The following conditions, provisions and terms (Terms and Conditions) govern the relationship between Burton Demolition Pty Ltd ABN 46 635 035 933 and the Client in connection with any Contract or the supply of Goods or Services.
1.1. Burton Demolition means Burton Demolition Pty Ltd ABN 46 635 035 933 or any heir,executor, administrator, successor or assignee of Burton Demolition, or anyrelated entity of Burton Demolition as defined in the Corporations Act 2001 (Cth).
1.2. Agreement means these Terms and Conditions, and anyancillary documentation provided to the Client by Burton Demolition in relationto the provision of Goods or Services.
1.3. Business Day means any day in the State of South Australia thatis not:
1.3.1. a Saturday or Sunday;
1.3.2. a public holiday within the meaning of the Holiday Act 1910 (SA);or
1.3.3. a day between 23 December in any year and 10 January in the subsequentyear.
1.4. Commencement Date means the commencement of the Services or Delivery of any Goods as setout in any Quote.
1.5. Contract means all contracts entered into between Burton Demolition and theClient.
1.6. Client means the Client identified on any order form, quotation, workauthorisation or other form as provided by Burton Demolition to the Client,including any person acting as agent or purporting to act as agent of theClient.
1.7. Delivery means:
1.7.1. for Services the time at which the relevant invoice is issued for theServices; and
1.7.2. for Goods, the time at which the Client takes possession of the Goods.
1.8. Force Majeure Event includes act of God, global pandemic, war, civil disturbance, riot,lightning, cyclone, earthquake, fire, storm, flood, explosion, governmentalaction and any other cause, event or circumstance which is not reasonablywithin the control of either Burton Demolition or the Client.
1.9. Goods means goods supplied by Burton Demolition to the Client, or ordered bythe Client but not yet supplied, and includes goods described in these Termsand Conditions and on any quotation, invoice, purchase order or any other documentincluding any recommendations and advice and over which Burton Demolition mayintend to register a security interest.
1.10. IP Rights includes copyrights patents, utility models, trademarks, service marks,design rights (whether registered or unregistered), design rights, proprietaryinformation rights, scripts, tools, programs and all other similar proprietaryrights that may exist anywhere in the world.
1.11. Price means:
1.11.1. the cost of any Goods or Services as specifically agreed between BurtonDemolition and the Client including, but not limited to the Price as noted inany Quote; or
1.11.2. in the absence of any prior agreement, the amount set by BurtonDemolition, which may be subject to change from time to time.
1.12. Quote means any order form, quotation, work authorisation or any another formof quotation as provided to the Client by Burton Demolition whether in hardcopy or electronic form or other quotation as described in Clause 4.
1.13. Services means all services supplied by Burton Demolition to the Client andincludes any advice or recommendations.
1.14. Site means any site where Goods or Services are tobe provided pursuant to the terms of this Agreement, as reflected on any Quoteissued by Burton Demolition, or otherwise as agreed upon by the parties.
1.15. Supplier includes any individual, company or agent that provides Goods orServices to Burton Demolition.
2.1. The Client agrees and acknowledges that:
2.1.1. these Terms and Conditions constitute a security agreement for thepurposes of the PPSA;
2.1.2. these Terms and Conditions create a security interest in all any Goodssupplied to the Client including all present and after-acquired Goods; and
2.1.3. Burton Demolition may register, on the Personal Property SecurityRegister (in any manner Burton Demolition considers appropriate), a SecurityInterest in all and any Goods supplied to the Client including all present andafter-acquired Goods.
2.2. The Client and Burton Demolition agree to contract-out of the PPSA inaccordance with section 115 of the PPSA to the extent that the section appliesfor the benefit of, and does not impose a burden on, Burton Demolition. TheClient waives its right to receive a copy of any Financing Statement or anyFinancing Change Statement registered by Burton Demolition in respect of theSecurity Interest created by these Terms and Conditions.
2.3. The Client agrees to, at no cost to Burton Demolition, execute anydocuments, provide all relevant information and co-operate fully with BurtonDemolition to ensure that Burton Demolition has a perfected Security Interest(including, if applicable, a Purchase Money Security Interest as defined in thePPSA) in any relevant Goods.
2.4. The Client warrants that it shall:
2.4.1. not register a financing change statement in respect of a SecurityInterest without the prior written consent of Burton Demolition;
2.4.2. not register, or permit to be registered, a financing statement or afinancing change statement in relation to the Goods in favour of a third partywithout the prior written consent of Burton Demolition; and
2.4.3. immediately advise Burton Demolition of any material change in theClient’s structure or management including any sale or disposition of any partof the business of the Client seven (7) days prior to any such change takingeffect.
2.5. The Client agrees to indemnify, and on demand reimburse, BurtonDemolition for all costs or expenses incurred by Burton Demolition inregistering, maintaining or releasing any Security Interest or for any documentcosts in respect of any Security Interest.
2.6. Defined terms in this clause have the same meaning as given to them inthe PPSA.
3.1. If any supply by Burton Demolition is subject to Goods and Services Tax(GST), the Client must, unless the price expressly states that GST isincluded, pay the relevant GST amount in addition to the specified price.
3.2. The Client shall reimburse Burton Demolition for all taxes, excises,duties or other charges that Burton Demolition may be required to pay to anyGovernment or Statutory authority (Local, State or Federal) upon Goods orServices or related to the sale, production, transportation or delivery ofGoods or Services.
