General Terms and Conditions (Schedule 1)
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
Administrator means the organisation with responsibility for administering
the Code, being:
(a) the Clean Energy Council (CEC);
(b) the Administrator appointed by the NETCC Council; and
(c) the Code Monitoring and Compliance Panel appointed by the NETCC
Council.
Agreement means the agreement which comprises:
(a) the Quote;
(b) Schedule 1 (General Terms and Conditions);
(c) Schedule 2 (Special Conditions); and
(d) Schedule 3 (Attachments).
Approval means any authorisation, assessment, accreditation,
determination, registration, clearance, permit, licence, consent, certificate
or other approval obtained or required or applying in connection with
anything required or permitted to be done by the Contractor under the
Agreement (including any approval by the Energy Network).
Approved Financier means a credit provider (which may include the
Contractor or a third party) that:
(a) is licensed under the National Consumer Credit Protection Act 2009
(Cth); and
(b) has had its deferred payment contract and its internal policies and
procedures approved in accordance with the Code.
Approved Seller means a signatory to the Code.
Australian Consumer Law means the Australian Consumer Law as set
out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Australian Standards means any Australian Standard (as amended or
replaced) issued by Standards Australia applying to the Work.
Business Day means a day that is not a Saturday, Sunday or public
holiday or bank holiday in the State or Territory in which the Premises is
located.
Cancellation Fee means actual, reasonable direct loss incurred by the
Contractor in the event this Agreement is terminated.
SAA-Accredited Installer means an installer of solar photovoltaic systems
accredited in this capacity by Solar Accreditation Australia under Solar
Accreditation Australia’s ‘Code of Conduct’ and ‘Requirements’.
Charges and Deductions means the charges and deductions specified in
the Quote.
Code means the New Energy Tech Consumer Code.
Commencement Date means the commencement date specified in the
Quote.
Completion means the stage where the Work has been installed in
accordance with the Agreement and all relevant Laws, either without any
omissions or Defects or apart from minor omissions or Defects.
Contractor means the contractor as specified in the Quote.
Contract Price means:
(a) the New Energy Tech Price; and
(b) the Charges and Deductions as specified in the Quote.
Cooling Off Right means the ‘cooling off right’ specified in the Quote.
Customer means the customer specified in the Quote.
Date for Completion means the date for Completion as specified in the
Quote.
Design Documents means the ‘design documents’ specified in the Quote.
Defect means:
(a) any error, deficiency, omission, non-conformity, fault, failure, safety
hazard or malfunction in the Work or any performance characteristic
of the New Energy Tech; or
(b) any aspect of the Work or New Energy tech which is not in
accordance with the requirements of the Agreement.
Deferred Payment Arrangement means a payment arrangement made in
accordance with clause 7.4 which permits the Customer to defer or delay
paying.
Deposit means the amount specified as the deposit in the Quote (if any).
Energy Network means any of Australia’s principal energy transmission
and distribution networks (including the energy networks known as ‘South
West Interconnected System’, ‘North West Interconnected System’,
‘Darwin-Katherine Electricity Network’ and ‘National Electricity Market’).
Energy Supplier means any of Australia’s public offer energy providers,
including retailers and network businesses.
Fair Trading Body means the fair trading body specified in the Quote.
Force Majeure Event means:
(a) war, hostilities (whether war be declared or not), invasion or act of
foreign enemies;
(b) rebellion, revolution, an undeclared terrorist incident for the purposes
of the Terrorism Insurance Act 2003 (Cth), insurrection, military or
usurped power, martial law or confiscation by order of any Authority
or civil war;
(c) ionising radiation or contamination by radio-activity from any nuclear
fuel or from any nuclear waste from the combustion of nuclear fuel
within Australia not caused by the Contractor’s use of such radiation
or radio-activity;
(d) fire emanating from outside the Site, 1 in 100 year flood, tsunami,
explosion, landslide, earthquake or cyclone (as named by the Bureau
of Meteorology);
(e) riot or commotion by persons other than the Contractor’s Related
Persons; or
(f) epidemic or pandemic and any resultant impacts (including COVID-
19);
which prevents the Contractor from performing any of its obligations under
this Agreement.
General Terms and Conditions and T&C’s mean Schedule 1 of the
Agreement.
GST has the meaning given in the A New Tax System (Goods and
Services Tax) Act 1999 (Cth).
Installation means the installation of the New Energy Tech at the
Premises.
Instalment Payment Date means the date on which the Customer will
commence paying the instalments in accordance with clause 7.3, as
specified in the Quote.
Interest means the current official cash rate as determined by the Reserve
Bank of Australia plus [2] percent.
Laws means:
(a) acts, delegated legislation, legislative instruments, ordinances,
regulations, by laws, orders, policies, guidelines, awards and
proclamations of the jurisdiction in which the Premises is located;
and
(b) any licenses, permits and consents necessary for the Contractor to
carry out and complete the Work;
(c) principles of common law and equity established by decisions of
courts; and
(d) the accreditation compliance requirements published by SAA.
National Credit Code means Schedule 1 to the National Consumer Credit
Protection Act 2009 (Cth).
NETCC Council means the council which oversees the New Energy Tech
Consumer Code.
