TERMS & CONDITIONS / CONDITIONS OF SERVICE

(a) This Agreement commences on the Commencement Date and will continue in full force and effect for the Term, unless it is terminated earlier in accordance with its terms.

(b) Upon expiration of the Initial Term, this Agreement will be automatically renewed for the Renewal Term, unless either party has given the other party written notice at least three months before the end of the Initial Term that this Agreement will not be automatically renewed for the Renewal Term (in which case the Term will end upon expiration of the Initial Term).

(a) We will provide the Services to the Customer during the Term on the terms and conditions set out in this Agreement.

(b) In the course of performing the Services we will notify the Customer, or the Customer's nominated Service Agent, in the event of our becoming aware of any outage or failure affecting the System, and again upon any such outage or failure being rectified.

(a) In order to perform the Services, we will install the Equipment in the Protected Premises. The Customer must provide such assistance and access to the Protected Premises and perform such actions as we reasonably request in order to enable the installation of the Equipment in the Protected Premises, and to enable us to maintain, repair or replace any such Equipment.

(b) Risk of loss of or damage to the Equipment will pass to the Customer upon installation, but title in the Equipment will remain with us at all times. The Customer must not sell or dispose of the Equipment without our prior written consent, and must not use or treat the Equipment in a manner that might damage the Equipment or cause it to malfunction. The Customer will use all reasonable endeavours to ensure that the Equipment is kept safe and secure at all times, and is not exposed to damage of any kind, fair wear and tear excepted.

(c) The Customer acknowledges that clause 4(b) is a Security Agreement that creates a Security Interest in all Equipment. The Customer:

1. agrees to our registering a Financing Statement to protect that Security Interest and will, upon request, promptly give us all assistance and information as is necessary to register and Perfect that Financing Statement;
2. agrees that sections 114(a), 121 and 131 of the PPSA will not apply to any Security Interest created under these Terms and Conditions; and
3. waives its right to receive a verification statement under section 148 of the PPSA.

(d) For the purposes of these Terms and Conditions, the terms Security Agreement, Security Interest, Financing Statement and Perfect set out in this clause 4 will have the meanings set out in the PPSA.

(e) Upon termination or expiration of this Agreement we will have the immediate right to take possession of the Equipment. For this purpose, the Customer unreservedly grants to us the right to enter any premises where the Equipment may be located and the right to remove all Equipment from those premises. The Customer agrees to do all things reasonably necessary to assist us in the removal of the Equipment.

(a) prior to the connection of a new Customer Alarm to the System, provide to us all data specified by us necessary to allow us or FENZ, as the case may be, to contact the Customer at any time. If, during the Term, any of that data provided by the Customer changes, the Customer must immediately inform us of those changes;

(b) comply with all operating and maintenance instructions provided by us, FENZ, or our or their agents, in relation to the System;

(c) notify us immediately in the event of any deterioration, loss, damage to, or any other problem with, Equipment located on the Protected Premises;

(d) during any investigations by us or FENZ into the cause of a false alarm, provide us and/or FENZ with:

1. access to the Protected Premises during normal working hours;
2. any information required by us or FENZ relating to the false alarm; and
3. any other assistance that we or FENZ may require;

(e) provide us or any Service Agent with access to the Protected Premises as reasonably required for the purpose of inspecting the condition of the Equipment;

(f) provide at its own cost a power supply that is sufficient to reliably supply power to the Equipment and the System;

(g) introduce a procedure (to our reasonable satisfaction) that provides us or FENZ with a means of advising by automatic communication any occupier of the Protected Premises or a Service Agent in the event of any abnormal condition being signalled by the System;

(h) as an essential term of this Agreement, maintain throughout the Term at its own expense an analogue public switched telephone network line to enable us to provide the Services, or back up for the Services, as the case may be;

(i) for the Customer's Broadband Circuit, ensure that:

1. the Broadband Circuit is not interfered with or unplugged;
2. the Broadband Circuit is not utilised for any other purpose;
3. the Broadband Circuit is not connected to any other devices either temporarily or permanently; and
4. the jack point or RJ45 plug is terminated within one metre of where the NAD is expected to be placed;

(j) take all necessary steps to prevent false alarms;

(k) comply with the New Zealand Building Code, the requirements of all relevant local, regional and national authorities and all other applicable legislation, statutory requirements and codes of practice in respect of the System;

(l) provide such other assistance or permit such other access that we or a Service Agent may reasonably require for the proper provision of the Services;

(m) on 24 hours' notice, grant access to us, FENZ, or our or FENZ's authorised representatives, to inspect the Customer Alarm and the Protected Premises at reasonable times during normal working hours;

(n) give prior notification to us of any intended alterations to any Customer Alarm or any material factor that would affect in any way the operation of any Customer Alarm;

(o) give at least 30 days' notice in writing to us prior to any change in ownership of the Protected Premises and/or any Customer Alarm, or any change in protection afforded by any Customer Alarm;

(p) give us immediate notice in writing of any change to a Service Agent;

(q) in the event that the Customer wishes to have other localised 'in house' monitoring equipment such as Building Management Systems or similar, connected to the Equipment via the dedicated RS485 port, make arrangements for this directly with their Service Agent. We accept no liability for the serviceability, functionality or operation of the Customer's equipment and/or any consequences arising as result of this; and

(r) pay in full all taxes, charges and fees imposed by any Carrier, governmental or regulatory body which are properly payable in connection with the provision of the Services.

