All defined terms have the meaning ascribed to them in the Deed, unless the context requires otherwise, and in this Agreement the following terms have the following meanings:
“Agreement” means this document entitled ‘Standard Terms’ and includes the document entitled “Agreement for the Sale and Installation of Solar Equipment” as set out in Annexure to the Deed and all documents, annexures and schedules attached to, or referred to, in it.
“Builder” or “you” means the person identified as the “Builder” in the Particulars above.
“Completion Date” means the date specified in the notice under clause 3.5.
“SSPA” or “us” or “our” means Sydney Solar Power Australia a division of Strategy 24 Pty Ltd.
“Deed” or “deed” means the document entitled “Deed of Arrangement for the Supply and Installation of Solar Equipment” between us and you.
“Other Permits” includes any approvals, permits, consents, authorisations, licenses and the likes other than the approvals, authorisations, licenses, consents and permits referred to in clause 7.1.
“Warranty Period” means
- 25 year Solar panel performance warranty
- 12 year Solar panel manufacturing defects warranty
- 20 year mounting frame warranty
- 5 year inverter warranty
- 2 year workmanship warranty
2.Application of these terms
2.1 All orders for the supply of Equipment and Installation Works will be subject to the provisions of this Agreement and the Particulars above.
2.2 This Agreement cannot be cancelled or varied without our prior written consent of the other party.
3.Sale and installation
3.1 You agree to purchase from SSPA the Equipment on and subject to the provisions of this Agreement.
3.2 SSPA agrees to carry out the Installation Works at the Property on or about the Installation Date.
3.3 SSPA will use its best endeavours to deliver the Equipment and carry out the Installation Works on the Installation Date.
3.4 You acknowledge that certain elements of the Installation Work may be carried out before or after the Installation Date (including pre-installation wiring work, and post-installation commissioning of the Equipment).
3.5 When we complete the Installation Work we will issue to you a written notice specifying the Completion Date.
4. Ownership and risk in Equipment
4.1 Ownership of the Equipment passes to you on the date full payment for the Equipment and Installation Works is made by you to us in cleared funds.
4.2 Risk of loss or damage to the Equipment passes to you on the time of delivery onto the Site. From that date the Equipment will be your sole responsibility.
4.3 You will take all reasonable steps to ensure that the Equipment is placed and stored in a secure location from the date it is delivered to the Property until the Completion Date.
5.1 Subject to clause 5.3, we warrant that we (a) will exercise due skill, care and diligence in the execution and completion of the Installation Works; (b) at all times will engage and retain persons who are suitably qualified and experienced to carry out the Installation Works; (c) will supply the Equipment and carry out the Installation Work in accordance with the terms of this Agreement; (d) will: (i) effect and maintain public and product liability until the expiry or termination of this Agreement; and (ii) insure against statutory and common law liability for death of or injury to persons employed by us until the expiry or termination of this Agreement; and (e) will not knowingly do anything that may void any warranties given by other contractors to you or by the manufacturer of the Equipment.
5.2 Subject to clause 5.3, we warrant that during the Warranty Period, the Equipment will: (a) interface, integrate and interconnect with the Property; (b) be of good and merchantable quality; and (c) be free from defects in design, materials, workmanship and installation. We will rectify any non-conformance of the Equipment with the warranties set out in this clause 5.2 during the Warranty Period in accordance with clause 10.2.
5.3 Despite clauses 5.1 and 5.2: (a) our warranties do not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse or normal wear and tear, any events beyond our reasonable control including hail stones, problems with electricity such as outage or power surges, servicing or repairs carried out by non-authorised SSPA repairers, problems caused by parts not supplied by us, and any act or omission, whether negligent or otherwise, of you, the Owner, any third party, or your or their agents or contractors. All liability for any such external causes is excluded to the fullest extent permitted by law; (b) we do not guarantee the performance of or the amount of electricity generated by the Equipment once installed or the amount of efficiency savings the Equipment will generate from the use of the Equipment, as the performance of the Equipment is subject to a number of environmental and climatic variable factors outside the control of SSPA, including shading, amount of sunlight on a given date and orientation of the solar panels; and (c) you acknowledge that changes in the environment including growth in vegetation, surrounding buildings, modifications to the Property, in or around the Equipment may affect the amount of electricity generated by the Equipment and that we will not be responsible for the changes in performance in the Equipment due to these factors.
