Terms of Trade – Watchu Security South Island Ltd (Watchu)

1 Acceptance
1.1 Engaging Watchu to carry out Work or acceptance of a Quote provided by Watchu constitutes acceptance by the Client of these terms. These terms will apply to all services provided by Watchu (unless otherwise agreed in writing). Where there is any discrepancy between these terms and the Quote, the terms of the Quote will prevail.

2 Watchu responsibilities
2.1 Watchu will:
(a) Carry out the Work as defined in the Quote with reasonable skill and care; and
(b) comply with all health and safety legislation in carrying out the Work.

3 Client responsibilities
3.1 Unless otherwise agreed in writing, the Client is responsible for:
(a) ensuring that all plans and specifications supplied to Watchu in respect of the Works are accurate;
(c) ensuring that it has sufficient title or other legal entitlement to the Site to allow the Work to be carried out, and that Watchu has sufficient access to the Site, including parking for vehicles, to carry out the Work; and
(d) advise Watchu of any particular hazards relating to the Site and take all practicable steps to ensure the Client’s own safety throughout the Work and cooperate fully in implementing Watchu’s health and safety and environmental policies and procedures and obligations under the relevant health and safety legislation.

4 Start Date and Completion Date
4.1 Subject to receiving sufficient access as set out above, Watchu will commence the Work on the Start Date, and complete the Work by the Completion Date, in each case subject to any extensions of time to which it is entitled under clause 8.

5 Payment
5.1 Invoices will be submitted on certain milestones as set out in the Quote. if milestones are not provided for in the Quote, Watchu will issue invoices on a regular basis (normally monthly). If the Work is delayed or suspended for any reason outside Watchu’s control, it may render an invoice at the time a relevant milestone would otherwise have been achieved. Invoices become a receipt on payment in full.
5.2 Invoices are payable 7 days following the date of invoice unless otherwise agreed in writing.
5.3 If the Client wishes to dispute an invoice, the Client must issue a payment schedule within 7 days of the date of the invoice and otherwise in accordance with clause 10.1. The payment schedule must identify Watchu’s invoice to which it relates, advise Watchu the scheduled amount that will be paid, show how the amount to be paid has been calculated and give reasons why part of Watchu’s invoice is not being paid. On or before the due date for payment, the Client must pay to Watchu the amount shown in the payment schedule. If a payment schedule has not been issued in accordance with this clause, the Client must pay Watchu the full amount of Watchu’s invoice. Where any invoice remains unpaid, Watchu reserves the right to cease the Works without notice.
5.4 Any amount which is not paid when due will incur interest at the then unarranged overdraft interest rate of Watchu’s bank, compounding daily on the outstanding balance (both before or after any judgement, and in addition to any other rights and remedies). Watchu also reserves the right to claim the costs of collecting any debt.
5.5 If the Quote provides for a deposit, and the deposit is not paid in full 7 days before the Start Date, Watchu may without further notice cancel the contract for the Work, and such cancellation is without prejudice to any other rights and remedies.

6 Variations
6.1 The Client may request Variations to the Work. With the exception of the Variations set out in clause 6.3, all Variations must be in writing and contain the following:
(a) A description of the Work required under the Variation;
(b) Any agreed adjustment to the contract price and/or the Completion Date for the Work.
6.2 Unless otherwise agreed, the Client may not request a Variation omitting or reducing the Work to be performed.
6.3 Watchu is entitled to claim a Variation for:
(a) Costs or delays caused by problems encountered with pre-existing systems or incorrect information supplied by the Client (Note: Labour is estimated on the basis that all data, software and hardware to be supplied by the customer is available to the technician at the time the Work is to be performed and is functioning correctly and that the Client has accurately described their environment and the scope of Work required);
(b) additional Work and/or changes to the Work caused by any consent requirements;
(c) unforeseen physical conditions, substitutions of any materials, wages and price changes;
(d) Any increase in costs arising from a failure or delay on the Client’s part in complying with these terms; or
(e) any emergency Works required for health and safety or environmental reasons.
Any Variation under clause 6.3 will trigger automatically and notice of this will be communicated to the Client within a reasonable time frame.
6.4 All Variations claimed under clause 6.3 shall be calculated at Watchu’s normal rate for this type of Work at that time and additional Parts will be marked up by Watchu’s normal commercial margin.

7 Subcontractors
7.1 Watchu may subcontract the whole or any portion of the Work.
7.2 Watchu will be responsible for all Work of our subcontractors.

8 Delay and extensions of time
8.1 Watchu shall not be liable for any delay in carrying out the Work due directly or indirectly to circumstances reasonably outside its control, including disputes with subcontractors, bad weather, force majeure, accidents, fire, shortage of labour and/or materials, labour disputes, Variations, failure of suppliers to deliver, or acts of any government, territorial authority or similar body.
8.2 If an extension of time is required to the Completion Date due to any of the above reasons above or any other reason beyond Watchu’s reasonable control, Watchu shall provide written notice to the Client of any such extension reasonably promptly after the delay becomes apparent, together with details of the new Completion Date.

