TERMS AND CONDITIONS
1.1 In these Terms of Trade the following definitions apply:
'Client' means the client to whom Tony's Termites & Pest Control shall provide the Works.
'Call out Fee' means the sum of $400.00 per man per day, or as otherwise agreed in writing between the parties.
'Deposit' means an amount equal to thirty percent (30%) of the total Fee payable by the Client.
'Fee' means the total amount payable by the Client to Tony's Termites & Pest Control for the Works (Services) provided pursuant to the Quote.
'Invoice' means the invoice(s) issued by Tony's Termites & Pest Control in relation to the provision of the Services by Tony's Termites & Pest Control to the Client.
'Tony's Termites & Pest Control' means AAP Pest & Termite Solutions Pty Ltd trading as Tony's Termites & Pest Control (ABN 93 136 335754).
'Order' means any order made by the Client for the provision of Works pursuant to the Quote.
'Quote' means the Quotation accepted by the Client for the provision of the Works by Tony's Termites & Pest Control.
'Services' means the provision of services by Tony's Termites & Pest Control to the Client as set out in the Quote, including the Works.
'Terms of Trade' means the terms as set out in these Terms and Conditions.
'Works' means those pest control works, and/or other works to be provided by Tony's Termites & Pest Control to the Client as set out in the agreed Quote.
2.1 The Client engages Tony's Termites & Pest Control and Tony's Termites & Pest Control accepts that appointment and will carry out the Services on the terms and conditions set out herein.
2.2 Each Quote and/or request for Services made by the Client to Tony's Termites & Pest Control shall constitute an "Order" pursuant to these Terms and Conditions, and the Client further agrees that by placing the Order that it agrees to be bound by these Terms and Conditions.
3.1 In consideration of payment of the Deposit and the Fee, Tony's Termites & Pest Control agrees to provide the Services as set out in the Quote.
3.2 The Client shall not be entitled to revoke or cancel any Order after Tony's Termites & Pest Control has commenced the Works (and subject to Clause 8 herein) and on terms which shall indemnify Tony's Termites & Pest Control against any loss or damage caused by such cancellation or variation of the Order made by the Client.
4 Obligations of Tony's Termites & Pest Control
4.1 Tony's Termites & Pest Control must:
(a) provide the Services with a high degree of diligence, quality and efficiency, devote its time, attention and skill to the performance of the Services
(b) whilst so providing the Services, remain an independent contractor at all times and, as such:
(i) assume full responsibility for their acts and omissions; and
(ii) be solely responsible for any payments in respect of any employment benefits payable, including any sick leave, long service leave, superannuation, workers' compensation, accident, sickness and life insurance; and
(iii) provide all necessary tools to carry out the Services.
4.2 The Client agrees and acknowledges that Tony's Termites & Pest Control may contract the services of internal and external contractors, consultants, employees, and agents to undertake and assist in the delivery of the Services.
5 Obligations of the Client
5.1 The Client agrees that it shall provide sufficient details, material, clear worksite and information ("Client Information") to Tony's Termites & Pest Control as reasonably requested by Tony's Termites & Pest Control to allow it to carry out the Services.
5.2 The Client agrees to provide a clear and safe worksite to Tony's Termites & Pest Control in order for it to properly carry out the Services.
5.3 The Client agrees to supply the Client Information to Tony's Termites & Pest Control within a reasonable time frame after execution of this Agreement, or after request from Tony's Termites & Pest Control.
5.4 The Client agrees and acknowledges that any delay caused by the Client failing to provide the Client Information or a clear worksite to Tony's Termites & Pest Control may cause delay to the provision of Services by Tony's Termites & Pest Control. Further, the Client agrees that Tony's Termites & Pest Control shall not be liable for any delay to provision of the Services caused by the failure of the Client to provide the Client Information in a timely manner.
5.5 The Client agrees that in the event that the worksite is not ready for Tony's Termites & Pest Control to commence the Works and Services on the day scheduled between the parties (for example and including but not limited to, other trades have not finalised their works, the surfaces have not been sufficiently prepped, that the area has been damaged by another trade or person, and the like), then in the event that Tony's Termites & Pest Control attends the site and the site is not ready then the Client agrees:
(a) that it shall re-schedule a time for Tony's Termites & Pest Control to re-attend the site to carry out the Services at a time convenient to Tony's Termites & Pest Control; and
(b) that it shall pay Tony's Termites & Pest Control a minimum Call Out Fee as agreed in the Quote and/or herein.
6 Fees and Invoices
6.1 TheClient agrees to pay to Tony's Termites & Pest Control the Fees (including Deposit) plus GST as set out in the Quote.
6.2 Tony's Termites & Pest Control shall provide to the Client invoices for Services provided as follows:
(a) showing the amount payable to Tony's Termites & Pest Control; and
(b) the invoice shall be a tax invoice in accordance with applicable tax legislation.
6.3 In the event that the Client wishes additional Works to be carried out by Tony's Termites & Pest Control, then the Client agrees that those additional works shall incur additional fees and charges, in addition to those set out in the Quote.
