1982
ACT
INFORMATION
OFFICIAL
THE
UNDER
RELEASED
1982
ACT
INFORMATION
OFFICIAL
THE
UNDER
RELEASED
TERMS AND CONDITIONS FOR THE SUPPLY OF SECURITY
SERVICES
1.
DEFINITIONS
1982
1.1.
Definitions: In these Terms and Conditions, unless the context otherwise requires:
“Agreement” has the meaning described in clause 2.2.
ACT
“Business Day” means any day which is not a Saturday, Sunday or public holiday in Auckland, New Zealand.
“Casual Services” means any Services to be provided on an ad hoc or “as required” basis where those
Services are referred to as Casual Services by FIRST Security.
“Charges” means the charges payable by you for providing the Services as set out in the Temporary Security
Services Form (or, where the Agreement arises by way of your acceptance of a quotation or our confirmation
of your request for Services, in such quotation or confirmation of request for Services) provided that the
charges may be varied in accordance with clause 4.6.
“Commencement Date” means the first day on which the Services have been requested to be provided.
INFORMATION
“Customer”, “You” and “your” means you, the Customer.
“FIRST Security”, We”, “us” and “our” means FIRST Security Guard Services Limited and includes its officers,
employees, contractors, agents, successors and assignees where appropriate.
“Guarantor” means any person or persons named as a Guarantor on any form provided by the Customer to
FIRST Security.
OFFICIAL
“Permanent Services” means any Services that are required to be provided on an ongoing, continual basis
where those Services are referred to as Permanent Services by FIRST Security.
“Minimum Wage Rates” means the minimum wage rates set by the Government under the Minimum Wage Act
THE
1983 and associated regulations as updated from time to time.
“Premises” means any premises you have specified to us.
“Services” means, where the Agreement arises by way of a quotation or confirmation of request for Services,
the security services described in such quotation or confirmation of request for Services or the security
UNDER
services described in the Temporary Security Services Form or any other form where these terms and
conditions are intended to apply to the supply of the Services.
“Temporary Security Services Form” means the document labelled Temporary Security Services Form signed
by you.
1.2.
Interpretation: In these Terms and Conditions, unless the context otherwise requires:
(a) section, clause and other headings are for convenience only and will not affect the interpretation of these
Terms and Conditions;
RELEASED
(b) singular will include plural and vice versa;
(c) reference to a statute or regulation will include all amendments and re-enactments thereof and any
subordinate legislation and regulations made thereunder;
(d) the term “including” means “including without limitation”; and
(e) any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that
thing to be done.
9802125_1
2.
AGREEMENT
2.1.
Terms and Conditions: Unless agreed otherwise by us in writing, these terms and conditions (Terms and
Conditions) shall apply to the provision of all goods and/or Services provided by us to you. These Terms and
Conditions are the Terms and Conditions referred to in any correspondence with you or referred to in the
Temporary Security Services Form or any other form, quotation, invoice or confirmation of request for
services. We reserve the right to amend the Terms and Conditions from time to time by written notice to you.
Your continued use of the Services will be deemed acceptance of such amended Terms and Conditions and
such amended Terms and Conditions will replace any previous arrangements or understandings between you
and FIRST Security.
2.2.
Acceptance: If:
(a) we accept a request for goods and/or Services from you; and/or
1982
(b) you complete a Temporary Security Services Form and we accept that form; and/or
(c) you accept a quote for goods and/or Services to be provided by us,
ACT
that shall constitute acceptance of these Terms and Conditions and such request, quote or Temporary Security
Services Form (as applicable) together with these Terms and Conditions shall constitute the agreement
between you and us (the Agreement). Any variations or additions to the Agreement not expressly agreed in
writing by us are expressly rejected by us.
3.
SECURITY SERVICES
3.1.
