General Terms & Conditions
DURATION AND TERMINATION
1.1 This Agreement shall commence on the date specified in the SA as the Commencement Date. To the extent that this Agreement relates to work described in the SA as a Job (“Jobwork”), the Agreement shall terminate in respect of Jobwork on completion of the Jobwork. For all other Services this Agreement shall continue for the minimum period specified in the SA (the Minimum Period’) and thereafter until terminated by either party giving not less than 3 months’ notice to the other such notice to expire no earlier than the end of the Minimum Period or on any subsequent anniversary date thereafter, subject to this clause 2 and clauses 3 and 7.
1.2 PEST PROS shall have the right without prejudice to any other right or action, to terminate this Agreement forthwith
1.2.1 if the Customer:
(a) fails to observe and perform any material term of this Agreement and where such breach is capable of remedy fails to correct any notified breach within 7 days from the date of such notification: or
(b) is adjudged bankrupt,
(c) convenes a meeting with its creditors or if a proposal shall be made or a proposal for any composition or scheme or arrangement with (or assignment for the benefit of) its creditors;
(d) is unable to pay its debts or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Customer, or if a petition is presented for a bankruptcy order or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Customer or for the making of an administration order
(otherwise than for the purpose of an amalgamation or reconstruction; or
1.2.2 in the circumstances set out in clause 3.7 and/or clause 7; or
1.2.3 if credit references relating to the Customer are obtained which are unsatisfactory to PEST PROS.
1.3 If the Customer purports to terminate this Agreement whether in respect of some of the Services (excluding Jobwork, where the provisions of clause 2.5 shall apply) or all of them before expiry of the Minimum Period, or where PEST PROS terminates this Agreement during the Minimum Period pursuant to clause 2.2, the Customer shall upon demand pay to PEST PROS compensation calculated as follows:-
Termination during year 1 of the Minimum Term 80% of the aggregate charges payable by the Customer for the terminated Services until the first anniversary of the Commencement Date and 30% of the charges for the remainder of the Minimum Period;
Termination during year 2 or any subsequent year of the Minimum Term 30% the aggregate charges payable by the Customer for the terminated
Services for the remainder of the Minimum Period.
1.4 Where the Customer terminates this Agreement on or after expiry of the Minimum Period in breach of clause 2.1 either by failing to serve any notice of termination or by serving less notice than is specified in clause 2.1, the Customer shall be liable to pay PEST PROS compensation which together with the payments actually received by PEST PROS during the period of notice given by the Customer (if any) are equal to the charges the Customer would have paid to PEST PROS had it given the notice required by clause 2.1.
1.5 To the extent that the Customer terminates this Agreement in relation to Jobwork which has not been completed or where PEST PROS terminates this Agreement pursuant to clause 2.2 and Jobwork has not been completed, the Customer shall forthwith pay to PEST PROS on receipt of invoice 100% of the charges due for the Jobwork completed to termination as well as any other committed and irrecoverable costs such as the cost of equipment, preparations and other materials.
GENERAL OBLIGATIONS
2.1 Tank Pipe and Drain Longford Ltd t/a PEST PROS shall carry out the services and/or work (“Services”) as specified in the attached Service Agreement (“SA”) for and on behalf of the company, firm or individual identified as the customer in the SA (“Customer”). and subject to these General Terms and Conditions. The SA and these General Terms and Conditions shall constitute the “Agreement”.
2.2 The Customer shall:
(a) provide access for PEST PROS’s representatives to carry out its Services at any reasonable time or as specified in the SA.
(b) provide all facilities at the premises that PEST PROS may reasonably require to carry out the Services.
(c) fully follow and comply with any recommendations made by PEST PROS, its employees or agents particularly in relation to the maintenance of good levels of food and waste hygiene;
(d) permit PEST PROS to make an additional charge at its normal hourly rate for any wasted journeys as a result of the Customer’s failure to allow access, or to provide proper instruction;
(e) pay PEST PROS at its normal hourly rate for any remediation work, visits or call outs which are required because the customer has failed to act upon or implement any recommendations made by PEST PROS.
2.3 PEST PROS shall at regular intervals carry out the minimum number of visits per annum specified in the SA. Where in any 12 month period PEST PROS has failed to complete the required minimum visits and provided the Customer has complied with its obligations under this agreement, including, in particular its obligations under clause 1.2, PEST PROS shall issue a credit to the Customer calculated on a pro rata basis but with appropriate deductions in respect of set up costs, materials and equipment costs, service support and maintenance costs and also taking into account the number of non-routine visits such as call out and follow up visits the Customer has received.
PAYMENTS
3.1 The initial charges payable by the Customer for the Services are detailed in the SA subject to any additional charges that PEST PROS may apply pursuant to clause 1.2(d) and/or any adjustments in accordance with this clause 3.
3.2 PEST PROS shall be entitled to increase the charges at any time after the first anniversary of the Commencement Date by giving the Customer at least 28 days prior written notice of such increase.
