Burra Electrical Services Pty Ltd – General Electrical – Terms and Conditions

1. Definitions

1.1 “Burra Electrical” means Burra Electrical Services Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Burra Electrical Services Pty Ltd.

1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Burra Electrical to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

1.3 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Burra Electrical to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.4 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between Burra Electrical and the Client in accordance with clause 6 below.

1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.

2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Burra Electrical.

2.3 Any advice, recommendation, information, assistance or service provided by Burra Electrical in relation to Materials or Works supplied is given in good faith, is based on Burra Electrical’s own knowledge and experience and shall be accepted without liability on the part of Burra Electrical and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Materials or Works

2.4 In the event that Burra Electrical is required to provide the Works urgently, that may require Burra Electrical’s staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then Burra Electrical reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between Burra Electrical and the Client.

2.5 If Burra Electrical has been requested by the Client to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.

2.6 The Client acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, Burra Electrical reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 6.2 In all such cases Burra Electrical will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order on hold until such time as Burra Electrical and the Client agree to such changes.

2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives

3.1 Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to Burra Electrical as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Materials or Works on the Client’s behalf and/or to request any variation to the works on the Client’s behalf (such authority to continue until all requested works have been completed or the Client otherwise notifies Burra Electrical in writing that said person is no longer the Client’s duly authorised representative).

3.2 In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Burra Electrical in writing of the parameters of the limited authority granted to their representative.

3.3 The Client specifically acknowledges and accepts that they will be solely liable to Burra Electrical for all additional costs incurred by Burra Electrical (including Burra Electrical’s profit margin) in providing any works, materials, Works or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4. Errors and Omissions

4.1 The Client acknowledges and accepts that Burra Electrical shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by Burra Electrical in the formation and/or administration of this contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Burra Electrical in respect of the Works.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Burra Electrical; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

5. Change in Control

5.1 The Client shall give Burra Electrical not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Burra Electrical as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At Burra Electrical’s sole discretion, the Price shall be either:

(a) as indicated on invoices provided by Burra Electrical to the Client in respect of Works performed or Materials supplied; or

(b) Burra Electrical’s quoted Price (subject to clause 6.2) which shall be binding upon Burra Electrical provided that the Client shall accept Burra Electrical’s quotation in writing within thirty (30) days.

6.2 Burra Electrical reserves the right to change the Price:

(a) if a variation to the Materials which are to be supplied is requested; or

(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, prerequisite work by any third party not being completed, limitations in accessing the site or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or

(d) in the event of increases to Burra Electrical in the cost of labour or materials which are beyond Burra Electrical’s control.

6.3 Variations will be charged for on the basis of Burra Electrical’s quotation, and will be detailed in writing, and shown as variations on Burra Electrical’s invoice. The Client shall be required to respond to any variation submitted by Burra Electrical within ten (10) working days. Failure to do so will entitle Burra Electrical to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4 At Burra Electrical’s sole discretion a non-refundable deposit may be required.

6.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Burra Electrical, which may be:

(a) on completion of the Works; or

(b) by way of progress payments in accordance with Burra Electrical’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or

(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Burra Electrical.

6.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Burra Electrical.

6.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Burra Electrical nor to withhold payment of any invoice because part of that invoice is in dispute.

6.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Burra Electrical an amount equal to any GST Burra Electrical must pay for any supply by Burra Electrical under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7. Delivery of the Works

7.1 Subject to clause 7.2 it is Burra Electrical’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Burra Electrical claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Burra Electrical’s control, including but not limited to any failure by the Client to:

(a) make a selection; or

(b) have the site ready for the Works; or

7.3 At Burra Electrical’s sole discretion, the cost of delivery is included in the Price.

7.4 Burra Electrical may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.5 Any time specified by Burra Electrical for delivery of the Works is an estimate only and Burra Electrical will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that Burra Electrical is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Burra Electrical shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8. Risk

8.1 If Burra Electrical retains ownership of the Materials under clause 11 then:

(a) where Burra Electrical is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;

(i) the Client or the Client’s nominated carrier takes possession of the Materials at Burra Electrical’s address; or

(ii) the Materials are delivered by Burra Electrical or Burra Electrical’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b) where Burra Electrical is to both supply and install Materials then Burra Electrical shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

8.2 Notwithstanding the provisions of clause 8.1 if the Client specifically requests Burra Electrical to leave Materials outside Burra Electrical’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

8.3 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, Burra Electrical is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by Burra Electrical is sufficient evidence of Burra Electrical rights to receive the insurance proceeds without the need for any person dealing with Burra Electrical to make further enquiries.

8.4 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify Burra Electrical immediately upon any proposed changes. The Client agrees to indemnify Burra Electrical against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 6.2.

8.5 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) Burra Electrical reasonably forms the opinion that the Client’s property is not safe for the installation of Materials to proceed then Burra Electrical shall be entitled to delay installation of the Materials (in accordance with clause 7.2) until Burra Electrical is satisfied that it is safe for the installation to proceed. Burra Electrical may in agreement with the Client bring the property up to a standard suitable for installation to proceed but all such Works undertaken and any additional Materials supplied shall be treated as a variation and be charged for in addition to the Price.