New Energy Tech means the new energy tech as specified in the Quote.
New Energy Tech Price means the new energy tech price as specified in
the Quote.
Operating Information means the operating information specified in
Schedule 3 Attachment D.
Owners Corporation means the body, however described, that has legal
responsibility for the common property in a strata development.
Party means each party to the Agreement.
Personal Information has the meaning in the Privacy Act 1988 (Cth).
Premises means the property specified as the premises in the Quote
where the Work will be performed.
Quote means the document entitled Quote attached as the first part of the
Agreement.
Relevant Criteria for materials means:
(a) generally accepted practices or standards applied in the building
industry for the materials; or
(b) specifications, instructions or recommendations of the manufacturers
or suppliers of the materials.
Residential Customer means where the Customer is purchasing New
Energy Tech for personal, domestic or household purposes only (and
includes an Owners Corporation for a residential strata property and the
operator of a retirement village).
Special Conditions means the special conditions set out in Schedule 2.
Supply means the supply of the New Energy Tech at the Premises.
Supply Date means the date for the Supply specified in the Quote.
Standards means any codes, specifications, policies, requirements,
Australian Standards, Energy Network standards and other standards (as
amended or replaced) set out in or referred to in the Work, or any other
policy, guideline, procedure, standard or requirement with which the
Contractor must comply by law.
State Consumer Affairs office means the state consumer affairs office
specified in the Quote.
Validity Period is the validity period specified in the Quote.
Warranty Period means the warranty period for the New Energy Tech
specified in the Quote.
Work means the Supply and/or Installation of New Energy Tech (as is
specified in the Quote).
1.2 Interpretation
In the Agreement, headings are only for convenience and do not affect
interpretation unless the context requires otherwise:
(a) any capitalised term in the Quote has the meaning as set out in the
General Terms and Conditions;
(b) “includes” means includes without limitation;
(c) a reference to a time is a reference to the time in the State or
Territory in which the Premises is located (as specified in the Quote);
(d) a word that is derived from a defined word has a corresponding
meaning;
(e) a reference to “$” is to be construed as a reference to Australian
currency;
(f) the singular includes the plural and vice-versa;
(g) a reference to a Party to the Agreement includes that Party’s
personnel, successors and permitted assignees and novatees;
(h) a reference to legislation includes any amendment to that legislation,
any consolidation or replacement of it, and any subordinate
legislation made under it;
(i) no rule of construction will apply to a clause to the disadvantage of a
Party merely because that party put forward the clause or would
otherwise benefit from it; and
(j) the Parties’ rights under the Agreement are cumulative and in
addition to those at law.
2 PURCHASE OF NEW ENERGY TECH
2.1 Purchase of New Energy Tech and performance of Work
(a) Subject to the Contractor’s compliance with the terms of the
Agreement, the Customer will pay the Contractor the Contract Price
in accordance with clauses 6 and 7.
(b) The Contractor agrees to perform the Work at the Premises.
2.2 Customer acknowledgements
(a) The Customer acknowledges that the Contractor has:
(i) drawn the Customer’s attention to any particular requirements of
the Agreement that may cause confusion or disagreement
(including in respect of the Contract Price, termination fees, end of
Agreement payments and any difference between an earlier,
verbal quote and the final price); and
(ii) clearly explained to the Customer the process for payment and
trade of any government or regulatory certificates, or any relevant
trading facility and any limitations.
3 WORK
3.1 Performance
(a) The Contractor must carry out and complete the Work:
(i) with due expedition and without delay, including to:
(A) Supply the New Energy Tech by the Supply Date; and
(B) achieve Completion by the Date for Completion;
(ii) with due care and skill and so that the New Energy Tech, once
Supplied or Installed (if relevant), performs properly and in
accordance with any performance specifications notified by the
Contractor to the Customer;
(iv) so that any information and communication used in the performance
of the Work is secure and complies with the requirements of the
Privacy Act 1988 (Cth); and
(v) in accordance with the Agreement, any direction of the Customer
and all Laws.
(b) In performing the Work, the Contractor must perform all ancillary or
other works (including the provision of materials) which are
necessary for Completion, whether or not those works are specified
in the Agreement.
(c) If the Work includes physical Installation of the New Energy Tech,
then the Contractor will:
(i) install in accordance with all applicable Standards, the
manufacturer’s specifications and good industry practice; and
(ii) engage a suitably trained, competent and qualified or certified
installer to undertake the Installation.
3.2 Design Documents
(a) If the Quote specifies that the Contractor must provide the Design
Documents, then:
(i) the Contractor must provide these Design Documents during
the period in which the Customer has Cooling Off Rights; and
(ii) within 10 Business Days of receiving the Design Documents,
the Customer must notify the Contractor as to whether or not it
accepts the Design Documents, and if the Customer does not
accept the Design Documents then clause 12.4(a)(iii) will apply.
3.3 Equipment
If the Contractor provides the Customer with New Energy Tech that
involves the use of equipment that is owned by the Customer, then the
Contractor must Install the New Energy Tech in a manner consistent with
any manufacturer’s instructions and warranty requirements relevant to the
Customer’s equipment which is provided to the Contractor by the
Customer.
3.4 Operating Information
Prior to the activation of the New Energy Tech, the Contractor must provide
the Customer with the Operating Information.
