Who does this agreement apply to?
1.1 This agreement is between:
(a) Our Contracting Party named in the Quote, referred to as “we” or “us”; and
(b) the customer named in the Quote, referred to as “you”.
What is this agreement made up of?
1.2 This agreement is made up of:
(a) these Terms and Conditions; and
(b) the Quote attached to these Terms and Conditions.
What does this agreement cover?
1.3 The agreement covers your purchase from us of the Products and Services set out in the Quote.
When does this agreement start and end?
1.4 This agreement starts when you accept our offer set out in the Quote, which you can do by:
(a) signing and posting or delivering the Quote to our address as set out in the Quote;
(b) signing, scanning and emailing the Quote to our email address as set out in the Quote;
(c) accepting the Quote in some other way accepted by us to create an agreement between us and you.
1.5 This agreement ends when we have finished the Contract Works , unless we or you end it earlier in accordance with its terms or separate agreement.
1.6 If we have completed the Contract Works, any warranties and guarantees given by us (or which are deemed to have been given by us) continue for their terms notwithstanding the ending of the agreement
1.7 Capitalised terms used in the agreement have the meanings given to them in clause 15.
2.1 We agree to provide to you and you agree to pay for, the Contract Works referred to in the Quote on the terms set out in the Quote and these Terms and Conditions.
Payment of the Deposit
3.1 You must pay us the Deposit at the same time as you accept our offer set out in the Quote.
Payment of the Balance
3.2 You must pay us the Balance when required by us which may be on the day that we perform our Services for you.
3.3 Title in the Products passes to you on payment of the Balance, provided you have already paid the Deposit and all other amounts you owe us.
3.4 Payments under this agreement can be made by bank cheque, money order, cash, debit card, credit card or direct deposit.
When payment is taken to be made
3.5 You will be taken to have made payment on the date on which we receive your payment as cleared funds in our bank account.
4.1 If you have paid us money under this agreement, but the agreement ends due to our default before we install the Products at your Premises, then we will promptly refund the money you have paid less the cost of any Products retained by you.
4.2 We will also refund any deposit paid by you if we give you notice of a price increase under clause 5, and you choose to end the agreement in accordance with clause 5.3 rather than accept the price increase.
5.1 Subject to clause 5.2, where the Contract Works include the supply and/or installation of a Solar PV system we can increase the price of:
(a) the Products or any part of them;
(b) the Contract Works; or
(c) any other item specified in the Quote,
to cover any new or increased cost in providing the Products or Services under this agreement.
5.2 We can only increase prices under clause 5.1 if:
(a) it is reasonable to do so;
(b) we are not prohibited by law from doing so.
5.3 If we give you notice of a price increase before the Contract Works are commenced and you prefer to end this agreement rather than accept the price increase, you can end the agreement in accordance with clause 5.4 and, if you do, we will give you any refund required under clause 4.1.
5.4 You can end this agreement under clause 5.3 by giving us written notice within two business days after we give you notice of the price increase.
5.5 If we send you notice of a price increase and you do not end this agreement under clause 5.3 and 5.4 by the relevant date, you will be taken to have agreed to the price increase.
6.1 If the Contract Works are for the supply and installation of lights (whether complete unit type or to retrofit an existing unit type) (called “lighting units”):
(a) you agree that the number of lighting units to be supplied as set out in the Quote is an estimate only and is subject to final verification at installation;
(b) you agree that we may supply further lighting units if necessary to complete the entire replacement or refurbishment of lights at the Premises, to a maximum of 10% of the number of lighting units referred to in the Quote;
(c) you agree that we may adjust the Total Price by amounts which are reasonably attributable to:
- A change in the number or composition of the lighting units installed;
- A change in the number or composition of the lighting units removed in the process of the upgrade;
iii. A change in the factors that determine the Environmental Benefit Value;
(d) We may not without your approval increase the Total Price by a sum in excess of 10% of the aggregate of the Total Price and the Environmental Benefit Value.
7.1 You are responsible for applying for and obtaining any approvals, permits or consents required in respect of the Products and Services unless the Quote stipulates that we will do so.
7.2 You must apply for these approvals, permits and consents as soon as possible, or if we are to obtain them, you must assist us to do so when we request you to.
7.3 Your and our other obligations under this agreement are not dependent on and will not be affected by whether and when you obtain these approvals, permits and consents provided that we can lawfully provide the Products and Services.
8.1 Provided that it is lawful and that you are not in breach of this agreement we must, or must procure, the delivery of the Products to the Premises.
8.2 The risk of loss or theft of, or damage to, the Products passes to you on delivery of the Products to the Premises.
8.3 Provided that it is lawful and that you are not in breach of this agreement we must, or must procure the performance of the Services at the Premises in accordance with the Quote. We may make such decisions as to the placement of components of the Products as we consider reasonable and efficient.
