SkyWatch Standard Terms & Conditions Rev1.1
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1. Definitions:
Alarm Condition: an incident that occurs at the Monitored Property which is notified to the Supplier by the Communications Path requiring action in accordance with the Emergency Instructions.
Business Day: a day other than a Saturday, Sunday or public holiday in the local jurisdiction.
Call List: a list of names, relationships, titles and phone and mobile numbers of all persons to be notified if there is an Alarm Condition at the Monitored Property.
Commencement Date: the date on which the System is connected and commissioned by the Communications Hub.
Communications Hub: the centre where the Receiving Equipment is stored.
Communications Path: the communications medium used to carry a signal from the System to the Receiving Equipment including but not limited to a telephone or internet connection.
Conditions: these terms and conditions as amended from time to time.
Contract: the contract between the Supplier and the Subscriber for the supply of Services in accordance with these Conditions.
Data Protection Law: means all applicable data protection and privacy legislation in force from time to time including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and European Communities (Electronic Communications Network and Services) (Privacy and Electronic Communications) Regulations 2011 (S.I. No. 336/2011) as amended; any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Fees: the fees payable by the Subscriber for the supply of the Services in accordance with clause 6.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Monitored Property: the property or portion of the property of the Subscriber at which the Services are provided and where the System is installed.
Order: the Subscriber's order for Services as set out in the Subscriber's purchase order form.
Receiving Equipment: the equipment installed at the Communications Hub which receives signals from the System through the Communications Path and translates the signals into audible signals and/or visual display.
Response Protocol: the protocol setting out the action to be taken on the occurrence of an Alarm Condition.
Services: the services, including the PVM Services, supplied by the Supplier to the Subscriber as set out in Schedule 1.
Subscriber: the person, firm or company that subscribes for the Services pursuant to these Conditions and includes successors, assigns or personal representatives.
Subscriber Default: has the meaning set out in clause 4.4.
Supplier: SkyWatch Pty Ltd registered in Australia with company number ABN 63 677 664 792.
System: the proactive video monitoring equipment installed at the Monitored Property.
Term: 3 (three) years from the Commencement Date and any extension thereafter in accordance with condition 7.2.
Personnel List: a written list of the names, titles and numbers of all persons authorised to enter or remain at the Monitored Property.
PVM Services: the proactive video monitoring and incident management services for the System as outlined in the Protocol Form or the Netwatch Web application.
GST: value added tax applied to most goods, services, and other items sold or consumed in Australia, as governed by the Australian Taxation Office (ATO).
1.2. Interpretation:
a) Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:
i. is a reference to it as amended, extended or re-enacted from time to time; and
ii. shall include all subordinate legislation made from time to time under that legislation or legislative provision.
b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
c) A reference to writing or written includes fax and email.
2. Basis of contract
2.1. The Order constitutes an offer by the Subscriber to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or (if earlier) by the Supplier starting to provide the Services.
2.3. Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Subscriber seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.6. The Supplier, and other service providers engaged by the Supplier, may conduct site surveys, risk assessment, initial site design, and other implementation services related to the PVM Services and all such services are governed by this Contract.
3. Supply of Services
3.1. The Supplier shall supply the Services to the Subscriber in accordance with these conditions in all material respects.
3.2. The Supplier reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Subscriber in any such event.
3.3. The Subscriber acknowledges that the Supplier cannot guarantee the Services will be uninterrupted or error free, or that encryption algorithms, associated keys and other security measures will be secure or effective.