4.1. All Quotes are to be treated as estimates only and in accordance withclause 4.6 of these terms aresubject to withdrawal, correction or alteration at any time before acceptanceby the Client unless stated otherwise.
4.2. Subject to Clause 4.1 allQuotes supplied by Burton Demolition are valid for 30 days from the date theQuote is provided and thereafter are subject to confirmation in writing by BurtonDemolition unless otherwise stipulated on the Quote.
4.3. Any estimate or Quote does not constitute an offer by Burton Demolitionand may be altered or withdrawn without notice until such time that the Quotebecomes binding on Burton Demolition in accordance with clause 4.4. below.
4.4. A Quote will only become binding on Burton Demolition once BurtonDemolition has provided notice in writing to the Client that Burton Demolitionhas accepted the Client’s order by way of writing.
4.5. Burton Demolition shall be provided with full access to any Site or anyother access, information or material it requires in order to carry out a Quote(if required).
4.6. Burton Demolition shall be entitled to vary or withdraw any Quotepreviously provided to the Client if:
4.6.1. the Client provides incomplete or inaccurate information preventing BurtonDemolition from providing an accurate Quote;
4.6.2. the Client varies the order in any way;
4.6.3. Burton Demolition experiences delays in providing the Goods or Servicesby virtue of any action or inaction on the part of the Client where such delayis in excess of seven (7) days from the commencement date specified in theQuote or if no such date is specified, then seven (7) days from the date onwhich the Client accepts the Quote;
4.6.4. at the Client’s request, Burton Demolition agrees to provide additionalGoods or Services at any time after acceptance of the Quote by the Client;
4.6.5. Burton Demolition experiences price increases from any suppliers inacquiring any Goods or Services required in respect of providing the Goods orServices to the Client after the date on which the Quote is accepted by theClient;
4.6.6. the Client is in breach of its obligations as set out in these Terms andConditions causing Burton Demolition to incur loss for any reason directly orindirectly; or
4.6.7. any cause beyond Burton Demolition’s control causes the necessaryvariation.
5.1. All orders are accepted, and the Goods or Services will be supplied,only upon and subject to these Terms and Conditions.
5.2. Any order placed by the Client, whether orally or in writing, shallconstitute an offer to contract upon these Terms and Conditions and novariation, whether contained in the Client’s order or otherwise shall applyunless the same is accepted and agreed to in writing by an officer of BurtonDemolition authorised to sign on its behalf.
6. PRICING
6.1. The Price charged shall be in accordance with the Burton DemolitionSchedule of Costs at the date the Services or Goods are supplied unlessotherwise agreed in writing.
6.2. Pricing provided by Burton Demolition to the Client does not includeGST. GST will be charged at the rate current at the time the service or goodsare supplied and in accordance with clause 3.
6.3. Should there be any variation in details, sizes and quantities, deliveryinstructions or any other item or matter on which the Quote or invoice isbased, Burton Demolition reserves the right to revise and amend the Price, andreissue the Client with a Quote accordingly.
6.4. Clerical errors in computations, typing or otherwise of catalogue,quotation, acceptance, offer, invoice, delivery docket, credit note of BurtonDemolition shall be subject to correction.
7.1. Burton Demolition, and its employees, servants, agents andsubcontractors shall be provided with full access to any Site, information ormaterial it requires in order to carry out all works necessary to provide theGoods or Services. If Goods are kept at a premises not under the control of theClient, then the Client must obtain permission from the controller of thepremises to comply with this clause 7.1.
7.2. The Client will provide at its own expense, connection for electricity,internet and any other similar services required by the Burton Demolition forinstallation of the Goods or provision of the Services.
7.3. Where Burton Demolition agrees to install Goods at any Site BurtonDemolition will be under no liability or responsibility for any loss, damage orexpense howsoever incurred by the Client as the result of:
7.3.1. any failure or delay by Burton Demolition in performing any of itsobligations under the contract due to any reason beyond the control of BurtonDemolition; or
7.3.2. any prohibitions or restrictions under any applicable statutes, by-lawsor regulations.
7.4. Burton Demolition’s obligation to supply the Goods or Services issubject always to the availability of labour, supply, materials, plant,equipment and services making up, or necessary for, the supply of the Goods orServices.
7.5. Dates specified in any Quote for delivery or completion of the Goods orServices are estimates only. Burton Demolition will use all reasonableendeavours to deliver the Goods or Services by dates specified in the quotationbut does not warrant that such delivery date will be met.
7.6. The Client may not reject the Goods or Services on account of BurtonDemolition’s inability to comply with dates specified in any Quote.
7.7. Burton Demolition reserves the right to not supply Goods or Services atall or supply any order in full or in part.
7.8. All costs and fees incurred by Burton Demolition in purchasing anyplant, equipment, materials or Goods required to the provision of a serviceoffered to a client, but not expressly included in the Engagement Notice, willbe charged to the Client.
7.9. At the conclusion or termination of the Agreement, or otherwise where BurtonDemolition and the Client agree in writing that Burton Demolition will ceaseprovision of the Goods or Services, the parties acknowledge and agree that BurtonDemolition will have 30 Business Days to exit the Services.
8.1. If Burton Demolition shall extend credit to the Client, payment for all Goodssold or Service provided is to be within the payment terms shown on any invoiceor Quotation.
8.2. Burton Demolition reserves the right to withdraw credit terms, cancelany discounted rates, apply or vary a credit limit at any time.
8.3. If Delivery or collection of the Goods is delayed by the Client, thebalance of the contract sum will be invoiced and payment will still be requiredwithin specified payment terms.
