFUSAL 16.1 This clause 16 will only apply if the Information Sheet indicates that it does, and otherwise it is of no force or effect. 16.2 If at the time during the Term the Bureau Operator wishes to dispose of the Monitoring Contracts, the Bureau Operator must offer SAMS a first right of refusal to acquire the Monitoring Contracts (Offer). In that event, SAMS will have the option for a period of 14 days following receipt of the Offer to accept the Offer and, if it wishes to accept, SAMS must give written notice of acceptance within that period. 16.3 If SAMS accepts the Offer, then the Bureau Operator must transfer all the Monitoring Contracts to SAMS, and SAMS must: (a) assume all future obligations and liabilities in respect of those Monitored Contracts; (b) pay to the Bureau Operator an amount equal to the Fair Market Value of the Monitoring Contracts, with the Fair Market Value being agreed between the SAMS and the Bureau Operator and, in default of agreement within 14 days, then as determined by an independent valuer appointed by the parties (who must make a determination within 30 days of appointment). 16.4 The Bureau Operator must, within 30 days of receipt of SAMS’ acceptance of the Offer, execute and deliver all documents necessary for, and complete, the assignment of the Monitoring Contracts to SAMS. 16.5 Upon completion of the assignment of the Monitoring Contracts to SAMS, the Bureau Operator is released from its obligations under this Agreement arising after completion of the assignment, other than any obligations of confidentiality to SAMS. 17 AGENCY 17.1 If SAMS is providing the Billing Services to the Bureau Operator under this Agreement, the Bureau Operator appoints SAMS as its agent for the purposes of exercising the Bureau Operator’s rights under the Monitoring Contracts (including, without limitation, invoicing the Monitored Clients and collecting all amounts due and payable to the Bureau Operator under those Monitoring Contracts). 17.2 The obligation of SAMS to remit part of the amounts received by it from Monitored Clients in the provision of the Billing Services to the Bureau Operator is subject to SAMS being in receipt of complete, proper and accurate payment directions from the Bureau Operator. If SAMS is unable to make any such payments due to not having any valid payment directions, the Bureau Operator agrees to waive any right it may have to make claim for those funds, and they will become the property of SAMS, if SAMS is not provided with valid payment directions, or claim is otherwise made for those funds by the Bureau Operator, within 12 months of the receipt of those funds by SAMS. 18 MISCELLANEOUS 18.1 Unless otherwise specifically provided for under this Agreement, any variation to this Agreement, including any variation to the Schedule, must be in writing and signed by both parties. 18.2 This Agreement constitutes the entire agreement between the parties about its subject matter and supersedes all previous agreements, transactions and negotiations on that subject matter. 18.3 The Bureau Operator may not assign its rights under this Agreement except with the prior written consent of SAMS and any purported assignment in contravention of this provision is void at the option of SAMS. 18.4 The Agreement, the Operating Procedures and the Written Instructions shall constitute the entire agreement between the parties. 18.5 If any part of this Agreement is prohibited, void, voidable, illegal or unenforceable, then that part is severed from this Agreement but without affecting the continued operation of the remainder of the Agreement. 18.6 The laws of South Australia govern this Agreement. 18.7 The special conditions set out in Schedule 1 (if any) apply to the Agreement and are binding on the parties. 18.8 For full details of the terms and conditions of sale please visit https://securityalarm.wpengine.com/termsofsale.html 19 GLOSSARY 19.1 In this Agreement: 0.5 (A x B) Fair Market Value means the fair market value of the applicable Monitoring Contracts as at the date of exercise of the option, which value is to be determined by reference to a sale on arms-lengths terms between a willing vendor and a willing purchaser. | ||
