Terms and Conditions of Contract
IT IS AGREED AND DECLARED AS FOLLOWS:
1 Definitions and Interpretation
1.1 Defined Terms
In this Agreement, unless the context otherwise requires:
Agent means the E-Solar appointed installation contractor who shall meet with the Customer at the Site and install the Solar PV System;
Business Day means a day on which trading banks are open for banking business in Perth and shall not include a Saturday, Sunday or public holiday in Western Australia;
Agreement means the agreement to purchase and to install the Solar PV System between E-Solar and the Customer as contained in the Order Form and these Terms and Conditions of Contract;
Contract is the Agreement between the Parties for the completion of the installation works at the price specified in the Order Form and includes the signed Order Form and these Terms and Conditions of Contract;
Customer means the purchaser of the PV System;
Date of Visit means the date that the Agent visited the Customer and or provided the Customer with the Solar System Quote and access to these Terms and Conditions;
Deposit means the deposit to be paid to E-Solar by the Customer in the amount specified in the Order Form;
GST shall have the meaning set out in clause 7;
Law or Laws means all statutes, regulations, proclamations, ordinances or by-laws as may be relevant to the Agreement, the Parties to this Agreement and the Agent and includes all statutes, regulations, proclamations, ordinances or by-laws issued under, varying, consolidating or replacing such statutes;
Order Form means the Solar System Quote signed by the Customer to which these Terms and Conditions are attached;
Outstanding Costs means the Total Cost payable by the Customer in relation to the installation of a Solar PV System as specified in the Order Form less any Deposit paid by the Customer;
Party or Parties means E-Solar and or the Customer as the context requires.
REC means any Renewable Energy Certificate
Site means the Customers premises where the Solar PV System is to be installed
Solar Credit or REC or Rebate means any REC, Solar Credit or other monetary rebate payable in relation to the purchase and installation of the Solar PV System by the relevant Government Department or Agency;
Solar PV System means the solar photo voltaic system as specified in the Order Form to be purchased by the Customer and installed by the Agent;
E-Solar means E-Solar Pty Ltd ABN 48 798 720 381 ACN 103 650 399 as Trustee for The Energy Trust;
Standard Forms means those standard forms that shall be provided to the Customer including (but not limited to):
(a) Application to connect small scale renewable energy systems to the Western Power network (issued by Western Power);
(b) Mandatory Information for REC Assignment Forms (issued by the Office of the Renewable Energy Regulator);
Tax Invoice shall have the meaning provided in clause 7;
Terms and Conditions means these Terms and Conditions of Contract;
Unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) an obligation or representation on the part of two or more persons binds them jointly and each of them severally;
(c) an obligation or representation in favour of two or more persons is for the benefit of them jointly and severally; and
(d) each obligation of a party takes effect as a covenant;
(e) references to parts, clauses, parties, annexures, exhibits and Schedules are references to parts and clauses of, and parties, annexures, exhibits and Schedules to, this Variation Agreement;
(f) in the interpretation of this Agreement, no rules of construction apply to the disadvantage of any party because that party was responsible for the drafting of this Agreement or of any part of this Agreement; and
(g) a reference to dollars or $ shall mean Australian Dollars.
2 Terms and Conditions
By signing the Order Form the Customer acknowledges and agrees that,
(a) these Terms and Conditions shall apply from and including the date the Order Form is signed;
(b) the Agreement between the parties shall be deemed a Contract and be in force from the date of the Order Form;
2.2 Pricing and Payment
(a) The pricing set out in the Order Form is:
(i) valid for a period of 14 days following the Date of Visit.
(ii) inclusive of any Rebate that may be payable in relation to the Solar PV System.
(iii) excludes any electricity or meter upgrades costs that may be required. These upgrade costs are payable in full by the Customer to the relevant power utility or company.
(b) Payment Timing
(i) The Deposit is due at the time that the Customer submits its Order Form to E-Solar.
(ii) The Outstanding Costs are due within 48 hours (or such other time as agreed in writing by E-Solar) of the completion of the installation and the delivery by the Agent to the Customer of the signed acceptance testing form confirming that the Solar PV System has met all of E-Solar’s acceptance testing criteria verifying the installed Solar PV System is operating at its design specifications.
3.1 Pricing includes Rebates
(a) The REC and/or Solar Credit value specified in the Order Form (being the Rebate) has been provided by E-Solar as a discount to the usual price of the Solar PV System.
(b) The Customer acknowledges and agrees that upon signing the Order Form the Rebate shall be:
(i) duly assigned to E-Solar; and
(ii) shall become the property of E-Solar.
(c) The Customer shall sign all documentation and do all necessary things to allow E-Solar to apply for and to obtain the Rebate.
