Video Monitoring Terms & Conditions

Interpretation

In these terms and conditions, unless otherwise indicated:

1. ACL means the Australian Consumer Law in Schedule 2 of the CCA.
2. CCA means the Competition and Consumer Act 2010 (Cth).
3. Alert means the successful reception of images or footage at the Monitoring Centre from the System as the result of an Event.
4. Contract means the video verification services contract signed by the Customer for the engagement of JD Security to provide Video Monitoring.
5. Customer means any person or entity (including their successors and assigns) who or which have engaged JD Security to provide Video Monitoring.
6. Data means video images received by the Monitoring Centre from the Customer’s System.
7. Detection Device means a device that detects an Event.
8. Ecare Uptime Monitoring means the reverse heartbeat sent from the JD Security video monitoring server to the System to ensure that it is online and working.
9. Emergency Services means Police, Ambulance and/or Fire Brigade (as applicable).
10. Event means an action or event that triggers a Detection Device and results in the transmission of an Alert.
11. Fees means the fees as set out in section D of the Contract.
12. GST means Goods and Services Tax.
13. Incident means a situation that requires escalation/intervention due to an unlawful entry or attempt to enter.
14. Initial Term means the initial term identified in section B of the Contract.
15. JD Security means John Derek Security Pty Ltd NZBN 9429 0423 92521 (including its successors and assigns).
16. Liability means all actions, proceedings, costs, claims, demands, losses, expenses, charges, damages and liabilities (including solicitors’ fees and expenses on a full indemnity basis), fines or penalties
17. Made Live means the point when the parties have agreed on a Response Plan, the onboarding of equipment is complete, the Systems soak testing is complete and the Systems pass testing to ensure they are appropriately connected and functional.
18. Monitoring Agreement means the Alarm Monitoring terms and conditions available on JD Security’s website at: https://www.jdsecurity.co.nz/legal/alarm-monitoring-terms-conditions/
19. Monitored Premises has the same meaning as in the Monitoring Agreement.
20. Monitoring Centre has the same meaning as in the Monitoring Agreement.
21. PTZ Camera meaning pan-tilt-zoom is a camera with either mechanical or digital functionality to be remotely directed, tilt or have its angle of view varied using the zoom function. JD Security will only use the pre-set view for actioning and no other camera view will be used.
22. Response (or Respond) has the same meaning as in the Monitoring Agreement
23. Response Plan means the Customer’s instructions which are approved by JD Security for the actioning and resolution of an Alert, Event or System Fault referred to in clause 7.1(a) that have been stated and set out in Section 5 of the Commissioning Form within the Monitoring Agreement, or as amended from time to time, and agreed to by JD Security in writing.
24. Response Provider has the same meaning as in the Monitoring Agreement
25. System means a system consisting of but not limited to camera equipment and/or other image capture devices, alarm system, detector(s) and/or other Detection Devices, software (i.e. video management software on a server or embedded software on an NVR or DVR or video analytics software) and IT hardware including but not limited to a DVR, NVR, server, router, modem, switch or device for video transmission and control purposes.
26. System Fault means an alert caused by a malfunction of the System or ancillary equipment including but not limited to loss of AC power and/or low battery, loss of communications and loss of video.
27. System Testing means the activities performed to check that the functionality of the System’s components meet the requirements of the installation specification, including but not limited to;
    1. checking that the Monitoring Centre can receive images using the transmission path;
    2. checking that cameras have the correct focus at night and during the day;
    3. checking that the camera presets match defined views;
    4. checking that detectors trigger associated cameras;
    5. checking for positive illumination,; and
    6. removal of the mains supply and operation of the system on backup battery.
28. Term means the period for which JD Security is engaged by the Customer to provide the Video Monitoring in the Contract.
29. Video Monitoring means the review of an Alert by JD Security and determination as to whether or not a Response is required in accordance with the customer’s Response Plan.