3.5 Compliance with Laws
(a) The Contractor must comply with all applicable Laws when
performing the Work, including:
(i) the Renewable Energy (Electricity) Act 2000 (Cth);
(ii) the Renewable Energy (Electricity) Regulations 2001 (Cth);
(iii) t h e Do Not Call Register Act 2006 (Cth) and associated
telemarketing standards including permitted hours for
contacting consumers; and
(iv) the Australian Consumer Law.
(b) If the Contractor is not obliged to comply with the Privacy Act 1988
(Cth) when performing the Work, the Contractor will nonetheless take
reasonable steps to ensure the protection of any of the Customer’s
Personal Information and will only use the Customer’s Personal
Information for:
(i) the purpose of carrying out the Contractor’s obligations under
the Contract;
(ii) future marketing of other new energy tech or providing the
Customer with information that the Customer might reasonably
expect to receive from the Contractor; or
(iii) providing that Personal Information to a third party where the
Customer has given the Contractor express permission to do
so.
3.6 Approval from Energy Network
(a) If the Contractor is authorised by the Consumer to obtain Energy
Network connection Approval for New Energy Tech on the
Customer’s behalf, then the Contractor will:
(i) not Install or activate the New Energy Tech until Energy
Network connection Approval is provided;
(ii) prepare and submit the requisite documentation to the Energy
Supplier and for the reconfiguration of the Customer’s meter (if
required);
(iii) respond within a reasonable time to any additional compliance
requests from the Energy Supplier, and consult with the
Customer (if required);
(iv) keep the Customer informed as to the Contractor’s progress in
obtaining the Energy Network connection Approval (including
any restrictions or limitations which may affect the Customer);
and
(v) provide the Customer with a full refund if the Energy Network
connection Approval is not obtained.
(b) If the Customer is responsible for obtaining Energy Network
connection Approval for New Energy Tech, then the Contractor will:
(i) explain to the Customer the requirements of preparing and
submitting the requisite documentation to the Energy Supplier
(including information as to how to complete and submit papers
or online forms);
(ii) provide the Customer with expected timeframes, relevant
deadlines and any problems which may arise in respect of any
step in the process identified in clause 3.6(a); and
(iii) provide the Customer with the Energy Supplier’s relevant
contact details.
(c) If the Contractor supplies the Customer with any New Energy Tech
which requires any other form of activation, the Contractor will notify
the Customer as to the steps which must be taken (including
responsibility for those steps) and will keep the Contractor updated
as to progress of each step.
3.7 Warranties
(a) The Contractor warrants to the Customer that:
(i) Work will be performed with proper diligence and due care and
using best trade practices, standards of workmanship and
professional skill;
(ii) all materials supplied by the Contractor will be of good quality
and suitable for the purpose for which they are used having
regard to the Relevant Criteria, and that all materials used will
be new unless the Agreement expressly provides otherwise;
and
(iii) the work under the Agreement will be carried out in accordance
with all Laws, manufacturer’s specifications, Energy Network
standards.
(b) The Customer warrants to the Contractor that:
(i) it is the owner of the Premises or has obtained written
permission from the owner of the Premises for the Contractor to
perform the Work;
(ii) it has obtained all consents and Approvals (including, if
relevant, the Energy Network connection Approval) required for
the Contractor to perform the Work at the Premises, including
any written consent required from an Owners Corporation giving
the Contractor permission to Install the New Energy Tech; and
(iii) all information provided to the Contractor in relation to the
Premises is accurate and correct.
(c) Nothing in the Agreement restricts or takes away the rights of a Party
for breach of these warranties.
4 NEW ENERGY TECH OPERATION AND PERFORMANCE
4.1 Supplier and manufacturer warranties and liability
(a) The Contractor will provide a warranty in respect of the performance
and operation of the New Energy Tech for the Warranty Period from
the day when Completion is achieved. Additional manufacturer
warranties may also apply on the products forming part of the New
Energy Tech (as applicable).
(b) The Contractor will:
(i) respond promptly to any warranty claim received from the
Customer within the Warranty Period and, within a reasonable
time, perform any rectification works set out under clause
4.1(e); and
(ii) provide the Customer with the name and contact details of any
supplier of the New Energy Tech so that the Customer can
pursue any claim against the supplier in the event it is unable to
do so against the Contractor.
(c) The Contractor’s warranty above is in addition to any consumer
guarantees which apply under the Australian Consumer Law and
those guarantees are not excluded, replaced or otherwise modified
by the Agreement.
(d) The Warranties set out in the Agreement, any manufacturer’s
warranty and the consumer guarantees which apply under the
Australian Consumer Law will be the only warranties or guarantees
in relation to the Agreement.
(e) Unless prohibited by law (including section 64A of the Australian
Consumer Law) the Contractor’s liability under the Agreement is
limited, to the extent that it is fair and reasonable, to:
(i) supply and make available a replacement of the New Energy
Tech with an equivalent system or unit and install the equivalent
New Energy Tech;
(ii) enter into a contract with an appropriately qualified person to
undertake repairs of the New Energy Tech;
(iii) payment of the cost of:
(A) repairing or replacing the New Energy Tech with an
equivalent system or unit, or remedying any service issue;
or
(B) compensation for the drop in value of the New Energy
Tech (including because the New Energy Tech is not
performing as the Contractor guaranteed it would); or
(iv) payment of the cost of having the New Energy Tech repaired.
