TERMS AND CONDITIONS
Services provided to you (“the Customer”)
from Harkav Security (“Harkav”) are provided on the basis of these
Terms and Conditions of Service (“Agreement”). By placing an Order with
Harkav, you agree that this Agreement applies to the provision of such services. Unless an authorized person of Harkav gives an acknowledgment by notice in writing, no variation of the provisions of this Agreement is permitted. A binding contract is formed between you and Harkav upon this Agreement or Harkav's Monitoring Agreement (“Order”) being signed by both parties. The terms and conditions described in this Agreement shall apply to the exclusion of any other terms and conditions whatsoever.
- -> The prices to be paid under this
Agreement are as detailed in the Order. In the event that the price of any service is omitted, you shall pay Harkav's standard price for the relevant Service current at the time of the performance of the Services.
- -> In the event prices are stated to include duties and taxes, these have been calculated on rates applicable at the time of quotation. Prices shall be adjusted to take into account the number of duties and taxes actually paid or payable.
- -> Any tax, impost, duty, or other levies are to be borne by you. If any such sums are required by law to be withheld, collected or paid, Harkav will be entitled to add those amounts to the price. GST is not included in the price and will be added.
- -> Any charges not expressly included in the price are payable by you.
- -> Harkav reserves the right to raise invoices to be paid for progress claims. Progress claim invoices for
Services may be raised by Harkav in accordance with the payment schedule referred to in an Order or, in the absence of any such payment schedule, claims may be made by Harkav at its option.
- -> Any quotations given by Harkav are subject to written confirmation given by Harkav
- -> You shall pay the full price of the
Services at the time of Order unless otherwise provided in an Order or
specifically agreed in writing by Harkav.
- -> Payment shall be made within fourteen (14) days of delivery of an invoice by Harkav by:
(a) cheque, electronic funds transfer, direct deposit, cash funds; or
(b) an irrevocable letter of credit
issued or confirmed by a bank on terms and conditions acceptable to
- -> All prices are in Canadian dollars.
- -> All moneys owing to Harkav pursuant
to an invoice which remains unpaid for thirty (30) days after the date
such moneys become due for payment shall bear interest as and from the
date upon which payment is due at the prevailing Commonwealth Bank
overdraft rate applicable to unsecured monies in the amount of the debt.
3. THE SERVICES
- -> Harkav reserves the right to revise
at any time the extent or type of Services it agrees to supply to you if
it reasonably believes that such other services can fulfill the same
- -> Services performed by Harkav shall
be deemed to have been accepted unless within seven (7) days of
completion of such Service you notify Harkav in writing of any
deficiencies and provide reasonable evidence thereof.
5. WARRANTY AND LIMITATION OF LIABILITY
- -> Where Services are defectively performed Harkav shall perform such services again to the extent necessary to correct the defect.
- -> The liability of Harkav is expressly
limited to the fee paid by you for the Services.Harkav shall not be
liable to you or your servants, agents,customers or representatives for
any direct, indirect, incidental or consequential loss or damages of any
nature howsoever caused (whether based on tort,or contract or
otherwise) including but not limited to loss of profits, loss of
production, loss of sales opportunity or business reputation, direct or
indirect labour costs and overhead expenses, damage to equipment or
property or any other claim whatsoever arising directly or indirectly or
in any way attributable to the performance of the Services and in no
event shall any claim be recognised unless the claim is in writing and
received by Harkav within fourteen (14) days of the date of performance.
- -> In the event that any law (including
the Trade Practices Act 1974) implies a warranty or condition into this
Agreement which can be excluded,then Harkav liability for breach of any
such implied warranty or condition is excluded. In the event that such
warranty or condition cannot be excluded, but may be limited, Harkav
expressly limits its liability to:
- (a) the re-supply of the relevant Services; or
- (b) the payment of the cost of having the Services re-supplied.
- -> The liability to do any of the
things referred to in clause 5.3 is conditional on the relevant services
having been wholly provided by Harkav.