Terms and conditions incorporated into Contract

1. These terms and conditions, as amended from time to time:
   1. are incorporated into, and form part of, the Contract; and
   2. govern the provision of Video Monitoring by JD Security pursuant to the Contract.
   3. sub element
2. Any changes to the terms and conditions will be updated on JD Security’s website at https://www.jdsecurity.co.nz/legal/video-monitoring-terms-conditions/ and alerted to the Customer by JD Security. The amended terms and conditions commence when the Customer provides written notice and execution of their acceptance. If the Customer refuses to accept the amended terms and conditions, either party may terminate this agreement pursuant to clause 15.3.

Video Monitoring services

Customer’s Response Plan

1. The Customer is to give JD Security the Customer’s Response Plan prior to the commencement of the Video Monitoring service and agrees that no Video Monitoring services are required to be provided by JD Security until receipt of that Response Plan.
2. Any variation of the Response Plan will be proposed in writing, by email or post and is only effective once agreed to by JD Security in writing.

How Video Monitoring undertaken

3. JD Security will provide the Video Monitoring for the duration of the Term commencing from the time the System is Made Live.
4. JD Security will action an Alert or System Fault received from the Monitored Premises to determine whether a person or vehicle is pictured in the footage.
5. Where a person or vehicle is pictured in the footage, JD Security will take all reasonable steps to Respond in accordance the Customer’s Response Plan and action a Response where the Response Plan requires it.
6. If the Customer has selected Ecare Uptime Monitoring as an optional service and JD Security agrees to the additional service is compatible with the Customer’s equipment, then, the JD Security Video Monitoring server will send a reverse heartbeat to the Customer’s device using TCP on the port that the Customer specifies in the device setup ‘Port’ field on the Video Monitoring paperwork.

Malicious damage

7. If the Response directed by the Response Plan results in a discovery of malicious damage to the Monitored Premises and the Customer cannot be contacted for further directions, unless otherwise indicated in the Response Plan, the Customer:
   1. authorises JD Security, at its sole discretion, to mount a static guard or guards until the next business day or until the Customer can be contacted and JD Security receives further instructions from the Customer (whichever is earlier); and
   2. agrees to pay for the additional work referred to at sub-paragraph (a) above at JD Security’s rate of charge which is obtainable from the Monitoring Centre on request.
8. In all other circumstances, performance of the Services for each Alert is complete when the Response has been actioned by JD Security from the Monitoring Centre. While JD Security will take all reasonable steps to procure attendance by personnel at the Monitored Premises, JD Security cannot guarantee the attendance of personnel:
   1. from Emergency Services;
   2. any other Response Provider not under JD Security’s control; and
   3. where access to the Monitored Premises is hindered or prevented by conduct or events beyond JD Security’s control including, but not limited to Customer conduct, third party conduct or any other systems in place at the Monitored Premises over which JD Security has no control.

Customer’s acknowledgements regarding limitations of Video Monitoring services

9. The Customer acknowledges and agrees that:
   1. JD Security makes no guarantee that:
      1. a Response will be available at any time; or
      2. the System will be able to detect every Event;
      3. it will be able to correctly determine whether a Response is required from reviewing the Alert;
      4. it will be able to correctly determine whether a person or vehicle is at the Monitored Premises;
      5. an Alert will detect any unlaw entry or conduct;
      6. Emergency Services will action any requested Response in time or at all;
      7. The Alert will correctly identify whether an Incident has occurred;
      8. the Response will prevent the commission or completion of a crime;
      9. the Response will prevent or reduce any loss or damage.
   2. JD Security will not be liable for any loss or damage the Customer suffers or incurs in connection with a Response or absence of such a Response, except to the extent that it arises from the gross negligence of JD Security;
   3. the Video Monitoring service is intended for the reduction of false alarms and the confirmation of an Incident and accordingly JD Security is not required to advise the Customer of an Alert or series of Alerts once it has been verified that they are not Incidents or of their potential cause;
   4. (where a PTZ Camera is used) JD Security need not and will not pan or tilt the PTZ Camera and JD Security is only required to view footage from the preset or current view, current at the time of Alert;
   5. the Video Monitoring temporary data services are not a substitute for the recording and storage of data by the customer on their own servers, DVR, NVR or any other storage appliance;
   6. lighting and weather conditions including but not limited to rain or mist may obscure a camera’s view and hinder the effectiveness of the Video Monitoring services; and
   7. JD security may provide some or all of the services supplied under the Contract by the use of independent contractors.