8.4. Save as herein expressly provided above, all other invoices issued tothe Client by Burton Demolition are payable net, not later than seven (7) daysfrom the date of such invoice.
8.5. A deposit (if or as specified on a Quotation) may be required by BurtonDemolition before any Goods or Services are provided or performed any suchdeposit may be non-refundable pursuant to the terms of these Terms andConditions.
8.6. If specified on a Quotation, progress payments may be required beforeany Goods or Services are provided or performed. The requirement for progresspayments will be at the sole discretion of Burton Demolition.
8.7. If payment is not received in accordance with these Terms and Conditions,provision of the Goods or Services will cease until such time that payment isreceived and recommencement of the provision of Goods or Services will be atthe sole discretion of Burton Demolition.
8.8. If payment has not been received in accordance with these terms withinseven (7) days from the date that the relevant invoice was issued, BurtonDemolition may at its sole discretion cease provision of the Services.Cancelled accounts may not be able to be reactivated and any account history orinformation may not be retrievable.
8.9. Where payment by the Client to Burton Demolition is fully or partiallyoverdue, Burton Demolition may enter the Client’s property at any time andwithout notice to decommission the Goods, Services or any works carried out by BurtonDemolition and Burton Demolition shall not be liable for any loss or damage tothe Client’s property, or loss of revenue in the course of such entry ordecommissioning.
8.10. Burton Demolition reserves the right to change the Price in the event ofa variation from the plan of scheduled Services or provision of certain Goodsas agreed upon or noted in any Quote (including but not limited to anyvariation as a result of additional work required due to unforeseeablecircumstances or as a result of increases to Burton Demolition in the cost ofthird-party services and labour).
8.11. The Client shall notify Burton Demolition in writing within seven (7)days of an invoice being rendered by Burton Demolition to the Client if theClient considers the invoice to be incorrect or invalid for any reason togetherwith the reasons for any withholding of payment, failing which the Client shallraise no objection to any such invoice and shall make full payment of the saidinvoice.
8.12. If after commencement of the provision of Goods or Services BurtonDemolition identifies a required variation to the scope of works reflected inany Quote or as otherwise agreed by the parties, Burton Demolition will providenotice to the Client accordingly as a matter of urgency (Variation Notice).The Variation Notice must provide, in sufficient detail so as to allow theClient to provide a considered response, the scope and estimated cost of therequired variation (Variation).
8.13. The Client must respond to a Variation Notice within no more than one(1) Business Day from receipt of the same, advising whether it agrees to theproposed Variation. If the Client does not agree to the proposed variation,Burton Demolition may at its sole discretion suspend to terminate thisAgreement. Otherwise:
8.13.1. if the Client fails to respond within one (1) Business Day, the Clientshall be liable for, and expressly undertakes to pay Burton Demolition $1000.00for each day that it does not comply with the response requirements in clause 8.13; or
8.13.2. if the Client responds to theVariation Notice requesting an extension of time to provide a response, theClient shall be liable for, and expressly undertakes to pay $500.00 for eachday until it has complied with the response requirements in clause 8.13.
8.14. If the Client fails to respond to a Variation Notice for a periodexceeding five (5) calendar days, Burton Demolition may at its sole discretionsuspend or terminate this Agreement.
8.15. Burton Demolition may, its absolute discretion, seek and recover fromthe Client and the Client agrees to pay:
8.15.1. interest on all overdue invoices at a rate of interest two percent (2%)per annum greater than the rate charged from time to time by the CommonwealthBanking Corporation on overdraft accounts, computed daily; and
8.15.2. any costs, fees or expenses incurred in collecting or attempting tocollect any amounts that are not paid by the Client by the due date or costs,fees or expenses incurred by Burton Demolition in exercising any other rights,powers or remedies, including but not limited to debt collection agency’sexpenses and solicitor’s fees on a full indemnity basis.
8.16. Amounts received by Burton Demolition may be applied first againstinterest, charges and expenses before being applied to any outstandinginvoices.
8.17. The Client shall be liable for, and expressly undertakes to pay, allfees (including an Administration Fee in an amount to be set from time to timeby Burton Demolition) for all costs incurred as a result of any cheque orelectronic banking transaction being dishonoured for whatever reason.
8.18. If the Client has provided direct debit details to Burton Demolition, itconsents and agrees to Burton Demolition using those direct debit details topay any accounts including those accounts that have been outstanding for morethan 14 days.
9.1. The Client acknowledges and agrees that:
9.1.1. if the Client fails to give Burton Demolition notice of anynon-complying aspect of, or defects in, the Goods or Services within seven (7) BusinessDays of Delivery, Burton Demolition will be deemed to have fully discharged itsobligations under these Terms and Conditions;
9.1.2. Burton Demolition will, upon being deemed to have fully discharged itsobligations under these Terms and Conditions, be and from any and all liabilityin respect of the Goods or Services supplied save for the continuing operationof any warranty expressly given under these Terms and Conditions;
9.1.3. Burton Demolition shall not be liable to compensate the Client for anydelay in rectifying any fault in the Goods or Services or in properly assessingthe Client’s claim; and
9.1.4. Burton Demolition is not liable to compensate the Client where thedefect or damage is caused by or arises through:
9.1.4.1. a failure on the part of the Client to follow any instructions orguidelines provided by Burton Demolition or a third party; or
9.1.4.2. the continued use of any Goods or Services after any defect becomesapparent or would have become apparent to a reasonably prudent operator oruser.
