Terms of Trade

1.     Definitions

In these conditions unless the context otherwise requires:

•           “Company” means Ascot Caretaking Pty Ltd trading as Ascot Caretaking (“Ascot Caretaking”).

•           “Client” means the person, or company buying the Services from Ascot Caretaking.

•           “Contract” means any accepted quotation, agreement, arrangement, proposal, tender document, job sheets, orders, specifications, project scope or contract (whether in writing of verbal) between Ascot Caretaking and the Client for the purchase of the Services.

•           Date of the Contract - means where the Contract arises (i) the date of acceptance of the order by the Client by phone, text or email correspondence or signature of a purchase order or (ii) the date upon which the Client orders the Services.

•           “Contract Price” means the price of the Services contained in any Contract.

•           “Person” includes a corporation, association, firm, company, partnership or individual.

•           “quotation” meansany quotation supplied by Ascot Caretaking and which is valid for 90 days only.

•           “Services” means services or products supplied by Ascot Caretaking.

•           “Manager” means any person appointed or appearing as decision maker

•           “PPS Law” means:

(a)   the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and

(b)   any amendment made at any time to any other legislation as a consequence of a PPS Law.

2.         Acceptance

2.1     These terms and conditions constitute the Terms of Trade agreed between the parties and should be read in association with any Contract.  Any Contract includes these Terms of Trade which are supplied by Ascot Caretaking to the Client from time to time and/or published by Ascot Caretaking on its website.If any instruction is received by Ascot Caretaking from the Clientto obtain the supply of Services, it constitutes acceptance by the Client of these Terms of Trade and the terms and conditions contained herein and the Contract.

2.2     Ascot Caretaking reserves the right to amend any quotation before it has been accepted to take into account any rise or fall in the cost of completing the provision of Services. Ascot Caretaking will notify the Client of any amendment as soon as practicable, at which point the amended quotation will be the quotation for the purposes of these Terms of Trade.  Notwithstanding the provision of a quotation, Ascot Caretaking may refuse to provide the Services at any time.

2.3     An indication in a quotation of the time frame for the provision of the Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon Ascot Caretaking.

2.4     Ascot Caretakingmay in its absolute discretion refuse to provide Services including but not limited to where:

(i)       Services are unavailable for any reason whatsoever;

(ii)       credit limits cannot be agreed upon or have been exceeded; or

(iii)      payment for the Services previously provided to the Clientor any related corporation of the Client or to any other party who is, in the reasonable opinion of Ascot Caretaking, associated with the Clientunder the same or another Contract, has not been received by Ascot Caretaking.

2.5     The Contract may be terminated by the giving of 14 days notice.

2.6     The Client authorises Ascot Caretaking to charge to any credit card supplied to Ascot Caretaking, for the purposes of the provision of the Services and compliance with these terms, including moneys forfeited due to cancellation.

2.7     Where specific terms are included in any Contract and they are inconsistent with these Terms of Trade, then the terms in the Contract prevail over theseTerms of Trade.

2.8     The Services to be provided are done on as “as needs basis” meaning that not all Services are delivered at every attendance.

2.9     The Services do not include cleaning drains.

2.10   All quotations are valid for a period of 90 days.

2.11   Ascot Caretaking is not a gardening services supplier and where some gardening services are included in the Services, then it is maintenance gardening only.

2.12   Where pressure or carpet cleaning forms part of the Services, it is agreed that there is no guarantee of the end results of such cleaning and that stains may remain and that there may be some water splashing as a result.  The Client must remove all property, at their risk, to enable such cleaning to proceed.  The Client may not make any claim in regard to the matters referred to herein.

2.13   Light fittings are cleaned only when blown light bulbs are replaced unless otherwise described in any Contract.

2.14   Services will not be supplied on a public holiday but will be supplied at other suitable times.

2.14   Ascot Caretaking may use sub-contractors for the purpose of providing the Services.

2.15   Pricing may increase at the discretion of Ascot Caretaking and the Client will be advised of any such increase should it occur.

3.         Terms and Conditions

3.1     Ascot Caretaking may update these Terms of Trade at any time. 

3.2     These Terms of Trade and any subsequent terms or conditions issued by Ascot Caretaking apply to all Contracts and orders for the Services made by the Client after the date and time at which these Terms of Trade are provided to the Client or published by Ascot Caretaking on its website. It is the Client’s responsibility to ensure that these Terms of Trade are promptly brought to the attention of the appropriate staff of the Client and any order made by the Client after the date and time described above in this clause shall be deemed to be an acceptance of these Terms of Trade.

3.3     These Terms of Trade and any quotations and Contract and written variations of any of them agreed to in writing by Ascot Caretaking represent the whole agreement between the parties relating to the subject matter of the provision of the Services.

