Conditions of Agreement

CCA means Schedule 2 to the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the applicable fair trading legislation in the State or Territory in which this agreement is entered into, as applicable.

Additional Provisions means the additional provisions set out in item 9.

Australian Consumer Law means the Australian Consumer Law as set out at Schedule 2 of the CCA.

Business Day means:

• a) for the purposes of clause 11.4, a day on which banks are open for business in the city where the notice or other communication is received excluding a Saturday, Sunday or public holiday; and
• b) for all other purposes, a day on which banks are open for business in the State excluding a Saturday, Sunday or public holiday.

Claim means any claim or cause of action in contract, tort, under any legislation or subordinate legislation, or otherwise.

Client Group means the Client and each of its Related Bodies Corporate and Client Group Member means any member of the Client Group.

Client's Obligations means all of the liabilities, obligations and requirements (whether express or implied) from time to time imposed on, or assumed by, the Client:

• c) under this deed, or arising from this deed; or
• d) under any law relating to;
  • (1) this deed; or
  • (2) anything the Client must do under this deed.

Confidential Information means any information:

• e) relating to the products and services, business and affairs, or any customers, clients, employees, subcontractors or other persons doing business with or of that party;
• f) relating to the provisions of this agreement or the commercial arrangements between the parties;
• g) that is by its nature confidential, designated as confidential by that party, or which the other party knows, or ought to know, is confidential.

Commencement Date means the date in item 3.

Consumer has the same meaning as in section 3 of the Australian Consumer Law.

Consumer Guarantee means a consumer guarantee (as defined in the CCA) applicable to any contract under the CCA. Corporations Act means the Corporations Act 2001 (Cth).

Default means a breach by a party of, or failure by a party to comply with, that party's obligations under, any of the provisions of this agreement including a failure by the Client to comply with the Client's Obligations or by Metro Guards to comply with Metro Guards's Obligations.

Excluded Services means the matters listed in item 4.

Fair or Reasonable means 'fair or reasonable' for the purposes of section 64A of the CCA.

Force Majeure Event means any storm, earthquake, strike, lock-out, labour dispute, act of God, war (whether declared or not), act (administrative or legislative) of any Government or Government Agency, riot or civil commotion, fire, explosion or mechanical break-down but does not include lack of funds for any reason.

Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, local government, authority, tribunal, agency or entity.

Initial Period means the period specified in item 3.

Insolvency Event in the context of a person means:

• (a) a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official is appointed, or steps are taken for such appointment, in respect of that person or over any of the equipment or undertaking of the person;
• (b) the person is or becomes insolvent, is unable to pay its debts when they are due, or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act;
• (c) the person ceases or threatens to cease to carry on business; or
• (d) an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person.

Item means an Item set out in the Reference Table at the beginning of this agreement.

Liability Limit means the amount specified in item 8.

Loss means any liability, cost, expense, loss or damage.

Money Payable means all and any money payable by the Client to Metro Guards from time to time under or relating to this agreement, including for any Losses.

Option Period means the period specified in item 3.

Related Body Corporate has the meaning given in section 9 of the Corporations Act.

Service Fee means the amount specified in item 6 as it may be altered from time to time.

Services means the services to be provided by Metro Guards to the Client listed in item 4, but do not include any Excluded Services.

Site means the site/s specified in item 7.

State means State or Territory of the Commonwealth of Australia specified in Item 10.

Tax Invoice includes any document or record treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit.

Term means the Initial Period, as extended in accordance with clause 3.

Metro Guards Services means Metropolitan Guards and each of its Related Bodies Corporate and Metro Guards, Member means any member of the Metro Guards Group.

Metro Guards's Obligations means the obligations of Metro Guards under this agreement, or imposed by law, in relation to the provision of the Services.

a. Headings and bold type are for convenience only and do not affect the interpretation of this agreement.

b. Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning.

c. An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency as well as an individual.

d. A reference to a party to this agreement includes that party's successors and permitted assignees.

e. A promise on the part of 2 or more persons binds them jointly and severally.

f. A reference to liquidation or insolvency includes appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.

g. No provision of this agreement Metro Guards be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision.

a. The Client engages Metro Guards to provide the Services, and Metro Guards accepts that engagement and must perform the Services in accordance with this agreement.

b. Metro Guards will provide the Services on an exclusive basis and the Client must not engage other parties to provide equivalent services instead of the Services.

c. The Services to be provided by Metro Guards under this agreement do not include any Excluded Services.

a. the Service Fee is based solely on the value of the Services provided by Metro Guards and is unrelated to the value of the Client's property located or held at the Site or the property of others located in the vicinity of the Site; and

b. Metro Guards delivers and the Client accepts the Services on the basis that they are of a deterrent nature only and Metro Guards cannot guarantee that the provision of the Services Metro Guards prevent all or any security incidents.

