FUMIGATION TERMS AND CONDITIONS

1. Interpretation

1.1. Capitalised terms have the meaning set out in this Agreement:

Agreement: These terms and conditions, including the Schedules, any Special Terms and Conditions and any Quote as updated by RI.

RI: Rentokil Initial (M) Sdn Bhd. Registration No: 197201001250 (12889-M).

Confidential Information: Any information disclosed under this Agreement concerning the business or affairs of either party or of any member of its Group, including information relating to a party’s operations, processes, plans, know-how, IPR, market opportunities and business.

Commencement Date: The date on which Customer accepts the Quote by signature or other means.

Customer: Either the person, company or other entity identified in the Quote as a Customer, or the party with which RI contracts to complete the Services as listed in the Quote.

Customer Obligations: Include the requirements set out at Clause 2, any Schedules, Special Terms and Conditions and recommendations to the Customer in any Quote.

Fees: The amounts payable by Customer to RI, set out in the Quote and/or Schedules, exclusive of Sales & Service Tax (SST).

Frequency: The period set out in the Quote or Schedule.

Group: In relation to a company, that company, its subsidiaries, its holding companies and their subsidiaries.

IPR: Any patents, rights to inventions, registered designs, copyright and related rights, database rights, design rights, topography rights, trademarks, service marks, trade names and domain names, trade secrets, rights in unpatented know-how, rights of confidence and any other intellectual or industrial property rights of any nature including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Job: A specific service set out in the Quote or Schedule with all Fees paid as a one off charge unless otherwise stated in the Quote, Special Conditions or Schedule in which case such shall apply.

Minimum Term: One year from the Commencement Date, unless otherwise stated in the Quote, Special Conditions or Schedule in which case such as stated therein period shall apply.

Periodic Services: Multiple services as set out in the Quote or Schedules to be provided regularly by RI at the Frequency.

Premises: The Customer’s location identified in a Quote or Schedule.

Quote: The document setting out inter alia, the details of the Customer, Services and related Fees issued by RI to the Customer.

Schedules: The schedules to this Agreement or any one of them (if any).  

Services: The Job or Periodic Services to be performed at the Premises as set out in the Quote.

Special Terms and Conditions: The Special Terms and Conditions annexed hereto (if any).

Term: The Minimum Term and any subsequent years as stated in the Quote or Schedule or agreed Job duration.

Termination Date: For a Job, when the Services have been completed and all Fees paid by Customer. For Periodic Services, as set out at Clause 5.

1.2. Any phrase introduced by the terms including, include, in particular or any similar expression is illustrative and shall not limit the sense of the preceding words.

2. Obligations

2.1. RI will provide the Services under the terms of this Agreement with reasonable skill and care.  

2.2. Customer will comply with the Customer Obligations, including:

a) providing all access and reasonably required facilities at the Premises in line with the agreed schedule to enable RI to perform the Services;

b) informing RI of any hazards that might be encountered in providing the Services at the Premises; and

c) following all health and safety advice and instructions given by RI.

2.3. Services will be considered as rendered in case the Premises are not accessible or in the event of late rescheduling, of which the Customer shall be charged such Fees as if the Services were rendered.

2.4. RI reserves the right to refuse to provide Services in relation to items or areas that are contaminated or affected by dangerous, toxic, adhesive or inflammable substances (other than as has been used by RI in provision of the Services and as identified when the Premises were surveyed by RI).

3. Payment
3.1. Customer will pay the Fees and applicable charges:

a) to RI in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law); and

b) by the invoice payment date, (i) payment in advance of the full Fees; (ii) following completion of the Job; or (iii) as set out in the Quote or Schedule.

3.2. If the Frequency of the Services has to be increased due to reasons attributable to the Customer not complying with the Customer Obligations, then the Customer agrees and acknowledges that additional charges or Fees may be imposed at RI’s sole discretion.

3.3. RI may increase the Fees at any time by giving at least 30 days’ written notice to Customer. Any increase will not take effect before the Minimum Term has expired.

