ULTIMATE SYSTEM AND SERVICE PACKAGE TERMS AND CONDITIONS (“TERMS”)
1. These Terms set out additional terms and conditions relating to the Ultimate System and Service Package offered by Smoke Alarm Solutions Pty Ltd ABN 97 604 793 688 (“Smoke Alarm Solutions”, “We”, “Our” and/or “Us”). These Terms are to be read in conjunction with Our standard terms and conditions available at [insert link] (“Standard Terms”). In the event of any inconsistency between these Terms and the Standard Terms, these Terms will prevail in respect of the Ultimate System and Service Package.
2. In these Terms:
2.1 “Agent” means the real estate agent which manages the Premises on behalf of the Landlord as specified in the Application Form who acts in its own capacity and as agent for the Landlord as a disclosed principal under these Terms;
2.2 “Application Form” means the online application form for the Works available on Our website;
2.3 “Landlord” means the customer of the Works as specified in the Application Form, being the owner of the Premises, as detailed in the Invoices;
2.4 “Direct Debit Request” means the direct debit request form completed by the Landlord in the Application Form;
2.5 “Direct Debit Terms and Conditions” means the terms and conditions for a Direct Debit Request as available from the Application Form;
2.6 “Goods” means any goods supplied by Us as part of the Works;
2.7 “GST” has the meaning given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth);
2.8 “Guarantee” means a deed of guarantee, indemnity and charge in the form as set out at the end of these Terms;
2.9 “Invoice” means the invoice(s) issued by Us to the Landlord, which details the Works and the Price, to which these Terms are annexed;
2.10 “PPSA” means the Personal Property Securities Act 2009 (Cth);
2.11 “Premises” means the premises in respect of which the Works are to be supplied as set out in the Application Form and Invoices;
2.12 “Price means the total amount payable for the Works as detailed in the Invoices, including applicable GST, and delivery costs; and
2.13 “Term” means the term of payment of the Price as nominated in the Application Form (as extended by the continued supply of Works by Us after the first anniversary of the installation of the Works (as applicable)); and
2.14 “Works” means the goods and services to be supplied by Smoke Alarm Solutions as part of its Ultimate System and Service Package to the Landlord as detailed in the Invoices, including the supply and installation of smoke alarms at the Premises;
3. We may determine in Our absolute discretion as to whether We will supply the Works to the Landlord at the Premises as requested by the Landlord in an Application Form.
4. If We agree to supply the Works to the Landlord at the Premises, the Landlord agrees to purchase the Goods on these Terms.
5. These Terms will apply to the supply of Goods by Us to the Landlord despite any conflicting terms proposed by the Landlord, unless waived in writing by Us.
6. The Landlord will provide the Agent’s contact details to Us and authorises the Agent to provide instructions to Us regarding the supply of the Works.
7. The Landlord will notify Us if it intends to sell the Premises. The Landlord acknowledges that it will remain liable to pay the Price in full to Us notwithstanding whether it sells the Premises prior to the end of the Term and the total Price being paid in full to Us.
8. The Landlord will comply with all applicable laws and standards regarding the Works at the Premises.
9. The Landlord must provide Us with all necessary information for Us to effectively and efficiently supply the Goods to the Landlord, including without limitation notifying Us of any changes to the information already provided to Us. The Landlord acknowledges that:
9.1 We rely on the information provided by the Landlord and Agent and it is not Our responsibility to ensure that the information the Landlord or Agent provides is correct;
9.2 the Landlord indemnifies and keeps indemnified Smoke Alarm Solutions and its related bodies corporate against any and all claims suffered or incurred by such entities arising out of the Landlord or Agent providing Us with inaccurate or misleading information regarding the Premises;
9.3 any errors relating to dates, tenant details, details of the Premises or addresses provided by the Landlord or Agent may delay delivery and or completion of the supply of the Works (“Delay”); and
9.4 We will not be liable to the Landlord for any loss, damages, costs or claim resulting from a Delay or any incident which occurs at the Premises prior to Our attendance at the Premises as a result of the Delay.
10. The Landlord must complete and submit a Direct Debit Request to Us if it does not elect to pay the Price upfront in full.
11. If the Landlord completes a Direct Debit Request, it must agree to the Direct Debit Terms and Conditions.
12. Unless otherwise agreed by Us in writing, the Landlord must pay the Price without deduction in accordance with the payment terms detailed in the Invoices, Application Form and the Direct Debit Request for the Term.