(d) The Client acknowledges that:

• 1) the Services may be shared with other clients of Metro Guards located in the vicinity of the Site; and
• 2) any interruptions or delays (or both) caused by break-ins at any other client's premises, other emergencies including fire, flood, accident, police or emergency service activities, busy periods or other unforeseen circumstances, or any other similar causes, may alter the Services provided by Metro Guards (including delay in, or preventing a response or a reduction to, any of the agreed number of inspections) (missed services).

(e) Where Metro Guards fails to complete the agreed number of inspections due to any reason referred to in clause 3.3(a), Metro Guards endeavour to provide a replacement inspection prior to the end of the succeeding billing period (Replacement Service).

(f) Metro Guards does not guarantee that a Replacement Service Metro Guards be able to be provided for all missed services and Metro Guards provide a credit note in the subsequent billing period for the value of the missed services which are not replaced in accordance with clause 3.3(b).

(g) Replacement Services are unable to be provided for the following types of services and a credit note Metro Guards be provided in the subsequent billing period where these types of services are missed:

• 1) Locks ups / Unlock: Metro Guards holds Client keys and/or access cards, which are used to lock and open the premises.
• 2) Escorts: provided in circumstances where the Client requires security during a specified period of time.
• 3) Welfare Checks: security checks conducted on staff members.

(h) Other than the provision of credit notes in accordance with clauses 3.3(c) and (d), Metro Guards not be liable to refund the Client for any alteration of the Services due to the reasons set out in clause [3.3(a)].

(i) This clause does not purport to exclude, restrict or modify the Consumer Guarantees as outlined in Division 1, Part 3-2, Schedule 2 of the Australian Consumer Law which apply to our services. For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value

You are also entitled to be compensated for any other reasonably foreseeable loss or damage.

If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

(a) The Client, by written notice, may request that:

• 1) Metro Guards make reasonable changes to the Services (including additions, omissions or reductions); or
• 2) the size, scope, nature or part of the Site in respect of which the Services are to be performed be changed, (Additional Services).

(b) Where the Client requests Metro Guards to perform Additional Services not covered by the provisions of this agreement, and Metro Guards agrees to do so, then the provisions of this agreement Metro Guards apply to the Additional Services unless expressly otherwise provided and the Service Fee Metro Guards be increased by the amount quoted for such extra work, or if no fee is quoted, an amount calculated by Metro Guards at Metro Guards's standard rates.

(c) For Adhoc or Casual Services (0 to 3 months), clients are required to provide a minimum of 48 hours' notice prior to the commencement of the service for any cancellations or changes. If the cancellation or change is made within 48 hours of the scheduled service start time, a cancellation fee may apply.

For Permanent Shift Changes or Cancellations, clients must provide at least 30 days' notice prior to the intended cancellation or amendment. If the notice period is not adhered to, additional fees may be charged to cover the disruption.

(a) Metro Guards will perform the Services to the Client's reasonable satisfaction and in conformity with the Client's reasonable directions.

(b) In performing the Services, Metro Guards must:

• 1) use its reasonable endeavours to not unreasonably interfere with the normal use of the Site by the Client or the tenants or other permitted occupiers or users of the Site;
• 2) subject to clause 10, make good any damage to the Site caused by any negligence or wilful default of Metro Guards in carrying out the Services; and Metro Guards must comply with all laws and mandatory industry codes relevant to the supply of the Services and, when on the Site, comply with all the Client's reasonable policies relating to occupational health and safety and security that the Client first notifies Metro Guards in writing of.

a) The Client must pay the Service Fees and any other Money Payable to Metro Guards or a Metropolitan guard services Group Member. In the event that the Client requests Metro Guards to perform any Services for a third party and Metro Guards does not have a direct contractual relationship with that third party, the Client must pay the Service Fees incurred by Metro Guards in the performance of those Services for that third party as if the Services were performed for the Client under this agreement.

b) The Service Fee may be varied by Metro Guards from time to time by the percentage equal to the percentage increase in the total of all wages, vehicle acquisition and maintenance costs and other costs whether direct or indirect involved in the performance of the Services by Metro Guards.

c) Such variations will be determined by Metro Guards in its absolute discretion.

d) Metro Guards will inform the Client of any variations to the Service Fees at least 30 days prior to such variations coming into effect.

e) If, in that 30 day notice period, the Client objects to Metro Guards's variation, Metro Guards and the Client will meet and discuss the price increase and seek to resolve such objections.

f) If the parties are unable to resolve this objection, the Client may terminate the Agreement prior to the variation taking effect by giving notice to Metro Guards.

a) Subject to clause 6.3, Metro Guards will provide the Client with an invoice for the Services Fee which the Client must pay within [07] days of the date of the invoice.