3.4. The Customer agrees and undertakes to pay interest on any outstanding amount owed to RI, to be calculated on a monthly rate at 3% until payment is received. RI reserves the right to suspend the services until the overdue amount is paid.

4. Confidentiality

4.1. The party receiving Confidential Information will only use the disclosing party’s Confidential Information for the purposes of this Agreement and may only disclose the Confidential Information to its officers, employees, agents and contractors solely for the use in accordance with the terms of this Agreement.

4.2. The provisions of Clause 4.1 shall not apply to any Confidential Information that:

a) is or becomes generally available to the public (other than in breach of this clause);

b) was, is or becomes available to the receiving party on a non-confidential basis; or

c) is developed by or for the receiving party independently of the information disclosed by the disclosing party.

4.3. If a party is required to disclose the other party’s Confidential Information by law, governmental or other regulatory authority, it will inform the other party as soon as possible and to the extent legally permissible.

5. Term and Termination

5.1.This Agreement commences on the Commencement Date and shall continue until the Termination Date (where specified), or otherwise when terminated in accordance with this Clause 5.

5.2. Without affecting any other right or remedy available to it, either party may terminate this Agreement or any Services under the Agreement:

a) effective at the end of the Minimum Term or any subsequent year, providing the party has provided at least 90 days’ written notice of termination; and

b) with immediate effect on written notice if the other party:

i) commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so; or

ii) is declared bankrupt, or is unable to pay his debts when they are due or where that other party is a company, becomes insolvent within the meaning of applicable law.

5.3. If this Agreement is terminated by the Customer before the end of the Minimum Period, and not in accordance with the Agreement, Customer will pay compensation for breach of the Agreement at the below rates:

a) One quarter annual contract value, plus 20% of annual contract value as agreed liquidated damages;

b) Before a Job has been completed: 100% of the Fees for the work completed at the date of termination;

c) Refunds are at RI’s discretion;

5.4. Contracts are renewed automatically, unless RI or Customer terminates in accordance with clause 6 or when specified otherwise in the Quote.

6. Liability

6.1. In the event that RI fails to provide the Services at the Frequency and Customer has complied with the Customer Obligations, Customer may be entitled to receive a service credit.

6.2. Neither party excludes or limits its liability for:

a) personal injury or death caused by negligence;

b) fraud or fraudulent misrepresentation; and

c) any other act or omission which cannot be excluded or limited under any applicable law.

6.3. Except as set out in Clause 6.2, RI only accepts liability that arises as a result of RI’s performance of the Services, and which is for:

a) physical damage to property because of RI’s gross negligence or wilful default provided that such physical damage is not attributable to any fault of the Customer; or

b) failure to provide the Services in accordance with the Agreement.

6.4      Subject to clause 6.2, any and all warranties, guarantees and conditions are excluded and RI’s total liability to the Customer in relation to this agreement is strictly limited to the annual contract value or value of the Job in aggregate for liability contract, tort (including negligence), breach of statutory duty, or otherwise arising in connection with the Agreement and RI shall not in any circumstances be liable for any:

a) loss, damage or cost arising in relation to any pest;

b) loss of profits, economic or financial loss, loss of sale or business, loss of use or business interruption, loss of goodwill;

c) indirect or consequential loss.

6.5. RI’s liability to replace or repair Goods or Rental Equipment is as set out in the relevant Schedule.

6.6. Customer must notify RI of any complaint in respect of the Services rendered within 30 days of the relevant Service or part of Service being provided of which RI will carry out such investigative steps. Any monetary claim made by Customer must be submitted in writing to RI at the address for notices within 30 days from the Customer first becoming aware of the circumstances giving rise to the monetary claim. To the maximum extent permitted by law, RI will not be liable for any claim submitted outside of such 30 days’ period.