7 Refunds and Replacement
7.1 Tony's Termites & Pest Control will only exchange a Payment where Tony's Termites & Pest Control has made a fundamental error or mistake, in which case the exchange shall be limited to a replacement or reparation of the Services.
7.2 Replacement of the Services will only be provided where the Client can fundamentally show that the damage, error, and/or mistake was made by Tony's Termites & Pest Control and not by any other trade, worker, or service provider providing works on the worksite after the provision of Services of Tony's Termites & Pest Control. In the event that this cannot be shown, then Tony's Termites & Pest Control shall have no further liability against the Client.
8 Cancellation and Amendments
8.1 In the event that the Quote has been accepted and returned to Tony's Termites & Pest Control, and the Client cancels the Works less than seven (7) days before the Works are due to commence, then Tony's Termites & Pest Control shall be entitled to retain the Deposit.
8.2 In the event that the Client decides to amend or change any specifications in respect to the Services ordered after the Quote has been provided to Tony's Termites & Pest Control, the Client agrees that such request for amendments to the specifications shall be made in writing to Tony's Termites & Pest Control, and that the Client shall cover any additional costs incurred by Tony's Termites & Pest Control, and additional Fees charged by Tony's Termites & Pest Control in respect to those variations shall be payable by the Client.
8.3 It is agreed that all colour decisions shall be made and agreed prior to acceptance of the Quote, and that any variations to colour, or any other variations to the agreed Works, shall incur additional Fees and charges.
9 Personal Property Securities Act 2009 ("PPSA") and Security
9.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Client and the Tony's Termites & Pest Control by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all materials previously supplied (if any), and that will be supplied in the future, by the Tony's Termites & Pest Control to the Client;
(ii) any monetary obligations owed by the Client to the Tony's Termites & Pest Control for the provision of the Works.
9.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Tony's Termites & Pest Control may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii).
(b) indemnify, and upon demand reimburse, the Tony's Termites & Pest Control for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Tony's Termites & Pest Control;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the materials and/or Works in favour of a third party without the prior written consent of the Tony's Termites & Pest Control; and
(e) immediately advise the Tony's Termites & Pest Control of any material change in its business practices of selling the materials which would result in a change in the nature of proceeds derived from such sales.
9.4 The Tony's Termites & Pest Control and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by the Tony's Termites & Pest Control, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Client shall unconditionally ratify any actions taken by the Tony's Termites & Pest Control under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary (including those contained in this clause 9) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
10 Default and Consequences of Default
10.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of thirteen percent (13%) per calendar month (and at the Tony's Termites & Pest Control's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
10.2 If the Client owes the Tony's Termites & Pest Control any money the Client shall indemnify the Tony's Termites & Pest Control from and against all costs and disbursements incurred by the Tony's Termites & Pest Controlling recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Tony's Termites & Pest Control's contract default fee, and bank dishonour fees).
10.3 Further to any other rights or remedies the Tony's Termites & Pest Control may have under this Contract, if the Client has made payment to the Tony's Termites & Pest Control, and the transaction is subsequently reversed or cancelled, the Client shall be liable for the amount of the reversed or cancelled transaction, in addition to any further costs incurred by the Tony's Termites & Pest Control under this clause 10, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client's obligations under this Contract.
10.4 Without prejudice to any other remedies the Tony's Termites & Pest Control may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Tony's Termites & Pest Control may suspend or terminate the provision of Works to the Client. The Tony's Termites & Pest Control will not be liable to the Client for any loss or damage the Client suffers because the Tony's Termites & Pest Control has exercised its rights under this clause.
10.5 Without prejudice to the Tony's Termites & Pest Control's other remedies at law, the Tony's Termites & Pest Control shall be entitled to cancel all or any part of the Works which remains unperformed and all amounts owing to the Tony's Termites & Pest Control shall, whether or not due for payment, become immediately payable in the event that:
(a) the Client becomes unable to pay their debts or bankrupt; or
(b) enters into an arrangement with, or makes an assignment for the benefit of their creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of any asset of the Client.
10.6 Notwithstanding, and in addition to, the rights contained in clause 9 above, the parties agree that any debt and/or default incurred by a Client pursuant to this agreement shall be considered a secured debt, and the Client hereby consents and agrees that Tony's Termites & Pest Control may at any time whilst the Client owes any monies and/or debt to Tony's Termites & Pest Control lodge a caveat over any real property owned by the Client in order to protect its interests.
11 Relationship of Parties
11.1 The relationship between the Client and Tony's Termites & Pest Control is that of a principal and an independent contractor. Nothing in this Agreement will constitute or deem Tony's Termites & Pest Control to be an employee of the Client nor will anything in this Agreement be construed as creating an employment relationship between the Client and Tony's Termites & Pest Control.
12.1 To the extent permissible by law, Tony's Termites & Pest Control makes no representations, whether express or implied, as the merchantability, condition, durability or fitness for purpose for which the Services are used. Further any implied warranty as to latent defects is expressly excluded.