13. If the Landlord fails to make a monthly instalment payment of the Price, We may issue a demand for the outstanding amount. If the Landlord fails to pay the outstanding amount within 14 days after such demand is made on the Landlord, We may, in Our absolute discretion, declare the total outstanding Price immediately due and payable.
14. If the Price is not paid by the Landlord to Us in accordance with these Terms, the Landlord acknowledges and agrees that We have the right (without prejudice to any other rights and remedies We may have) to recover, remove and/or resell the Goods. For that purpose, Our employees, agents or workers may enter the Premises without committing a trespass.
15. We will have no obligation to make good any reasonable damage caused by the recovery or removal of Goods pursuant to clause 14 and We will not be liable for and the Landlord will indemnify Us against any costs, claims, damages or losses suffered by the Landlord as a result of such removal.
Title and risk
16. In relation to all Goods:
16.1 title in the Goods will not pass to the Landlord until the Price is paid in full to Us;
16.2 risk in the Goods will pass to the Landlord immediately upon delivery of the Goods;
16.3 until We receive full payment of the Price, the provisions of clause 18 apply and We have the right (without prejudice to any other rights and remedies We may have) to recover, remove and/or resell the Goods free from any claims by the Landlord in accordance with clause 14; and
16.4 the Landlord will indemnify Us against any costs, claims, damages or losses suffered by Us or a third party as a result of the Landlord’s inability to pay the Price for the Goods.
17. In relation to all Goods, if the Landlord has not paid the total Price but sells or otherwise disposes of the Goods or any part of them, the monies received in respect of the disposal of the Goods will be held on trust by the Landlord for Us and will be payable immediately to Us on demand.
18. Where We have supplied Goods to the Landlord in accordance with these Terms but where title in the Goods has not yet passed to the Landlord, the Landlord acknowledges and agrees that:
18.1 these Terms constitute a Security Agreement for the purposes of the PPSA;
18.2 the Landlord grants Us a purchase money security interest (“PMSI”) under the PPSA in the Goods and their proceeds to secure all amounts owed to Us by the Landlord;
18.3 We may register the PMSI on the Personal Property Securities Register (“PPSR”);
18.4 it will undertake to do all things necessary and provide Us on request all information We require to register a financing statement or financing change statement on the PPSR;
18.5 it undertakes not to change its name in any form or other details on the PPSR without first notifying Us; and
18.6 it will, if required by Us, pay to Us the cost of registering and maintaining registration of the Landlord’s PMSI on the PPSR, within 14 days of the request.
19. We need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
20. No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(7) of the PPSA) and the Landlord must not authorise the disclosure of such information.
21. The Landlord agrees that, to the maximum extent permitted by law, it waives any rights it may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 128, 129, 130, 132(1), 132(4), 135, 142 and 143 of the PPSA.
22. The Landlord acknowledges that, unless otherwise defined in these Terms, the terms and expressions used in clauses 18 to 22 (inclusive) have the meanings given to them, or by virtue of, the PPSA.
Guarantee (if Landlord is not an individual)
23. In consideration of the Supplier supplying the Works to the Landlord, the Landlord and Agent will procure that a Guarantee is provided to the Supplier and clauses 24 to 36 will apply.
24. In consideration of Smoke Alarm Solutions Pty Ltd ABN 97 604 793 688 (“Supplier”) agreeing to supply or continuing to supply Works to the Landlord on credit, the guarantor named in the Application Form (“Guarantor”) unconditionally and irrevocably guarantees on demand to the Supplier the due and punctual payment of all debts and monetary liabilities, including without limitation costs and expenses which are or which may become payable by the Landlord to the Supplier or any related body corporate on any account and in any capacity (“Guaranteed Moneys”) and, as a separate and independent obligation, agrees to indemnify and keep the Supplier and any related body corporate of the Supplier indemnified from and against any claim, action, loss, damage, liability, cost, expense, outgoing or payment suffered, paid or incurred by the Supplier or such related body corporate in relation to the non-payment or non-recovery of the Guaranteed Moneys or as a result of any breach by the Landlord of the Supplier’s Ultimate System and Service Package Terms and Conditions and Standard Terms.