- -> For the purposes of clauses 5.2 and
5.3 above, you acknowledge and represent that those provisions are fair
and reasonable having regard to the nature of this Agreement. In
particular, you acknowledge and represent to Harkav that, in respect of
this Agreement and, in particular, clauses 5.2 and 5.3 above:
- (a) Harkav is not in a position of relative bargaining superiority to you;
- (b) Harkav has offered no inducement; and
- (c) you are aware of the existence and extent of clauses 5.2 and 5.3.
- -> The provisions of this clause shall
not apply insofar as their application is prevented by the Trade
Practices Act 1974 or any other laws.
6. DELAY AND FORCE MAJEURE
- -> Any Services to be supplied by
Harkav will be supplied during regular business hours on Business Days.
If for any reason you request Harkav to
provide services outside regular business hours, any overtime or
additional expenses occasioned shall be invoiced to and payable by you
to Harkav at
Harkav's monitoring rates applicable from time to time.
- -> Additional costs incurred by Harkav
due to cessation of work occasioned by your instructions (or lack of
instructions), by any interruptions,
mistakes or work for which Harkav is not responsible, shall be
reimbursed by you to Harkav upon demand.
- -> Harkav shall not be liable for any
failure to perform its obligation under this Agreement for any cause
beyond its reasonable control including
without limitation fire, flood, strikes, lockouts, accidents (including
motor vehicle accidents), demands or requirements of Government or
authorities, transportation delays, fuel and energy shortages, defaults
of sub-contractors or any other cause beyond its control.
- -> In the event of any delay of the
kind referred to in sub-clauses 6.2 and 6.3, the date or dates for
performance of Services under this Agreement by
Harkav shall be extended for a period at least equal to the time lost by
reason of the delay or the delays caused.
In the event that-
- -> you become insolvent or unable to
pay your debts as they fall due or a receiver is appointed or you are the subject of voluntary or involuntary bankruptcy
- -> you are in material default of any obligation hereunder;
- -> you fail to make any payment in full on the due date(s);
- -> you purport to assign any rights or obligations under this Agreement without the prior written consent of Harkav; or
- -> by any act or omission, cause Harkav to be in breach of any law which may result in Harkav being liable for a fine or penalty;
- -> then Harkav may by written notice to
you either require payment in full prior to performance of any further
Services, suspend performance of its
obligations under this Agreement or cancel any Order. Such action shall
be without prejudice to any other rights Harkav may have, whether for
8. LICENSES AND PERMITS
- -> All Services performed by Harkav are
on the understanding that all licenses and permits under any relevant
statutes, ordinances, rules and
regulations have been obtained by you.
- -> You must ensure that the performance of any Services by Harkav and you meet all statutory requirements.
9. GENERAL PROVISIONS
- -> The delivery of an Order attaching
or containing this Agreement, or the signing of this Agreement by you,
constitutes an offer and is the basis of an
- -> Such offer cannot be revoked,
withdrawn or cancelled by you and is not binding upon Harkav until it
has been accepted and signed by its authorised
representative whereupon a binding contract shall come into existence.
- -> This Agreement together with any Order shall constitute the entire agreement between the parties.
- -> In the event that any provision of
this Agreement is declared void, invalid or illegal then such provisions
that are not void, invalid or illegal will
not be affected.
- -> No waiver, change or modification of
any terms or conditions set out in this Agreement or an Order or other
documentation provided by Harkav shall
be binding on Harkav unless in writing signed by an authorised
representative of Harkav.
- -> If at any time any question,
dispute or difference arises between Harkav and you in relation to or in
connection with this Agreement or the
Services, either party may give to the other notice in writing of the
existence of such question, dispute or difference and, if the matter
resolved by negotiation between the parties for a period of twenty one
(21) days, the party giving notice must, prior to taking any other
action, refer the
question, dispute or difference to the arbitration of a person mutually
agreed by the parties. Failing agreement as to the identity of the
the question, dispute or difference must be referred to such person as
is appointed at the request of either party by the President for the
time being of
the Law Society of New South Wales.
10. DEFINITIONS AND INTERPRETATIONS In this Agreement:-
- -> Business Day means a day on which banks generally are open for trading business in the State of New South Wales.
- -> Order means an order for Services in the form of a Monitoring Agreement or such other form approved by Harkav from time to time,
whether attached to or containing this Agreement, or otherwise.
- -> Services means any security service provided or to be provided under a Harkav Monitoring Agreement