(d) The Customer shall at no time:
(i) make a separate application for the Rebate from the relevant Government Authority or statutory body; and/or
(ii) be entitled to personally receive any Rebate other than as provided for in the Contract Price.
3.2 Rejection of Rebate:
In the event that any application for a Rebate is declined or rejected by the relevant Government authority or statutory body then the Customer may either elect to:
(a) pay the full price for the purchase and installation of the Solar PV System, or
(b) not purchase the Solar PV System,
in which case:
(i) the Agreement shall be terminated; and
(ii) E-Solar shall refund the Deposit paid to the Customer within two (2) days of receiving written notice of the Customer’s election.
4 Solar Services;
(a) Upon receipt of the Order Form E-Solar shall
(i) schedule a provisional work/installation date for the Solar PV System with the Agent and the Customer;
(ii) place an order for notify the Customer (upon request) The anticipated time required to order the Solar PV System and obtain the date that the Solar PV System will be delivered from the manufacturer;
(iii) contact the Customer as soon as E-Solar has obtained the delivery date information to confirm the final installation/work date or to reschedule the installation to a date that is mutually convenient.
(b) E-Solar shall provide the Customer with a relevant Tax Invoice in relation to both the Deposit and the Outstanding Costs.
4.2 Supply of Solar PV System
(a) The Customer acknowledges and agrees that E-Solar shall not be obliged to order any Solar PV System until the Customer has paid the Deposit as set out in the Order Form.
(b) E-Solar shall not be liable for any loss or damage to the Customer
(i) arising out of delays in the ordering of the Solar PV System from the manufacturer where the Customer has failed to pay the deposit to E-Solar, or
(ii) where the manufacturers are unable to supply the products at the time they previously advised.
4.3 Installation of Solar PV System
(a) Upon receipt of the required documents and forms duly completed by the Customer and the Agent, E-Solar shall arrange for the Agent to install the Solar PV System at the Customer’s nominated address.
(b) All installations shall be completed by the Agent who shall provide competent and licenced electricians to carry out the installation works. These electricians shall have completed E-Solar training in relation to the work involved in installing the Solar PV System.
(c) The Customer acknowledges and agrees that:
(i) the Agent shall complete a site inspection in relation to the proposed installation of the Solar PV System at the Customer’s nominated address;
(ii) the location of the installation of the Solar PV System at the Customer’s nominated address shall be mutually agreed between the parties in writing prior to commencement of installation works; and
(iii) E-Solar shall not be liable to move or remove the Solar PV System after installation unless due to a technical fault with the Solar PV System.
(d) The Agent shall take all due care and reasonable precautions to avoid roof damage, however, in the event that damage to the Customer’s roof occurs due to circumstances beyond the Agent’s control then:
(i) the Agent shall temporarily repair or make good the damage using materials supplied by the Customer; and
(ii) all other costs of repair or reinstatement shall be borne by the Customer.
(e) The Customer acknowledges that the Agents is an independent Contractor and not an employee of E-Solar.
(f) E-Solar shall take all due care as to ensure a high standard of quality control of the installation work and shall provide all necessary training of the Agent to achieve such standard of installation work,
(g) The Customer acknowledges and agrees that E-Solar may elect not to commence any installation or apply for approval for any applicable Rebate that may be payable in relation to the Solar PV System where the Customer has not paid the deposit or agreed the installation location.
(a) All warranties contained in the Order Form or these Terms and Conditions include the warranty terms and conditions and procedures of the relevant manufacturer of the Solar PV System which are additional to the e-Solar warranty set out in (b) below.
(b) Unless otherwise specified in the Order Form, E-Solar shall provide 5 years on-site warranty for:
(i) the installation workmanship; and
(ii) the inverter and panels of the Solar PV System.
(c) Any misuse of the Solar PV System or use of the Solar PV System in a manner not expressly authorized by E-Solar may void this warranty.
4.5 Service to Solar PV Systems
(a) E-Solar shall, at its own cost, promptly arrange for the Agent to undertake any necessary repair and replacement works to the Solar PV System that are covered by the Customers Statutory rights or the warranty terms and conditions whichever provide the Customer with the maximum financial benefit.
(b) In the event:
(i) that a Customer requests a service call out for any repair or replacement works, and
(ii) the Customer shall be liable to pay a fee for such service call out of no less than $150.00 per visit where the call out is not the result of a fault with the installation or of the components of the Solar PV System.
4.6 Third Party Finance
(a) Upon receipt of a request from the Customer, E-Solar may provide third party finance to the Customer. Such third-party finance shall be:
(i) subject to the Customer complying with all necessary requirements of the relevant financier; and
(ii) pursuant to such terms and conditions as may be required by E-Solar from time to time in relation to arranging such finance.