8.4 We will use reasonable endeavours to perform the Contract Works at the Premises on or about the Target Date.
8.5 You agree, however, that:
(a) the Target Date is only a target and not a strict deadline; and
(b) we will not be liable to you if we fail to carry out the Contract Works at the Premises by the Target Date
8.6 We will notify you if we do not think we can carry out the Contract Works at the Premises by the Target Date, and give you a new Target Date.
8.7 If we have not substantially carried out the Contract Works at the Premises within 4 weeks after the original Target Date, you can end this agreement before we commence doing so and if you do, we will remove any of the goods from the Premises and repay your deposit to you.
8.8 We (if we perform the Services) or our contractor (if we procure a contractor to do so) must:
(a) if carrying out work lawfully required to be carried out by a licensed person, hold any appropriate license for the carrying out of that work; and
(b) carry out the Services in accordance with the Quote and these terms and conditions.
8.9 After completion of the Contract Work, we will give you any certificate or similar document regarding the work which is required by law.
8.10 We will take every reasonable precaution in carrying out the Services at the Premises.
8.11 We will not be liable for any compromise of any warranty or right by reason of the installation of the Products unless such compromise is due to our negligence or breach of contract.
9.1 You grant us permission to enter and remain at the Premises , and to have our contractors enter and remain at the Premises, to:
(a) conduct one or more site inspections, if we think this is necessary;
(b) deliver the Products and perform the Services; and
(c) carry out the Contract Works,
at any reasonable time, provided we give you reasonable notice of the proposed access time.
9.2 You or your representative must be present at the Premises for any site inspection and for the delivery and installation of the Products.
9.3 You must:
(a) ensure we and our contractors have convenient and safe access to all parts of the Premises necessary to conduct any required site inspections or carry out the Contract Works;
(b) not hinder or obstruct this access; and
(c) ensure the Premises, including its electrical wiring, are sound and able to accommodate the Contract Works.
10.1 We will provide you with the documents describing the maintenance requirements for the Products.
10.2 It is your responsibility to maintain the Products in accordance with these documents.
11. ENVIRONMENTAL BENEFIT
Discount for Environmental Benefit
11.1 We have calculated the Total Price to you having regard to your assignment to us of any Environmental Benefit arising from the supply and installation of the Products.
11.2 We have calculated the Environmental Benefit Value based on our estimate of the potential realisable value of the Environmental Benefit having regard to the possibility of fluctuation in the price achievable for dealings of that type.
Assignment of Environmental Benefit to us
11.3 You hereby assign to us all of your existing and future rights, title and interest in and to all Environmental Benefit created or able to be created in respect of the Contract Works.
11.4 You must do anything we reasonably request of you for the purpose of perfecting, confirming or evidencing this assignment, including providing information and executing documents.
11.5 You warrant to us, when you accept the offer set out in the Quote and again on the performance of the Services, that you have not previously created, or assigned the right to create, any Environmental Benefits in respect of the Contract Works or any other similar installation at the Premises.
Charging you the Environmental Benefit Value
11.6 If you do anything that:
(a) obstructs or avoids the assignment under clause 11.3;
(b) reduces the maximum quantity of Environmental Benefit Value that can be created in respect of the Contract Works; or
(c) renders the Contract Works ineligible for the creation of Environmental Benefit,
then we can increase the Total Price by the amount of the Environmental Benefit Value, and you must pay us the Environmental Benefit Value within 10 Business Days of us invoicing you for it.
11.7 Clause 5 does not apply to any increase of the Total Price increases under clause 11.6, and you cannot end the agreement as a result of a price increase, or refuse to accept it.
12.1 Subject to clause 12.2, we guarantee to repair any deficiencies in:
(a) our workmanship, and the workmanship of our contractors, in performing the Service; and
(b) the Products,
for the times and circumstances set out in the Quote as is applicable to the Product or Services.
12.2 The guarantee in clause 12.1 will not apply where:
(a) the fault or defect is not notified to us within the Guarantee Period; or
(b) the fault or defect is a result of:
(i) something done by you or someone else, and not us or our contractors; or
(ii) something beyond human control that occurred after installation, e.g., an extreme weather event;
(iii) the Products being misused, abused, neglected or damaged after installation;
(iv) the Products being maintained other than in accordance with our direction; or
(v) the Products being repaired, modified, reinstalled or repositioned by anyone other than a service technician approved by us in writing.
12.3 The guarantee in clause 12.1 is additional to any other guarantee or warranty you may have:
(a) from the manufacturer of the Products; or
(b) under any applicable law, including the Australian Consumer Law,
although these other guarantees and warranties may not cover labour costs, travel costs and delivery costs arising from a claim under these other guarantees and warranties. We will notify you if this is the case, and tell you the costs payable. The costs will be payable in advance.