6.7. Subject to Clauses 6.1 to 6.6, RI excludes all liabilities to the maximum extent permitted by law.

7. Third Party Rights

7.1. This Agreement does not give third parties rights to raise any claims in case of a disagreement.

8. Assignment

8.1. Customer may not assign this Agreement without RI’s written consent, such consent not to be unreasonably withheld. RI may assign the benefit and the burden of this Agreement to another company in the RI Group.

9. Variations

The Customer shall refer to the terms and conditions as set out in RI’s websites (rentokil.com.my/terms-and-conditions) which shall also form part of this Agreement. The Customer agrees and acknowledges that RI may amend the Agreement by providing ninety (90) days’ written notice to Customer or requesting the Customer to refer to the updated and revised version at RI website. If such amendment materially affects the Services provided under the Agreement, Customer may terminate the Agreement by providing no less than thirty (30) days’ written notice to RI within sixty (60) days’ of receipt of such amendment notice. All other amendments to this Agreement must be agreed in writing by the parties.

10. Notices

10.1. Any notice to be given under this Agreement, except for under Clause 3.2, shall be in writing and be delivered by hand or signed for mail service:

a) to the Customer at the address or email set out in this Agreement;

b) to RI at Rentokil Initial (M) Sdn Bhd, Unit 8-1, Level 8, Tower 8 UOA Business Park, No. 1, Jalan Pengaturcara U1/51A, Seksyen u1, 40150 Shah Alam, Selangor Darul Ehsan

11. Severance

11.1. If any term or provision in this Agreement is held to be in whole or in part illegal, invalid or unenforceable, the legality, validity and enforceability of the remainder of the Agreement shall not be affected.

12. Entire Agreement

12.1. This Agreement: (a) is the entire agreement between the parties relating to the Services; (b) supersedes and terminates any previous agreements, warranties, representations and understandings relating to the same subject matter; and (c) prevails over any terms which Customer provides to RI and / or which may be implied by law or trade, custom, practice or course of dealing, all of which are expressly excluded.

12.2. The parties agree that they shall not be entitled to rely on any statement or representation that is not set out in this Agreement.

13. Data Protection

13.1.  RI shall process customer's personal data, including sending marketing information, in accordance with applicable data protection legislation and RI privacy notice located here.

13.2. Customer may change / update / unsubscribe from any marketing information or communication channels that customer receives from RI by opting out via this link. RI will continue to send communications as necessary for the performance of this Agreement.

14. IPR

14.1. No IPR is transferred by RI in the provision of the Services and as between the parties remains the exclusive property of RI.

15. Anti-bribery and Corruption

15.1. Each party undertakes that: (a) neither it nor any party acting on its behalf has offered, given, requested or accepted any undue financial or other advantage of any kind in any way connected with the entering of this Agreement; (b) it shall throughout the course of this Agreement comply with, and take reasonable measures to ensure that any other parties acting on its behalf comply with, all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption (‘Relevant Requirements’); (c) it has and shall maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with Relevant Requirements and will enforce them where appropriate; (d) it shall immediately report to the other party any offer, request or demand for any undue financial or other advantage of any kind received from the other party or any party acting on its behalf in connection with the performance of this Agreement; and (e) unless apparent at the commencement of this Agreement (for example where the customer is a public organisation), it shall immediately notify the other party (in writing) if a public official becomes its officer or employee or acquires a direct or indirect interest in that party.

16. Force Majeure

16.1. If either party is prevented from or delayed in the performance of any of its respective obligations (other than payment obligations) under this Agreement by circumstances beyond its reasonable control, the affected party shall not be liable for the performance or the punctual performance of its obligations, as applicable, for the duration of the force majeure event. If the force majeure event continues for more than 30 days, either party shall be entitled to terminate this Agreement on written notice to the other.

17. Governing Law and Jurisdiction

17.1. This Agreement and any dispute or claim arising in connection with it shall be governed by and interpreted in accordance with the law of Malaysia. The parties submit to the exclusive jurisdiction of the Malaysian courts.

