DEFINITIONS
“Agreement” means the agreement constituted by the Schedule of Services and these terms and conditions, (subject only to any variation effected in accordance with these terms) “Cash” includes bank notes, coins and foreign currency, and does not include data.
“Cash Limit” means the Cash Limit set out the Schedule of Services. “Guarantor” means any person specified as a guarantor in the Customer Setup Form and Schedule of Services. “Company” means Armourguard Security and includes its agents, subcontractors and assigns.
“Customer” means the person, firm or company specified as the Customer in the Schedule of Services.
“Data” is the documentation (in whatever form) and specifically includes cheques, money orders, postal notes, traveller’s cheques and other negotiable instruments, but does not include cash. “Minimum Term” means the term commencing on the Commencement Date and continuing for the duration specified in the Schedule of Services.
“Services” means such of the standard services offered by the Company as specified in the Schedule of Services; Other capitalised terms will have the meanings ascribed to them in the Schedule of Services. An email or email exchange (as applicable) will suffice for anything which needs to be given or agreed in writing under this Agreement.
SERVICES
The Company will provide the Services specified in Schedule of Services and use best endeavours to provide those Services in accordance with the specified details and otherwise in accordance with the Company’s standard practices for the relevant Services. However, where applicable, the Customer acknowledges that some of the Services, including any patrol services, are of a shared nature with other customers of the Company. Whilst the Company will use its best endeavours to provide the stated number of security inspections (and at any frequency or times indicated) and comply with any details applicable to other Services, interruptions or delays (or both) caused by break-ins at any other customer’s premises or other emergencies (including fire, flood, accident, dealing with police or emergency services), may prevent strict compliance with the specified details.
DURATION
Subject to the early termination rights in clause 9, this Agreement shall continue in force for the Minimum Term and thereafter until terminated by either party giving one month’s notice in writing to the other party
FEES
- The Company shall issue a monthly invoice to the Customer for Services rendered that month and the Customer shall pay each invoice by the 20th day of the month following the month for which the invoice was rendered.
- All fees and expenses quoted exclude GST and the Customer shall pay all GST levied on fees and expenses at the time of payment, (subject to provision of a GST invoice complying with the GST Act).
- If any invoice is not paid on time and in full, the Customer agrees to pay penalty interest (if levied by the Company) on the overdue balance at a rate of 2% per month on the overdue amount (compounded monthly) together with any debt recovery costs.
REVIEW OF FEES
The parties acknowledge that the Company’s costs of providing the Services are primarily made up of labour costs and will be directly affected by increases in the minimum wage and/or living wage (as applicable) and any other governmental enactments affecting labour costs. Accordingly, the Company may, by prior written notice to the Customer, increase the Prices with effect from 1 April (or such other date as the Company may nominate) each year:
- by the percentage which is the greater of any percentage increase in the minimum wage enacted by the New Zealand Government or living wage published on the website www.livingwage.org.nz and the percentage increase in the “Labour Market Statistics – All Sector Wage Inflation” index published by Statistics New Zealand) (in each case being the percentage increase over the annual period expiring on the applicable review date based on last published figures); and
- to reflect any additional increase in the Contractor’s labour costs caused by any other Government enactment (for example, an increase in the number of statutory annual or sick leave days which must be provided).
In addition to the percentage increases pursuant to paragraphs (a) above, the fees may be increased by an incremental amount to reflect any material increase in the Company’s costs caused by an external factor which has not been reflected in the applicable index (including, by way of example only, a Government enactment, a compulsory Fair Pay Agreement or a material increase in fuel costs exceeding the labour costs adjustment).
Following expiry of the Minimum Term the Company may increase the fees generally (not just as permitted by paragraphs a) & b) of this clause) at any time by giving 1 month’s prior written notice to the Customer.
INSURANCE
Except as expressly provided in clause 8a (for cash services), the Company is under no obligation to arrange any insurances on behalf of the Customer.
LIMITATION OF COMPANY’S LIABILITY
- The Company shall not be liable for consequential or indirect loss or damage which may arise in respect of the provision of Services to the Customer under this Agreement.
- Subject to clause 8 (for cash services), the Company’s maximum liability to the Customer for any claim arising in connection with the provisions of Services to the Customer shall be limited to the lesser of either $10,000 or one year’s fees payable by the Customer.
PROVISIONS RELATING TO CASH SERVICES
- The Company shall arrange insurance cover in respect of cash carried by the Company pursuant to this Agreement, such cover to be arranged up to the Cash Limit and on terms and subject to such conditions as the Companydetermines.
- The Customer acknowledges that a written statement by the Company of the amount of any cash received or collected or handled by the Company in the course of performing the Services shall be conclusive evidence of such amount for all purposes.
- For the purposes of section 248 of the Contract and Commercial Law Act 2017 (“CCL Act”), each carriage of cash will be at “declared value risk” and the Company will be liable up to the declared value as determined in accordance with paragraph d) below and otherwise in accordance with sections 256 to 260 of the CCL Act.