3.3 The charges are based on the number of items or services to be provided. If PEST PROS agrees to accept a reduction or cancellation of any part of the Services to be provided any adjustment to the charges shall be at PEST PROS’s discretion, due account being taken of any saving to PEST PROS as a result of such reduction or cancellation.
3.4 If at any time during the period of this Agreement there is an increase in PEST PROS’s operating costs as a result of:
(i) increases to the cost of fuel, utilities, capital equipment and any other materials;
(ii) any change to or the introduction of any tax or levy imposed on PEST PROS by any government agency or other statutory or similar body (other than any tax on PEST PROS’s profits); or
(iii) any statutory increase to employment costs,
then PEST PROS shall be entitled to increase the charges pro rata to such increase with effect from the expiry of 28 days’ notice from PEST PROS to the Customer of the increase.
3.5 Payments will be due in advance, the first payment being due on the Commencement Date and each subsequent payment at the intervals specified in the SA, unless otherwise agreed in writing.
3.6 The standard method of payment is by direct debit. PEST PROS reserves the right to charge an administration fee where a Customer elects to pay its invoices other than by direct debit.
3.7 If any payment to be paid by the Customer to PEST PROS under this Agreement is unpaid for a period of 30 days after it has become due PEST PROS may at anytime thereafter give the Customer 7 days notice to terminate or suspend this Agreement and unless such overdue sum has been paid before the expiration of such notice PEST PROS shall, without the need for the giving of further notice, have the absolute right at any time thereafter to either suspend the provision of the Services until payment in full is received or to terminate this Agreement without prejudice to the liabilities of the Customer to PEST PROS.
3.8 Where payment of any invoice is not made by the due date PEST PROS shall be entitled to recover interest at the rate of 3 percent above the base rate of Bank of Ireland applicable from time to time, such interest to accrue on a daily basis from the due date for payment until payment is made whether before or after judgment.
EQUIPMENT OBLIGATIONS
Rental Equipment” means that equipment identified as such in the SA.
“Replacement Value” means the full cost of replacing the item at the time the loss is sustained.
4.1 PEST PROS’s Obligation
As part of the Services, PEST PROS will conduct any repairs necessary to keep the Rental Equipment in good working order provided that :
(a) the Customer is not in default of any of its obligations under this Agreement; and
(b) such repairs are not necessitated as a result of
(i) wilful or careless damage, negligence, mishandling, tampering or any unauthorised repairs by or on the part of the Customer, its employees, sub-contractors or agents; or
(ii) vandalism
4.2 The Customer shall
(a) not sell, part with possession of, pledge or otherwise dispose of any Rental Equipment. The Customer shall take no action inconsistent with PEST PROS’s ownership of the Rental Equipment.
(b) insure the Rental Equipment in the joint names of PEST PROS and the Customer for its Replacement Value against all risk of loss or damage;
(c) insure against injury (including death) to any persons or for loss of or damage to property as a result of the Customer’s default or negligence.
(d) immediately notify anyone claiming possession of the Rental Equipment that it belongs to PEST PROS.
(e) comply with all statutory and safety requirements relating to the use of the Rental Equipment.
(f) notify PEST PROS immediately of any damage, destruction or loss to or of any Rental Equipment.
(g) not at any time permit any Rental Equipment to be removed, repaired or maintained other than by PEST PROS or its authorised representative.
(h) not remove any labels or signs indicating that the Rental Equipment belongs to PEST PROS.
(i) not use in any dispensing machine supplied by PEST PROS materials other than those supplied by PEST PROS.
4.3 Removal of Rental Equipment
The Customer will allow any person authorised by PEST PROS to enter any premises owned or occupied by the Customer at all reasonable times to inspect the Rental
Equipment and to remove the Rental Equipment upon termination of this Agreement howsoever such termination shall arise. If upon termination of this Agreement, PEST PROS is unable for any reason to recover the Rental Equipment (other than where solely due to the default of PEST PROS or its employees) the Customer will be liable for the Replacement Value of the Rental Equipment which has not been recovered, such charges being payable immediately upon invoice from PEST PROS. PEST PROS will exercise all reasonable care in removing the Rental Equipment from the Customer’s premises but will not be responsible for restoring that part of the premises (including any services such as electrical supply) where the Rental Equipment was installed to its original state.
4.4 PEST PROS shall have the right to replace any item of Rental Equipment at any time at its sole discretion provided that the replacement item is of an equivalent or better standard that the Rental Equipment. Items which replace Rental Equipment shall, upon replacement, be subject to these terms and conditions.
OWNERSHIP AND RISK IN GOODS SOLD
5.1 Risk of damage to or loss of any goods sold to the Customer or any Rental Equipment (“Goods”) shall pass to the Customer upon delivery.
5.2 Notwithstanding delivery and the passing of risk in any Goods, the property in the Goods shall not pass to the Customer until PEST PROS has received in cash or cleared funds payments in full of the price of the Goods and in respect of any other payment due to PEST PROS by the Customer.
5.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as PEST PROS’s fiduciary agent and bailee and keep the Goods separate from that of the Customer and third parties and properly
stored, protected and insured and identified as PEST PROS’s property but the Customer shall be entitled to use the Goods in the ordinary course of its business.