9.2. The Client may not assert any right of set off, counterclaim orabatement in respect of alleged defects concerning the Goods or Services andmust pay all amounts due under these Terms and Conditions in full to BurtonDemolition before pursuing any remedial or rectification claims.
9.3. If the Client notifies Burton Demolition of any defect within the timespecified in clause 9.1 then,all goods must be returned to Burton Demolition or its authorisedrepresentative for inspection or testing to assess if a defect exists and aclaim is justified. It is the responsibility of the Client to return any Goodsfor inspection and all freight costs are the responsibility of the Client.
9.4. Goodsreturned under warranty for repair or testing will incur a charge to be fixedby Burton Demolition if no fault is found.
9.5. The Clientshall bear freight charges for returning the Goods for inspection and for thedelivery of any replacement or repaired product from a justified warrantyclaim.
10.1. BurtonDemolition warrants that Goods or Services supplied will be of acceptablequality and that the Services shall be performed with due care and skill,however makes no warranty that the Goods or Services are fit for a particularpurpose.
10.2. BurtonDemolition Goods and Services are provided with consumer guarantees as set outin the Australian Consumer Law.
10.3. For goodsnot manufactured by Burton Demolition, the Client shall have only the benefitof the Manufacturer’s warranty from the date of invoice.
10.4. BurtonDemolition is not responsible for changes, repairs or alterations made to anyGoods or Services by any other parties which may have an adverse effect to anyof the Goods or Services provided by Burton Demolition. The Client muststrictly not perform or allow other parties to perform any alterations(including the affixing of any signs) to the Goods without expressauthorisation to do so from Burton Demolition, and in such case subject to anyconditions or requirements as may be imposed by Burton Demolition at its solediscretion.
10.5. BurtonDemolition shall not be liable for any failure of the Client to fix, install,erect, or maintain the Goods in accordance with any advice, recommendation,specification, information, assistance or service provided by Burton Demolitionin relation to the Goods.
10.6. All otherwarranties, liabilities and obligations imposed under statute are expresslyexcluded but only to the extent that this exclusion does not contravene theAustralian Consumer Law or cause any part of these Terms and Conditions to bevoid.
10.7. Subject tothe terms of this Agreement, and applicable Australia legislation, BurtonDemolition’s liability in respect of Goods or Services is limited to:
10.7.1. supplying the Goods or Services again;
10.7.2. the cost of having the Goods or Services supplied again, whichever BurtonDemolition elects to do in its absolute discretion; or
10.7.3. where the defect relates to Goods not manufactured by Burton Demolition,in accordance with Clause 10.3 above.
10.8. To the maximum extent permitted by law:
10.8.1. Burton Demolition will not be liable to the Client or any other personor third party in respect of any consequential or other loss or damage(including loss of profit, loss of income, loss of rental, loss of production,loss of actual or potential business opportunity or loss to reputation or anypenalty that may be imposed on the Client) arising directly or indirectly fromthe performance or non-performance of the Goods or Services, their use ormisuse, or provision of the Goods or Services under these Terms and Conditions;
10.8.2. subject to the provisions of this Agreement, the Client is responsiblefor any loss or damage to the Goods including but not limited to:
10.8.2.1. theft of the Goods or any part of them;
10.8.2.2. during transportation (unless the transport is provided by BurtonDemolition at the request of and paid for by the Client);
10.8.2.3. resulting from overloading, exceeding rate capacity, misuse, graffitivandalism or abuse;
10.8.2.4. resulting from improper or insufficient installation including failureto properly secure the Goods to the ground;
10.8.2.5. malicious or wilful damage, vandalism or graffiti;
10.8.2.6. any loss or mysterious disappearance without evidence of theft;
10.8.2.7. resulting directly or indirectly by water from action of the sea, tidalwave or high water;
10.8.2.8. caused by erosion, subsidence, landslide or any other movement of theearth;
10.8.2.9. misappropriation or wrongful conversion of the Goods by any person;
10.8.2.10. resulting from any act or omission of the Client, or the Client’semployees or agents; and
10.8.2.11. use or operation of Goods or Services in violation of this Agreement.
10.8.3. Burton Demolition’s liability arising out of or in connection with theseTerms and Conditions whether under the law of contract, in tort, in equityunder statute or otherwise shall be limited in aggregate to an amount equal tothe Price of the Goods or Services payable by the Client;
10.8.4. BurtonDemolition shall strictly not be liable for any lossor damage, including any consequential loss or damage, arising from the weightand nature of operating heavy machinery and vehicles required to provide Goodsand Services;
10.8.5. Burton Demolition shall not be liable to the Client for any statements,representations, guarantees, conditions or warranties not expressly containedin these Terms and Conditions; and
10.8.6. the Client warrants that all Goods or Servicessupplied to the Client are for commercial purposes only and, accordingly, theprovisions of the National Credit Code will not apply.
10.9. The Clientagrees to indemnify and forever hold harmless Burton Demolition, its employees,directors, heirs and assigns against all liability, loss, damage, harm andexpense of any nature, including legal fees, arising directly or indirectly inconnection with the Goods or Services, subject to the terms of the Agreement oras otherwise agreed upon by the parties in writing.
10.10. The Clientwarrants that it will not solicit work from, or otherwise consult with, anyBurton Demolition employee, agent or personnel independently of BurtonDemolition unless otherwise agreed upon by the parties in writing.