4.2 Damage caused by Customer or third party
(a) The Contractor will not be responsible for any loss or damage to the
Customer’s property or for any faults or Defects in the New Energy
Tech due to misuse or damage caused by the Customer or a third
party, or if the New Energy Tech fails to operate due to any of the
following:
(i) improper use of the New Energy Tech;
(ii) failure to comply with manufacturer instructions;
(iii) work on the New Energy Tech (including modifying, moving or
relocating any part of the New Energy Tech, even if temporary)
performed by someone who is not appropriately trained or
qualified;
(iv) the Customer’s failure to adhere to maintenance requirements
set out in Schedule 3 Attachment provided to the Customer by
the Contractor;
(v) failure by the Customer to maintain the Premises to ensure that
there is no obstruction to the operation of the New Energy Tech;
(vi) any act, omission, misuse, abuse, or damage (whether wilful,
accidental or negligent) caused by the Customer or a third
party;
(vii) flooding or water damage;
(viii) any extreme weather (for example lightning, floods) or changes
at the Premises (pest damage, corrosion, land or building
movement);
(ix) interference from other devices;
(x) a failure to promptly notify the Contractor of any Defects. The
Customer is responsible for regularly checking the New Energy
Tech is working properly; or
(xi) any other event beyond the Contractor’s control which occurred
after the New Energy Tech was Supplied.
5 TIME FOR WORK
5.1 Progress of Work
(a) The Contractor must promptly commence the Work after the
Commencement Date.
(b) Subject to clause 5.2, the Contractor will ensure that the New Energy
Tech is supplied by the Supply Date and the Work reaches
Completion by the Date for Completion.
5.2 Delay
(a) The Contractor will notify the Customer if it does not consider it will
be able to:
(i) Supply the New Energy Tech by the Supply Date, in which case
the Contractor will provide a new Supply Date; or
(ii) reach Completion by the Date for Completion, in which case the
Contractor will provide a new Date for Completion.
6 CONTRACT PRICE
6.1 Contract Price
(a) The Customer must pay the Contract Price in accordance with the
Agreement, and such other amount as becomes payable in
accordance with the Agreement.
(b) The Contract Price will not be adjusted except in accordance with the Agreement (including clauses 6.2, 6.3 and 13).
(c) Notwithstanding clause 6.1(b), the Customer acknowledges the
portions of the Contract Price that are specified in the Quote as
approximations, and acknowledge that the Contract Price may
change for such items once actual costs are known.
6.2 Adjustment to Contract Price for additional fees
(a) Subject to clause 12, the Customer must pay any additional fees and
charges associated with the Work:
(i) as notified by the Contractor during a pre-installation Premises
inspection (if a pre-installation Premises inspection is
conducted) or on the Commencement Date (if a pre-installation
Premises inspection is not conducted); or
(ii) because of Premises conditions and circumstances beyond the
Contractor’s control, as specified in the Quote.
(b) The Customer acknowledges that the Contractor is not able to
determine or account for the fees and charges described at clause
6.2(a) at the date the Agreement is executed, and accordingly that
these additional fees are not accounted for in the initial Contract
Price.
6.3 Adjustment to Contract Price for periodic or intermittent charges
If the Work includes periodic or intermittent charges (as specified in the
Quote), then from time to time the Contractor may adjust the value of those
periodic or intermittent charges by 20 Business Days written notice to the
Customer.
6.4 Payment by Contractor to Customer
(a) If the Contractor is obliged to make any payment to the Customer in
accordance with the Agreement (including by way of offsetting an
amount owed by the Customer), then the Contractor must make that
payment in accordance with the Agreement.
(b) If any of the Contractor’s payments identified in clause 6.4(a) are
made using a formula or calculation which is not disclosed to the
Customer, then the Contractor must ensure that its payment
calculation system is regularly audited by a registered company
auditor to ensure that its payments are accurately calculated.
7 PAYMENT
7.1 Payment methods
(a) The Customer may pay for the Work:
(i) by direct payment to the Contractor, in accordance with clause
7.2;
(ii) if the Contractor offers the Customer to do so, by way of
progressive instalments to the Contractor, in accordance with
clause 7.3; or
(iii) if the Contractor offers the Customer to do so, by way of a
Deferred Payment Arrangement, in accordance with clause 7.4.
(b) The Contractor will provide the Customer with a receipt for any
amount the Customer pays in accordance with the Agreement.
7.2 Direct payment
If the Customer elects to pay the Contractor directly by way of a lump sum
payment:
(a) if applicable, a Deposit is due and payable in the amount and in
accordance with the Quote. The Contractor (or its nominee) will debit
the Customer’s credit card or, if applicable, present the Customer’s
cheque and hold the Deposit on and subject to the terms set out in
the Agreement;
(b) subject to clause 12, the Deposit is non-refundable after the Cooling
Off Right expires (if a Cooling Off Right is applicable);
(c) the Customer authorises the Contractor (or its nominee) to apply any
applicable Deposit payable for the Work, in or towards payment of
the Contract Price for the Work when the Work has reached
Completion;
(d) the remaining outstanding part of the Contract Price is due and
payable:
(i) if the Quote identifies that the Works solely comprise Supply of
the New Energy Tech, then within 14 days of the date on which
the New Energy Tech is Supplied; and
(ii) if 7.2(d)(i) does not apply, then immediately following
Completion.