- The declared value shall be the value of the cash carried in the relevant consignment, being the amount stated on a consignment note signed by or on behalf of the Customer and the Company (where applicable) in respect of such consignment or, if no amount is stated, such amount as can be substantiated by the Customer, but not exceeding the Cash Limit.
- If the Customer requests the Company to supply cash it will transfer funds by direct debit to the Company equivalent to the amount of that cash at least one working day in advance of the date it seeks delivery of that cash.
TERMINATION AND SUSPENSION
Without prejudice to other remedies, this Agreement may be terminated immediately by a party giving notice in writing to the other party if:
- the other party commits a material breach of the terms of this Agreement (including any failure by the Customer to pay any moneys payable hereunder on the due date); or
- the other party goes into receivership or liquidation, or being an individual, dies or is adjudicated bankrupt.
The Company may also terminate this Agreement at any time (without cause) by giving 30 days’ written notice to the Customer.
Termination of the Agreement will not release the Customer from liability for unpaid fees or other losses suffered by the Company from any Customer breach.
Where the Customer is in breach then, pending any decision to terminate, the Company may suspend all Services (and will have no liability for any loss suffered by the Customer as a consequence of that suspension). Where the breach is a payment default during the Minimum Term, the Company may also declare all unpaid instalments of fees for the balance of the Minimum Term immediately due and payable. In that case, upon receipt of such sum the Company shall resume performance of its obligations for the balance of the Minimum Term, following which this Agreement will terminate automatically (unless otherwise agreed).
Upon termination of this Agreement the Company shall be entitled to repossess all equipment owned by the Company and for that purpose to enter upon the Customer’s premises without any liability to the Customer or any third party in respect of any loss or damage it causes in the process.
CUSTOMERINDEMNITY
The Customer indemnifies the Company in respect of any loss suffered as a result of any safety or other hazards existing on the Customer’s premises where Services are performed or otherwise arising from any breach of the Customer’s obligations under its Agreement.
NON-SOLICITATION
During the contract term, and for 24 months post termination, the Customer agrees not to engage or employ any Company personnel, either directly or indirectly, in any activity. If the Customer breaches this provision a $5,000 fee per employee may be charged by the Company to cover training and recruitment costs.
PRIVACY ACT 2020
The Customer agrees that the Company may obtain information about the Customer from the Customer or any other person (including any credit or debt collection agency) in the course of its business, and the Customer consents to any person providing the Company with such information. The Customer agrees that the Company may give any information it has about the Customer relating to the Customer’s credit worthiness to any other person, including any credit or debt collection agency, for credit assessment and debt collection purposes.
CONSUMERS GUARANTEEACT
Nothing in this Agreement is intended to have the effect of contracting out the provision of the Consumers Guarantee Act 1993 except to the extent permitted by that Act, and all provisions of this Agreement shall be read as modified to the extent necessary to give effect to that intention. The Customer agrees that where the services (and any goods) to be provided by the Company pursuant to this Agreement are acquired by the Customer for the purposes of a business, the Consumer Guarantees Act 1993 shall not apply.
FORCE MAJEURE
The Company shall not be liable to the Customer for any failure to carry out its obligations hereunder or for any loss or damage suffered by the Customer where such failure or such loss or damage is caused by mechanical breakdown of any equipment, weather conditions, strikes, lockouts, labour disputes or restraint of labour, act of God, war (whether declared or not), any act regulation or restriction imposed by Government, riot or civil commotion, any act or omission of the Customer, its servants or agents, or any other cause beyond the control of the Company.
ASSIGNMENT
The Customer may not assign or transfer any rights under this Agreement without the prior written consent of the Company, which may be withheld at the Company’s discretion. The Company may assign its rights under this Agreement by notice to the Customer in connection with any restructuring of the Company or any sale of a significant part of the Company’s business.
GUARANTEE
In consideration of the Company agreeing to provide the Services and extend credit to the Customer at the Guarantor’s request the Guarantor guarantees due payment of all fees and compliance with all other obligations of the Customer under this Agreement (as principal obligor) and indemnifies the Company against any loss suffered arising from any breach of this Agreement by the Customer.
ENTIRE AGREEMENT
This Agreement contains all the terms of the agreement between the parties (superseding all prior agreements, arrangements or understandings between the parties) and all other terms, conditions and warranties which might otherwise have been implied by law or have had any application are expressly excluded (to the fullest extent permitted by law).
VARIATIONS
No variations of the terms of this Agreement shall be binding on the Company or the Customer unless in writing signed by or on behalf of both parties.
APPLICABILITY OF CONTRACT TERMS
This Agreement applies to all quotations given by the Company and shall be deemed to be incorporated in and form part of all agreements made with the Company unless otherwise expressly agreed.
USE OF CUSTOMER NAME AND MARKS
The Customer grants the Company a royalty free license (for the duration of this Agreement) to use the Customer’s name, trademarks and logos in its marketing materials and for other bone fide marketing purposes, provided they are not altered in any way.