10.11. For theavoidance of doubt any warranty whether arising pursuant to these Term andConditions or any statute will not apply in the following circumstances:
10.11.1. if no proof of date of purchase can be produced;
10.11.2. if the Goods or any product provided by Burton Demolition has been usedin a manner beyond its design parameters;
10.11.3. if any Good or product is altered, tampered with or repaired bypersonnel not authorised by Burton Demolition;
10.11.4. if loss or damage is caused by rough treatment; or
10.11.5. if the Goods, Services or any product provided by BurtonDemolition is not used and maintained in accordance with Burton Demolition’s or theManufacturer’s instructions.
11.1. The partiesacknowledge and agree that each of Burton Demolition and the Client shallretain title and all IP Rights in any pre-existing intellectual property whichis submitted to the other party for the performance of the Services, orotherwise in connection with the terms of this Agreement.
11.2. Nothing inthis Agreement will transfer ownership to the Client of any intellectualproperty, confidential information or IP Rights.
11.3. For allIntellectual Property provided to Burton Demolition in the provision ofServices, the Client hereby warrants:
11.3.1. they own the intellectual property rights in that content;
11.3.2. that content does not infringe the intellectual property rights of athird party;
11.3.3. that content is not fraudulent, stolen, or otherwise unlawful; and
11.3.4. that content does not violate any applicable law, statute, ordinance orregulation (including but not limited to, those governing export control,consumer protection, unfair competition, or criminal law).
11.4. BurtonDemolition reserves the right to refuse any content it considers to be incontravention with any of the above statements.
12.1. BurtonDemolition and the Client agree that title to the Goods remain vested in BurtonDemolition and shall not pass to the Client until the Client has paid allmonies owing to Burton Demolition by the Client for the particular Goods andthe cost of installation in addition to any interest, fees, collection,repossession or legal costs incurred.
12.2. BurtonDemolition shall retain an equitable interest in the Goods, whether separate orco-mingled or accessioned, which shall be stored in such a manner as to beclearly identifiable as the property of Burton Demolition, until title haspassed to the Client and further, upon re-sale of the Goods by the Client,Burton Demolition shall have the right to trace any proceeds of sale to theextent that they relate to its Goods.
12.3. If paymenthas not been received, the Client will transfer to Burton Demolition all of itsrights in respect of the sale price.
12.4. BurtonDemolition may demand at any time until title has passed to the Client that theClient, at the Client’s cost, return the Goods or any part of them.
12.5. In the eventthat the Client defaults in the payment of any monies owing, Burton Demolitionand its employees or agents shall have the right to enter without notice uponthe Client’s premises or any other premises where the Goods are known to bestored to repossess the Goods and for this purpose the Client shall grantreasonable access rights and Burton Demolition, its employees or agents shallbe entitled to do all things required to secure repossession.
12.6. The Clientagrees and acknowledges that it is only a bailee of the Goods and until suchtime as Burton Demolition has received payment in full for the Goods then theClient shall hold any proceeds from the sale or disposal of the Goods, up toand including the amount owed to Burton Demolition for the Goods, on trust for BurtonDemolition.
12.7. Until titlepasses to the Client, the Client will not encumber, transfer, assign orotherwise deal with the Goods in any way, without Burton Demolition’s expressconsent.
12.8. Until titlepasses to the Client, the Client acknowledges that these conditions create, in BurtonDemolition’s favour, a Purchase Money Security Interest in the Goods and anyproceeds of their sale which Burton Demolition may register on the PersonalProperty Security Register.
12.9. Theprovisions of this clause 12 which relate to the transfer of title of any Goods apply only insofaras the provision of Goods is for the sale, rather than hire, rental or licence.
13.1. Notwithstanding clause 12 above, the risk for theGoods supplied shall pass to the Client upon Delivery unless otherwise agreedin writing by Burton Demolition.
13.2. If any of the Goods are damaged or destroyed prior to the title in thempassing to the Client, Burton Demolition is entitled, without affecting anyother rights and remedies under any agreement, to any insurance proceedspayable for the Goods. The production of these Terms and Conditions by BurtonDemolition will be sufficient evidence of Burton Demolition’s rights to receivethe insurance proceeds without the need for any insurer or other third partyacting on behalf of the insurer to make further enquiries.
13.3. Where the Client has requested special delivery arrangements or that BurtonDemolition arrange the carrier and prepay and charge freight, risk in respectof Goods shall pass to the Client upon the goods leaving the premises of BurtonDemolition. Burton Demolition will not in any circumstances accept liabilityfor damage, shortage or loss during transit.
13.4. In the circumstances described above in clause 13.3 the Client is to insurethe Goods or Service and where possible note Burton Demolition as an interestedparty.
13.5. If delivery of the Goods by Burton Demolition is delayed for any causeother than its own negligence, the Client shall be liable for extra charges,losses or expenses incurred by Burton Demolition and the Client shall not beentitled to cancel this contract, order or Quotation by reason thereof.
14.1. Burton Demolition may cancel the delivery of Goods or Services at anytime before Delivery by giving notice to the Client by any means.
14.2. Burton Demolition shall not be liable for any loss or damage, includingany consequential loss or damage, arising from such cancellation referred toabove in Clause 14.1.
14.3. In the event that the Client cancels delivery of Goods or Services, theClient shall be liable for any costs incurred by Burton Demolition up to thetime of the cancellation including, but not limited to, any costs incurred by BurtonDemolition.
14.4. Any request by the Client for cancellation of an order or Quote must bein writing by facsimile, e-mail or post.
14.5. Where Burton Demolition agrees in writing to accept Goods for return, BurtonDemolition may are its sole discretion charge (or retain, as concerns any fundsalready paid to Burton Demolition by the Client pursuant to the terms of thisAgreement) actual costs incurred in the cancellation of the Goods or Services,and return of the same to Burton Demolition.