(e) the Contract Price must be paid in the manner specified in the Quote.
7.3 Payment by instalments
(a) The Contractor may offer the Customer to pay the Contract Price by
way of instalments commencing on the Instalment Payment Date,
which instalments must not:
(i) extend beyond a period of 6 months; and
(ii) include any additional amount or fee (including interest) or
otherwise increase the Contract Price, except as provided for in
the Agreement.
7.4 Payment by a Deferred Payment Arrangement
(a) The Contractor may offer the Customer the option to pay the Contract
Price by way of a deferred payment arrangement (Deferred Payment
Arrangement).
(b) If the Contractor offers the Customer a Deferred Payment
Arrangement and the Customer is a Residential Customer, then:
(i) the Customer may accept the Deferred Payment Arrangement
but is under no obligation to do so;
(ii) the Deferred Payment Arrangement must be offered via an
Approved Financier;
(iii) the term of the Deferred Payment Arrangement must not be
longer than the expected life of the New Energy Tech (as set
out in Schedule 3 Attachment);
(iv) the Contractor must provide the Customer with:
(A) the name of the Approved Financier to whom the
Customer will be contracted with for the purposes of the
Deferred Payment Arrangement;
(B) the proposed total costs under the Deferred Payment
Arrangement compared to the cost of purchasing the New
Energy Tech in accordance with clause 7.2;
(C) any disclosures required under the National Credit Code
(including any fees and charges), irrespective of whether
the Deferred Payment Arrangement will be regulated
under the National Credit Code; and
(D) whether, at the conclusion of the Deferred Payment
Arrangement, the Customer will own any part of the New
Energy Tech, have an entitlement to ongoing services or
pricing, or have an option to purchase any portion of the
New Energy Tech (including relevant details and costs);
(v) the Customer acknowledges that any questions or complaints
about the Deferred Payment Arrangement must be directed to
the Approved Financier;
(vi) the Customer does not need to pay a Deposit for the Work;
(vii) the Customer consents to the Contractor disclosing its contact
details (which may include Personal Information) to the
Approved Financier who will then assess the Customer’s
application for finance;
(viii) the Approved Financier will provide the Contractor with written
confirmation if it approves the Customer’s application for
finance;
(ix) if approved under clause 7.4(b)(viii), the Contractor will proceed
with the Work and instruct the Approved Financier to pay it the
Contract Price on the Customer’s behalf on the day of
Completion; and
(x) if the Approved Financier does not approve the Customer’s
application for finance, the Contractor will notify the Customer
and the Customer may elect to pay for the Work in accordance
with clause 7.2 or the Customer may terminate the Agreement.
(c) Clause 7.5 does not apply if:
(i) the Deferred Payment Arrangement is provided by a
government agency; or
(ii) the Administrator is satisfied that the Agreement is a power
purchase agreement.
7.5 Failure to pay
(a) Except where the Customer is paying under a Deferred Payment
Arrangement, if the Customer fails to pay any amount that is due and
payable under the Agreement, the Contractor will be entitled to:
(i) Interest on the unpaid amount from the due date until the date it
is paid; and
(ii) any reasonable costs incurred by the Contractor associated
with recovering the unpaid amount (including legal costs).
(b) If the Customer notifies the Contractor that the Customer is
experiencing financial hardship, then the Contractor may provide
assistance by:
(i) offering the Customer a payment plan; or
(ii) advising the Customer of relevant governmental schemes which
may assist the Customer.
8 ACCESS
8.1 Access to the Premises
(a) The Customer must provide the Contractor reasonable access to the
Premises:
(i) to conduct one or more Premises inspections, if the Contractor
considers necessary; and
(ii) from the Commencement Date so that the Contractor may
perform the Work.
(b) The Customer must:
(i) ensure the Contractor and its subcontractors (if applicable) have
convenient and safe access to all parts of the Premises
necessary to conduct any required Premises inspections or to
perform the Work;
(ii) not hinder or obstruct this access; and
(iii) ensure the Premises is sound and able to accommodate the
New Energy Tech.
(c) During the performance of the Work, the Contractor will permit the
Customer to:
(i) have reasonable access to the Premises; and
(ii) view any part of the Work upon the Customer’s reasonable
request to do so.
(d) Where the New Energy Tech has the technical capability for the
Contractor to access it remotely, the Customer authorises the
Contractor to remotely access the New Energy Tech in order to
collect data in connection with the Customer’s use of the New Energy
Tech and use it for the Contractor’s business purposes, monitor
performance of the New Energy Tech, provide remote diagnostic
support, provide alerts to the Customer, upgrade software in the New
Energy Tech and provide other services from time to time.
8.2 Interface with others
(a) The Contractor acknowledges that it will not have exclusive access to
or possession of the Premises.