4. Subscriber's obligations
4.1. The Subscriber shall:
a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
b) co-operate with the Supplier in all matters relating to the Services;
c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Monitored Property, office accommodation and other facilities as reasonably required by the Supplier;
d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services and ensure that such information is complete and accurate in all material respects;
e) prepare the Monitored Property for the supply of the Services and provide the proper environment for the System as reasonably requested;
f) inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at the Monitored Property;
g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
h) provide to the Supplier, in a timely manner, the Response Protocol, Call List and Personnel List and any other information as the Supplier may require to provide the Services and ensure that it is accurate in all material respects and up to date. Any amendments to the Response Protocol must be submitted in writing and signed by a duly appointed representative of the Subscriber;
i) give the Supplier 30 days prior notice of any proposed structural alterations or change of use to the Monitored Property and of any modifications to the System or to the Communications Path which may affect the Services;
j) give the Supplier 60 days prior notice where the Subscriber has entered into negotiations which may result in the ownership or occupancy of the Monitored Property changing but for the avoidance of doubt the Subscriber shall remain liable for all Fees due under the Contract;
k) notify the Supplier by telephone, and if requested, confirm same in writing if an Alarm Condition occurs accidentally or inadvertently;
l) ensure that it makes available such components of the Communications Path as may be necessary for the operation of the Services, and shall further ensure that the cost of the Communications Path together with all charges for the continued use thereof, are punctually paid to the communication path service provider or other firm or authority as the case may be to enable the Supplier to carry out the Services;
m) if only part of the Monitored Property is covered by the System, review the part of the Monitored Property that is monitored regularly and inform the Supplier if any extension of the Services is required to cover additional parts of the Subscriber’s premise; and
n) if the Subscriber selected a remote access network or software, the Subscriber is solely responsible for creating and updating its profile on any remote service website.
4.2. In the event that the Subscriber experiences any difficulty in respect of the Services, it shall notify the Supplier immediately or in any event not less than two days from the day of the event giving rise to the difficulty and the Subscriber shall then afford the Supplier a reasonable opportunity to remedy the said difficulty as soon as possible thereafter.
4.3. The Subscriber should maintain its own insurance at the Monitored Property and the installation of the System is not a substitute for insuring the Monitored Property nor should it affect the level of insurance cover required.
4.4. If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Subscriber or failure by the Subscriber to perform any relevant obligation (Subscriber Default):
a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Subscriber remedies the Subscriber Default, and to rely on the Subscriber Default to relieve it from the performance of any of its obligations in each case to the extent the Subscriber Default prevents or delays the Supplier's performance of any of its obligations;
b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Subscriber arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.4; and
c) the Subscriber shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Subscriber Default.
4.5. For the avoidance of doubt, the Subscriber is solely responsible for the integrity and security of its data, software, devices, computer system, networks, servers, and other equipment. The Subscriber is also solely responsible for limiting access to its wireless systems or VPN, changing the default password, updating firmware and software routinely, and securing access to the System or software with regularly updated pass code protection, credentials, lockout codes, or encryption software. Subject to clause 11 the Supplier is not liable for any loss, damage, or injury arising out of or relating to any unauthorized or improper access to or use of the System or data. The System or wireless devices may be connected to the internet. The Subscriber understands that the Supplier does not operate or control the internet, that all devices may not meet encryption standard specifications, and that viruses, worms, trojan horses, denial of service, or other malicious or undesirable data, code, software, attacks, hackers, or users may attempt to access or damage your data, devices, computers, and networks. The Supplier is not liable for such activities.
5. Compatible Devices
5.1. If the Subscriber selected certain interactive services, it may receive customised emails, text messages, push notifications, or alerts about System signals or images, if any, on its computer, tablet, smart phone, or other mobile device.
5.2. The Subscriber acknowledges that these types of messages may fail to reach their intended destination or may arrive too late to be of any use for a variety of reasons, including settings on its devices. The Subscriber will have access to the remote server provided by the Supplier or its agents.
5.3. Certain wireless, remote access, or interactive security or automation services require a compatible computer, tablet, smart phone, or other mobile device with internet and email access. Not all devices will work with these services, and the Subscriber must provide your own devices at its sole expense, and keep them charged.
5.4. The Subscriber understands that the Supplier have no control over the Subscriber’s devices, or internet, email, text message, or push notification access. Cellular data providers may charge additional fees for accessing the System or automation system on wireless devices, and the Supplier has no liability for data usage in excess of the Subscriber’s plan. These charges are the Subscriber’s sole responsibility.
6. Fees and payment
6.1. In consideration of the provision of the Services by the Supplier, the Subscriber shall pay the Fees.
6.2. The Supplier reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date however the Fees shall not be increased more than once in any 12 (twelve) month period and the Subscriber shall be given 60 days’ notice if such increase is to apply.