Events Beyond JD Security’s Control

1. Should;
   1. rendering any services (including Video Monitoring) become impossible or impracticable due to strike, riots, flood, fires, vandalism, terrorism, acts of nature, acts of God or any other cause beyond the control of JD Security; or
   2. the System located at the Monitored Premises be disabled, damaged, in a state of disrepair, or the Customer has repeatedly failed to use the System properly following manufacturer’s guidelines;

   JD Security may at any time, by written notice to the Customer:

   3. immediately on written notice suspend the provision of any services under the Contract, (during which period (i) the Customer is not required to pay for the services in respect of the suspension period and (ii) JD Security will not perform services and is not liable for any activity, loss or damage suffered by the Customer but (iii) the Customer remains liable to pay for services rendered outside of the suspension period); or
   4. immediately on written notice terminate the Contract.

JD Security to be sole Response Provider

1. Subject to paragraph 5.2 below, the Customer agrees that JD Security will be the sole Response Provider, excluding Emergency Services and the Customer or its agents, for the Term.
2. The Customer may notify JD Security in writing of any third-party Response Provider that the Customer wishes to engage. However, JD Security:
   1. may, at its absolute discretion, choose to accept or reject the nomination; and
   2. will require, as a condition of any acceptance of a nomination by the Customer, that the Customer sign and return to JD Security a liability waiver in the form provided by JD Security. A copy of the third-party liability waiver is available upon request.

Warranty by JD Security

1. JD Security warrants that it will exercise reasonable care and skill in providing the Video Monitoring Services.
2. JD Security does not warrant that:
   1. the Video Monitoring service will render the Monitored Premises or any occupant therein secure;
   2. the Video Monitoring Service will detect or prevent damage to property or injury to person whether by fire, smoke, flood or any other event; or
   3. a Response Provider will respond to an Incident or System Fault in time to prevent injury, damage or losses.

The Customer’s Duties and Warranties

Generally

1. The Customer agrees:
   1. to contract to engage and pay for a Response Provider pursuant to the Monitoring Agreement if the Customer’s Response Plan includes an action or request which requires utilisation of a Response Provider.
   2. to use its best endeavours to ensure that any contacts who have been nominated in the Response Plan are contactable at all times;
   3. accept JD Security’s recommendations to amend the Response Plan where the recommendation arises from repeated false Incidents (whether or not this has already resulted in Emergency Services issuing fines or charges for attendances to false Incidents). The Customer’s failure to accept the recommendations which make the continued performance of the services unpracticable or inappropriate, will entitle JD Security to terminate the Contract.
   4. to comply with all product manufacturer’s operating and maintenance instructions in relation to the System as per the manufacturer’s recommendations;
   5. to fix any defects without delay and do all things necessary to maintain the System in good working condition including but not limited to recharging or replacing batteries on a timely basis;
   6. to notify JD Security of any material changes to the Monitored Premises that may interfere or otherwise compromise the operation of the System;
   7. to allow JD Security to view the Monitored Premises for the purposes of System Testing at any time without notice to the Customer;
   8. to not remove any SIM card or cards that have been supplied to provide a 4G service from the Monitored Premises to JD Security’s Monitoring Centre;
   9. to not disclose, provide or divulge any information to any person or persons directly or indirectly that may affect the correct operation of the System as a result of unauthorised arming, disarming or tampering thereof;