3.4     These Terms of Trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.

3.5     In entering into these Terms of Trade, the Client has not relied on any warranty, representation or statement, whether oral or written, made by Ascot Caretaking or any of its employees or agents relating to or in connection with the subject matter of these Terms of Trade.

3.6     The scope of works is set out in the Contract.  Further fees may be payable where conditions make the works more time consuming (for example, during high growth seasons, untidy or unclear workspaces or heavy leaf drop)

3.7     In regard to Services, none will be supplied at a height of greater than 2.4 metres.  Any Services above such height will separately be quoted. 

3.8     Any bin services may be made at a time and date suitable to Ascot Caretaking (for example, where public holidays intervene and depending upon Council requirements).

3.9     Any provisions in a Contract which are inconsistent with these Terms of Trade supercede these Terms of Trade.

3.10   Ascot Caretaking may leave any site and cancel the provision of any Services   if there is any bullying, harassment or an unsafe work environment.

3.11   Ascot Caretaking will use its best endeavours to keep keys and remote access equipment as secure as possible.  No claim may be made by the Client for the loss by Ascot Caretaking for such keys and remote access equipment.

4.         Price

4.1.      The Contract Price is as provided in the Contract or the quotation and subsequent invoices provided by Ascot Caretaking to the Client in respect of Services supplied.

4.2.      Time for payment for the Services shall be of the essence and is as stated in any Contract.  The earliest time for payment in these Terms of Trade or the Contract will apply.

4.3.      Unless otherwise stated in any other documentation, payment for the Contract Price must be made as follows:

14 days from invoice or as further set out in the Contract and/or associated documents if a different payment term is stated.

4.4     Additional work for components over and above the scope of work will be charged as agreed from time to time including where work is requested on the day of the provision of the Services.

4.5     Variation to any scope of work will mean a reassessment of the Contract Price.

4.6     Any timing counts only after the Client has provided all resources required for the Contract.

5.         Payment, Late Payment, Default of Payment and Consequences of Default of Payment

5.1.      The method of payment is by bank transfer or other method as advised by Ascot Caretaking.

5.2.      Late payment will, at the option of Ascot Caretaking,incur interest at the rate of 8% per annum calculated on a daily basis. This is payable on any monies outstanding under the Contract from the date payment was due until the date payment is received by Ascot Caretaking, but without prejudice to Ascot Caretaking’s other rights or remedies in respect of the Client’s default in failing to make payment on the due date.

5.3.      Ascot Caretaking may charge for any collection related costs in addition to the interest provided for herein.

5.4.      Without prejudice to any other remedies Ascot Caretaking may have, if at any time the Client is in breach of any obligation (including those relating to payment), Ascot Caretaking may suspend or terminate the supply of the Services to the Client and suspend or terminate any of its other obligations under these Terms of Trade.  Ascot Caretaking will not be liable to the Client for any loss or damage the Client suffers because Ascot Caretaking exercised its rights under this clause.

5.5.      All costs incurred by Ascot Caretaking in recovery of any outstanding debt will be payable in full by the Client.

5.6.      Ascot Caretaking may in its complete discretion apply any payment received from the Client to any amount owing by the Client to Ascot Caretaking.

5.7.      The Client is not entitled to retain any money owing to Ascot Caretaking notwithstanding any default or alleged default by Ascot Caretakingof these Terms of Trade, including (but not limited to) the supply of allegedly faulty or defective Services to an inadequate standard or a delay in the provision of Services.

5.8.      Nothing in this paragraph affects the Client's rights for any alleged failure of a guarantee under the Australian Consumer Law.

5.9.      In the event that:

a.      any money payable to Ascot Caretaking becomes overdue, or in Ascot Caretaking’s opinion the Client will be unable to meet its payments as they fall due; or

b.      the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

c.      a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client;

then without prejudice to Ascot Caretaking’s other remedies at law, Ascot Caretakingis entitled to cancel all or any part of any Contract with a Client that remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to Ascot Caretaking shall, whether or not due for payment, immediately become payable.

5.9     The Client agrees that in the event that the Client breaches any of these Terms of Trade or the Contract or fails to make any payment required then in addition to all of its other rights, Ascot Caretaking may at its option, retain the Client’s property or return such property to the original pick up location until such breach is rectified.

5.10   If the Client has (i) not pre-prepared property for removal (ii) has not or cannot provide reasonable access to the property for removal (iii) makes the provision of the Services more complex, time consuming or difficult or (iv) cannot provide parking near to the property for collection, then Ascot Caretaking may (a) refuse to provide the Services and/or (b) charge extra hourly rates for the provision of extra services at the rate set out in any communication to the Client or where no such communication has been made then at $165 per half hour, or part thereof, of delay.  The Client authorises Ascot Caretaking to charge any credit card with such extra payment.