5.4 You warrant that: (a) you are a licensed Builder in accordance with the relevant Legislative Requirements; (b) you have been retained by the Owner to construct the Property at the Site; (c) you have the authority to enter into this Agreement (including granting us our rights under this Agreement); and (d) you have obtained all necessary consents, agreements, approvals and authorities from the Owner of the Property or any other person required by law for us to carry out the Installation Works, including the Pre-Installation Report (or required under any contractual or other arrangement to which you are a party).
6. Assignment, subcontracting and SSPA’s personnel
6.1 You may not assign your rights and obligations under this Agreement without our prior written consent, which consent may be withheld in our sole discretion.
6.2 We may assign our rights and obligations under this Agreement at any time without your prior written consent.
6.3 We may, without your prior written approval and without giving you notice: (a) subcontract, or allow a subcontractor to subcontract, any of our obligations under this Agreement; and (b) allow a subcontractor to assign a subcontract or any payment or any other right, benefit or interest thereunder. We will be liable to you for the acts, defaults or omissions of our subcontractors and our appointment of subcontractors will not relieve us from any liability or obligation under this Agreement.
7. Legislative Requirements
7.1 You must, before we perform any Installation Work, procure and maintain any development approval or building approval required by the local council or other Legislative Requirement having jurisdiction over the Property.
7.2 Either party must promptly notify the other if it becomes aware of any Other Permits that are necessary for us to supply the Equipment or carry out the Installation Work.
7.3 If either party gives a notice under clause 7.2, we will use our best endeavours to obtain the Other Permits required and you will reimburse us for the reasonable costs that we incur in obtaining those Other Permits. We will notify you of those costs promptly after we become aware of them.
7.4 You will do all things necessary in order assist and enable us to obtain the Other Permits referred to in clause 7.2.
8. Access and Protection of People and Property
8.1 You must give us access to sufficient parts of the Property and the Site to enable us to perform our obligations under this Agreement, including (without limitation) delivering the Equipment to the Property and carrying out the Installation Work.
8.2 You warrant that at all relevant times you have the ability and authority to grant the right of access referred to in clause 8.1.
8.3 You expressly acknowledge that we have relied on the warranty in clause 8.2 in entering into this Agreement.
8.4 We will, in the course of carrying out the Installation Work: (a) take reasonable measures necessary to protect people and property at the Property; (b) avoid unnecessary interference with the passage of people and vehicles at the Property; and (c) prevent nuisance and unreasonable noise and disturbance.
8.5 If we damage property at the Property, we will promptly rectify the damage and pay any compensation which the law requires us to pay.
8.6 Despite anything else in this Agreement: (a) we will not be liable for any loss or damage (including liability for death or injury to persons and loss of or damage to property) caused, either directly or indirectly, by the conditions and physical characteristics of the Property or the Site (including any latent conditions); and (b) you warrant that there are no conditions or physical characteristics of the Property or the Site that would preclude, or have any adverse affect on, the carrying out of the Installation Work or pose any threat to those carrying out the Installation Work.
9. Cleaning up
9.1 We will keep the areas of the Property that we access to perform this Agreement clean and tidy and will remove rubbish and surplus material created by our performance of this Agreement.
9.2 If we fail to comply with our obligations in this clause 9, you may notify us in writing specifying the non-compliance and we must rectify that non-compliance as soon as reasonably practicable.
10. Limitations of liability
10.1 Despite any other provision of this Agreement, and subject to any statutory obligations or remedies which cannot be excluded: (a) our liability under this Agreement, in tort or on any other basis in respect of, in connection with or arising out of the Equipment or the Installation Work is limited to us re-performing the Installation Works (in whole or in part) or replacing or repairing the Equipment or parts of the at our cost, as we determine in our sole discretion; (b) we will not be liable to you for any loss, liability, damage or expense caused by any event or circumstances beyond our reasonable control; and (c) (to the extent permitted by Legislative Requirements), our total cumulative liability to you whether under, arising out of or in any way connected with this Agreement including by way of indemnity, for breach of contract, for tort (including negligence), in equity, under statute or otherwise is limited to and will not exceed the amount that we actually receive under a contract of insurance which we are required to procure under this Agreement.
10.2 Subject to any statutory obligations or remedies which cannot be excluded, the obligation of SSPA under any warranty or other liability under this Agreement is limited to SSPA re-performing the Installation Works or replacing or repairing the Equipment or parts of that Equipment at its cost, as SSPA decides in its sole discretion.