9 Insurance
9.1 The Client is responsible for insuring the Work (and Watchu may at any time require that proof of such insurance be provided). Watchu will arrange public liability insurance up to $2,000,000 against liability for loss or damage to any property, or injury or death or illness which arises from carrying out the Work.

10 Defects Warranty
10.1 The Client may give notice of any defect in the Work within 7 Working Days from completion of the Work and, if the defect is a result of any fault in workmanship, Watchu will remedy those defects within a reasonable time of being notified.
10.2 Watchu warrants any labour or Parts defect for 12 months after the completion of the Work (except for second hand goods which have a 60-day warranty).
10.3 The conditions are applicable to the warranty given in clause 10.2, the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(a) any use of any Parts otherwise than for any application specified on a Quote or order form;
(b) any act or omission of the Client or any person other than Watchu or an authorised sub-contractor of Watchu;
(c) any failure by the Client to carry out maintenance or comply with any manufacturer instructions or conditions of any manufacturer warranty;
(d) any failure by the Client to follow any guidelines or instructions of Watchu;
(e) any moisture spillage or ingression, vermin or insect infestation, misuse or abusive use, accident or neglect or a failure to clean or improper cleaning,
(f) use of non-authorised, defective or incompatible Parts;
(g) repair, modification or other work carried out by any person other than Watchu;
(h) continued use of any Parts after any defect becomes apparent or would have become apparent to any reasonable person;
(i) where any Part fails, the Part will be returned to the supplier for assessment/replacement. The labour involved in replacing the Part will be the responsibility of the Client; and
(j) fair wear and tear or any accident or act of God.
10.4 the warranty shall cease thereafter and Watchu shall in no circumstances be liable under the terms of the warranty if the workmanship is repaired or altered in any way without Watchu’s consent.
10.5 In respect of all claims Watchu shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.

11 Suspension and termination
11.1 Watchu may suspend the Work by notice if the Client defaults in any of its obligations under these terms, including failing or refusing to pay any invoiced amount in full by the due date for its payment. Such suspension is without prejudice to any other right to which Watchu might be entitled.
11.2 Watchu may terminate its obligations under these terms if at any time the Client becomes bankrupt, goes into liquidation, or has a receiver or statutory manager appointed.

12 Watchu property on Site
12.1 The Client acknowledges that:
(a) the legal, equitable and beneficial ownership and title to any plant, equipment or materials brought onto the Site by Watchu remains vested in Watchu at all times;
(b) title in all materials supplied as part of the Work remains vested in Watchu until all amounts owing to Watchu have been paid in full.
12.2 To secure such obligations, for the purposes of the Personal Property Securities Act 1999 (PPSA), in that property. The Client agrees that nothing in section 116, 120(2), 121, 125 to 127, 129, 131, 133 and 134 of the PPSA applies, and waives the right to receive a verification statement in respect of any security interest.

13 Signage
13.1 The Client agrees that Watchu has the right to erect signage on the Site advertising itself during the period of the Work.

14 Information and Privacy Act
14.1 For the purpose of facilitating the Work, the Client authorises Watchu to:
(a) collect all information it may require from any third parties and authorises those third parties to release that information to Watchu; and
(b) hold all information given by the customer or any third parties to Watchu; and
(c) use that information, including giving information to any other person, for the purpose of assessing the Client’s credit worthiness or to enforce Watchu’s rights contained herein.
14.2 The information will be collected, held and used on the condition that:
(a) it will be held securely by Watchu; and
(b) it will be accessible to any of Watchu’s employees or agents who need access to it for the Work to be completed; and
(c) The Client may request access to and correction of it at any time.

15 Notices
15.1 All notices are to be in writing and hand delivered or sent by post or email to the addresses set out in the Quote. The address for service and postal address for Watchu is the physical address set out in the Quote.
15.2 A notice is deemed to be received:
(a) if personally delivered, when delivered; or
(b) if posted, 7 Working Days after posting; or
(c) if couriered, when marked as delivered by the courier firm; or
(d) if sent by email, when the other party either acknowledges receipt of the email or replies to the email.
15.3 Despite clause 15.2, any notice received after 5pm or received on a day that is not a Working Day, is deemed not to have been received until 9am on the next Working Day.

16 Limitations
16.1 Watchu supply and service a range of high-tech products and services. These products and services often come from suppliers who operate beyond our control, often outside of New Zealand. We also customise products and services to customer requirements by configuring them in a manner not envisaged by the suppliers.
(a)You acknowledge that our services may involve trial and error to get things working correctly particularly when we are customising products for your needs.
(b)You further acknowledge that our services may involve testing, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in attempting to cure a problem. While Watchu will take what we consider (in our discretion) to be all reasonable steps to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist you, you will always indemnify and hold us harmless in the provision of our products and services to you.
(c) You particularly indemnify us from any loss caused by any type of communication system or network failure, outage or delay.