5.11   If the Client has more property for removal than as quoted for, then the Client agrees to pay for such extra property in addition to the agreed price.

6.         Governing laws

6.1     These Terms of Trade will be interpreted in accordance with applicable government legislation, which will have exclusive legal jurisdiction over any dispute in relation to the Products or Services or these Terms of Trade.

6.2     These Terms of Trade are governed by the laws of the State of Victoria and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such State.

7.         Dispute resolution

7.1     If a dispute arises between the Client and Ascot Caretaking, the following procedure applies:

(i)       A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.

(ii)      A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.

(iii)     A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.

7.2    If a dispute is notified, the dispute must immediately be referred to the parties' respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or other period as agreed).

7.3   Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms of Trade. This paragraph survives termination of these Terms of Trade.

7.4     Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Terms of Trade.

7.5     The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

8.         Reservation of Title and Risk

8.1     Risk in any property remains with the Client.

8.2     Where products are supplied by Ascot Caretaking to the Client without payment in full of all moneys payable in respect of the products provided by Ascot Caretaking in respect of those products, the Client:

(i)        is a bailee of the products until property in them passes to the Client;

(ii)      irrevocably appoints Ascot Caretaking its attorney to do all acts and things necessary to ensure the retention of title to products including the registration of any security interest in favour of Ascot Caretaking with respect to the products under applicable law;

(iii)     must be able upon demand by Ascot Caretaking to separate and identify as belonging to Ascot Caretakingproducts supplied by Ascot Caretaking from other products which are held by the Client;

(iv)     must not allow any person to have or acquire any security interest in the products;

(v)      agrees that Ascot Caretaking may repossess the products if payment is not made within 14 days (or such longer time as Ascot Caretaking may, in its complete discretion, approve in writing) of the supply of the products; and

(vi)     the Client grants an irrevocable licence to Ascot Caretaking or its agent to enter the Client's premises in order to recover possession of products pursuant to this paragraph. The Client indemnifies Ascot Caretaking in respect of any damage to property or personal injury which occurs as a result of Ascot Caretaking entering the Client's premises.

8.4     Where products are supplied by Ascot Caretaking to the Client without payment in full of all moneys payable in respect of the products provided by Ascot Caretaking in respect of those products, and the Client makes a new object from the products, whether finished or not, or the Client mixes the products with other products or the products become part of other products, the Client agrees with Ascot Caretaking that the ownership of the products immediately passes to Ascot Caretaking. The Client will hold the products on trust for Ascot Caretaking until payment of all sums owing to Ascot Caretaking whether under these Terms of Trade or any Contract have been made and Ascot Caretaking may require the Client to store the products in a manner that clearly shows the ownership of Ascot Caretaking.

8.5     For the avoidance of doubt, the ownership of the products passes to Ascot Caretaking at the beginning of the operation or event by which the products are converted into, are mixed with or become part of other products.

8.6     Notwithstanding anything else, the Client may transfer, sell or dispose of products, including products, to a third party in the ordinary course of business provided that:

(i)       where the Client is paid by a third party in respect of products including products, the Client holds the whole of the proceeds of sale less any GST on trust for Ascot Caretaking - in a separate account - until all amounts owned by the Client to Ascot Caretaking have been paid; or

(ii)      where the Client is not paid by a third party, the Client agrees to assign all of its rights against the third party to Ascot Caretaking upon Ascot Caretaking giving the Client notice in writing to that effect and for the purpose of giving effect to that assignment the Client irrevocably appoints Ascot Caretaking as its attorney.

9.7     Where products are supplied by Ascot Caretaking to the Client without payment in full of all moneys payable in respect of the products and any Services provided by Ascot Caretaking in respect of those products, the Client acknowledges that Ascot Caretaking has a right to register and perfect a personal property security interest.

8.8     If:

(i)       a PPS Law applies or commences to apply to these Terms of Trade or any transaction contemplated by them, or Ascot Caretaking determines (based on legal advice) that this is the case; and

(ii)      in Ascot Caretaking's opinion, the PPS Law:

(A)     does or will adversely affect Ascot Caretaking's security position or obligations; or

(B)     enables or would enable Ascot Caretaking's security position to be improved without adversely affecting the Client, THEN -

Ascot Caretaking may give notice to the Client requiring the Client to do anything (including amending these Terms of Trade or execute any new Terms and Conditions) that in Ascot Caretaking's opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph (ii)(A) or improve the security position as contemplated in paragraph (ii)(B). The Client must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in Ascot Caretaking's opinion Ascot Caretakings security position or obligations under or in connection with these Terms of Trade have been or will be materially adversely affected, Ascot Caretaking may by further notice to the Client cancel these Terms of Trade, in which case the Client must pay to Ascot Caretaking any money owed to Ascot Caretaking by the Client immediately.