14.6. Non-stock and specially manufactured items are non-returnable, and anyamount paid for any such items is non-refundable.
14.7. If the Client breaches any of its obligations to Burton Demolition, BurtonDemolition may without prejudice to any further or other claims or rights whichBurton Demolition may have, immediately cancel any uncompleted order or tocancel or suspend the provision of Goods or Services, immediately demandpayment for any provision of Goods or Services already made and retain anypayments made for incomplete any Services.
14.8. Burton Demolition shall also have, without prejudice to any further orother claims or rights which Burton Demolition may have, the right to immediatelycancel any uncompleted order or to cancel or suspend provision of Goods orServices, immediately demand payment for any Goods or Services already providedalready upon any of the following events taking place:
14.8.1. if the Client is an individual or a sole trader, the Client commits anact of bankruptcy, insolvency, goes into administration, has a liquidator,manager or receiver appointed, or the Client has judgment signed against them(a default event);
14.8.2. a default event occurs in respect of any director of a Client that istrading as a company or any resolution or petition to wind up the Client ispassed or presented, other than for the purposes of a scheme of reconstructionor amalgamation (previously approved in writing by Burton Demolition);
14.8.3. a default event occurs in respect of any Client which is an incorporatedbody or any resolution or petition to wind up the Client is passed orpresented, other than for the purposes of a scheme of reconstruction oramalgamation (previously approved in writing by Burton Demolition); or
14.8.4. a default event occurs in respect of any partner of a Client that istrading as a partnership.
15.1. The Client will provide Burton Demolition with reasonable direct accessto the any Site, and to any Goods, and shall provide such other reasonableassistance as Burton Demolition may request, to enable Burton Demolition tocomply with its obligations under these Terms and Conditions and in relation tothe provision of Goods or Services.
15.2. The Client shall, at its own expense maintain the Goods in good andreasonable condition (fair wear and tear excepted) and where applicable returnthe Goods in good order and repair to the Burton Demolition depot on terminationof this Agreement. If the Goods are not returned in the condition described,the Client shall pay Burton Demolition reasonable costs of rectification.
15.3. The Client will ensure that all Sites onto which Goods are to be placedor installed:
15.3.1. are free from all obstructions for both delivery and pickup;
15.3.2. are prepared, level, compacted and accessible;
15.3.3. are clearly pegged or marked as to the proposed position of the Goods;
15.3.4. have all necessary services available for connection (Including powerservice from main board to load centre within the Goods; water supply servicefrom main supply to connection point on the Goods; sewer and waste service frommains or septic system to under floor outlets).
15.4. The Client acknowledges and agrees that no allowances have been made andaccordingly Burton Demolition will not be liable for the following, unlessotherwise agreed upon in writing by Burton Demolition or as reflected in anyQuote, being:
15.4.1. asbestos materials which are wholly or partially buried, or areotherwise sufficiently obscured so as to prevent identification upon an initialinspection of the Site;
15.4.2. friable asbestos;
15.4.3. asbestos roofing or fencing;
15.4.4. asbestos that is damaged prior to the provision of Goods or Services;
15.4.5. buried items or materials, including but not limited to concrete,brickworks and other building materials;
15.4.6. as concerns the provision of Services relating to a whole building,footings and piers which exceed a depth of 800mm;
15.4.7. as concerns the provision of Services relating to a partial building,footings which exceed a depth of 650mm;
15.4.8. removal of piers and pad footings at any Site;
15.4.9. the machine removal of concrete slabs which exceed a depth of 100mm;
15.4.10. concrete slabs which need to be quick-cut using specialised equipment,which exceed a depth of 125mm;
15.4.11. non-disclosed underground structures, including but not limited towells, concrete tanks and pits;
15.4.12. making good and repairing any demolitions works undertaken at a Site;
15.4.13. the removal of boundary fencing, retaining walls and significant orregulated trees;
15.4.14. grinding and mulching of tree stumps;
15.4.15. the removal of trees that have grown around, or immediately adjacent topower lines;
15.4.16. the removal of trees which were not previously identified as requiringremoval;
15.4.17. any work requiring an arborist or other like qualified specialist;
15.4.18. any application which is required to be lodged with a local governmentCouncil;
15.4.19. abolishment of services at the Site;
15.4.20. incorrect demolition or renovation cuts that have not been marked by theClient, or the Client’s agents or nominee;
15.4.21. any civil works, including but not limited to compaction and removal ordistribution of soil;
15.4.22. traffic management and control;
15.4.23. fencing at the Site which has collapsed after the provision of Goods orServices has been completed; and
15.4.24. items, debris, waste materials or litter which is present at the Siteupon commencement of the provision of Goods or Services.
15.5. The Client acknowledges and agrees to obtain all necessary localgovernment or statutory body approvals and ensure that all relevant fees arepaid including for any permits, engineering services, drawings or otherdocuments.
15.6. The Client acknowledges that no refunds are available once Goods havebeen Delivered or work has commenced on the Services any additional requestsfor refunds will require management review and be at the sole discretion of Burton Demolition.
15.7. The Client acknowledges that excepting as provided by law this agreementdoes not entitle the Client to demand any Site inspection or Service of theGoods supplied, delivered and installed (if applicable) by Burton Demolition.
