Terms and Conditions, Elite Bird Control

1 DEFINITION

"Elite" shall mean Elite Bird Control Pty Ltd ACN 121 699 438 and its trading names, successors and assigns.
"Contract" shall mean the contract between the parties setting out the terms and conditions for the supply of the Services.
"Customer" shall mean the Customer or any person acting on behalf of the Customer who holds them selves out to have the authority of the Customer.
"Guarantor" means that person (or persons), or entity who has agreed to be liable for payment of Elites invoices to the Customer.
"Material or Goods" shall mean where applicable, Material or Goods supplied by Elite to the Customer.
"Services" shall mean all services supplied by Elite to the Customer and includes any advice or recommendations and where the context so permits shall include any supply of Goods by Elite as hereinafter defined).
"Price" shall mean the cost of the Goods and/or Services as agreed between the Elite and the Customer subject to clause 4 of these terms & conditions.
"Workplace" shall mean the workplace where the Services are to be performed by Elite.

2 ACCEPTANCE

Any instructions received by Elite from the Customer for the supply of the Services are the Customer's acceptance of the Services and/or Goods supplied by Elite. Such instructions shall constitute acceptance of the terms and conditions contained herein.
None of Elite's employees, agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Elite in writing, nor is Elite bound by any such unauthorised statements.

3 SERVICES

The Services shall be as described in the Contract, invoices, quotation, work authorisation, sales order or any other work commencement forms as provided by Elite to the Customer.
All Services are undertaken by Elite in good faith and on the belief that the Client is solvent.
Quotes for performing Services are indicative only and are subject to change.

4 PRICE & PAYMENT

At Elite's sole discretion;
  (a) The Price shall be Elite's current price at the date of quoting the Customer for the performance of the Services which shall be in according to Elite's current Price list; or
  (b) shall be as indicated in the Contract, on the invoices provided by Elite to the Customer; or
  (c) shall, subject to clause 4.2, be Elite's quoted Price which shall be binding upon Elite upon the Customer placing an order with Elite within the period quoted on the quote to be the period for acceptance of the quote.
Elite may provide notice to the Customer at any time up to seven (7) days before delivery of the Services that there is an increase in the Price of the delivery of the Services or Goods in order to reflect any increase in the cost to Elite beyond its reasonable control, which will increase the cost of the supply of the Services by more than 10% of the quoted Price.
At Elites sole discretion a deposit may be required prior to performing the Services or delivering the Goods. The deposit amount or percentage of the Price will be stipulated at the time of the Customers order for the Services and shall become immediately due and payable before the Goods are delivered or Services performed.
Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms supplied to the Customer. If no time is stated then payment shall be due and payable on receipt of the Goods.
At Elites sole discretion; for certain approved Customers with accounts, payment will be due either seven (7) days, fourteen (14) days or thirty (30) days following the date of the invoice. The Due Date will be recorded on the invoice notifying the Customer of the Due Date for payment.
For all other accounts, payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by any other method as agreed to between the Customer and Elite.
The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable to the supply of the Services, except to the extent that such taxes are expressly included in any quotation given by Elite.

5 PERFORMING & SERVICES

Performing the Services shall be made at the Customer's nominated Workplace or Workplaces as set out in the Contract.
The Customer shall make all arrangements necessary in order for Elite to gain access to the Workplace in order to perform the Services. However, any delay in gaining access to the Workplace or if the Workplace is deemed to have become unsafe, shall be charged to the Customer as an additional cost of supplying the Services at $150.00 per hour, per staff member multiplied by each working hour between the hours of 7.00AM to 5.00PM, (Monday to Saturday) that Elite's staff are unable to access the Workplace in order to perform the Services.
Where necessary, Elite may perform the Services over several days, weeks or months which will always be in accordance with the agreed delivery schedule attached to the Customers authority to perform the Services.
In some cases, Elite may elect with the Customers approval, to invoice the Customer progressively. These progressive invoices shall be invoiced and paid the Customer in accordance with the Contract.
Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
Elite's will make its best endeavour to perform and deliver the Services in accordance with the Contract however, any failure on Elite's part to deliver the Services in accordance with the Contract shall not entitle either party to treat this contract as repudiated.
Elite shall not be liable for any loss or damage whatever due to failure by Elite to deliver the Services promptly or at all.