Services: We will provide to you the goods and/or Services specified in the Temporary Security Services Form (or,
where the Agreement arises by way of a quotation or confirmation of request for Services, such quotation or
confirmation of request for Services) and such further ancillary Services requested by you from time to time
INFORMATION
(including any request for us to deploy security guards to your Premises at any unscheduled time), provided that:
(a) no security guard may be requested to provide Services to you for anything less than a four hour
unbroken period;
(b) no security guard will be deployed to your Premises unless a start and end time for the deployment has
been agreed;
(c) once we have agreed to deploy a security guard to your Premises, that deployment may not be cancelled
OFFICIAL
by you unless you provide us with notice in writing of the cancellation:
(i) in the case of Casual Services, at least four hours prior to the commencement of the deployment
THE
(and if you provide less than four hours’ notice, you shall be charged for all the scheduled hours of
the deployment notwithstanding that such deployment may no longer be required and/or not occur);
and
(ii) in the case of Permanent Services, at least 30 days’ prior to the commencement of the last
deployment (and if you provide less than 30 days’ notice, you shall be charged for all the scheduled
UNDER
hours of the deployment notwithstanding that such deployment may no longer be required and/or not
occur);
(d) we shall determine, in our sole discretion, the manner and means by which the Services are performed.
3.2.
Mobile Patrol Services: Where the Services include a requirement for us to provide mobile patrol services, we do
not guarantee any particular number or frequency of patrols of your Premises. Any agreement to provide a certain
number of patrols to your Premises within a specific period is subject to the following:
RELEASED
(a) the timing of those patrols shall be selected randomly by us and could be at any time during such period;
and
(b) to the extent we provide less than the agreed number of patrols within that period we can make up the
shortfall by providing an increased number of patrols in any subsequent period.
3.3.
Alarm Monitoring Supplier: You agree we can accept instructions to supply goods and/or Services to you from
your authorised alarm monitoring supplier on your behalf.
9802125_1
4.
CHARGES
4.1.
Fees:
(a) You shall pay us the Charges for providing the Services from the Commencement Date.
(b) The Charges for providing the Services are calculated on a time and materials basis and any Charges
expressed in the Temporary Security Services Form (or, where the Agreement arises by way a quotation
or confirmation of request for Services, such quotation or confirmation of request for Services) are not a
fixed fee but an estimate only of the time and materials required to provide any Service and shall be
subject to amendment to reflect the actual cost to us to provide the Services calculated in accordance with
the applicable Charge.
(c) Where the Charges include provision for a reoccurring fee (e.g. a monthly mobile patrol fee), you shall be charged
the applicable fee each time such fee is incurred during the relevant period.
1982
(d) All Charges exclude GST (and other applicable taxes) and any payments required by you shall be
increased by the amount of any GST chargeable on any taxable supply under the Agreement (and other
ACT
applicable taxes).
4.2.
Payment:
(a) We will submit a valid tax invoice to you in respect of all Services provided by us. Payment for all Services
is to be made by automatic bank transfer to the bank account notified to you by us from time to time, on or
before the 20th day (or, if the 20th day is not a Business Day, on the next Business Day) of the month
following the provision of the relevant Services. You must make payment of all amounts under the
Agreement without set off, deduction or withholding of any kind.
(b) If you dispute any portion of any amount appearing as payable on any invoice issued by us under the
Agreement, you shall pay the applicable invoice in full and will promptly notify us of that dispute and we
INFORMATION
will attempt to promptly resolve the dispute between us.
4.3.
Default interest: If you default for any reason in payment of any amount on the due date (time being strictly of the
essence), you shall pay to us on demand, interest at a rate equal to 5% above the current overdraft rate which we
have with our principal bank, calculated by us on a daily basis on the amount so unpaid from the due date until
payment. Charging of this interest will not limit any of our other rights or remedies under these Terms and
Conditions or otherwise in respect of your default.
OFFICIAL
4.4.
Debt collection: You must pay all costs and expenses (including costs on a solicitor/client basis and debt
collectors’ costs) we incur in enforcing or attempting to enforce our rights under this clause and otherwise under
these Terms and Conditions.
THE
4.5.
Withholding Services: You agree that we may withhold the further supply of Services in the event that you default
on your obligations under this clause 4.
4.6.