(b) The Contractor must fully cooperate with and coordinate and
interface the Work with the work of other contractors (if applicable)
and the Customer so as not to cause any nuisance, disruption, delay,
hindrance, damage or interference with any activities at the
Premises.
9 OWNERSHIP AND RISK
9.1 Passing of title
(a) All rights, title and ownership in each part of the New Energy Tech
passes to the Customer upon the earlier of:
(i) the point in time immediately before the New Energy Tech is
Installed at the Premises (if applicable); and
(ii) payment in full of the Contract Price for the New Energy Tech.
(b) The passing of title in clause 9.1(a) will occur free of any
encumbrance, condition, charge or other possessory right.
(c) Risk in the New Energy Tech will pass to the Customer upon the
earlier of when the New Energy Tech is Supplied and/or or Installed
at the Premises (as applicable).
10 ASSIGNMENT, NOVATION AND SUBCONTRACTING
10.1 Assignment and novation
Neither Party may assign its rights, novate its obligations, or otherwise
deal with the whole or part of the Agreement without the prior written
consent of the other Party, which is not to be unreasonably withheld or
delayed.
10.2 Subcontracting
(a) The Contractor may subcontract any of its obligations under the
Agreement to a third party, provided that:
(i) if the Contractor subcontracts any obligation:
(A) it will ensure the relevant subcontractor is competent,
appropriately qualified and has completed any relevant
safety training modules required by Law (including by the
Administrator), and performs all subcontracted obligations
in accordance with the requirements of the Agreement;
(B) it will continue to be liable to the Customer for the
performance of its obligations under the Agreement, even
though it has subcontracted one or more of those
obligations; and
(C) it will be liable to the Customer for the acts and omissions
of its subcontractors, as if the acts and omissions were its
own; and
(ii) the Contractor’s obligations in relation to the design or
Installation of the New Energy Tech can only be subcontracted
to a SAA-Accredited Installer.
10.3 Relocation from Premises
(a) If, under the Agreement:
(i) the Contractor provides the Customer with a service that is not
transferrable from the Premises to another premises; and
(ii) the Customer has agreed to a lock-in period and the Agreement
imposes a Cancellation Fee,
and the Customer relocates from the Premises, then:
(iii) if the new occupier of the Premises agrees to novate the
Agreement, then the Contractor will consent to such novation
and will not charge the Customer a Cancellation Fee, unless the
Contractor has reasonable grounds for refusing to consent to
the novation with the new occupier of the Premises; or
(iv) if the new occupier of the Premises does not agree to novate
the Agreement, then the Customer will pay the Cancellation
Fee.
11 DEFECTS
11.1 Defective or unsafe New Energy Tech
(a) If the Contractor becomes aware, or the Customer notifies the
Contractor, of any Defect, the Contractor will:
(i) promptly notify the Customer and offer to rectify the Defect if
possible; or
(ii) remove the Defective New Energy Tech from the Premises and
provide reasonable compensation to the Customer.
(b) The Contractor must comply with clause 11.1(a) at its own cost within
a reasonable time.
(c) If the Contractor fails to comply with clause 11.1(a), the Customer may perform the relevant work or arrange for a third party to perform the relevant work, the cost of which will be a debt due from the Contractor to the Customer.
12 TERMINATION
12.1 General
A right to terminate the Agreement is additional to any other right, power or
remedy a Party might have.
12.2 Termination of the Agreement without cause
The Customer may terminate the Agreement at any time and for any
reason (or no reason) by issuing a notice of termination to the Contractor
upon 5 Business Days’ notice. When the Contractor receives a notice of
termination from the Customer under this clause, the Contractor must:
(a) stop all Work to the extent required by the notice of termination;
(b) take such action as necessary or as the Customer directs for the
transfer, protection and preservation of the Customer’s property; and
(c) use its best endeavours to minimise the cost of termination of the
Agreement (as applicable) to the Customer.
12.3 Compensation for termination without cause
(a) Where the Customer terminates the Agreement pursuant to clause
12.2, the Customer must pay the Contractor the amount due for the
Work that has been completed by the Contractor in accordance with
the Agreement prior to the date of such termination.
(b) Such payment will constitute the full and final compensation payable
by the Customer to the Contractor under or in connection with the
Agreement and the Contractor will have no claim against the
Customer in relation to such termination and the Customer will not be
liable to the Contractor for any amounts in addition to those set out in
12.3(a).
12.4 Termination for cause
(a) The Customer may terminate the Agreement without being required
to pay a Cancellation Fee and to receive a full refund of the amount
the Customer has paid towards the Contract Price if:
(i) the Contractor has not:
(A) supplied the New Energy Tech;
or
(B) achieved Completion,
within 4 weeks after the original Supply Date or Date for Completion
(as relevant), then unless the Supply Date or Date for Completion has
been delayed by Premises conditions or circumstances beyond the
Contractor’s control (as specified in the Quote);
(ii) the Agreement is for Supply and physical Installation and either
of the following applies:
(A) the Contractor proposes to significantly change the New
Energy Tech Installation design from that previously
provided prior to entry to the Agreement or as provided in
accordance with clause 3.2; or
(B) the Customer is advised either during the pre-installation
Premises inspection (if a pre-installation inspection is
conducted) or on the Commencement Date (if no preinstallation
Premises inspection is conducted) that additional fees subject to clause 6.2 are payable in order to Install the New Energy Tech;
(iii) the:
(A) New Energy Tech requires physical Installation;
(B) the Contractor has agreed to provide the Design
Documents as an initial deliverable under the Agreement
in accordance with clause 3.2; and
(C) within 10 Business Days of receiving the Design
Documents, the Customer does not accept the Design
Documents.