8.6 In the event asbestos or any other toxic substances are discovered at the property, that it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Burra Electrical against any costs incurred by Burra Electrical as a consequence of such discovery. Under no circumstances will Burra Electrical handle removal of asbestos product.

8.7 Burra Electrical shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Materials to be installed in any way which goes against Burra Electrical’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to Burra Electrical. Accordingly, Burra Electrical offers no warranty in regards to the aforementioned.

8.8 Where the Client has supplied materials for Burra Electrical to complete the Works, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Burra Electrical shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.

8.9 The Client acknowledges that Burra Electrical is only responsible for Materials that are replaced/supplied by Burra Electrical, and in the event that other parts/goods, subsequently fail, the Client agrees to indemnify Burra Electrical against any loss or damage to the Works, or caused by the goods, or any part thereof howsoever arising.

8.10 Burra Electrical accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with Burra Electrical’s and/or the manufacturers’ recommendations.

8.11 The Client acknowledges that all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in Burra Electrical’s fact sheets, price lists or advertising material are indicative only and that they have not relied on such information.

8.12 Where Burra Electrical requires that Materials, tools etc. required for the Works be stored at the site, the Client shall supply Burra Electrical a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.

8.13 Burra Electrical accepts no responsibility for any lost production for the Client in the event of repeated faults in the Client’s equipment.

9. Access

9.1 The Client shall ensure that Burra Electrical has clear and free access to the work site at all times to enable them to undertake the Works. Burra Electrical shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Burra Electrical.

10. Underground Locations

10.1 Prior to Burra Electrical commencing any Works the Client must advise Burra Electrical of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

10.2 Whilst Burra Electrical will take all care to avoid damage to any underground services the Client agrees to indemnify Burra Electrical in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.

11. Title

11.1 Burra Electrical and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid Burra Electrical all amounts owing to Burra Electrical; and

(b) the Client has met all of its other obligations to Burra Electrical.

11.2 Receipt by Burra Electrical of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

11.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 11.1:

(a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Burra Electrical on request.

(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for Burra Electrical and must pay to Burra Electrical the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.

(c) the production of these terms and conditions by Burra Electrical shall be sufficient evidence of Burra Electrical’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Burra Electrical to make further enquiries.

(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for Burra Electrical and must pay or deliver the proceeds to Burra Electrical on demand.

(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Burra Electrical and must sell, dispose of or return the resulting product to Burra Electrical as it so directs.

(f) unless the Materials have become fixtures the Client irrevocably authorises Burra Electrical to enter any premises where Burra Electrical believes the Materials are kept and recover possession of the Materials.

(g) Burra Electrical may recover possession of any Materials in transit whether or not delivery has occurred.

(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Burra Electrical.

(i) Burra Electrical may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

12. Personal Property Securities Act 2009 (“PPSA”)

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

12.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Client to Burra Electrical for Works – that have previously been supplied and that will be supplied in the future by Burra Electrical to the Client.

12.3 The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Burra Electrical may reasonably require to:

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);

(b) indemnify, and upon demand reimburse, Burra Electrical for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of Burra Electrical;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Burra Electrical;

(e) immediately advise Burra Electrical of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.

12.4 Burra Electrical and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

12.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

12.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

12.7 Unless otherwise agreed to in writing by Burra Electrical, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.

12.8 The Client shall unconditionally ratify any actions taken by Burra Electrical under clauses 12.3 to 12.5.

12.9 Subject to any express provisions to the contrary (including those contained in this clause 12) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

13. Security and Charge

13.1 In consideration of Burra Electrical agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

13.2 The Client indemnifies Burra Electrical from and against all Burra Electrical’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Burra Electrical’s rights under this clause.

13.3 The Client irrevocably appoints Burra Electrical and each director of Burra Electrical as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.

14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

14.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Burra Electrical in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow Burra Electrical to inspect the Materials or to review the Works provided.

14.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

14.3 Burra Electrical acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Burra Electrical makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Burra Electrical’s liability in respect of these warranties is limited to the fullest extent permitted by law.

14.5 If the Client is a consumer within the meaning of the CCA, Burra Electrical’s liability is limited to the extent permitted by section 64A of Schedule 2.

14.6 If Burra Electrical is required to replace any Materials under this clause or the CCA, but is unable to do so, Burra Electrical may refund any money the Client has paid for the Materials.

14.7 If Burra Electrical is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then Burra Electrical may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.

14.8 If the Client is not a consumer within the meaning of the CCA, Burra Electrical’s liability for any defect or damage in the Materials is:

(a) limited to the value of any express warranty or warranty card provided to the Client by Burra Electrical at Burra Electrical’s sole discretion;

(b) limited to any warranty to which Burra Electrical is entitled, if Burra Electrical did not manufacture the Materials;

14.9 Subject to this clause 14, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 14.1; and

(b) Burra Electrical has agreed that the Materials are defective; and

(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.