Variation of charges:
(b) Subject to, and without limiting, clause 3.7(b), the Charges shall be reviewed and varied by us on each
anniversary of the date of this Agreement as follows:
UNDER
(i) we shall be permitted to increase the Charges by a percentage amount equal to the percentage
increase in the Labour Cost Index (Salary and Wage Rates) published by Statistics New Zealand (or
any replacement index) over the preceding 12 month period;
(ii) we shall be permitted to increase the Charges by a percentage amount equal to the percentage
increase in the Consumer Prices Index (CPI) published by Statistics New Zealand (or any
replacement index) over the preceding 12 month period;
RELEASED
(iii) we shall notify you of all variations in writing; and
(iv) such variations shal be effective from the anniversary of the date of this Agreement or such later
date determined by us.
(c) Notwithstanding anything in clause 4.1 or the Temporary Security Services Form (or, where the
Agreement arises by way of a quotation or confirmation of request for Services, in such quotation or
confirmation of request for Services), we may adjust the charges at any time by an amount that we in our
sole discretion determine is necessary to take account of any alterations you may make to the Premises
or other factors which affect the cost to us of providing the Services, including, but not limited to:
9802125_1
(i) increased wages (including, but not limited to, as a result of increases in the Minimum Wage Rates
and the flow-on effect such increases have on wages for our employees regardless of whether such
employees are on the Minimum Wage Rates or not);
(ii) Union Awards;
(iii) increased contractor costs;
(iv) increased fuel costs;
(v) increased equipment and equipment maintenance costs; and
(vi) legislative changes (including in relation to the holidays and other benefits to our employees and/or
contractors).
(vii) in the case of Services that are mobile patrol services, where there is a change that affects our ability
1982
to leverage economies of scale to provide the mobile patrol services at the Charges agreed
(including, but not limited to, as a result of any decrease in mobile patrol services provided to
customers other than you within the area/s in which your Premises are located).
ACT
Any such variation to the Charges in accordance with this clause 4.6(c) shall be effective from the date we
specify by notice in writing to you.
4.7.
Additional charges: If one of our security guards providing Services to you is required to attend the Premises for
any length of time at your request or in response to an incident, or if you otherwise request us to carry out
additional Services, such additional time incurred and/or additional Services provided shall be subject to the terms
of these Terms and Conditions and the Charges payable by you for such additional time and/or Services shall be
based on our standard rates at the time, plus in all cases the amount of any GST or other applicable tax.
5.
TERM AND TERMINATION
INFORMATION
5.1.
Term: The Agreement shall commence on the Commencement Date specified in the Temporary Security Services
Form (or, where the Agreement arises by way of a quotation or confirmation of request for Services, in such
quotation or confirmation of request for Services) and, unless terminated earlier in accordance with clause 5.2 or
5.3, continue until:
(a) in the case of Casual Services, you provide us with at least four hours’ notice that you no longer require
OFFICIAL
the Services; or
(b) in the case of Permanent Services, you provide us with at least 30 days’ notice that you no longer require
the Services.
THE
5.2.
Early termination: We may terminate the Agreement with immediate effect if you:
(a) breach, or fail to perform properly or promptly any material obligation that you have under the Agreement,
and, where that breach or failure to perform is capable of remedy, fail to remedy the breach or perform the
obligation within 10 Business Days after receiving written notice (inclusive of the date of receipt) from eh
us of such breach or failure and
UNDER requiring remedy (and for the avoidance of doubt, any failure by you to
make any payment to us under this Agreement on its due date shall be deemed to be a material breach of
this Agreement);
(b) are, become, or are deemed to be bankrupt or insolvent or any resolution is passed, or any proceeding is
commenced, for your liquidation (whether voluntarily or otherwise);
(c) make an assignment for the benefit of, or enter into or make any arrangement or composition with, your
creditors or are unable (or deemed to be unable) to pay your debts as they fall due;
RELEASED
(d) go into receivership or have a receiver, trustee, administrator or manager (or any of them) (including a
statutory manager) appointed in respect of all your property; or
(e) a material change occurs in your ownership or control which, in our reasonable opinion adversely affects
our rights or your ability to perform your obligations under the Agreement or is otherwise contrary to our
interests (for the purposes of this clause, “control” means having the power to alter the management and
direction of a person or any person controlling that person).
5.3.