25. The Guarantor charges all of the Guarantor’s present and after acquired personal property in favour of the Supplier to secure the performance of all obligations of the Guarantor and the payment of all monies owed or payable to the Supplier pursuant to this Guarantee. The Guarantor waives its right to receive all notices which sections 144(b) and 157(3) of the PPSA permit the Guarantor to waive. The Guarantor consents to the Supplier creating a registration on the PPSR (in any manner the Supplier deems appropriate) in relation to any security interest arising under, in connection with or contemplated by this Guarantee. The Guarantor acknowledges and agrees that, pursuant to section 115 of the PPSA, the Supplier need not comply with sections 95, 118, 123, 128, 129, 130, 132(1) and (4), 135, 142 and 143 of the PPSA. The Guarantor agrees to promptly execute any documents, provide all relevant information, fully cooperate with the Supplier and do any other act or thing that the Supplier requires to ensure that any security granted pursuant to this Guarantee is duly perfected and has the priority as required by the Supplier. In this clause 25, the following words have the respective meanings given to them in the PPSA: PPSR; registration; and security interest.
26. The Guarantor hereby agrees with the Supplier that this Guarantee shall be a continuing obligation of the Guarantor and that the Guarantor’s obligations under this Guarantee are principal obligations and are not released, discharged or otherwise affected by anything which, but for this provision, might have that effect.
27. Until such time that the Supplier has received all of the Guaranteed Moneys, the Guarantor agrees:
27.1 that, in the event of any bankruptcy or other administration of the Landlord’s estate or any winding up or scheme of arrangement of the Landlord, that the Guarantor will not, without the prior consent of the Supplier, lodge any proof of debt or similar claim in respect of any debt or liability to the Guarantor on any account whatsoever, nor enforce any security held by the Guarantor in respect of the Landlord and shall hold any such debt, liability or security, and any rights or benefits in respect thereof, on trust for the Supplier;
27.2 if requested by the Supplier, to lodge a proof of debt or similar claim in any such administration and enforce any such security and to execute all such documents and do all such things as the Supplier may require to enable the Supplier to have and receive the benefit of or arising from any such proof, claim or security;
27.3 not to attempt or purport to be subrogated to the Supplier; and
27.4 that the Guarantor’s liability under this Guarantee shall be that of principal debtor.
28. The Guarantor further agrees that:
28.1 the Guarantor has signed this Guarantee voluntarily;
28.2 before entering this Guarantee, the Guarantor had the opportunity to consult and receive advice as to the purpose, effect and consequences of, and obligations created by, this Guarantee from a legal adviser independent of the Supplier;
28.3 the Guarantor understands the nature and effect of this Guarantee, in particular that the Guarantor has agreed to guarantee all amounts presently owed by the Landlord to the Supplier and any related body corporate and all amounts that the Landlord may in the future owe to the Supplier and any related body corporate and has also agreed, as a separate and independent obligation, to provide an indemnity to the Supplier and any related body corporate if any of the Guaranteed Moneys are not paid to, or recovered by, the Supplier; and
28.4 it has not entered into this Guarantee on reliance on any representation, warranty, promise or statement of the Supplier or any person on behalf of the Supplier or any related body corporate.
29. The Guarantor agrees that a notice issued by the Supplier stating any moneys owed by the Landlord or Guarantor to the Supplier or any related body corporate or under this Guarantee shall be conclusive evidence of such amounts owing by the Landlord and Guarantor.
30. No payment shall operate to discharge or reduce a liability of the Guarantor if such payment is or becomes voidable under any law relating to bankruptcy or the winding up of companies, and no discharge or release consequent upon such payment shall discharge the liability of the Guarantor under this Guarantee.
31. Where any provision or application of any provision of this Guarantee is rendered ineffective by operation of law in any jurisdiction, that shall not affect the validity, legality, enforceability or effectiveness of the remaining provisions or of that provision in any jurisdiction other than the jurisdiction where the provision is rendered ineffective.
32. The guarantee and indemnity contained in this Guarantee are separate and independent obligations of the Guarantor and neither limits the generality of the other.
33. All payments which the Guarantor is required to make under this Guarantee must be made without any set off, counterclaim, condition or deduction and are payable on demand by the Supplier.
34. Any demand or notice may be served on the Guarantor by delivering it to the Guarantor personally or by sending it by post to the Guarantor’s last address.
35. The Guarantor must fully indemnify the Supplier for all expenses and legal costs that the Supplier incurs in enforcing this Guarantee.
36. This Guarantee is governed by the laws of Queensland and the Guarantor irrevocably submits to the non‐exclusive jurisdiction of the courts of Queensland.