5.4 Until such time as the property in the Goods passes to the Customer, and provided the Goods are still in existence, PEST PROS shall be entitled at any time to require the Customer to deliver up the Goods to PEST PROS and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and dismantle and repossess the Goods.
- LIABILITY – THE CUSTOMER’S ATTENTION IS SPECIFICALLY DRAWN TO THIS CLAUSE
6.1 Nothing in this Agreement affects the statutory rights of the Customer. Subject thereto all representations, warranties, guarantees and conditions express or implied, statutory or otherwise are expressly excluded and PEST PROS does not accept liability for loss, damage, or injury howsoever arising save as specified in this clause below:
(a) personal injury or death which is a direct result of PEST PROS’s negligence in the course of carrying out the Services and in particular (without limitation) the statutory rights of the Customer pursuant to sections 12, 13, 14 and 15 of the Sale of Goods Act 1893 (as amended) and section 39 of the Sale of Goods and Supply of Services Act 1980 ; and
(b) physical damage to property which is the direct result of PEST PROS’s negligence or breach of contract in carrying out the Services up to a limit of €20,000 for any one occurrence or series of occurrences arising from a similar cause; and
(c) replacement or (at PEST PROS’s option) repair of Goods or components comprised therein which are defective or unsuitable for the purpose due to faulty workmanship, design or materials.
6.2 The Customer shall not be entitled to make any claim against PEST PROS or its employees unless it gives PEST PROS written notice of the event giving rise to such claim, containing sufficient information for it to be identified and investigated by PEST PROS within 28 days of the date on which the Customer becomes or ought reasonably to have become aware of the occurrence of such event
- UNFORESEEN CIRCUMSTANCES
If Pest Pros is prevented or delayed in the performance of any of its obligations under this Agreement due to circumstances beyond its reasonable control, Pest Pros shall be excused from performance or punctual performance of its Services for as long as the cause of prevention or delay continues.
HEALTH AND SAFETY
8.1 The Customer shall ensure that all advice and instructions given by PEST PROS to protect the health and safety of persons using the premises during and after the provision of the services are followed.
8.2 The Customer shall advise PEST PROS and its employees of any hazards they may encounter whilst working at the Customer’s premises.
8.3 The Customer shall provide PEST PROS with full details of any item supplied which has become affected or contaminated with dangerous, toxic, adhesive or inflammable substances. PEST PROS reserves the right to refuse to provide Services to any such items.
8.4 Any pesticide used by PEST PROS in the Services is approved under the Control of Pesticide Regulations 1986 is notified or approved as required under the European Communities (Authorisation, Placing on the Market, Use and Control of Biocidal Products) Regulations 2001 by the Pest Control Services of the Department of Agriculture. Information on the pesticides used at the Customer’s premises is available at request.
- VARIATIONS
No variation, extension, exclusion or cancellation of this Agreement shall be binding (unless terminated in accordance with these terms) unless and until both parties have signed an Contract Variation Form.
- NOTICES
10.1 Any notice to be given to the Customer under this Agreement shall be in writing and shall be sent by hand or by first class mail to the address appearing on the SA (or such other address as shall be notified in writing for the purpose of this clause).
10.2 Any notice given by mail, shall be deemed to have been given on the second day (excluding Saturdays, Sundays and statutory holidays) after dispatch.
- SEVERANCE
If any term or provision is this Agreement is or shall become in whole or in part illegal, invalid or unenforceable, the legality, validity and enforceability of the remainder of the Agreement shall not be affected or impaired thereby.
- SET OFF
The Customer shall not be entitled to withhold payment of monies due under this Agreement by reason of any claim or counterclaim it may have or alleges to have against PEST PROS or otherwise which is not related to the Service.
- DATA PROTECTION
The Customer agrees that PEST PROS may disclose the Customer’s details as follows:-
(i) to a credit reference agency in order to obtain a credit reference on the Customer;
(ii) to tracing agents to locate the Customer where the Customer has changed his address without notifying PEST PROS and has failed to pay any invoice by the due date; and
(ii) to other companies within the PEST PROS.
- ENTIRE AGREEMENT
14.1 The Agreement constitutes the entire agreement between the Customer and PEST PROS.
14.2 The Customer shall not be entitled to rely on or seek to rely on any statement, warranty or representation made by or on behalf of PEST PROS to the extent that such representation is inconsistent with this Agreement nor any advice or recommendation given by or on behalf of PEST PROS as to the supply of the Services unless confirmed in writing by PEST PROS.
14.3 This Agreement shall prevail over any inconsistent terms which may appear on the Customer’s enquiry, order or other documents received by PEST PROS from the Customer or which may be implied by law or trade, custom, practice or a course of dealing between the parties, all of which are hereby expressly excluded. All orders are accepted and executed on the understanding that the Customer is bound by these Conditions.
- GOVERNING LAW AND JURISDICTION
The Agreement will be governed by and be interpreted according to the laws of Ireland and the parties agree to submit to the exclusive jurisdiction of the Irish courts