(b) The Customer acknowledges and agrees that E-Solar has not given to it any advice (financial or otherwise) in relation to entering into any third-party finance agreement and that the Customer is solely responsible for completing its own due diligence prior to entering into any such third party finance agreement.
5 Customer Obligations;
5.1 Deposit and Payment of Outstanding Costs
(a) The Customer shall provide the Deposit in full to E-Solar upon completing and signing the Order Form or such longer time as E-Solar may in its absolute discretion agree.
(b) The Customer shall pay to E-Solar the Outstanding Costs within 30 days of completing and signing the Order Form or such longer time as E-Solar may in its absolute discretion agree.
(c) The Deposit and/or the Outstanding Costs shall be payable in the methods specified on the Order Form.
(d) In the event that a financial institution declines or refuses to honour the Customer’s payment of the Deposit or the Outstanding Costs then:
(i) E-Solar may elect to either:
(A) require the Customer to pay the Deposit and/or the Outstanding Costs by way of an alternative method; or
(B) terminate this Agreement and the Customer shall be liable to pay any financial penalties or fees that may apply in relation to such refusal.
The Customer shall fill out and complete all documentation required by E-Solar to arrange the connection of the Solar PV System to the Western Power network or to facilitate payment of the Rebate, including but not limited to, the Standard Forms.
5.3 Removal of Objects
The Customer is responsible, at its own cost, for the removal of any trees, plants or any other objects that may cast a shadow on the Solar PV System, both at the time of installation and in the future.
5.4 Additional Costs
If, prior to the commencement of the installation work:
(a) the verified cost of installing the Solar PV System increases by more than five percent (5%); and
(b) such cost increase is due to factors outside the reasonable control of E-Solar, then
E-Solar may notify the Customer in writing of the amount of such increase in costs and provide evidence supporting the amount of the cost increase to the Customer. Upon receipt of the Notice of the price increase the Customer may either
(i) pay the verified increase in costs for the installation of the Solar PV System; or
(ii) elect in writing to not purchase the Solar PV System, in which case:
(A) the Agreement contained in the Order Form and these Terms and Conditions shall be terminated; and
(B) E-Solar shall return to the Customer, within two (2) days of receiving notice of the Customer’s election, the amount of the Deposit paid by the Customer.
5.5 Statutory Declaration
In the event that the quote given on the Order Form is the subject of a Rebate requiring a Statutory Declaration THEN E-Solar may require the Customer to provide a Statutory Declaration (in accordance with the Oaths, Affidavits and Statutory Declarations Act 2005 (WA)) stating that the Customer will permanently reside in the nominated address and the estimated date upon which the Customer will permanently reside in such nominated address.
5.6 Warranty and Indemnification
(a) The Customer acknowledges and agrees that E-Solar has relied upon the information provided by the Customer, both by way of the documentation, paperwork and verbally and the Customer warrants that it has provided any such information honestly and to the best of its knowledge.
(b) The Customer shall indemnify and hold harmless E-Solar from and against all claims, demands, writs, summonses, actions, suits, proceedings, judgments, orders, decrees, damages, costs, losses and expenses of any nature whatsoever which the Customer may suffer or incur in connection with the provision of false or inaccurate information.
6 Termination or Cancellation of Agreement;
6.1 By E- Solar:
(a) E-Solar may terminate the Agreement by notice in writing at any time prior to installation of the Solar PV System by the Agent. In the event that E-Solar cancels or terminates the Agreement pursuant to this clause then E-Solar shall refund the Deposit paid by the Customer within two (2) days of the termination notice date.
(b) In the event that upon completion of a site inspection by the Agent, E-Solar advises
(i) there is no suitable location on the residence or other structure on which to install the Solar PV System; or
(ii) it is not possible to install the Solar PV System due to the condition of the roof, building configuration or structure at the Site, then:
(iii) this Agreement shall forthwith be terminated by notice in writing to the Customer and E-Solar shall refund the Deposit paid by the Customer within two (2) days of such termination notice.
(c) In the event the Customer has breached this Agreement by failing to pay the Outstanding Costs:
(i) the Deposit shall be forfeited to E-Solar; and
(ii) E-Solar may:
(A) require the Customer to pay the Outstanding Costs within seven (7) days of E-Solar issuing of a notice to pay. After receipt of the Outstanding Costs E-Solar shall continue with the installation of the Solar PV System; or
(B) forthwith terminate this Agreement by notice in writing to the Customer, and.
(C) E-Solar may repossess the Solar PV System including all parts, components and equipment.