Illumination

2. The Customer acknowledges that good illumination of the camera’s field of view is essential for the provision of Video Monitoring.
3. The Customer agrees that:
   1. the Customer is responsible for maintaining illumination at the Monitored Premises in accordance with the manufacturer’s recommendations provided with the cameras;
   2. where natural illumination is inadequate for images to be used the Customer must provide adequate artificial illumination in accordance with the manufacturer’s recommendations provided with the cameras;
   3. the Customer will not direct any artificial illumination devices so that they shine directly into a camera’s field of view;
   4. the Customer will maintain any lamps or light bulbs as required (including by replacing them) to ensure that there is adequate illumination in accordance with the manufacturer’s recommendations provided with the cameras;
   5. the Customer will regularly check the operation and effectiveness of illumination. JD Security recommends that those checks be undertaken weekly; and
   6. the Customer will ensure that any clock which is used to control artificial illumination is adjusted in accordance with daylight saving time, if applicable.
4. Where 7.2 and 7.3 are not satisfactory in JD Security’s opinion, JD Security reserves the right to suspend monitoring of any “dark camera”, by written notice to the Customer (whereupon clause 4.1(c) applies), until such time as the Customer advises JD Security in writing that the illumination has been restored.

Acknowledgments by the Customer

Matters made known to the Customer prior to entry into the Contract

1. The Customer acknowledges and agrees that prior to entering into this contract the Customer was made aware of the following:
   1. the fees are based solely on the cost and value of supplying the services provided and are unrelated to the value of the Customer’s property or the property of others located in the Monitored Building;
   2. JD Security has recommended that the Customer take out appropriate insurances to cover the risk of loss or damage to property and injury and death to persons;
   3. the Customer cannot require JD Security to supply performance records, history, or other reports to anyone who is not a party to this Contract, except where required by law;
   4. while JD Security will take reasonable steps to ensure the security of the Data, JD Security cannot ensure protection against compromise of that Data;
   5. JD Security’s performance of the Services are subject to receiving the Customer’s clear instructions through the Response Plan;
   6. performance of the Services are subject to and conditional upon the Customer’s performance of its obligations under these terms and conditions;
   7. the System installed in the Monitored Premises may not prevent unlawful entry occurring, loss or damage to property, or death or injury to persons even though JD Security’s obligations to the Customer under the Contract and these terms and conditions have been satisfied; and
   8. the Customer ought to ensure that the Monitored Premises are protected by a variety of security protocols in addition to and not only through the Contract and the Monitoring Agreement; and
   9. the Customer ought to engage and install appropriate additional security measures commensurate with the risks and value at stake to the Customer which risk and value the Customer acknowledges is not known to JD Security.

JD Security recommends the use of back-up communication options

2. The Customer acknowledges that:
   1. unless the Customer has a back-up communication option for redundancy purposes, the System uses a single primary communication path to the Monitoring Centre;
   2. should the primary communication path referred to in clause 8.2(a) fail, for whatever reason, JD Security will not be aware of such failure until such time as it becomes apparent through system testing that the System is not communicating with the Monitoring Centre; and
   3. accordingly, JD Security recommends that the Customer obtain a back-up communication option for redundancy purposes communication error between JD Security and the System.