(a) the Customer must supply to FENZ master keys or sets of keys or their equivalent (e.g. access cards or codes) allowing access to all parts of the Protected Premises (Keys). The number of Keys in the set will not exceed six;

(b) the Customer must immediately advise FENZ of any changes to the Keys or its security for which Keys have been supplied, and supply further Keys as necessary;

(c) the Customer must also, where access to the Protected Premises is through part of a larger complex that is not being supplied Services under this Agreement, provide FENZ with Keys for those outer areas;

(d) if the Customer does not comply with this obligations in relation to Keys under this Agreement, FENZ may force access to the Protected Premises in the event of a call out. Any damage to the Protected Premises as a result of such forced access will be at the cost of the Customer;

(e) we will provide the Customer with the address of the FENZ station to which the Customer will deliver the Keys referred to in clauses 6(a) to (c), and at which those Keys will be held;

(f) the Customer must ensure that any alterations to any Fire Alarm comply with all relevant New Zealand Standards, and must also allow FENZ to inspect any such alterations;

(g) to the extent FENZ may be entitled by law to impose charges on the Customer for attending false alarms, the Customer will be liable to FENZ for such charges incurred, and will pay to FENZ such charges upon demand. Where the Customer is a body corporate under the Unit Titles Act 2010, the Customer will be liable to pay such charges levied by FENZ for attending a false fire alarm at the Protected Premises, whether or not that false alarm occurred in the common property, or any particular unit of the Protected Premises; and

(h) the Customer authorises us to forward to FENZ all relevant details contained in the Schedules to this Agreement, as well as such other data that we may collect in the course of performing the Services. The Customer acknowledges that such information may be used by FENZ in furtherance of FENZ's statutory functions.

(a) immediately by written notice if, in our opinion, the Customer Alarm is adversely affecting either the use of the System by others, the efficiency or security of the System as a whole or the integrity of the fire alarm monitoring network of us or FENZ. Our obligation to provide the Services will be suspended until such time as the Customer Alarm is reconnected. The Customer Alarm will not be reconnected until we are satisfied that the Customer Alarm no longer poses a threat to any relevant network;

(b) on 14 days' written notice to the Customer for repeated false alarms which result in the attendance of FENZ personnel and vehicles;

(c) on 14 days' written notice to the Customer if testing is not carried out satisfactorily or if the Customer does not promptly remedy any abnormalities in the Customer Alarm to our satisfaction;

(d) on 14 days' written notice to the Customer in the event of the Customer's failure to comply with relevant New Zealand Standards relating to Fire Alarms; or

(e) on 14 days' written notice to the Customer if the Customer does not pay the Fees in the manner required under this Agreement.

(a) We will maintain a log containing details of all Alarm Signals and Alarm Actions and such log will be conclusive evidence of the Alarm Signals received by us at the Central Station and the subsequent Alarm Actions taken by us in response.

(b) The Customer acknowledges that we may record any telephone conversations between the Customer (and/or any third party nominated by the Customer) and the Central Station and the Customer irrevocably waives and releases all its rights in and to such recorded telephone conversations. The Customer consents to the use by us of such telephone conversations for training purposes and in any legal proceedings and the disclosure by us of those conversations and the provision of the media on which they are recorded to any police or other law enforcement or government investigatory or regulatory body.

(a) In consideration for the provision of the Services, the Customer will pay to us the Fees. All Fees are payable in advance on a monthly or quarterly or other agreed basis, as specified in the applicable Schedule.

(b) We may increase the Fees following the end of the first twelve (12) month period of the Term:

1. by an amount proportionate to the percentage adjustment in the CPI over the last four completed quarterly periods as at the end of that twelve (12) month period; or
2. to reflect any increase in fees charged by FENZ to us for the Customer's connection to FENZ's automatic fire alarm system.