Termination on notice: We may terminate the Agreement, at any time and for any reason, by giving you at least:
(a) in the case of Casual Services, four hours’ notice in writing; or
9802125_1
(b) in the case of Permanent Services, 30 days’ notice in writing.
5.4.
Consequences of termination: The termination of the Agreement shall be without prejudice to any rights,
remedies or obligations accrued under these Terms and Conditions prior to termination or expiration and nothing in
the Agreement shall prejudice our right to recover any amount outstanding at such termination or expiry. On expiry
or termination of the Agreement for whatever reason all monies owed by you to us will be due and payable
immediately.
6.
AUTHORITY
6.1.
Access to Premises: Entry into the Agreement by you grants us full authority to access the Premises for the
purposes of carrying out the Services and generally protecting your business, property and persons. Where the
Services are to be provided outside your normal business hours, you shall supply us with such keys and access
1982
cards as are necessary to enable us to access the Premises to carry out the Services.
6.2.
Authority to take reasonable steps: If we become aware of a security issue that may impact on you or the
Premises, and we are unable to contact you to obtain instructions, we are authorised to take reasonable steps to
ACT
protect the integrity, safety and security of the Premises, property and personnel, at your expense.
6.3.
Notification: You shall notify us immediately if any changes are made to the access ways, and/or locks, at the
Premises.
6.4.
Contact person: Without limiting the other persons that bind you, the contact person requesting services on your
behalf has the full authority to bind you in all matters connected with the Agreement.
7.
REPRESENTATIONS AND WARRANTIES
7.1.
Your representation: You represent and warrant to us that: INFORMATION
(a) you have obtained all authorisations and have done al things necessary in order to enter into the
Agreement and to perform your obligations under the Agreement;
(b) you are not aware of anything which will, or might be reasonably expected to, prevent or impair you from
performing your obligations under the Agreement, in the manner and at the times contemplated by these
Terms and Conditions; and
OFFICIAL
(c) you have not relied on any representation made by us which has not been expressly stated in these
Terms and Conditions and, without limitation, you acknowledge that we have not represented to you that
by entering into the Agreement, or by receiving the Services from us, you, your Premises and/or your
other property shal be safe from unlawful entry, loss, damage or injury.
THE
7.2.
Our representation: We represent and warrant to you that we have the expertise, experience, resources, capacity
and ability to, and will, perform the Services in a timely manner, efficiently, diligently and in accordance with these
Terms and Conditions.
7.3.
Consumer Guarantees Act / Fair Trading Act:
UNDER
(a) Subject to clause 7.3(b), where the Consumer Guarantees Act 1993 and/or the Fair Trading Act 1986
apply nothing in these Terms and Conditions shall contract out of or limit the application of those Acts.
(b) If the Services are acquired by you for business purposes and you are “in trade” within the meaning of the
Fair Trading Act 1986 or the Consumer Guarantees Act 1993 (as the case may be), you agree that the
Consumer Guarantees Act 1993 does not apply to the Agreement in respect of the Services.
(c) Where you are in trade and accordingly clause 7.3(b) applies, you acknowledge that the effectiveness of
RELEASED
contracting out of the Acts is subject to compliance with the statutory tests including that it is fair and
reasonable that you be bound by those terms.
(d) Where we are supplying goods and services to you other than as a customer that is in trade the provisions
of clauses 7.3(b) and 7.3(c) above will have no effect and the provisions of the Consumer Guarantees Act
1993 and the full provisions of the Fair Trading Act 1986 will apply and these Terms and Conditions shall
be read subject to the provisions of the Consumer Guarantees Act 1993 and the full provisions of the Fair
Trading Act 1986.
7.4.
Occupational health and safety:
9802125_1
(a) You warrant that the Premises are safe and free from harmful materials, infections or building diseases, or
any environmental matters or issues, and any other materials, that could be harmful to one or more of our
employees and/or contractors.
(b) Without limiting our obligations to consult and cooperate with you as a person conducting a business
undertaking (as that term is defined in the Health and Safety at Work Act 2015) in accordance with the
Health and Safety at Work Act 2015, it is your responsibility to notify us of any hazards on or around the
Premises and to advise us of any special safety procedures we need to follow when providing the
Services.