8.9     In this clause financing statement, financing charge statement, security agreement and security interest has the meaning given to it by the PPSA.

8.10   The Client agrees that these Terms of Trade constitute a security agreement for the purposes of the PPSA and creates a security interest in a product supplied or to be supplied by Ascot Caretaking.

8.11   The Client agrees to sign any documents or provide any further information to enable Ascot Caretaking to register a financing statement or financing change statement, or any other document under the PPSA.

8.12   The Client agrees to cover CP & E’s cost of any registration or release under the PPSA.

8.13   The Client may not enter into security arrangements for the products to third parties, including but not limited to the PPSA.

8.14   The Client waives their rights to obtain notices under sections 95, 188, 121 130 and 132 of the PPSA and agrees that sections 96, 115 and125 of the PPSA do not apply to the Contract.  The Client waives all rights under Sections 142, 143 and 157 of the PPSA.

9.         Warranty

9.1     Ascot Caretaking warrants that it will repair or make good any defects in the, if written notice of the claim is received by Ascot Caretaking within seven (7) days from the date the Services were delivered.

9.2     No claim shall be accepted under such warranty if any attempt to repair the defective Services is made by any person not authorised by Ascot Caretaking, or if the defective Services have been modified or incorrectly stored, maintained or used.

9.3    Ascot Caretaking’s liability is limited to the Non-Excluded Guarantees contained in State and Commonwealth law.

10.      Liability

10.1   Ascot Caretaking shall not be liable for any loss of any kind whatsoever suffered by the Client as a result of any breach of any of Ascot Caretaking’s obligations under the Contract, including any cancellation of the Contract or any negligence on the part of Ascot Caretaking, its servants, agents or contractors, nor shall Ascot Caretaking be liable for any loss, damage or injury caused to the Client’s servants, agents, contractors, Clients, visitors, tenants, trespassers or other persons where the loss is caused by the Client’s negligence, error, omission or acts, including but not limited to existing or installed electricity supply and existing o installed electrical services.

10.2   The Client indemnifies and keeps indemnified Ascot Caretaking, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against Ascot Caretaking or, for which Ascot Caretaking is liable, in connection with any loss arising from or incidental to the provision of Productsor Services, including in the circumstances referred to in paragraph 10.1.

10.3   The Client and Ascot Caretaking agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.

11.   Exclusions and limitation of liability

11.1   The Client expressly agrees that use of the Services is at the Client's risk. To the full extent allowed by law, Ascot Caretaking’s liability for breach of any term implied into these Terms of Trade by any law is excluded.

11.2   All information, specifications and samples provided by Ascot Caretaking in relation to the Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Client's use of the Services will not entitle the Client to reject the Productsupon delivery, or to make any claim in respect of them.

11.3   Ascot Caretaking gives no warranty in relation to the Services provided or supplied. Under no circumstances is Ascot Caretaking or any of its suppliers liable or responsible in any way to the Client or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

(i)       any Services supplied to the Client;

(ii)      any delay in supply of the Services; or

(iii)     any failure to supply the Services.

11.4   Any advice, recommendation, information, assistance or service given by Ascot Caretaking in relation to Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. Ascot Caretaking does not accept any liability or responsibility for any Loss suffered as a result of the Client's reliance on such advice, recommendation, information, assistance or service.

11.5   To the fullest extent permissible at law, Ascot Caretaking is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Services, or otherwise arising out of the provision of the Services, whether based on Terms of Trade, negligence, strict liability or otherwise, even if Ascot Caretaking has been advised of the possibility of damages.

11.7   The Australian Consumer Law may give to the Client certain guarantees. Where liability for breach of any such guarantee can be limited, Ascot Caretaking’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of products, to the replacement or repair of the products or the costs of resupply or replacement of the products or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

12.    Force majeure

­­­­­­­­­­­­­­­­­­­­12.1  If circumstances beyond Ascot Caretaking’s control prevent or hinder its provision of the Services, Ascot Caretaking is free from any obligation to provide the Services while those circumstances continue. Ascot Caretaking may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

12.2  Circumstances beyond Ascot Caretaking’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

13.       Confidentiality and Privacy

13.1   All parties will keep these terms and conditions and all correspondence and communication between them as confidential and private, excepting for obtaining accounting and legal advice and for compliance purposes.