15.8. Unless otherwise agreed to in writing by Burton Demolition andnotwithstanding any terms appearing in documentation provided by or on behalfof the Client these Terms and Conditions shall be incorporated as express termsand conditions into all Contracts by Burton Demolition to supply the Clientwith Goods or Services.
15.9. The Client authorises Burton Demolition to obtain from a creditreporting agency a credit report containing personal credit information aboutthe Client. If asked to provide personal credit, to use a credit reportcontaining information about the Client’s commercial activities or commercialcreditworthiness from a business which provides information about thecommercial creditworthiness of a person. The Client authorises BurtonDemolition to give to and receive from any credit providers named overleaf orthat may be named in a credit report issued by a credit reporting agency,information in Burton Demolition’s possession or other credit provider’spossession about the Client’s creditworthiness, credit standing, credit historyand credit capacity. The Client understands the information may be used to: (a)assess an application for credit by the Client; (b) assist Burton Demolition inavoiding default on the Client’s credit obligations; (c) notify other creditproviders of a default by the Client; and (d) assess the Client’s creditworthiness.
15.10. The Client understands that Privacy Act 1988 (Cth) (as amendedfrom time to time) may allow Burton Demolition to give a credit reporting agencycertain personal information about the Client. The information which may begiven to an agency includes particulars to identify the Client; the fact thatthe Client has applied for credit and the amount; the fact that BurtonDemolition is a credit provider to the Client; payments which become overduemore than 60 days; advice that payments are no longer overdue; cheques of$100.00 or more drawn by the Client which a bank has dishonoured more than oncein specified circumstances; that in the opinion of Burton Demolition the Clienthas committed a serious credit infringement; that the credit provided to theClient by Burton Demolition has been discharged.
15.11. The Clientis solely responsible for advising Burton Demolition of any authority, access, clearance or licencewhich Burton Demolition is required to maintain for the provision of Goods orServices pursuant to any rule, regulation or internal policy of the Client.
15.12. If theAgreement is terminated early for any reason, then the Client acknowledges andagrees that it is responsible for payment all costs and expenses reasonablyincurred by Burton Demolition in “making safe” any Site where Goods or Serviceswere provided pursuant to the Agreement. For the purposes of the Agreement,making safe includes:
15.12.1. removing any plant and equipment utilised by Burton Demolition in theprovision of Goods and Services;
15.12.2. filling any holes or trenches;
15.12.3. removal ofsalvageable items, objects or materials for which ownership has passed to BurtonDemolition pursuant to the terms of the Agreement;
15.12.4. the installationof bunting surrounding excavation sites, and warning signs relating toidentified site hazards; and
15.12.5. creating an“exclusion zone” which restricts access to portions of a site which are unsafe.
16.1. Where the Client fails to comply with theterms of this Agreement, or otherwise where the Client notifies BurtonDemolition by way of writing that it wishes to cease the provision of Goods orServices, the Client provides and enduring and irrevocable authority for BurtonDemolition, or any agent or nominee of Burton Demolition, to enter onto anypremises where the Goods are located, or where the Services are being provided,to reclaim all Goods, plant and equipment owned by Burton Demolition.
17.1. Where the Client has requestedthat third-party goods be included in the sale, Burton Demolition takes noresponsibility for the warranty and on-going support of those products unlessotherwise agreed upon in writing. Such ongoing support and warranty provision is wholly between the Client and the nominatedproduct supplier.
17.2. Burton Demolition, at its sole discretion, mayprovide technical assistance to the Client. Such assistance would be chargeable at BurtonDemolition’s standard hourly rate for technical services.
18.1. The Price isbased on the work being carried out between 7:00 am to 5:00 pm on Mondays toFridays, excluding days off provided for by any relevant Industrial Award orAgreement including Public Holidays, Picnic Days, Site Allowances and RosteredDays Off. Any work required by the Client to be carried out outside those ordinarybusiness hours may be charged for applicable penalty rates.
19.1. Burton Demolition reserves the right to sub-contract themanufacture or supply of any part of the Goods quoted or of any materials orServices to be supplied.
20.1. The Clientacknowledges and agrees that it is responsible for obtaining all requisiteapprovals for removal of trees present at any Site where Goods or Services willbe provided. To the extent that the Client fails to obtain any such approvals,it hereby indemnifies and releases Burton Demolition from any liability, costsor expenses incurred in relation to the same.
20.2. Where BurtonDemolition agrees in writing to attend to removal of any trees present at a Site,the client acknowledges and agrees that it will not allow or instruct BurtonDemolition to proceed with the same unless all requisite approvals have beenobtained.
20.3. BurtonDemolition shall not be liable, and accepts neither responsibility norliability, for any damage or loss caused to neighbouring fences, structures orservices as a result of the removal of trees or vegetation within 300mm of Siteboundaries.
21.1. BurtonDemolition may, at its sole discretion, account for temporary fencing to beinstalled at a Site in any Quote issued to a Client.
21.2. Temporaryfencing will be removed no more than seven (7) days after completion of theprovision of Goods or Services unless otherwise agreed by the parties prior tothe completion date, and only upon terms acceptable to Burton Demolition.
21.3. The Clientacknowledges and agrees that it shall be liable for, and will indemnify andrelease Burton Demolition from, any cost or expense incurred resulting fromdamage to or theft of temporary fencing installed at a Site.
22.1. Where, inthe course of providing Goods or Services, Burton Demolition identify theactual or possible existence of sacred sites, artefacts or objects, orotherwise any Site, item or object of historical or cultural significance (SpecialSalvage), Burton Demolition may at its sole discretion suspend or terminateprovision of the Goods or Services.
