MONITORING TERMS & CONDITIONS
1. CONTRACTUAL RELATIONSHIP
1.1. These Terms govern the provision of the Monitored Services by WSG to the Customer and, in particular, the provision of the Monitored Services for each of the Devices used by the Customer’s Registered App Users.
1.2. PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE MONITORING SERVICES.
1.3. The access and use of the Monitored Services by the Customer constitutes its agreement to be bound by these Terms, which establishes a contractual relationship between WSG and the Customer. If you do not agree to these Terms, you may not access or use the Monitoring Services. These Terms expressly supersede prior agreements or arrangements with the Customer.
1.4. WSG may amend these Terms from time to time. Amendments will be effective upon WSG’s posting of such updated Terms at this location. The Customer’s continued access or use of the Monitoring Services after such posting constitutes its agreement to be bound by these Terms, as amended.
2.1. These Terms will be in force and effect as from the Commencement Date and, subject to the other provisions of these Terms, will continue until the expiry of the Fixed Term.
2.2. If after the Fixed Term WSG continues to provide the Monitoring Services to the Customer, these Terms will continue in force and effect until terminated by either party giving to the other not less than 90 days written notice to that effect. During the holding over, these Terms continue to bind the parties.
3. REGISTERED APP USERS
3.1. WSG will only provide the Monitored Services to those Registered App Users in respect of whom the Customer has provided WSG with Written Instructions.
3.2. WSG will commence providing the Monitored Services for each Registered App User upon:
a) the completion of the commissioning procedure for the communication interface between the Registered Device and the Monitoring Station; and
b) the entry of that Registered App User’s details into WSG’ database.
3.3. The Customer must notify WSG, in writing, of changes that are to be made to the details specified in the Written Instructions of any Registered App User or of a change in the Device used by a Registered App User. The Customer acknowledges that WSG:
a) requires a 24 hour period in which to update its database and to respond to an alert signal in accordance with any variation the Written Instructions of any Registered App User; and
b) does not accept responsibility for any variations which have not been provided in writing to WSG.
3.4. If the Customer wishes to terminate the provision of the Monitored Services for any Registered App User, the Customer must (except where WSG otherwise agrees) give WSG at least 30 days prior written notice of termination. In that event, the relevant Registered App User will cease to be provided with the Monitored Services with effect from the expiry of that notice period or such earlier date as WSG may determine (Applicable Termination Date).
3.5. Notwithstanding clause 3.4, the number of Registered App Users in respect of which the Customer may terminate the provision of the Monitored Services during the Fixed Term is limited to being not more than 20% of the number of Registered App Users as at the Commencement Date.
3.6. WSG does not accept responsibility for any cancellations which have not been provided in writing to WSG and the Service Charges remain payable in respect of any cancelled Registered App User up until the Applicable Termination Date (unless WSG has otherwise agreed to waive all or a part of those charges).
4. SERVICE PROVISION
4.1. Subject to the other provisions of these Terms, WSG will:
a) provide the Monitored Services with all due diligence and expedition; and
b) action signals emanating from a Registered Device in alert mode in accordance with the applicable Written Instructions.
4.2. The obligations of WSG to provide the Monitored Services, and to action a signal received from a Registered Device in alert mode, are conditional upon:
a) the applicable Registered Device being operational in accordance with the manufacturer’s requirements; and
b) a signal being received by the Monitoring Station from the Registered Device.
Accordingly, WSG assumes no responsibility to the Customer, any Registered App User or any person claiming through the Customer or any Registered App User by reason that a third party’s equipment necessary for receipt of an alert signal is experiencing technical difficulties or otherwise not functioning.
4.3. WSG’s obligations under these Terms to provide the Monitored Services are automatically suspended in respect of a Registered Device (without notice to the Customer or the Registered App User who uses that Registered Device) if:
a) that Registered Device is excessively signalling the Monitoring Station without apparent reason;
b) the Customer is in default of its obligation under clause 6.2; or
c) the Customer authorises WSG in writing to refrain from rendering the Monitored Services in respect of that Registered Device.
5. CUSTOMERS’S OBLIGATIONS
5.1. The Customer will be solely responsible for:
a) notifying the Registered App Users of the terms on which the Monitored Services are being provided by WSG in respect of the Registered Devices;
b) the proper installation of the WSG App on each of the Registered Devices;
c) the provision to WSG of complete, proper and accurate monitoring and response information as is reasonably required by WSG from time to time in order to provide the Monitored Services; and
d) the provision of the communication services required for the Registered Devices to communicate alert signals to the Monitoring Station.
5.2. If requested by WSG as a consequence of an issue arising in relation to the provision of the Monitored Services by WSG, the Customer will provide WSG with the log details of each Registered Device so that it is possible to establish the time elapsing between when a signal emanated from that Registered Device and when that signal was actioned by WSG.