6.3. Monthly Payments by Direct Debit or Credit Card:
a) The Subscriber agrees to pay the monthly subscription fee via direct debit or credit card. The payment will be automatically deducted on the monthly anniversary date of each month when the system goes live.
b) The Subscriber must provide valid payment information and ensure that sufficient funds are available in the account to cover the subscription fee.
c) The Subscriber is responsible for updating their payment information as necessary to ensure uninterrupted service.
6.4. Annual Payment by Invoice:
a) As an alternative to monthly payments, the Subscriber may choose to pay the subscription fee 12 months in advance by invoice.
b) The invoice will be issued upon the Subscriber's request, and payment is due within 30 days from the date of the invoice.
c) If the Subscriber opts for annual payment, the subscription fee for the entire year must be paid in full, and no refunds will be provided for any unused portion of the subscription.
d) obligations under the Contract has been placed in jeopardy.
6.5. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Subscriber if:
a) the Subscriber fails to pay any amount due under the Contract on the due date for payment;
b) the Subscriber commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty days of that party being notified in writing to do so;
c) the Subscriber makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an examinership or winding-up order is made or an examiner or receiver is appointed in relation to the Subscriber;
d) the Subscriber suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
e) the Emergency Services or any of them refuse to respond to an Alarm Condition, or withhold or otherwise withdraw their service in respect of the Monitored Property; or
f) if at any time, the Communication Hub or the Receiving Equipment are destroyed or damaged so that they cannot reasonably be used, or if the Subscriber is unable to secure or retain the components of the Communications Path required for the receipt of signals from the Monitored Property; or
g) if the Subscriber refuses or fails to provide an adequate Response Protocol;
h) there is a change of control of the Subscriber.
6.6. All amounts payable by the Subscriber under the Contract are exclusive of amounts in respect of Goods and Services Tax (GST). Where any taxable supply for GST purposes is made under the Contract by the Supplier to the Subscriber, the Subscriber shall, on receipt of a valid GST invoice from the Supplier, pay to the Supplier such additional amounts in respect of GST as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.7. If the Subscriber fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 12, the Subscriber shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.6 will accrue each day at 2% a year above the European Central Bank base rate from time to time, but at 4% a year for any period when that base rate is below 0%. The Subscriber shall pay the interest immediately on demand.
6.8. All amounts due to the Supplier under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Commencement and Duration
7.1. The Term shall commence on the Commencement Date.
7.2. Subject to clause 12, the Services supplied under the Contract shall continue to be supplied for the Term and, after that, shall automatically renew for a subsequent term of 1 (one year) (the “Renewal Term”) unless the Contract is terminated by one of the parties giving to the other not less than 60 days’ notice prior to the expiration of the Term or the Renewal Term.
8. Intellectual property rights
8.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Subscriber) shall be owned by the Supplier or as applicable any sub-contractor of the Supplier.
8.2. The Supplier grants to the Subscriber, or shall procure the grant to the Subscriber of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract of the Intellectual Property Rights for the purpose and to such extent as is necessary to enable the Subscriber to make reasonable use of the Services. Upon termination of the Contract this license shall automatically terminate.
8.3. The Subscriber shall not sub-license, assign or otherwise transfer the rights granted in clause 8.2.
9. Indemnity
9.1. In the event that the Emergency Services are called in circumstances where it is due to a fault on the part of the Subscriber, then the Subscriber shall indemnify the Supplier fully against any cost or loss that the Supplier may incur in that instance.
9.2. The Subscriber shall indemnify the Supplier in full against all costs, claims, actions, proceedings, demands, losses, awards, penalties, fines, liabilities or expenses of whatsoever nature incurred or suffered by the Supplier, arising out of any action brought by a third party in respect of the Services or any incident occurring at the Monitored Property.
10. Data protection
10.1. The Services may involve the capturing of a person’s image. Written notice that CCTV is in operation will therefore be placed at the Monitored Property with a contact number to discuss this processing. Images captured by the Supplier will be held for no longer than one month unless the images captured identify an issue such as a break in or theft and is retained in the context of an investigation. The Supplier will store the data including any intruder alarm activations, images and video in a secure environment with a log of access kept and access shall be restricted to authorised personnel. The Supplier confirms that it complies with its obligations under Data Protection Law.