In the event of termination under this clause, the Customer hereby transfer the title in the Solar PV System components to E-Solar and grants access to the Site for E-Solar’s Agent to enter and remove the Solar PV System.
(d) In the event that following the site inspection the residence (or other structure as applicable) located at the Customer’s nominated Site is destroyed, or so damaged as to make the installation of the Solar PV System impossible or dangerous, then E-Solar may elect by notice in writing to either:
(i) terminate the Agreement and return any Deposit paid in full to the Customer within two (2) days; or
(ii) continue this Agreement until such time as the relevant building or other structure located at the Site is repaired or rebuilt, in which case:
(A) The Customer shall be obliged to immediately pay to E-Solar the Outstanding Costs in full; and
(B) E-Solar shall complete the installation works as soon as practical after the Customer advises that the Site is available for the installation to commence.
(e) In the event that E-Solar terminates this contract pursuant to clause
(i) The Customer shall be liable for all costs incurred by E-Solar relating to the removal of the Solar PV System from the Site and the shipping of the Solar PV System back to E-Solar. Such costs shall be payable by the Customer upon receipt of a written demand from E-Solar; and
(ii) E-Solar shall ensure that it Agent makes good the Customers roof, so that it is waterproof, before leaving the Site after the removal of the Solar PV System, but E-Solar shall not be liable to the Customer for any costs required to return the roof to the exact condition it was in prior to the Solar PV System installation.
6.2 By Customer
In the event that the Customer terminates this Agreement by written notice, then any Deposit paid shall be forfeited to E-Solar unless such termination is made pursuant to clause 3.2 or clause 5.4 of these Terms and Conditions.
The parties will comply with all statutory and regulatory requirements of the GST legislation.
7.1 Payment of GST
GST is payable by the Customer on all payments due to E- Solar. All amounts referred to in the Order Form are inclusive of GST unless otherwise specified.
7.2 Definition of Goods and Services Tax
(i) In this Agreement
(a) GST means a goods and services tax, consumption tax, value added tax, retail turnover tax or a tax of a similar nature,
(b) Tax Invoice means an invoice in the format required by law and which also shows the amount of the GST payable by the Customer.
(ii) The Customer must pay to E-Solar the amount of the GST included in the Tax Invoice total at the same time as it pays E-Solar for the goods and or services listed on the Tax Invoice.
(iii) If either party refunds to the other, any amount paid pursuant to this Agreement, such party must also refund to the other party the amount of any GST that was included in the amount paid.
(iv) The Parties agree that if any GST statute and/or regulation thereto, shall cause this clause as currently drafted to fail, then the parties agree to enter into a variation of the Agreement to give effect to the intent of this clause.
8.1 Power disruptions;
The Customer acknowledges that power generation from the Solar PV system ceases during mains power disruptions and shall automatically restart when the grid is available.
8.2 Risk Passing:
The Customer and E-Solar acknowledge and agree that risk and title in the components and equipment comprising the Solar PV System shall pass to the Customer upon the Solar PV System being unloaded at the Site.
8.3 Whole Agreement:
The covenants and agreements expressed or implied in the Agreement comprise the whole of the agreement between the parties and, except as expressly or otherwise provided in the Order Form or the Terms and Conditions, supersede all prior agreements and understandings, whether verbal or otherwise, between E-Solar and the Customer in relation to the provision of the Solar PV System.
(i) Must be signed by an authorized person or party;
(ii) Is deemed to be given by the sender and received by the addressee
(a) if by delivery in person, when delivered to the addressee;
(b) if by post, three (3) Business Days from and including the date of postage to the addressee; and
(c) if by facsimile transmission, when successful transmission to the addressee (at such facsimile number as the addressee may have provided) has been achieved.
(d) if by email, when the email is received.
(e) If a notice is delivered or received on a day which is not a Business Day or is after 4.00 p.m. (addressee’s time) the notice shall be deemed to be given at 9.00 a.m. on the succeeding Business Day (irrespective of the time of actual delivery or receipt under clause 8.4 (a), (b), (c) or (d)); and
(f) Can be relied upon by the addressee, and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorized by the sender.
8.5 Amendments to this Agreement;
The Agreement may only be amended by agreement in writing between the parties.
If any term, condition, covenant or stipulation of the Order Form or the Terms and Conditions or the application thereof to any person or circumstances is or becomes invalid or unenforceable the remaining terms, covenants, conditions and stipulations are not affected and each term, covenant, condition and stipulation of the Order Form or the Terms and Conditions is valid and enforceable to the extent permitted by law.
This Agreement is governed by the laws of Western Australia and the parties submit to the non-exclusive jurisdiction of the courts of the Western Australia.