12.4 In order to make a claim under any guarantee or warranty that we give to you (“warranty claim”), you should as soon as you can reasonably do so after becoming aware of circumstances which might give rise to a claim under our guarantee or warranty notify us by telephone or email and provide to us a description of the issue. You should also provide to us such further information as we might request reasonably.
12.5 We will respond to your warranty claim within a reasonable time of receiving notice of it, and will aim to contact you about that warranty claim within three business days.
12.6 During the applicable guarantee period, we will provide reasonable assistance to you in making any guarantee or warranty claim against the manufacturer of the Products, including by acting as your liaison with the manufacturer.
12.7 Where you are a consumer under the Australian Consumer Law
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
13.1 If you:
(a) fail to pay any amount when due; or
(b) fail to perform your obligations in clause 9,
then we may we may suspend our performance of this agreement with immediate effect, and will give you a notice asking you to make the required payment or perform the required obligation.
13.2 If you fail to make the required payment or perform the required obligation within one week after the date of our notice, then we may end this agreement immediately by notice to you.
13.3 If we end this agreement under clause 13.2, you must pay us any costs we incur as a result of ending the agreement, and any costs we have already incurred in respect of the Contract Works.
14.1 All amounts specified in the Quote are inclusive of GST.
15.1 Any notice under this agreement must be in writing and signed by the sender or by an authorised representative of the sender and sent to or left at the address of the addressee in the Schedule or, if the addressee has previously notified the sender in writing of an alternative address for notices, that alternative address.
15.2 If the delivery or receipt of a notice occurs on a day which is not a Business Day or at a time after 5.00 pm in the place of receipt, it is regarded as having been received at 9.00am on the following Business Day.
Assignment and novation of the agreement
15.3 Neither party can assign its rights or novate its obligations under this agreement without the other party’s prior written consent, not to be unreasonably withheld or delayed.
15.4 We may sub-contract any of our obligations under this agreement to a third party, provided that:
(a) if we sub-contract any obligations:
(i) we will ensure the relevant sub-contractor is suitable and performs all sub-contracted obligations in accordance with the requirements of this agreement;
(ii) we will continue to be liable to you for the performance of our obligations under this agreement, even though we have sub-contracted one or more of those obligations; and
(iii) we will be liable to you for the acts and omissions of our sub-contractors , as if these acts and omissions were our own.
Amendment of the agreement
15.5 This Agreement can only be amended in writing signed by both parties.
15.6 A waiver in connection with this agreement is not valid or binding on the party granting that waiver unless made in writing by that party.
15.7 Any term of this agreement which is or becomes invalid or unenforceable does not render the other terms of the agreement invalid or unenforceable.
Governing law of the agreement and submission to jurisdiction
15.8 The laws of the State or Territory in which the Premises are located govern this agreement, and each party irrevocably submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Australian Consumer Law means the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Balance means the price to you of supplying our Products and Services for the Contract Works (subject to any adjustment of this amount in accordance with clause 5.1) after deduction of any amounts paid by you to us in respect of the contract
Business Day means a day which is not a Saturday, Sunday or public holiday in the State or Territory in which the Premises are located.
Contract Works means the provision of the Products and Services referred to in the Quote.
Deposit means the amount specified as such in the Quote.
Environmental Benefit means small-scale technology certificates (STC), Energy Savings Certificates (ESC), Victorian Energy Efficiency Certificates (VEEC) or other credit or certificate which is generally capable of being created in respect of the Contract Works within one calendar year of the completion of those Contract Works and which can be traded or otherwise dealt with as a commodity.
Environmental Benefit Value means the amount deducted from the gross price set out in the Quote for the value of the Environmental Benefit (however described in the Quote).
GST has the meaning given in the A New Tax System (Products and Services Tax) Act 1999 (Cth).
Guarantee Period has the meaning given to it in clause 12.1
Premises mean the premises at the address specified in the Quote.
Privacy Act means the Privacy Act 1988 (Cth).
Products means the Products to be supplied by us to you pursuant to the Quote as part of the Contract Works.
Quote means the document by which we have offered to carry out the Contract Works for you for the Total Price.
Services means the services that we offer to provide under the Quote , and includes where the Accepted Quote indicates that the quote is for a “turnkey” service or is calculated with reference to a price with reference to installation such as “inc. install”, we will:
(a) carry out all installation and commissioning works and services necessary to complete the works and leave them in a properly functioning and operational state; and
(b) leave the premises at which the works are performed clean of any rubbish or debris associated with those works
Terms and Conditions means these terms and conditions.
Target Date means the date specified as such in the Quote, subject to any variation of that date in accordance with clause 8.6.
Total Price means the amount specified as such in the Quote.