(b) If the Customer is responsible for obtaining Energy Network
connection Approval for the New Energy Tech and the Customer’s
application is rejected following the execution of the Agreement, the
Customer may terminate the Agreement and the Contractor will
provide the Customer a refund less a reasonable amount for the
Work provided up until the time the Agreement was terminated. The
amount will not exceed the amount the Contractor would have been
entitled to receive under the Agreement.
12.5 Notice of termination
If either Party chooses to terminate the Agreement, that Party must notify
the Contractor of its decision to terminate the Agreement, by telephone in
order for cancellation to take effect.
12.6 Termination by Contractor
(a) The Contractor may terminate the Agreement, remove the New
Energy Tech supplied to the Customer and return the Premises to its
former state, if:
(i) the Customer has not obtained the necessary consents and
approvals required by clause 3.7(b)(ii); or
(ii) the Customer is otherwise in material default under the
Agreement.
(b) The Customer is not entitled to any refund, and must reimburse the
Contractor for the reasonable costs of removal and restoration of the
Premises, where the Contractor has failed to obtain consent from the
Owner’s Corporation in accordance with clause 12.6(a)(i).
12.7 Cancellation Fee
(a) If the Agreement is terminated for any reason (unless an applicable
Cooling Off Right expires or the Agreement is otherwise terminated in
accordance with clause 12.4), then the Customer must pay to the
Contractor the Cancellation Fee.
(b) The Parties agree that the Cancellation Fee is a genuine pre-estimate
of the loss that the Contractor is likely to suffer in the event the
Customer terminates the Agreement.
13 GOVERNMENT REBATES AND ENVIRONMENTAL RIGHTS
13.1 Entitlement to government rebates and environmental rights
The Customer may be entitled to receive a grant, rebate or other benefit from the Commonwealth or State government or create environmental rights (including, renewable energy certificates) as a result of the Supply or Installation of the New Energy Tech. The Contractor does not warrant that the Customer will necessarily receive that grant, rebate, other benefit or be entitled to create the environmental rights.
13.2 Impact on Contract Price
(a) If the Agreement incorporates a cash reduction off the Contract Price
on the basis that the Contractor will receive payment of the grant,
rebate or other benefit, the Customer authorises the Contractor to
apply for that grant, rebate or other benefit in the Customer’s name
and to receive payment of that grant, rebate or benefit on the
Customer’s behalf. The Customer agrees to sign whatever
documents the Contractor may reasonably require, and to take
whatever other action the Contractor may reasonably require, in
order to obtain payment of that grant, rebate or other benefit.
(b) If the Contractor does not receive the payment of that grant, rebate or
benefit incorporated in the Contract Price (excluding the assignment
of any environmental rights), for any reason whatsoever, the
Contractor may adjust Contract Price to incorporate an amount that
equals the cash reduction previously applied within 21 days of the
Contractor notifying the Customer of the additional amount being
payable.
(c) The Customer acknowledges that, in certain circumstances, the
Commonwealth or State government may require it to repay the
grant, rebate or other benefit. The Contractor will have no
responsibility to the Customer in the event that the Customer is
required to repay the grant, rebate or other benefit.
13.3 Assignment of government rebates and environmental rights
If the Contract Price incorporates a cash reduction on the basis that the
Customer assigns any environmental rights the Customer is eligible to
create to the Contractor (or another person as directed by the Contractor),
the reduction in the Contract Price is conditional on the Customer
assigning its rights to create environmental rights as the Contractor directs.
14 NEW ENERGY TECH CONSUMER CODE
(a) comply with the Code (including in respect of any customer service
standards imposed within); and
(b) ensure that its employees, subcontractors, contractors, agents and
representatives comply with the Code, and will be responsible for any
of these parties’ non-compliance with the Code.
15 GST
All prices stated are inclusive of all taxes but exclusive GST.
16 INTELLECTUAL PROPERTY
(a) Any material (including any intellectual property rights in that
material) owned by the Customer or the Contractor at the
Commencement Date will continue to be owned by the Customer or
the Contractor respectively.
(b) The Customer grants the Contractor a non-exclusive, royalty-free,
revocable, worldwide and perpetual licence including the right to
sublicence the licence to the Contractor’s subcontractors to use the
Customer’s intellectual property rights referred to in clause 16(a)
above for the sole purpose of performing the Work.
(c) If any material is developed or created during the performance of the
Agreement, the Contractor will own all rights in that material,
including intellectual property rights. The Customer agrees that all
intellectual property rights developed for the purpose of the Work
vests in the Contractor and the Customer will assign all rights in that
material to the Contractor on creation and do anything further
required by the Contractor to give effect to such assignment.