7.5.
No guaranteed response times: Where we provide you with alarm response services under the Agreement we do
not guarantee that we will respond to an alarm and attend the relevant Premises within any particular timeframe.
Our only obligation in responding to an alarm is to secure the relevant Premises upon arrival.
7.6.
Continuous Warranties: The representations and warranties in this clause 7 will be deemed repeated
1982
continuously, by the party giving the representation and warranty, during the term of the Agreement.
8.
LIMITATION ON OUR LIABILITY AND YOUR INDEMNITY
ACT
8.1.
Liability: To the fullest extent permitted by law, we shall not be liable for any loss of profits or any consequential,
indirect or special loss, damage or injury of any kind suffered or incurred by you arising directly or indirectly from
the performance or non-performance of our obligations under the Agreement (including, but not limited to, a failure
to meet any service level agreed to for the purposes of the Agreement), any breach of our obligations under or in
connection with the Agreement or from any negligence, misrepresentation or other act or omission on our part or
the part of our employees, agents or contractors.
8.2.
Maximum liability: Notwithstanding anything else in the Agreement, our liability, whether in contract or pursuant to
any cancellation of the Agreement or in tort or otherwise, in respect of all claims for costs, loss, damage or injury
arising from breach of any of our obligations arising under or in connection with the Agreement, from any
INFORMATION
cancellation of the Agreement or from any negligence, misrepresentation or other act or omission on our part, or
the part of our employees, agents or contractors, shall not exceed:
(a) the daily charge paid by you to us where your claim relates to mobile patrol services;
(b) the call out fee for an alarm response where your claim relates to alarm response services; and
(c) $500 where your claim relates to static guard services,
OFFICIAL
in respect of one event (or a series of failures arising from the same event). To the maximum extent permitted by
law, our aggregate maximum liability to you, whether in contract, tort or under any other legal theory howsoever
arising under the Agreement is limited to the lesser of $10,000 or the total fees paid by you in the month
THE
immediately preceding the event giving rise to a claim under this Agreement.
8.3.
Acts of employees and contractors: Notwithstanding anything else in this Agreement, we shal in no
circumstances have any liability for any wilful, reckless or deliberate acts or omissions of our employees or
contractors (including any burglary, theft, arson, or wilful damage) in each case in the course of performance, or
otherwise in any way arising out, of the Services unless such act or omission could have been prevented by
UNDER
reasonable supervision of such employees or contractors on our part.
8.4.
Claims: We shall not be liable to you with respect of any matter whatsoever unless notice in writing of any claim is
received by us within seven Business Days of the occurrence of the event or default in respect of which your claim
arises (time being of the essence). Any notice shall state full details of the claim.
8.5.
Indemnity: You shall keep us indemnified at all times against any loss, damage or injury we suffer or incur as a
result of your breaches of the Agreement or arising from claims made against us by any third party with respect to
any theft, loss, damage, destruction, death or injury occurring in or on the Premises arising out of, or in any way in
RELEASED
relation to, the provision of, or failure to provide, the Services.
8.6.
Third Parties: All provisions of these Terms and Conditions which limit or exclude our liability shal be for the
benefit of and enforceable by each of our employees, agents and contractors, and the provisions of Subpart 1
(Contractual Privity) of Part 2 of the Contract and Commercial Law Act 2017 will apply accordingly.
8.7.
Insurance: Our liability under the Agreement is limited. Accordingly, you are responsible for arranging appropriate
insurance for any loss, damage or injury that may arise to you, your Premises and your other property as a result of
our performance or non-performance under the Agreement.
9802125_1
8.8.
Continue Following Termination: This clause will continue to have effect after termination or expiration of the
Agreement.
9.
INDEPENDENT CONTRACTOR
9.1.
Independent Contractor Status: You acknowledge and agree that we are engaged under this Agreement as an
independent contractor and nothing express or implied in this Agreement will be construed as constituting either
party as the partner, agent, employee, officer or representative of, or as a joint venture with you and neither party
will make any contrary representation to any other person.
10.