22.2. As concernsall other salvaged items, objects, materials or like articles present at anySite and capable of being transferred to Burton Demolition by the Client, andto the fullest extent permissible by law, the Client acknowledges and agreesthat (subject to any contrary provision in the Engagement Notice) BurtonDemolition shall automatically and irrevocably obtain ownership of the same onand from the Commencement Date.
22.3. In such casethat Burton Demolition is required to suspend the provision of Goods orServices in accordance with clause 22.1, it shall notify the Clientaccordingly as a matter of urgency (Suspension Notice). Within no morethan two (2) days after receiving a Suspension Notice, the Client must adviseBurton Demolition what steps are to be taken in relation to the Special Salvageidentified at the Site, including by way of reference to any decisions by arelevant third-party authority. Otherwise:
22.3.1. if theClient does not respond to a Suspension Notice within two (2) Business Days,Burton Demolition will charge an ongoing fee of $500.00 per day to secure theSpecial Salvage for the Client; and
22.3.2. if the Client does notrespond to a Suspension Notice within 10 Business Days, Burton Demolition mayat its sole discretion, keep or dispose the Special Salvage as deems fit, andthe Client agrees to indemnify and release Burton Demolition from all costs,expenses and liability arising in connection with the Special Salvage.
22.4. Notwithstandinganything else in this Agreement, the Client is solely responsible for any costsor expenses incurred by Burton Demolition in connection with Special Salvage
23.1. The Clientshall ensure that all applicable utilities are disconnected prior to theprovision of Goods or Services on the Site. Burton Demolition will strictly notbe liable for any loss or damage caused by a Client’s failure to comply withthis clause 23.1
23.2. Burton Demolition reserves therights to charge the Client $500.00 per Business Day for any delays caused tothe provision of Goods or Services by the Client’s failure to disconnectapplicable utilities at a Site. Should such delays persist for more than five(5) Business Days, Burton Demolition may at its unfettered and sole discretionsuspend or terminate the Agreement.
23.3. The Clientacknowledges and agrees that the Terms and Conditions take precedence over anyterms or conditions which may be contained in any document provided by theClient.
23.4. BurtonDemolition may vary the Terms and Conditions, any credit limits, or suspend anycredit facility from time to time by notice given to the Client by any means.Unless or except specifically excluded herein, Burton Demolition retains anyrights and remedies available in any prior or pre-existing agreement.
23.5. BurtonDemolition may in its absolute discretion affix or cause to be affixed on theGoods or and part thereof any signage including but not limited to plates orother marks indicating that the Goods are the property of Burton Demolition.
23.6. Goods maynot be removed from the Site to which they are delivered or installed withoutexpress authority in writing from Burton Demolition.
23.7. Prices aresubject to change without notice.
23.8. No personacting or purporting to act on Burton Demolition’s behalf has the authority tomake any promise, representation or undertaking or to add to or change in anyway these Terms and Conditions except expressly in writing.
23.9. Thewarranties, rights and remedies of the Client as outlined in the Competition& Consumer Act 2010 (Cth) are not intended to be compromised as aresult of anything contained in these Terms and Conditions, except to thedegree permitted by the Act.
23.10. Any requestby the Client for the supply of Goods or Services shall constitute acceptanceof these Terms and Conditions.
23.11. The Clientacknowledges that where the Client consists of more than one party or entity,liability shall be joint and several.
23.12. The Clienthereby charges in favour of Burton Demolition all its estate and interest inany lands and in any other assets, whether tangible or intangible, freehold orleasehold, in which it now has any legal or beneficial interest in or in whichit later acquires any such interest with payment of all monies owed by theClient and consents to the lodging by Burton Demolition of a caveats or lienswhich note its interest in or over any such land or other caveatable orchargeable property.
23.13. Clericalerrors are subject to correction and do not bind Burton Demolition.
23.14. The Client'srights under the Terms and Conditions are not assignable or transferrable.
23.15. BurtonDemolition shall not be liable for any breach of any provision of any contractbetween them and a Supplier or Client arising from a Force Majeure Event or anyother cause that is or was beyond the reasonable control of Burton Demolition.
23.16. Theinvalidity or unenforceability of any provision of these Terms and Conditionsshall not affect the validity or enforceability of the remaining provisions.
23.17. The Clientacknowledges that all orders placed with Burton Demolition by the Client aremade relying solely upon the Client’s own skill and judgment.
23.18. The failureby Burton Demolition to enforce any provision of these Terms and Conditionsshall not be treated as a waiver of that provision, nor shall it affect BurtonDemolition’s right to subsequently enforce that provision.
24.1. If any provision of these Terms and Conditions is held to be unenforceable, orinvalid, for any reason, then that provision is deemed to be modified to theextent required to remedy the unenforceability or invalidity or if it is not possibleto remedy the unenforceability or invalidity, that provision is to be severedfrom these Terms and Conditions and these Terms and Conditions will otherwiseremain in full force.
25.1. Any Contract, Goods orServices, the provision of which is subject to these Terms and Conditions,shall be subject to the exclusive Jurisdiction of the laws of the State ofSouth Australia, Australia. The parties submit all disputes arising betweenthem to the courts in the State of South Australia and in any court in the saidstate competent to hear appeals from those courts offirst instance.
26.1. These Terms and Conditions and the Engagement Notice completed by theClient together constitute the entire agreement between the parties regarding the use of or purchase of any Goods or Servicesand supersedes all previous negotiations, commitments and agreements about Goods or Services.