10.2. The Subscriber hereby consents to the Supplier processing, both electronically and manually, the data it collects in relation to the Services including any captured images on CCTV, for the purposes of carrying out the Services in an efficient manner and for compliance with applicable procedures, laws and regulations and to the transfer, storage and processing by the Supplier or its agent of such data outside the European Economic area, the United States of America, and any other country in which the Supplier operates or has offices.
10.3. The Subscriber consents to the appointment of Netwatch Ireland Limited as a sub-processor of Personal Data.
11. Limitation of liability:
11.1. Nothing in this clause 11 shall limit the Subscriber's payment obligations under the Contract.
11.2. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation; and
c) breach of the terms implied by section 12 of the Supply of Goods and Supply of Services Act 1980 (title and quiet possession).
11.3. Subject to clause 11.2, the Supplier's total liability to the Subscriber in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the Fees paid to the Supplier for the Services for the previous Year of the Term. If the liability arises during the first Year of the Term then the total liability of the Supplier shall be the Fees paid to date.
11.4. All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from the Contract. Without prejudice to the generality of the foregoing, all terms, conditions, warranties or representations implied by section 13, 14 and 15 of the Sale of Goods Act 1979 and sections 12-16 of the Supply of Goods and Services Act 1982 are hereby excluded to the fullest extent permitted by applicable law.
11.5. Subject to clause 11.1 and clause 11.2, this clause 11.5 sets out the types of loss that are wholly excluded:
a) loss of profits.
b) loss of sales or business.
c) loss of agreements or contracts.
d) loss of anticipated savings.
e) loss of use or corruption of software, data or information.
f) loss of or damage to goodwill; and
g) indirect or consequential loss.
11.6. This clause 11 shall survive termination of the Contract.
12. Termination
12.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party two months' written notice.
12.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
a) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business
b) the other party makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an examinership or winding-up order is made or an examiner or receiver is appointed in relation to the Subscriber; or
c) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3. Variation: Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.4. Waiver: A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.5. Severance:If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 14.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.Notices
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid registered post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to admin@skywatch.net.au
b) Any notice or communication shall be deemed to have been received:
i. if delivered by hand, at the time the notice is left at the proper address;
ii. if sent by pre-paid registered post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
iii. if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. The Supplier’s email address for the purpose of this clause 12.8 is admin@skywatch.net.au
c) This clause 14.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.6. Consumer: If the Subscriber is contracting hereunder as a consumer, he may cancel the Contract at any time within fourteen working days, beginning on the day after these Conditions are signed (provided the Services have not commenced).
12.7. Governing law:. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of the jurisdiction where the supplier company is registered.
Jurisdiction. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
SCHEDULE
Data Protection
1. Compliance with Privacy Laws:
• We are committed to protecting the privacy and personal information of our Subscribers in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs).
2. Collection of Personal Information:
• We collect personal information that is necessary for providing our services to you. This may include, but is not limited to, your name, contact details, payment information, and other information relevant to your subscription.
3. Use and Disclosure of Personal Information:
• Personal information collected will only be used for the purpose for which it was collected or for related purposes expected by you. This includes managing your subscription, processing payments, and communicating with you.
• We will not disclose your personal information to third parties without your consent, except as required by law or as necessary to provide our services to you (e.g., sharing information with payment processors).
4. Security of Personal Information:
• We take reasonable steps to protect your personal information from misuse, loss, unauthorized access, modification, or disclosure. This includes implementing appropriate physical, electronic, and managerial procedures to safeguard and secure the information we collect.
5. Access and Correction:
• You have the right to access and correct your personal information held by us. If you wish to access or correct your personal information, please contact us using the contact details provided in the Contract.
6. Data Breaches:
• In the event of a data breach that is likely to result in serious harm to you, we will notify you and the Office of the Australian Information Commissioner (OAIC) in accordance with the Notifiable Data Breaches scheme under the Privacy Act 1988 (Cth).
7. Changes to this Data Protection Statement:
• We may update this Data Protection statement from time to time. Any changes will be effective when we post the revised statement on our website or provide notice to you.
For further information on how we handle your personal information, please refer to our Privacy Policy available on our website or contact our Privacy Officer at admin@skywatch.net.au