Limitation of liability

1. The Customer agrees that JD Security is not liable for loss or damage suffered by the Customer:
   1. arising from or in connection with the conduct, failure, neglect, or refusal of any Customer contact person, public authority or Emergency Service (or any of their personnel);
   2. arising from acts or omissions by the Customer (including those arising from mistakes or errors made by the Customer in providing the names or telephone numbers designated as contacts to be notified by JD Security);
   3. to the extent that loss or damage arises from any breach of the Customer’s Duties and Warranties at clauses 7.1(b), (c), (d), (e), (f), (g), (h) and (i) and 7.3 and 8.1(b), (h) and (i) above or any other fault of the Customer;
   4. arising out of any delays by the Customer in providing the Response Plan which delays the commencement of the provision of Video Monitoring;
   5. acts or omissions undertaken in reliance upon any information and specifications provided by the Customer which turns out to be incorrect, false or unreliable;
   6. during any period in which JD Security’s obligations are suspended pursuant to clause 4.1, 7.4 or 12.4, including (but not limited to) loss or damage arising out of non-action by JD Security during any such period;
   7. arising out of any matters which are not the fault of, or which are out of the control of, JD Security, including, but not limited to:
      1. power outages;
      2. failures in communications and transmissions networks (including but not limited to telephone lines, cellular data and internet) which may prevent:
         1. the Monitoring Centre from being able to receive transmissions (including from any cameras at the Monitored Premises);
         2. JD Security from contacting the Customer’s nominated contact or Response Providers;
         3. the Customer or their nominated contact from being able to contact JD Security; and
      3. weather conditions,
      4. mechanical breakdowns or malfunctions,
      5. storm, earthquake, strikes lockouts and labour disputes of whatever type, an Act of God, war (whether declared or not), acts of terrorism, acts (administrative or legislative) of any government, riot or civil commotion, fire, explosion
   8. arising from defective Systems, alarms or cameras or Systems, alarms or cameras which are not properly installed or operated as these terms and conditions relate only to video monitoring;
   9. in respect of ultra vires acts by the Customer or its agents, directors or employees; and
   10. in respect of damage in relation to the plant, equipment, stock, fixtures and fittings and furnishings of the Customer (and of any person claiming through or under the Customer) contained in or about the Monitored Premises, unless arising out of JD Security’s negligence

Exclusion of consequential loss

2. Subject to clause 9.3, no party is liable to the other for indirect and consequential losses including loss of revenue, loss of profits, loss of anticipated savings and loss of opportunity.
3. The exclusion in clause 9.2 does not apply to:
   1. liability or costs for a breach of any of clauses 5, 7, 8 or 12 by the Customer.
   2. liability which causes bodily injury.
4. JD Security will not be liable to the Customer or its Personnel for any Liability arising out of or in connection with the Products or Services or this Contract, other than Liabilities caused by the negligence of JD Security and other than Liabilities which JD Security is not capable of excluding at law.
5. To the extent that JD Security is liable, such loss and damage is capped at the total value of this Contract for the balance of the fixed term.

Consumer guarantees

1. Nothing in these terms and conditions should be construed as seeking to exclude or limit the operation of the Australian Consumer Law. To the extent that any clause of these terms and conditions inadvertently has the effect of excluding or limiting the operation of the Australian Consumer Law, it has no effect but does not affect the operation of the remainder of these terms and conditions.
2. Notwithstanding anything else in these terms and conditions, and to the extent permitted by law, JD Security’s responsibility for any Liability is limited to resupply of the specific Service which is found to be defective or as otherwise agreed.
3. The supply of products & services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.

Merger

1. Clauses 9 and 10 survive termination of this contract.

Fees and other charges

1. Clause 12 is an essential term of the Contract.

Fees under the Contract

2. The Customer agrees to pay the Fees as and when they fall due without deduction or setoff. Standard payment terms are Net end-of-month.
3. The Customer agrees that:
   1. if the direct and/or indirect cost of JD Security providing the services (or any other work under the Contract) increases at any time after the date of the Contract for any reason, including but not limited to any change to any applicable award or telecommunication charges, then JD Security may;
      1. during the Initial Term, on the anniversary of the Contract increase its Fees but upon giving at least 3 months written notice to the Customer; and
      2. after the Initial Term, increase its Fees upon giving 3 months written notice to the Customer at any time;
   2. in the event that the Fees are increased by JD Security under clause 11.3(a) and the Customer does not agree to pay the fee increase, the Customer may terminate the contract under clause 15.3.
4. If the Customer fails to pay any Fees by the due date, JD Security may, at its option, do any or a combination of the following:
   1. charge interest after 30 days in accordance with the pre-judgment interest regime applicable to New South Wales Courts under s 100 of the Civil Procedure Act 2005 (NSW);
   2. suspend the performance of its obligations under this Contract until such times as all due payments have been made;
   3. terminate this Contract forthwith by notice in writing to the Customer; or
   4. hand the debt over to a commercial recovery agent for the recovery of which such recovery shall also include the recovery agents’ fees.