Special Terms and Conditions: Fumigation by Phosphine and Methyl Bromide Services
18. Fumigation by Phosphine and Methyl Bromide Services

18.1. These Special Terms and Conditions form part of the Agreement. In the event of conflict, these Special Terms and Conditions shall prevail.

18.2. Customer understands and acknowledges that provision of the Services by RI: could result in less than 100% pest eradication due to factors beyond RI’s control; and does not remove the potential for future pest infestations.

18.3. RI will endeavour to provide the Services at the agreed time, but will not be liable for failure to perform the Services at such time of which in such event, RI will reschedule with Customer a new agreed time for the provision of the Services.

18.4    Despite any other provisions of the Agreement, in providing the Services RI does not accept any liability for any loss or damage to Premises or to any item or or object which comprises or contains the products set out in these Special Terms and Conditions. RI is not liable any detention charges during or after fumigation.

18.5. Despite any other provisions of the Agreement, the total aggregate liability of RI for physical damage or loss to the Subject or other property in possession of the Customer as a direct result of RI’s negligence in performing the Services shall not exceed RM 1.25 million or the value of the Subject as declared in the Quote, whichever is lower.

19. Customer Obligations

19.1. Customer must provide the value of the Subject in the Quote.

19.2. Customer must provide any utilities required in order to carry out the services.

19.3. Customer is responsible for providing sufficient information to determine whether Fumigation of the Subject is suitable.

19.4. Fumigation by Phosphine and Methyl Bromide is not suitable for, and may permanently damage, certain materials and commodities. Customer must notify RI if the Subject comprises or contains any of the following:

PHOSPHINE
(a) copper or its alloys, including gilding metal, brass (including cartridge brass, naval brass, red brass, free- cutting brass, yellow or high brass), bronze (including phosphor bronze, aluminium bronze, manganese bronze), Muntz metal, beryllium copper, nickel silver, cupronickel, ounce metal, gun metal, solder, or any items containing these, cluding wires, cables, electrical switches; heat exchangers, pipes, screws, vehicle radiators, electrical or electronic items.
(b) chromium plated items (due to the use of a copper base layer)
(c) computers, machinery, electronic systems, motors
(d) silver, or its alloys, including billon, sterling silver, Britannia silver, goloid, electrum,
(e) argentium, sterling silver, shibuichi, platinum sterling
(f) gold, or its alloys including tumbaga, rose gold, white gold
(g) any materials, clothing or tapestries decorated with a copper, silver or gold thread or leaf.

METHYL BROMIDE:
a) foodstuffs of any kind;
b) cigarettes and cigars;
c) silk, woollens, leather goods, natural fur or feathers;
d) polystyrene;
e) cinder or charcoal;
f) sponge or foam;
g) rubber;
h) soaps and soap powder;
i) salt;
j) bone meal;
k) photographic chemicals;
l) artificial and synthetic fabrics;
m) plants, growing bulbs, seeds and nursery stock;
n) oil paintings; artefacts, works of art;
o) animal trophies; and
p) fax thermal paper.

19.5. Customer may terminate this Agreement or cancel the Services by providing at least 7 days’ written notice in advance prior to RI commencing the Services following which the Customer shall pay to RI 25% of the Fees as cancellation charges, otherwise full Fees shall be due and payable.

20. Services provided other than at the customer premises

20.1. If the Services are to be provided at a location other than at Customer Premises, Customer is responsible for all risk associated with the transport of the Subject, and Customer may be charged additional Fees at the sole discretion of RI.

20.2. RI will take reasonable endeavours to protect the Subject when on a RI site, but RI shall not be liable for any loss, damage, theft or other action other than as directly resulting from RI’s gross and wilful negligence of which such liability shall be subjected to the limitations of liability as set out in the Agreement.

21. Termination
21.1. The termination provisions of the Agreement can be applied separately to these Special Terms and Conditions, so that the Fumigation Services can be terminated and the underlying Agreement shall remain effective unless terminated in accordance with the terms of the Agreement.