6. SERVICE CHARGES
6.1. In consideration of WSG agreeing to provide the Monitored Services, the Customer must pay WSG the Service Charges each month, which will be the aggregate of:
a) the amount calculated by applying the number of Registered App Users for that month by the monitoring charge specified in the Customer’s Application Form; and
b) for each patrol response attendance initiated in respect of an alert signal emanating from a Registered Device during that month, the fixed charges as specified in the Customer’s Application Form.
6.2. WSG will invoice the Customer on a periodical basis, and the Customer must pay the amount invoiced within 30 days of the date of the invoice’s issue.
6.3. WSG will have the right to increase any of the Service Charges applying under these Terms by giving the Customer not less than 30 days written notice in advance of the effective date of the increase. If WSG increases any of the Service Charges during the Fixed Term, the Customer may terminate these Terms by providing WSG with 30 days prior written notice.
6.4. If WSG or the Customer (Supplier) is required to pay GST in respect of a Supply made under or pursuant to these Terms, the recipient of the Supply must, in addition to any other payment in connection with the Supply, pay to the Supplier an amount equal to such GST. Terms used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act have the same meaning.
7. LIABILITY LIMITATIONS
7.1. WSG will not be liable to the Customer or a Registered App User (or any person claiming through the Customer or a Registered App User) for:
a) any loss of use, revenue or profit or for any other special, indirect, incidental, consequential or exemplary damages of any kind, arising from any breach of an obligation under these Terms, any negligence or duty owed by WSG arising out of its obligations under these Terms or any other cause of action arising out of these Terms; or
b) any other loss, claim, damage, cost, expense or liability suffered or incurred by the Customer or any of the Registered App Users which arises out of or in connection with these Terms except (subject to clause 7.3) where and to the extent that such Loss arises out of a breach of these Terms or any Wilful Misconduct.
7.2. The Customer releases and forever discharges WSG from all claims which it may have in the future against WSG which arise out of (directly or indirectly) these Terms other than any claim which may be brought by the Customer against WSG under clause 7.3.
7.3. WSG’ sole liability to the Customer will be limited to compensating the Customer for any loss, cost, expense or liability suffered or incurred by the Customer arising out of a breach of these Terms or any Wilful Misconduct by WSG in connection with these Terms up to a maximum amount equal to $1,000 per breach or act or omission comprising Wilful Misconduct on the part of WSG. For clarity, the liability of WSG under this clause 7.3 excludes all loss and damages referred to in clause 7.1(a).
7.4. The Customer is solely responsible for:
a)the installation of the WSG App on, and maintenance of, the Registered Devices;
b) the Written Instructions being incomplete or inaccurate;
c) the failure of any Registered Device to operate in accordance with the manufacturer’s specifications; or
d) any Loss being suffered by the Customer or a Registered App User in connection with provision of, or any failure or defect in the provision of, the Monitored Services to a Registered App User (other than where and to the extent WSG is liable to the Customer for that loss under clause 7.3).
7.5. To avoid doubt, WSG is not liable to the Customer under clause 7.3 if and to the extent WSG, in performing the Monitored Services, acted in accordance with the Written Instructions provided by the Customer.
8. WSG APP USAGE TERMS
8.1. These Terms set out the whole agreement between WSG and the Customer in connection with the provision of the Monitored Services to the Registered App Users, but do not regulate the basis on which the Registered App Users may access and use the WSG App.
8.2. The terms and conditions governing the usage of the WSG App are set out in a separate agreement published by WSG and which may be accessed on the WSG website (App Usage Terms). By installing and using the WSG App, each Registered App User will be taken to be bound by the App Usage Terms.
9. DEFAULT AND TERMINATION
9.1. These Terms may be immediately terminated by a party (Terminating Party):
a) if the other party has failed to perform any obligation under these Terms and the Terminating Party has given notice to the other party that it requires the default to be remedied within 14 days and the claimed default has not been remedied within that 14 day period; or
b) immediately upon a party becoming the subject of bankruptcy, liquidation or winding up procedures or otherwise becomes or threatens to become insolvent.
9.2. Upon termination of these Terms WSG may request the Customer to remove the WSG App from all the Devices (which decommissioning will be at the Customer’s sole cost).
9.3. Any termination of these Terms will not affect the rights or remedies of either party accrued to the effective termination date under this clause.
10. EARLY TERMINATION
10.1. Subject to clause 10.2 the Customer may elect to terminate these Terms at any time during the Fixed Term by giving not less than 30 days prior written notice to WSG.
10.2. If these Terms is terminated pursuant to clause 10.1, the Customer must pay WSG on the date of termination:
a) the Early Termination Fee; and
b) all other amounts owing under these Terms as at the date of termination.