Emergency Services and related disbursements.

5. If the Response directed by the Response Plan results in any cost, charge or fine imposed by Emergency Services, public authority or the Response Provider, whether the liability is addressed to JD Security or the Customer, the Customer agrees to pay or reimburse JD Security for the liability within 14 days of receipt. The Customer agrees to pay the liability regardless of the success, failure, the attendance or non attendance at the Monitored Premises or building by the Emergency Services, public authority or Response Provider.
6. The failure to pay such amounts owing to JD Security within 14 days of JD Security notifying the Customer of such fees or expenses having been incurred, entitles JD Security to take any of the steps in clause 12.4 above.

Assignment

1. The Customer will not assign its rights or transfer its obligations contained herein without first obtaining the prior written consent of JD Security. Such consent shall not be unreasonably withheld.
2. JD Security may transfer or assign any or all of its rights or obligations at any time without the Customer’s consent but must provide 14 days notice of the transfer or assignment.
3. Upon receipt of the notice under clause 13.2, the Customer may terminate the Contract with 30 days notice.

No waiver of JD Security’s rights

1. No waiver of any or all of these conditions at any time or indulgence granted to the Customer shall prejudice any rights which JD Security has, or may have had, nor the subsequent exercise of any rights by JD Security.

Term and Termination

Term

1. The Contract will remain in force for the Initial Term, and if the automatic renewal option is selected in the Contract, the Contract will be automatically renewed after the Initial Term for the same duration as the Initial Term under JD Security’s then current terms and conditions.

Termination generally

2. The Customer or JD Security may terminate the Contract immediately on written notice if the other party:
   1. becomes bankrupt or insolvent;
   2. makes any arrangement or composition with its creditors;
   3. has a receiver or manager appointed over any part of its undertaking or assets;
   4. has any petition presented for its winding up or goes into liquidation on a voluntary or compulsory basis;
   5. has an administrator appointed; or
   6. is, on the balance of probability (based on the evidence available to the party making the assessment), likely to be insolvent.
3. In addition to the circumstances at clauses 4.1, 12.3 and 12.4, after the Initial Term either party may terminate the Contract by 3 months written notice to the other party.
4. Upon termination of the Contract:
   1. the Customer’s right to receive any services under the Contract and access their Data shall cease;
   2. the Customer remains liable to pay any outstanding Fees to JD Security.

Termination during the Initial Term

5. If this contract is terminated during the Initial Term for any reason, the Customer is liable to immediately pay as full and final settlement of the termination, to JD Security, on demand, a sum equal to the balance of service fees which would be payable pursuant to the Contract plus the balance of any monies outstanding.
6. The Customer remains liable to pay on an indemnity basis to JD Security all expenses, damages and loss reasonably and properly incurred by reason of the early termination, any antecedent breach and any recovery action.

Applicable Law

1. The Contract (including these terms and conditions) are governed by the laws of New South Wales.

Notices

1. Any notices to be given herein may be served on either party by registered post, by delivering the notice to the address of the party or by email.
2. JD Security accepts notices from the Customer sent to:
   1. the following email address: [[email protected]]; and
   2. the following postal address: [PO Box 7100 Wetherill Park NSW 2164].
3. Where service is made by post service shall be deemed to have occurred two working days after the notice was first posted.
4. Where service is made by email, service is deemed to be effected when the sending party’s email server indicates that the email has been sent and there is no failure notification.

GST

1. The Fees and Charges shown in the Contract do not include GST.
2. The Customer will, if JD Security is or becomes liable to pay GST in respect of any supply made under or in connection with this Contract, pay to JD Security an amount equal to ten percent (10%) (or as otherwise appliable by law from time to time) of the fees and charges payable under this Contract.
3. The GST amount will be notified by JD Security to the Customer and must be paid by the Customer to JD Security in the same manner and at the same time as the rest of the Fees and Charges.
4. Clause 18 is an essential term of the Contract.