11.1 You must pay to us the Fee by the time, and in accordance with, the Fee provisions of the Particulars above. If you fail to pay to us the Fee in accordance with this Agreement, you will be liable to pay us: (a) any costs and expenses we incur in taking steps to recover payment of the unpaid Fee (including any legal costs associated with taking such steps); and (b) interest on the unpaid Fee at a rate of 15% per annum.
11.2 In the event that anything done (or omitted to be done) under or in connection with this Agreement creates any financial or other benefit or right as a result of the introduction of any Future Energy Legislation, then to the extent possible at law any such benefit or right will vest in us. Your obligations under clause 11.3 extend to any such financial or other benefit or right.
12.1 If you breach this Agreement (including failing to make a payment in accordance with the terms of this Agreement), we may give you written notice of such breach and require you to rectify that breach (including making payment of all outstanding amounts) within 7 days from the date of that notice. If you fail to rectify that breach (including making payment of any outstanding amounts) by the date specified in the notice, we may by further written notice terminate this Agreement.
12.2 Without prejudice to our rights and powers under this Agreement, we may, at any time, including in the absence of your breach, terminate the Agreement in writing for any of the following reasons: (a) where we (acting reasonably) deem the Installation Works fall outside the required performance, safety or quality levels as determined by us; (b) in the event of Equipment or component failure where we cannot, at a reasonable cost, replace, fix or change the required component or element; (c) where we determine (at any time) that the Property is not fit for the Installation Works or the Installation Works are adversely affected by, or otherwise rendered impracticable due to the conditions of the Property or the Site (including any latent conditions discovered after the date of this Agreement); (d) subject to clause 7.2(b) of the Deed, where we consider that any change in a Legislative Requirement or the Renewable Energy Legislation (after the date of this Agreement) or the commencement of any Future Energy Legislation has or may have an adverse effect on the commercial viability of our obligations under this Agreement, our pricing structures or our business.
12.3 You may terminate this Agreement if we fail to complete the Installation Work within 10 days after the Installation Date weather permitting.
12.4 Either party may terminate this Agreement: (a) if the other party enters into an insolvency event, including (without limitation) liquidation, winding up, receivership, administration, de-registration, or ceasing to trade; or (b) at any time by mutual agreement in writing.
12.5 In the event that we terminate this Agreement under clauses 12.1 or 12.2, then unless ownership in the Equipment has passed to you in accordance with clause 4.1, title in, and ownership of, the Equipment will immediately transfer to us upon termination and we may at any time remove the Equipment (and any other goods belonging to us) from the Property or Site. You agree to grant us all necessary access, and to procure the Owner to grant us all necessary access, to enable us to exercise our rights under this clause 12.5. If we exercise our rights under this clause you must pay to us the costs and expenses we incur in removing the Equipment (and any other goods belonging to us) from the Property or Site.
13. Sales Tax and other tax’s
13.1 A reference in this clause 13 to a term defined or used in a Tax System is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
13.2 Unless otherwise stated, all amounts payable for any supply under or in connection with this Agreement exclude GST.
13.3 A recipient of a taxable supply made under this Agreement must pay to the supplier, in addition to the consideration for the taxable supply, any GST paid or payable by the supplier in respect of the taxable supply.
13.4 The recipient must pay the GST to the supplier at the same time as the consideration is payable.
13.5 A party’s obligation to reimburse another party for an amount paid or payable to a third party (e.g. a party’s obligation to pay another party’s legal costs) includes GST on the amount paid or payable to the third party except to the extent that the party being reimbursed is entitled to claim an input tax credit for that GST.
13.6 Each party making a taxable supply under this Agreement must issue a valid tax invoice to the other party for each taxable supply at or before the time it makes the taxable supply.
13.7 Each party must issue an adjustment note to the other party as soon as it becomes aware of an adjustment event relating to a taxable supply by it under this Agreement.
14.1 Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this Agreement continue in force.
14.2 The laws of the state or territory in which the Property is located apply to this Agreement and the parties submit to the non-exclusive jurisdiction of the courts of that state or territory and its appellate courts.
14.3 Nothing in this Agreement or any circumstances associated with it or its performance is to give rise to a joint venture or any relationship of partnership or employer and employee between you and us or between you and any of our personnel.
14.4 Each party must pay its own costs in the preparation and execution of this Agreement. You must pay all stamp duty on this Agreement and any other agreement or transaction contemplated by this Agreement.
15.1 We may collect your personal information where it is relevant to one or more of our activities, including products and services we acquire from suppliers and products and services that we offer to customers.
15.2 SSPA will only use and disclose your personal information in accordance with the Privacy Act