11. FORCE MAJEURE
11.1. A party will be relieved from performing an obligation under these Terms (other than an obligation to pay money) if and to the extent such performance is adversely affected by an event beyond its reasonable control and which it is not able to prevent or overcome by the exercise of reasonable care.
12. CONFIDENTIALITY AND TELEPHONE RECORDING
12.1. All commercially sensitive information exchanged under these Terms (including all voice codes and passwords) must be held strictly confidential and must not be disclosed to any other person except:
a) with the consent of the party who supplied the information; or
b) if required by law, or any government authority having jurisdiction over either party, or in connection with legal proceedings relating to these Terms; or
c) if the information is generally and publicly available other than as a result of breach of confidentiality by the person receiving the information.
12.2. The Customer acknowledges that WSG’s records all telephone conversations or other communications with the Monitoring Station for security purposes and all rights to recorded conversations vest in WSG and under no circumstances will the Customer or any Registered App User have rights in or to such recorded conversations. The Customer acknowledges the use by WSG of these conversation in any legal proceeding, use by WSG for training purposes and the disclosure of these conversations and recordings to any law enforcement body as may be required. The Customer undertakes to ensure that all of the Registered App Users are advised of WSG’s practice and of WSG’s right in respect of the recorded conversations.
12.3. This clause 12 survives the termination of these Terms.
The Customer acknowledges and agrees that:
13.1. in the provision of the Monitored Services and through the use of the WSG App by Registered App Users personal information about the Customer and the Registered App Users will be collected and used by WSG;
14.1. The Customer may not assign its rights under these Terms except with the prior written consent of WSG and any purported assignment in contravention of this provision is void at the option of WSG.
14.2. These Terms, the Customer’s Application Form and the Written Instructions constitute the entire agreement between the parties.
14.3. If any part of these Terms is prohibited, void, voidable, illegal or unenforceable, then that part is severed form these Terms but without affecting the continued operation of the remainder of these Terms.
14.4. The laws of South Australia govern these Terms.
15. SPECIAL CONDITIONS
The special conditions set out in Customer’s Application Form (if any) apply to these Terms and are binding on the parties.
16.1. In these Terms:
Business Day means a day other than a Saturday, Sunday or public holiday in Adelaide, South Australia.
Customer or You means the person so described in the Customer’s Application Form.
Commencement Date means the date so described in the Customer’s Information Sheet (or if no such date is specified, the date on which the Customer first accesses or uses the Monitoring Services).
Customer’s Application Form means the application form completed by the Customer in connection with the provision of Monitoring Services by WSG in respect of the Registered Devices.
Device means any smartphone or other device:
(a) on which the WSG App is capable of being installed: and
(b) which runs an operating system that is capable of communicating with the Monitoring Station.
Early Termination Fee means the amount calculated in accordance with the following formula:
0.5 (A x B)
A is the number of weeks of the Fixed Term which have not elapsed as at the date of termination under clause 10.1; and
B is the average of the Service Charges paid by the Customer to WSG under these Terms (and expressed on a weekly basis) from the Commencement Date to the date of termination.
Fixed Term means the period of 24 months from the Commencement Date.
Loss includes any claim, damage, cost, expense or liability.
Monitored Services means:
(a) the monitoring by WSG of signals emanating from the Registered Devices in alert mode and received by the Monitoring Station; and
(b) the actioning by WSG of a signal so received in accordance with the Written Instructions.
Monitoring Station means the premises occupied by WSG (or one of its affiliated companies) and at which all equipment required to receive signals emanating from the Registered Devices are located.
Registered App User means any person:
(a) who is registered by the Customer for the provision of the Monitored Services under these Terms; and
(b) in respect of which Written Instructions have been provided to WSG prior to or after Commencement Date,
but excludes any person which ceases to be a Registered App User under clause 3.4.
Registered Device means a Device used by a Registered App User and on which the WSG App has been installed.
Service Charges means the charges payable for the services provided by WSG under these Terms as specified in clause 6.1.
Special Conditions means the special conditions set out in Customer’s Application Form.
Terms means these terms and conditions together with the Customer’s Application Form.
Wilful Misconduct means such wanton or reckless act or omission as amounts to the utter disregard to its harmful and avoidable consequences, but does not include any error of judgment, mistake, act or omission (whether negligent or not) by WSG or any employee, contractor or agent of WSG which is made in good faith.
Written Instructions means the instructions provided by the Customer to WSG from time to time in respect of a Registered App User including details concerning:
(a) the Device used by the Registered App User;
(b) the response procedures and numbers to be called following an alert signal being received by the Monitoring Station from that Device; and
(c) the Registered App User’s voice codes and passwords applicable to that Device.
WSG means WSG Australia Pty Ltd ACN 604 823 430
WSG App means the software application generally known as ‘WorkSafeGuardian’ for mobile devices and which WSG has been granted an exclusive licence to access and use by the owner of that software application.