6 RISK

Until payment of Elite's invoice, Elite retains ownership of the Material or Goods supplied to the Customer nonetheless, all risk for the Goods passes to the Customer on delivery.
If any of the Materials or Goods are damaged or destroyed prior to ownership in them passing to the Customer, Elite is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions (including the right to receive payment of the balance of the Price for the Material or Goods), to receive all insurance proceeds payable for the Material or Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by Elite is sufficient evidence of Elite's rights to receive the insurance proceeds without the need for any person dealing with Elite to make further enquiries.

7 CUSTOMER'S DISCLAIMER

The Customer hereby disclaims any right to rescind, or cancel the Contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of Elite and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that Elite shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent Customer.

8 DEFECTS IN THE SERVICES

The Customer shall inspect the work performed by Elite upon completion of the Services and shall within twenty-eight (48) hours of completion, notify Elite in writing of any alleged defect, errors, damage or failure to comply with the description or quote. The Customer shall afford Elite an opportunity to inspect the Goods within a reasonable time following completion of the Service. If the Customer fails to comply with this provision the Services shall be conclusively presumed to be in accordance with the terms and conditions of the Contract and free from any defect or damage.
Insofar as defective workmanship is concerned, subject to clauses 8.3 and 8.4, where Elite has agreed in writing that the Customer is entitled to reject the completion of the Services, Elite's liability is limited to either (at Elite's discretion) rectifying the workmanship, or making good the Services provided that:
(a) the Customer has complied with the provisions of clause 8.1;
(b) Elite will not be liable for Services or workmanship which have been tampered with or not handled in a proper manner;
While Elite makes every effort to ensure the suitability and quality of the Services, Elite will not take any responsibility for any defects in the Material or Goods after they have been installed.
Elite will not be held liable at the time for loss or damage as a result of:
  (a) structural damage to the Workplace where the Services are being performed;
  (b) loss or damage resulting from the Customers lost revenue while Elite is undertaking and performing the Services.
  (c) any breakdown, movement or fault of any description whatsoever in the sub-floor, surface, ceiling, structure, beams upon which the Material is fitted or installed; or
  (d) for damage not directly resulting from the workmanship of Elite (including, but not limited to, damage caused by other contractors working on the site); or
  (e) for any advice given by Elites to the Customer.

9 DEFAULT & CONSEQUENCES OF DEFAULT

Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgment.
If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Elite from and against all Elites costs including on a solicitor own client basis and where applicable, all of its agents and servants cost of collection of the outstanding debt.
Without prejudice to any remedies Elite may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Elite may suspend or terminate the supply of Services to the Customer and any of its other obligations under these terms and conditions. Elite will not be liable to the Customer for any loss or damage the Customer suffers because Elite exercised its rights under this clause.

10 TITLE IN MATERIAL

It is the intention of Elite and agreed by the Customer that property in the Material shall not pass until
  (a) The Customer has paid all amounts owing for the Services, and
  (b) The Customer has met all other obligations due by the Customer to Elite in respect of all contracts between Elite and the Customer, and that the Material, or proceeds from any sale of involving the Material, shall be kept separate until Elite shall have received payment and all other obligations of the Customer are met.
  (c) If the Customer fails to return the Material to Elite upon request then Elite, or Elite's agent, may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Materials are situated and take possession of the Materials, without being responsible for any damage thereby caused.
Receipt by Elite of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Elite's ownership of rights in respect of the Material shall continue.
The Customer shall not charge the Material in any way nor grant nor otherwise give any interest in the Material while they remain the property of Elite.
Elite may require payment of the Contract Price or the balance of the Price due together with any other amounts due from the Customer to Elite arising out of these terms and conditions, and Elite may take any lawful steps to require payment of the amounts due and the Price.
Elite may issue proceedings to recover the Price full amount owing with respect to the Services notwithstanding that ownership of the Material may not have passed to the Customer.

Terms & Conditions