(c) The Customer must also pay to us:

1. any connection fees notified by us to the Customer, as set out in the applicable Schedule (Connection Fees). If in our opinion the Customer's power supply or batteries are insufficient for the supply of Services under this Agreement, we may vary the Connection Fees to take into account the installation of a new power supply and/or batteries. Unless otherwise set out in the applicable Schedule, all Connection Fees are payable prior to the Commencement Date;
2. in the event of a disconnection under clauses 7 or 11, a disconnection fee, and a fee for any subsequent reconnection. Such disconnection and reconnection fees will be advised by us at the time, based on our standard disconnection and reconnection fees in effect at the applicable time. The Customer acknowledges that where a Customer Alarm is disconnected, it may be required to be certified prior to its reconnection to the System, and the Customer will be liable for any costs and expenses incurred by us in connection with any such certification. All such fees, costs and expenses payable to us will be payable within seven days following the date of the applicable invoice; and
3. immediately upon demand, by way of reimbursement, the full amount of any fee, cost, expense or penalty that may be imposed upon us by FENZ as a result of a false alarm caused by the System or any act or omission of the Customer.

(d) All Fees and other amounts payable by the Customer under this clause 9 are exclusive of GST (if any), which will be payable by the Customer to us in addition on the rendering by us of an appropriate tax invoice.

(e) The Customer will pay all sums due to us under these Terms and Conditions without deduction or set-off of any kind, to the credit of a bank account to be designated in writing by us, failing which:

1. we may charge interest on any outstanding amount on a daily basis at an annual rate equivalent to our banker's standard annual interest rate for commercial overdrafts plus 5%, from the due date until the date of actual payment; and
2. the Customer will reimburse us for all costs and expenses that we incur in connection with any actions or proceedings for recovery of any amounts required to be paid by the Customer, including all reasonable accounting costs, attorney costs (on a solicitor and own client basis), court costs and debt collection costs.

(a) We warrant that the Services will be provided with reasonable skill and care.

(b) Except as expressly provided in these Terms and Conditions, we give no warranties in relation to the Services, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result.

(c) In particular, while we will use reasonable endeavours to ensure the continuous twenty-four (24) hours per day, seven (7) days per week monitoring of Alarm Signals, we do not warrant or represent that the Services will be uninterrupted or will not be subject to outages or failures.

(d) Without limiting clause 10(c), we will not be liable for any delay or failure in providing the Services due to acts or omissions of the Customer and/or any third party including FENZ, a Carrier or a Service Agent, any failures or outages in any third party networks or telecommunication systems, or any other event specified in clause 11(b).

(e) We will not be liable for any loss of or damage to property at or near any Protected Premises that may arise as a result of any System failure or outage, or as a result of any delay of failure by us in taking any Alarm Action. We will also not be liable to the Customer for any other form of property loss, or any personal injury, arising from the provision of the Services, except for loss or injury caused directly by our gross negligence, and subject always to the limitations and exclusions in clauses 10(f) and (g).

(f) Our maximum liability to the Customer in relation to the Services of this Agreement will not exceed in any circumstances the Fees payable for those Services for the applicable billing period (being monthly or quarterly or as otherwise specified in the applicable Schedule) in which such liability first arose.

(g) In no event will we be liable (whether in contract, tort including negligence, or otherwise) to the Customer for:

1. loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
2. loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,

(h) The parties agree that, to the extent that the Services are provided for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 will not apply.

(i) None of the exclusions or limitations set out in this Agreement will have the effect of limiting or excluding any form of liability where such liability cannot be so limited or excluded under applicable law. In particular, we do not seek to exclude any liability under the Consumer Guarantees Act 1993 other than pursuant to clause 10(h).

(j) The Customer will at all times defend, indemnify, and hold harmless us and our officers, employees, contractors, agents, and affiliates (Indemnified Parties) from and against any and all liabilities, losses, damages, costs and expenses of any nature whatsoever awarded against, incurred or suffered by the Indemnified Parties (including costs on a solicitor and own client basis), arising out of or resulting from:

1. any breach of this Agreement by the Customer;
2. any negligent or wrongful act or omission by the Customer or any of its employees, agents, contractors, representatives or Service Agents; or
3. any claim by any third party alleging loss of or damage to property at or near any Protected Premises arising as a result of any System failure or outage, or as a result of any delay of failure by us in taking any Alarm Action.

(a) We may terminate this Agreement with immediate effect by written notice to the Customer if:

1. the Customer is in breach of any term of this Agreement and fails to remedy that breach within 14 days following notice from us specifying the breach and requiring it to be remedied;
2. we are entitled to disconnect a Customer Alarm from the System under clause 7;
3. the Customer becomes insolvent, fails to pay its debts as and when they become due, ceases to carry on business, or proceedings are commenced to have it wound up, or a receiver and manager (or other administrator) is appointed to all or any part of its assets and undertakings; or
4. any Customer Alarms are Fire Alarms, and the agreement for Automatic Fire Alarm Management and Transmission Services between us and FENZ is terminated, or we are disconnected from the FENZ automatic fire alarm system.