GUARANTOR
10.1. Guarantee: Each Guarantor unconditionally and irrevocably guarantees to us the due and punctual performance
by you of all your obligations under the Agreement (including, but not limited to, the due and punctual payment of
1982
all moneys which are now or may in the future be owing or remain unpaid by you). The liability of each Guarantor
under this guarantee constitutes a principal obligation of each Guarantor and such liability shall not be relieved, or
in any way affected in a manner prejudicial to us, by the granting of time, waiver or forbearance to sue by us or by
ACT
any other act, omission, matter, circumstance or law whereby each Guarantor as a surety only would, but for the
provisions of this clause, have been released from liability.
11.
INFORMATION AND PRIVACY ACT
11.1. Authorisations: For the purpose of facilitating the administration and efficient running of our business, the
Customer and the Guarantors authorise us:
(a) to collect all information, we may require from any third parties and authorise those third parties to release
that information to us;
INFORMATION
(b) to hold all information given by you or any third parties to us; and
(c) to use that information, including giving information to any other person (including any other credit
provider or any credit reporting agency), for the purpose of assessing the Customer’s and/or the
Guarantors’ creditworthiness, to facilitate the collection of debts from you and/or the Guarantors, and for
marketing products and services to the Customer and/or the Guarantor.
11.2. Conditions: The information will be col ected, held and used on the condition that:
OFFICIAL
(a) it will be held securely at our registered office and in our electronic debt collection system (IODM);
(b) it will be accessible to any of our employees and agents who need access to it for the efficient running of
THE
our business; and
(c) you may request access to and correction of it at any time.
11.3. Privacy Act 1993: Where the Customer and/or any Guarantor is an individual, the authorities under clause 11.1 are
authorities or consents for the purposes of the Privacy Act 1993.
UNDER
12.
GENERAL
12.1. Circumstances beyond our control: Notwithstanding any other provision of these Terms and Conditions, non-
performance by us of our obligations under the Agreement shall be excused, without liability for non- performance,
during the time and to the extent that such performance is prevented, wholly or partly, by any act of God, fire,
earthquake, storm, flood, landslide, strike, lockout, work stoppage or other labour hindrance, explosion or public
mains electrical supply failure, sabotage, riot, civil disturbance, national emergency, terrorism, act of war or any
other cause beyond our reasonable control.
RELEASED
12.2. Subcontracting: We may allow a contractor to carry out al or any of our obligations under the Agreement without
your consent.
12.3. Entire Agreement: The Agreement contains all the terms of our agreement with you and al other terms, conditions
and warranties are expressly excluded. There has been no representation made by either party to the other except
as expressly set out in these Terms and Conditions.
12.4. Severability: If any part of these Terms and Conditions is held by any court or administrative body of competent
jurisdiction to be illegal, void or unenforceable such determination shall not impair the enforceability of the
remaining parts of these Terms and Conditions which shall remain in full force.
9802125_1
12.5. No waiver: No waiver of any breach, or failure to enforce any provision, of these Terms and Conditions at any time
by us shall in any way affect, limit or waive our right thereafter to enforce and compel strict compliance with the
provisions of these Terms and Conditions.
12.6. Confidentiality: You shall at all times keep confidential, treat as privileged, and not directly or indirectly make, or
allow any disclosure or use to be made of, the subject matter, or any provision of, the Agreement or any
information relating to any provision, or the subject matter, of the Agreement, or any information directly or
indirectly obtained from us under or in connection with the Agreement.
12.7. Notices: Where we are required to give you notice we will do that by one or more of the following means:
(a) personal delivery;
(b) phone call;
(c) electronic mail; or
1982
(d) facsimile transmission,
to the addresses obtained by us unless you notify us otherwise in writing. We are entitled to assume our notices
ACT
have been received by you on the day it was personally delivered or message left on the number you provide us; it
was transmitted to your email or facsimile address.
12.8. Governing law: The Agreement will be governed by, and construed in accordance with the laws of New Zealand.
The parties irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand with respect to any legal
action, suit or proceeding or any other matter arising out of or in connection with the Agreement.
INFORMATION
OFFICIAL
THE
UNDER
RELEASED
9802125_1