b) The Client must pay to Metro Guards on demand all costs, charges and expenses, including legal costs on a full indemnity basis, incurred by Metro Guards in the collection of any overdue account, or incurred by Metro Guards due to any breach of this agreement by the Client.

a) Time will be of the essence in respect of the payment of Money Payable.

b) If the Client fails to pay to Metro Guards any Money Payable (including any Unpaid Amounts), Metro Guards may do all or any one or more of the following:

• 1) suspend the Services;
• 2) immediately terminate this agreement by providing written notice to the Client;
• 3) terminate any credit facilities; and
• 4) institute legal action for recovery of outstanding amounts and costs incurred.

a) Each party (recipient) must keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of the other party (discloser), including Confidential Information provided to or obtained by the recipient prior to entry into this agreement.

b) The obligations in clause 7.1(a) do not apply to Confidential Information that is:

• 1) required to be disclosed by applicable law, in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or
• 2) already known by, or rightfully received, or independently developed, by the recipient free of any obligation of confidence.

Each party may use and disclose Confidential Information of the other only on a 'need to know' basis:

• a) with the prior written consent of the other party;
• b) in the case of Metro Guards, to its directors, agents, professional advisers, employees, contractors and permitted subcontractors solely for the exercise of rights or the performance of obligations under this agreement; or
• c) in the case of the Client:
  • 1) to Client Group Members and their directors, agents, professional advisers, employees and contractors; or
  • 2) any party who is a bona fide purchaser of the Site.

a) This agreement starts on the Commencement Date and continues for the Initial Period and for any extended periods under clause 8.1(b) unless it is terminated in accordance with this clause 8.1(c), 8.2 or otherwise at law.

b) At the end of the Initial Period this agreement shall be automatically extended unless and until it is terminated in accordance with clause 8.1(c) or 8.2.

c) Either party may terminate the agreement at the conclusion of the Initial Period or at any time following the Initial Period by giving 30 days written notice or otherwise in accordance with clause 8.2.

(a) If a party:

• 1) breaches any provision of this agreement and fails to remedy the failure after receiving [14] Business Days' notice from the other party to do so; or
• 2) commits a material breach of this agreement which in the reasonable opinion of the other party is not capable of being remedied,
• 3) Metro Guards may terminate this Agreement, or a Proposal, in full or in relation to specific Goods or Services, immediately if, in its absolute discretion, the provision of the Services at any of Your Sites poses a risk to any of Metro Guards personnel.

(b) then the other party may terminate this agreement by giving 7 days' notice to the party in breach of this agreement of the termination which is effective immediately on receipt of that notice or such other date as is specified in the notice.

(c) If an Insolvency Event occurs in relation to the Client, then Metro Guards may terminate this agreement by giving Notice to the Client of the termination which is effective immediately on receipt of that Notice by the Client or such other date as is specified in the Notice by Metro Guards.

(a) Nothing in this agreement is to be construed as excluding, restricting or modifying the application of any liability of Metro Guards to the extent that it cannot by operation of law (including the operation of the CCA) be excluded, restricted or modified.

(b) If the Client is a Consumer:

• 1) clause 10 does not apply to any liability of Metro Guards for failure to comply with a Consumer Guarantee;
• 2) in respect of any goods supplied under this agreement, subject to clause (4), the liability of Metro Guards for Loss, however caused (including by the negligence of Metro Guards), suffered or incurred by the Client because of a failure to comply with a Consumer Guarantee is limited to Metro Guards (at its election):
  • in the case of a minor failure, replacing the goods, supplying equivalent goods or repairing the goods;
  • in the case of a major failure, paying the cost of replacing the goods or of acquiring equivalent goods, paying the cost of having the goods repaired; or
  • in the case of a major failure where the Consumer chooses to keep the goods, providing a partial refund for the loss of value of the goods.

(3) in respect of the Services, subject to clause (4), unless the services are Excluded Services, the liability of Metro Guards for Loss, however caused (including by the negligence of Metro Guards), suffered or incurred by the Client because of a failure to comply with a Consumer Guarantee is limited to Metro Guards (at its election):

• resupplying the Services; or
• paying the cost of having the services supplied again; and

(4) clauses (2) and (3) do not apply if it is not Fair or Reasonable for Metro Guards to rely on them.

Subject to the other provisions of this clause 10, including clause 10.1:

(a) if any Default gives a party a right to damages, those damages will be limited to damages for direct loss and damage attributable to such Default;

(b) the rights of a party to damages for indirect and consequential loss or damage are excluded; and

(c) neither party will be liable to any other for any failure to realise anticipated savings, loss of revenue or profits, loss of opportunity or goodwill, loss of or inability to use equipment, loss of use, economic loss, special losses or damages suffered by a party to this agreement or any other person.