17 Recommendations, suitability, functionality and fitness for purpose
17.1 The parties acknowledge that:
(a)Watchu may recommend that you purchase products and/or services provided by third parties from time to time. We will always use our professional judgement and experience to give you the best advice for your particular needs;
(b) You acknowledge that we have no control over many factors involved with the suitability, function or fitness for purpose of products and services in your environment, (e.g. the compatibility or ability of the products and services to interoperate or perform to expectations in your environment, or the behaviour of the third-party suppliers in relation to technical support and warranty claims);
(c) You acknowledge that for a number of reasons outside of our control, the products and services may fail to meet your expectations, may not turn out to be fit for the purposes sought, may not be suitable or may not function properly in all or any respects.
17.2 Accordingly, you will accept the sole responsibility for, and indemnify and hold us harmless in respect of:
(a) decisions as to whether or not to follow recommendations by us;
(b) decisions as to whether or not to purchase or customise products and services for that or any other purpose; and
(c) any failure or defect in suitability, function or fitness for purpose of any products and/or services, including a responsibility to obtain your own independent advice or second opinion from a suitably qualified person.
17.3 Where we provide products and services with a view to achieving your purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), you must pay for those services on time without any set-off or counter-claim, whether or not we are able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that we have acted in good faith and have made what we consider, in our absolute discretion, to be all reasonable efforts to achieve those outcomes.

18 Force Majeure
18.1 If we are unable to supply any products or services due to circumstances beyond our reasonable control, we may cancel the order (even if the order has already been accepted) or cease to provide the services by written notice to you, in which case you will hold us harmless.
18.2 We will not be liable for any breach of contract due to any matter or thing beyond our control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention of public authority, explosion or accident.

19 Liability and Indemnity
19.1 You indemnify and hold us harmless in respect of any allegation, claim, loss or expense of yours or any third party for any program or data loss or damage suffered by you or that third party arising directly or indirectly from the supply of the Parts and Works by us to you. You acknowledge you are solely responsible for backing up your programs and data in order to mitigate your own potential loss of programs and data.
19.2 You indemnify and hold us harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by you or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to you or any third party howsoever arising out of the supply of the Parts and/or Works to you.
19.3 Watchu or the Client may use third party cloud-based hosting, servers, applications or any other form of network or telecommunication service or product. These services and products are expressly included in the indemnities given at 19.1 and 19.2 without limitation.
19.4 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Watchu which cannot by law be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Watchu, Watchu’s liability shall, where it is allowed, be excluded or if it is not able to be excluded only apply to the minimum extent required by the relevant statute.

20 Errors and Omissions
20.1 We make every effort to ensure that all prices and descriptions in any Quote are correct and accurate. In the case of an error or omission, we may rescind the affected contract by written notice to you, notwithstanding that we have already accepted your order and/or received payment from you. Our liability in that event will be limited to the return of any money you have paid in respect of the order.

21 Dispute Resolution
21.1 If there is any dispute relating to these terms or the Work, the party raising the dispute must give the other party written notice specifying particulars of the dispute.
21.2 If negotiations between the parties do not resolve the dispute, either party may refer a dispute to adjudication under the construction contracts act 2002 or bring a claim before the Disputes Tribunal or the High Court, as appropriate.

22 Personal Guarantee of Company Directors or Trustees
22.1 In consideration for Watchu agreeing to provide the Parts and Works at the request of the Client, where the Client is a company or trust, the directors or trustees signing the Quote also sign in their personal capacity and jointly and severally personally undertake as principal debtors to Watchu the payment of any and all moneys owed by the Client to Watchu and indemnify Watchu against non-payment by the Client.

23 Definitions
In these terms:
Client: means the person(s) stated as the client(s) in the Quote.
Completion Date means the expected date on which Watchu reasonably believes the Work will be completed, subject to extensions of time, as stated in the Quote.
Watchu means Watchu Security South Island Ltd.
Contract Price means the price for the Work calculated in accordance with the Quote and subject to any adjustments provided for in these terms.
Including does not imply limitation.
Quote means the quote, or estimate, for the Works submitted by Watchu to the Client, or any similar document, message or email detailing Work and costs.
Parts means all goods supplied or required to be supplied by Watchu in the course of performance of the contract.
Site means the site address, or addresses, at which the Work is to be carried out, as stated in the Quote.
Start Date means the expected start date at which Watchu reasonably believes physical work will commence on Site, as stated in the Quote.
Variation(s) means a variation to the Works under section 6.
Work(s) means the security, electrical, IT and related services or Works stated in the Quote (subject to consents and Variations) at the Site.
Working Day has the meaning given in the Construction Contracts Act 2002.

(ver: 0x3D3BA)