17 COMPLAINT HANDLING
17.1 Making a complaint
If the Customer has a complaint relating to the New Energy Tech or the
Work, the Customer can make a direct complaint to the Contractor by
contacting the Contractor in writing or by telephone via the contact details
specified in the Quote, and the following process will apply:
(a) the Contractor will acknowledge receipt of the Customer’s complaint
as soon as possible and notify the Customer as to when the
Contractor reasonably anticipates it will be able to respond to the
Customer’s complaint;
(b) the Contractor will log the Customer’s complaint in a complaint
register and promptly begin investigating the issues;
(c) within 15 Business Days of receiving the Customer’s complaint, the
Contractor will:
(i) provide the Customer with a response to the Customer’s complaint;
or
(ii) if the Contractor cannot resolve the Customer’s complaint in
accordance with clause 17.1(c)(i), keep the Customer notified as to
the Contractor’s progress in resolving the Customer’s complaint;
(d) within 25 Business Days of receiving the Customer’s complaint, the
Contractor will provide the Customer with a final response to the
Customer’s complaint unless the parties otherwise agree to a further
extension.
17.2 If the Customer is still not satisfied
If the Customer is not satisfied with the Contractor’s response to the
complaint, the Customer is entitled:
(a) to access an external dispute resolution scheme;
(b) escalate the complaint to the Administrator; and
(c) escalate the complaint to the relevant Fair Trading Body or State
Consumer Affairs office.
In order for the Customer to access external escalation avenues, the
Contractor must take reasonable steps to draw this information to the
Customer’s attention and provide them with the relevant contact details.
18 INFORMATION, PRIVACY AND MARKETING
18.1 Use of information
(a) The Contractor may collect, use, hold and disclose the Customer’s
information, including Personal Information, in accordance with the
Privacy Act 1988 (Cth) for the purposes of the Agreement and for the
purpose of the Contractor marketing its products and services to the
Customer that relate to the New Energy Tech.
(b) The Contractor may disclose this information to:
(i) its agents and contractors (such as subcontractors, Approved
Financier, mail houses, data processors and debt collectors);
(ii) relevant government authorities;
(iii) the Customer’s Energy Supplier; and
(iv) other Energy Suppliers,
for these purposes and more broadly in connection with the
Agreement.
(c) The Contractor may disclose this information to its related bodies
corporate for any reason.
19 FORCE MAJEURE EVENT
(a) If a Force Majeure Event prevents the Contractor from performing the Works, the Contractor must notify the Customer of the Force Majeure Event and the anticipated impact on the Contractor’s performance of the Works within 10 Business Days of it becoming aware of such Force Majeure Event. The parties’ non-financial obligations under this Agreement will be suspended to the extent that the Force Majeure Event or its effects prevents or delays their performance.
(b) If a Force Majeure Event continues for more than 90 Business Days
in the aggregate, either party may terminate this Agreement by
written notice to the other without liability for damages of any kind,
including for consequential loss.
20 MISCELLANEOUS
20.1 Governing law
The Agreement is governed by the laws of the State or Territory in which
the Premises is located (as specified in the Quote) and each Party
irrevocably submits to the non-exclusive jurisdiction of courts with
jurisdiction there.
20.2 Unenforceable provision
If a provision or part of a provision in the Agreement is wholly or partly
invalid or unenforceable, the provision or part must, to that extent, be
treated as deleted from the Agreement. This does not affect the validity or
enforceability of the remaining provisions.
20.3 Entire Agreement
The Agreement supersedes all previous agreements in respect of its
subject matter and the Agreement embodies the entire agreement
between the Parties.
20.4 Variations
Any variation or amendment of the Agreement must be in writing and
signed by both Parties.
20.5 Waiver
A Party may only waive a right under the Agreement in writing.
20.6 Execution
(a) The Agreement may be executed by or on behalf of the Parties
affixing electronic signatures to the Agreement.
(b) If executed by electronic method, an electronic copy of the
Agreement duly executed by both parties will be taken to be an
original.
21 Life Support System & Solar Battery Backup
To ensure the safe installation of your solar battery backup system, please
inform us if anyone in your household relies on life support equipment. In
such cases, we are unable to connect the battery backup directly to your
home’s circuits due to safety regulations. However, you may still use the
battery system during nighttime for general usage. Please note that the life
support equipment must operate independently and will not be connected
to or affected by the battery system.
22 ADS RIGHT TO CANCEL AND REFUND
22.1 ADS may cancel this Agreement at any time before installation
by written notice to the Customer if, in ADS’s reasonable opinion:
(a) There is a shortage or unavailability of qualified installers,
components, equipment or materials necessary to complete the
installation of the System;
(b) Supply chain disruptions, manufacturer delays, or regulatory or
government restrictions prevent ADS from fulfilling its obligations
under this Agreement within a reasonable timeframe; or
(c) Any other event or circumstance beyond ADS’s reasonable control
makes it impracticable or unsafe to continue with the sale or
installation of the System.
22.2 Unenforceable provision
If ADS cancels this Agreement under clause 22.1, ADS must refund the
Customer all amounts paid under this Agreement, including the Deposit, in
full within 10 Business Days after giving written notice of the cancellation.
22.3 Entire Agreement
Upon such refund being made, neither party will have any further claim or
liability against the other arising from this Agreement, except for any rights
or obligations that expressly or by their nature continue after termination.