Subject to the other provisions of this clause, clause 10, including clause 10.1, Metro Guards is not liable to the Client for any Loss, caused by any reason beyond Metro Guards's reasonable control however caused, including:

(a) a Force Majeure Event;

(b) an act or omission of the Client, its employees or persons otherwise engaged by them; and

(c) any Loss, damage or liability suffered or incurred by the Client except to the extent to which such Loss, damage or liability is caused by the negligence of Metro Guards or any of its employees acting within the scope of their employment.

(d) failing to supply any of the Goods or Services as a consequence of strikes, labour disputes, fires, floods, other extreme weather conditions, accidents, invasions, riots, mobs, wars, national emergencies, significant or sustained disruption to power services, embargoes or restraints or any other circumstances beyond the reasonable control of Metro Guards such as unusually high occurrence of Alarm Responses;

(e) Any indirect, consequential, special or economic loss, cost or liability; or

(f) any loss of profit, loss of use, loss of income, loss of rental or other benefit, loss of production, loss of actual or potential business opportunity or loss to reputation; or

(g) any loss or damage suffered by You except if such loss or damage is caused solely and exclusively by the Metro Guards employee

(h) any loss, damage or destruction of keys, key cards or other access device provided by You to Metro Guards, including but not limited to replacement of locks or reprogramming of access devices. Notwithstanding Metro Guards agrees to pay for the replacement cost of key, key card, if such loss, damage or destruction is caused solely by Metro Guards employee.

Subject to the other provisions of this clause 10, including clause 10.1, to the maximum extent permitted by law, Metro Guards's total liability and that of its directors, employees and agents, to the Client for all Claims, including interest on any Claim is limited in the aggregate to the Liability Limit.

In any event, liability of Metro Guards whether in contract, tort (including negligence) or otherwise will be limited to a maximum amount equal to the Fees paid to Metro Guards on two times sale value per week, in respect of the aggregate of all claims arising out of or in relation to any one event or series of events.

You shall notify Metro Guards in writing of any claim within 7 days of the day upon which you became aware of or ought to have become aware of the existence of such claim. If no such notice is given you will be deemed to have waived and abandoned completely any such claim which after the expiration of such period of 7 days shall not be allowable or admitted. Time shall be of the essence of this clause.

You shall keep Metro Guards indemnified at all times against any loss arising from claims made against Metro Guards by any party with respect to any theft, loss, damage, destruction, death or injury occurring on the Site arising out of or in any way in relation to the provision or failure to provide the Services except in the case of negligence on the part of Metro Guards, its employee or agent

Metro Guards shall to the maximum extent permitted by law have no liability whatsoever to You in respect of any act or omission on its part for any work required to be undertaken by Metro Guards pursuant to this Agreement if the circumstances or event which would otherwise give rise to liability occurs at a time when You is in breach of its payment obligations to Metro Guards.

(a) This agreement is governed by the law in force in the State or Territory in which it is entered into.

(b) Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in that State or Territory and any courts of appeal from them in respect of any proceedings in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process in the courts on the basis that the process has been brought in an inconvenient forum.

(a) A notice or other communication to a party under this agreement (Notice) must be in writing and in English, signed by or on behalf of the sending party and addressed to that party in accordance with the details nominated in the Reference Table.

(b) A Notice may be served by hand, registered post, by facsimile or by email and is regarded as given and received at the time set out in the table below.

(a) If as a result of a Force Majeure Event a party is rendered unable, wholly or in part, to carry out its obligations under this agreement then those obligations are suspended as long as the Force Majeure Event subsists.

(b) If that Force Majeure Event lasts for more than 3 months, the party whose obligations are not suspended may (without affecting the accrued rights and obligations of the parties as at the termination date) terminate this agreement forthwith by Notice to the other party.

(a) Unless expressly included the consideration for any supply under or in connection with this agreement does not include GST.

(b) To the extent that any supply made under or in connection with this agreement is a taxable supply, the consideration for that supply is increased by an amount determined by the supplier, not exceeding the amount of that consideration (or its market value) multiplied by the rate at which GST is imposed in respect of the supply.

(c) Whenever an adjustment event occurs in relation to any taxable supply made in connection with this agreement, the supplier must determine the net GST in relation to the supply (taking into account any adjustment) and if the net GST differs from the amount previously paid in accordance with clause (b), the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

If a party is entitled under this agreement to be reimbursed or indemnified by another party for a cost or expense incurred in connection with this agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense for which an input tax credit may be claimed by the party entitled to be reimbursed or indemnified, or by its representative member, and then, if the amount of the payment is consideration or party consideration for a taxable supply, it must be increased on account of GST in accordance with clause (b).