12.2 Without limiting the foregoing, Tony's Termites & Pest Control shall provide a twelve (12) month workmanship warranty. Such workmanship warranty shall be strictly limited to faulty workmanship, and in this event Tony's Termites & Pest Control agrees to replace or repair the faulty Services as its sole discretion. This workmanship warranty shall expressly exclude loss or damage caused by gross negligence or wilful misconduct of the Client, and shall be expressly limited to a period of no more than twelve (12) months after provision of the Services.
12.3 Otherwise the Services are covered by the warranties of Tony's Termites & Pest Control's suppliers and it shall be the sole responsibility of the Client to contact and seek the redemption of said warranties directly with those suppliers.
12.4 Tony's Termites & Pest Control warrants that all Services provided are in accordance with industry and manufacturing standards.
12.5 The warranties contained herein shall not be read or applied so as to purport to exclude, restrict or modify the application in respect to the supply of Goods or services pursuant to these Terms of Trade of any or all of the provisions of the Competition and Consumer Act 2010 (Cth) ("CCA") or any other statute of any state or territory of Australia which by law cannot be excluded or modified.
13 Limitation of Liability
13.1 Except as provided for in this Agreement, Tony's Termites & Pest Control makes no representation of any kind, express or implied with respect to the delivery of the Services.
13.2 To the extent that any warranty is made, the sole and exclusive remedy for breach of any warranty is that Tony's Termites & Pest Control re-provide the Service(s).
13.3 The Client agrees to indemnify, defend and hold harmless Tony's Termites & Pest Control, its related entities, shareholders, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss damage, demand or expense (including reasonable legal costs) asserted by any third party due to, arising from, or in connection with any breach by either party of the terms of this Agreement. This includes, without limitation, any representation or warranty contained herein, any fraudulent conduct committed or negligence by either party, all liabilities related to the Services, any investigation or government claim, and/or any intellectual property claims associated with any and all copy and images supplied by either Party and its associated use thereof.
13.4 No action arising under or relating to this Agreement, regardless of its form, may be brought by either Party more than twelve (12) months after the cause of action has accrued and in any event, no later than twelve (12) months after the provision of Services, except for an action for non-payment brought by Tony's Termites & Pest Control.
13.5 Tony's Termites & Pest Control shall bear no liability whatsoever under or in any way related to this Agreement for any loss, loss of profit, or revenue or for any consequential, indirect, incidental, or exemplary damages.
13.6 If Australian Consumer Law or any other legislation implies a condition or warranty into this Agreement in respect of the Services supplied, and Tony's Termites & Pest Control's liability for breach of that condition or warranty may not be excluded but may be limited, Clause 13.1 does not apply to that liability and instead Tony's Termites & Pest Control's liability for such breach is limited to Tony's Termites & Pest Control supplying the services again or paying the cost of having the services supplied again by a third party.
14 This Agreement
14.1 This Agreement shall be subject to the laws of the Queensland, and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Queensland.
14.2 Any provision of, or the application of any provision of, this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
14.3 Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
14.4 If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
14.5 The failure of either party at any time to require performance by the other party of any provision of this Agreement does not affect the party's right to require the performance at any time.
14.6 The waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.
14.7 This Agreement supersedes all previous agreements, arrangements, understandings, representations or any other communication in respect of the subject matter of this Agreement and embodies the entire agreement between the parties.
14.8 This Agreement may not be changed or modified in any way subsequent to its execution except in writing signed by the parties.
14.9 In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words with a capital letter where defined in this Agreement have that meaning;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and vice versa;
(f) a reference to anything (including, but not limited to, any right) includes a part of that thing;
(g) a reference to a party in a document includes that party's successors and permitted assigns;
(h) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(i) a reference to a document or agreement includes all amendments or supplements to, or replacements or novations of, that document or agreement.
General Website Terms and Conditions
This website and the information presented on it and any associated online products distributed are provided by Tony's Termites for information only. The information provided is on an all care no responsibility basis, that is, it is provided solely on the basis that readers will be responsible for making their own assessment of the matters discussed herein and is accurate to the best of our ability. Readers are advised to verify any representation, statements and information to their own satisfaction from alterative sources.
Tony's Termites does not accept liability to any person for the information or advice provided in this website or incorporated into it by reference or for any loss or damage incurred as a result of reliance upon the material in this website.
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Unless expressly provided otherwise, all Website Material is the property of Tony's Termites unless indicated otherwise. Tony's Termites grants to you the right to reproduce the Website Material for non-commercial purposes, provided you acknowledge the ownership of the Website Materials by the Tony's Termites and the Website Material is not altered substantially or in any material way.
Where Tony's Termites expressly states that any Website Material is not the property of Tony's Termites, Tony's Termites does not, and does not purport to, allow, encourage, promote or otherwise permit the copying, reproduction or dissemination of the Website Material (other than in the course of viewing this Website). Tony's Termites remind readers that permission for such uses must be obtained from the copyright owner.
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