14.10 Notwithstanding clauses 14.1 to 14.9 but subject to the CCA, Burra Electrical shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store any Materials;

(b) the Client using the Materials for any purpose other than that for which they were designed;

(c) the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) interference with the Works by the Client or any third party without Burra Electrical’s prior approval;

(e) the Client failing to follow any instructions or guidelines provided by Burra Electrical;

(f) fair wear and tear, any accident, or act of God.

14.11 In the case of second hand Materials, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second-hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Burra Electrical as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Burra Electrical has agreed to provide the Client with the second-hand Materials and calculated the Price of the second-hand Materials in reliance of this clause 14.11.

14.12 Notwithstanding anything contained in this clause if Burra Electrical is required by a law to accept a return then Burra Electrical will only accept a return on the conditions imposed by that law.

15. Intellectual Property

15.1 Where Burra Electrical has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Burra Electrical, and shall only be used by the Client at Burra Electrical’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Burra Electrical.

15.2 The Client warrants that all designs, specifications or instructions given to Burra Electrical will not cause Burra Electrical to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Burra Electrical against any action taken by a third party against Burra Electrical in respect of any such infringement.

15.3 The Client agrees that Burra Electrical may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Burra Electrical has created for the Client.

16. Default and Consequences of Default

16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Burra Electrical’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

16.2 If the Client owes Burra Electrical any money the Client shall indemnify Burra Electrical from and against all costs and disbursements incurred by Burra Electrical in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Burra Electrical’s contract default fee, and bank dishonour fees).

16.3 Further to any other rights or remedies Burra Electrical may have under this contract, if a Client has made payment to Burra Electrical, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Burra Electrical under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.

16.4 Without prejudice to Burra Electrical’s other remedies at law Burra Electrical shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Burra Electrical shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Burra Electrical becomes overdue, or in Burra Electrical’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by Burra Electrical;

(c) the Client becomes insolvent or bankrupt, 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

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

17. Cancellation

17.1 Without prejudice to any other remedies Burra Electrical may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Burra Electrical may suspend or terminate the supply of Works to the Client. Burra Electrical will not be liable to the Client for any loss or damage the Client suffers because Burra Electrical has exercised its rights under this clause.

17.2 Burra Electrical may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice Burra Electrical shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Burra Electrical for Works already performed. Burra Electrical shall not be liable for any loss or damage whatsoever arising from such cancellation.

17.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Burra Electrical as a direct result of the cancellation (including, but not limited to, any loss of profits).

18. Privacy Act 1988

18.1 The Client agrees for Burra Electrical to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Burra Electrical.

18.2 The Client agrees that Burra Electrical may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.

18.3 The Client consents to Burra Electrical being given a consumer credit report to collect overdue payment on commercial credit.

18.4 The Client agrees that personal credit information provided may be used and retained by Burra Electrical for the following purposes (and for other agreed purposes or required by):

(a) the provision of Works; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Works.

18.5 Burra Electrical may give information about the Client to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

18.6 The information given to the CRB may include:

(a) personal information as outlined in 18.1 above;

(b) name of the credit provider and that Burra Electrical is a current credit provider to the Client;

(d) type of consumer credit;

(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Burra Electrical has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of Burra Electrical, the Client has committed a serious credit infringement;

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

18.7 The Client shall have the right to request (by e-mail) from Burra Electrical:

(a) a copy of the information about the Client retained by Burra Electrical and the right to request that Burra Electrical correct any incorrect information; and

(b) that Burra Electrical does not disclose any personal information about the Client for the purpose of direct marketing.

18.8 Burra Electrical will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.

18.9 The Client can make a privacy complaint by contacting Burra Electrical via e-mail. Burra Electrical will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

19. Compliance with Laws

19.1 The Client and Burra Electrical shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

19.2 The Client shall obtain (at the expense of the Client) all licenses, approvals, applications and permits that may be required for the Works, and that are not included in the project documents provided by Burra Electrical

19.3 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards.

19.4 If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by Burra Electrical, then Burra Electrical shall notify the Client immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Client’s account.

19.5 Any live Works or Works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. Burra Electrical live Works procedures are designed to eliminate risk of injury to Burra Electrical employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Works for which additional charges may be applicable. This shall be invoiced in accordance with clause 6.2.

20. Building and Construction Industry Security of Payment Act 2002

20.1 At Burra Electrical’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.

20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

21. Service of Notices

21.1 Any written notice given under this contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

22. Trusts

22.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Burra Electrical may have notice of the Trust, the Client covenants with Burra Electrical as follows:

(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c) the Client will not without consent in writing of Burra Electrical (Burra Electrical will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

(i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

23. General

23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which Burra Electrical has its principal place of business, and are subject to the jurisdiction of the Korumburra Courts in Victoria.

23.3 Subject to clause 14 Burra Electrical shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Burra Electrical of these terms and conditions (alternatively Burra Electrical’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

23.4 Burra Electrical may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

23.5 The Client cannot licence or assign without the written approval of Burra Electrical.

23.6 Burra Electrical may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Burra Electrical’s sub-contractors without the authority of Burra Electrical.

23.7 The Client agrees that Burra Electrical may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Burra Electrical to provide Works to the Client.

23.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

23.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.