(b) If we terminate this Agreement pursuant to any of clauses 11(a)(i) to (iii), the Customer will pay to us immediately upon demand by way of liquidated damages the sum equal to the Fees that would otherwise be payable pursuant to this Agreement for the remainder of the Initial Term or the Renewal Term, as the case may be.

(c) The Customer may terminate this Agreement:

1. with immediate effect by written notice to us if we are in material breach of any term of this Agreement and fail to remedy that material breach within 14 days following notice from the Customer specifying the breach and requiring it to be remedied;
2. in the event that the Customer is genuinely vacating the Protected Premises or ceases to trade, or if the Customer's building usage changes such that the Customer no longer requires the Services. In such event the Customer will pay to us any Service disconnection fees that may apply at the applicable time. The Customer must give us at least three months' prior written notice of such termination, or may elect to provide a shorter period of notice so long as the Customer pays the applicable Fees that would have been paid had the Customer given us three months' prior written notice of such termination; or
3. upon giving us at least three months' prior written notice in the event that the Customer wishes to relocate to another premises during the Term and if those other premises require the supply of Services, and if we and the Customer have entered into a new agreement for the provision of Services at those new premises. In such event the Customer will also pay to us any disconnection and reconnection fees that may apply from as a result of such relocation.

(d) On termination or expiration of this Agreement for any reason whatsoever:

1. the Customer will remain liable to pay any Fees and other charges in connection with any Services provided prior to the date of termination or expiration, and the applicable provisions of clause 9 will apply;
2. the provisions of clauses 4(e), 10, 11(b) to (d), and any other clauses intended to survive termination, together with those other provisions of this Agreement that are incidental to, and required in order to give effect to those clauses, will remain in full force and effect; and
3. subject to this clause 11(d) and except for any rights and remedies of the parties that have accrued before termination or expiration, including for any prior breach of this Agreement, neither party will be under any further obligation to the other party.

(a) The Customer may not assign, transfer or sub-contract any of its rights or obligations under this Agreement without our prior written consent. We may assign, transfer or sub-contract any or all of our rights and obligations under this Agreement. We will remain liable under this Agreement for the acts and omissions of our subcontractors.

(b) We will not be liable to the Customer for any breach of, or failure to perform, any of our obligations under this Agreement where such breach or failure is caused by anything beyond our reasonable control, including (without limitation) war, civil commotion, hostility, act of terrorism, strike, lockout, other industrial act, pandemic, weather phenomena or other act of God, governmental regulation or direction.

(c) No amendment, variation or modification to this Agreement will be effective unless it is in writing and has been signed by duly authorised representatives of both parties.

(d) No failure or delay by either party to exercise any right or remedy under this Agreement will be treated as a waiver of such right or remedy. No single or partial exercise of any right or remedy will prevent the further exercise of such right or remedy.

(e) If any part of this Agreement is held to be invalid, unenforceable or illegal for any reason, this Agreement will be deemed to be amended by the addition or deletion of wording necessary to remove the invalid, unenforceable or illegal part, but otherwise to retain the provisions of this Agreement to the maximum extent permissible under applicable law.

(f) This Agreement contains the whole of the contract and understanding between the parties relating to the matters covered by it. This Agreement supersedes all prior representations, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing. The parties acknowledge that they do not rely on any representation, agreement, term or condition that is not set out in this Agreement.

(g) Each party agrees to execute, acknowledge and deliver all instruments, make all applications and do all things, as may be necessary or appropriate to carry out the purposes and intent of this Agreement.

(h) Any notice or other communication to be given under this Agreement (other than signals given by the Customer to us or our notifications to Contacts as part of any Alarm Actions) will be in writing and addressed to the address of the applicable party as set out in the applicable Schedule or to such other address as the party may notify in writing to the other. Every notice will be deemed to be duly received by or served on the addressee:

1. if delivered in person, when delivered;
2. if by post; seven days from the date of postage; and
3. If by email, following receipt of an email acknowledgement of receipt from the addressee.

(i) New Zealand law governs the formation, validity, construction and performance of this Agreement. The parties irrevocably agree that the courts of New Zealand will have non-exclusive jurisdiction to hear and determine all disputes under this Agreement.

(j) This Agreement will be binding on all heirs, successors and permitted assigns of the parties.

(k) Where more than one person constitutes the Customer under this Agreement, the liability of each person will be joint and several.

(l) In this Agreement, unless the context otherwise requires:

1. the singular includes the plural and vice versa;
2. any gender includes any other gender;
3. a reference to a person includes a corporation or any other legal entity, and vice versa; and
4. headings are for convenience of reference only and do not affect interpretation.

(a) Any special conditions contained in any of the Schedules to this Agreement will form part of this Agreement. In the event of any inconsistency between any such special condition and any other term of these Terms and Conditions, the special condition will prevail.