Terms & Conditions of Trade
1.1 “ISLAND SOLAR” means Island Solar Group Pty Ltd T/A Island Solar, its successors and assigns or any person acting on behalf of and with the authority of Island Solar Group Pty Ltd T/A Island Solar.
1.2 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting ISLAND SOLAR to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
1.3 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.4 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.5 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using ISLAND SOLAR’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Intended Use” means a building product and the use thereof, for which the building product is intended to be, or is reasonably likely to be, associated with a building.
1.8 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
(a) the product is not, or will not be, safe; or
1.9 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between ISLAND SOLAR and the Client in accordance with clause 5 below.
1.10 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by ISLAND SOLAR to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.11 “Worksite” means the address nominated by the Client to which the Materials are to be supplied by ISLAND SOLAR.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with ISLAND SOLAR and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, ISLAND SOLAR reserves the right to refuse delivery.
2.6 Any advice, recommendation, information, assistance or service provided by ISLAND SOLAR in relation to Materials or Works supplied is given in good faith to the Client, or the Client’s agent and is based on ISLAND SOLAR’s own knowledge and experience and shall be accepted without liability on the part of ISLAND SOLAR. Where such advice or recommendations are not acted upon then ISLAND SOLAR shall require the Client or their agent to authorise commencement of the Works in writing. ISLAND SOLAR shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
2.7 The Client acknowledges and agrees that:
(a) in the event that the Client requests ISLAND SOLAR to make an emergency Call-Out for critical equipment after hours or causes ISLAND SOLAR to cancel or reschedule other work then ISLAND SOLAR reserves the right to charge a minimum Call-Out fee of one (1) hour labour cost plus a per kilometre travelled rate plus any Materials used to undertake the Works unless otherwise agreed between ISLAND SOLAR and the Client;
(b) in the event that ISLAND SOLAR is required to provide the Works urgently, that may require ISLAND SOLAR’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then ISLAND SOLAR reserves the right to charge the Client additional labour costs (penalty rates will apply at time and a half normal rates), unless otherwise agreed between ISLAND SOLAR and the Client;
(c) the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, ISLAND SOLAR reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 1.5.2. In all such cases ISLAND SOLAR will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Works on hold, as per clause 1.6.2 until such time as ISLAND SOLAR and the Client agree to such changes.
2.8 If ISLAND SOLAR has been requested by the Client to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.
2.9 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (NSW), Section 9 the Electronic Transactions Act 2001 (ACT), Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that ISLAND SOLAR shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by ISLAND SOLAR in the formation and/or administration of this Contract; and/or
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of ISLAND SOLAR; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
3.3 In circumstances where the Client is required to place an order for Materials, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Materials (whether they are made to order Materials or not). ("Client Error"). The Client must pay for all Materials it orders from ISLAND SOLAR notwithstanding that such Materials suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Materials. ISLAND SOLAR is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Clients Errors.
4. Change in Control
4.1 The Client shall give ISLAND SOLAR not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by ISLAND SOLAR as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At ISLAND SOLAR’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by ISLAND SOLAR to the Client in respect of Works performed or Materials supplied; or
5.2 ISLAND SOLAR reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
5.3 Variations will be charged for on the basis of ISLAND SOLAR’s quotation, and will be detailed in writing, and shown as variations on ISLAND SOLAR’s invoice. The Client shall be required to respond to any variation submitted by ISLAND SOLAR within ten (10) working days. Failure to do so will entitle ISLAND SOLAR to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 At ISLAND SOLAR’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by ISLAND SOLAR, which may be:
(a) on or before completion of the Works; or
(b) by way of Instalments/progress payments in accordance with ISLAND SOLAR’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed; or
(e) for domestic Clients, fourteen (14) days from the date of any invoice given to the Client by ISLAND SOLAR;
5.6 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and ISLAND SOLAR. ISLAND SOLAR may in its discretion allocate any payment received from the Client towards any invoice that ISLAND SOLAR determines and may do so at the time of receipt or at any time afterwards. On any default by the Client ISLAND SOLAR may re-allocate any payments previously received and allocated. In the absence of any payment allocation by ISLAND SOLAR, payment will be deemed to be allocated in such manner as preserves the maximum value of ISLAND SOLAR’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
5.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by ISLAND SOLAR nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify ISLAND SOLAR in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as ISLAND SOLAR investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in ISLAND SOLAR placing the Client’s account into default and subject to default interest in accordance with clause 1.17.1.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to ISLAND SOLAR an amount equal to any GST ISLAND SOLAR must pay for any supply by ISLAND SOLAR under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Provision of the Works
6.1 Subject to clause 6.2 it is ISLAND SOLAR’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that ISLAND SOLAR claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond ISLAND SOLAR’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
6.3 At ISLAND SOLAR’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
6.4 Any time specified by ISLAND SOLAR for delivery of the Works is an estimate only and ISLAND SOLAR will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that ISLAND SOLAR is unable to supply the Works as agreed solely due to any action or inaction of the Client, then ISLAND SOLAR shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
6.5 The solar design as identified in the Energy Solution proposal may change on the day of installation due to irregularities identified by the solar installer after conducting their site inspection. The solution will be installed based upon the best available alternative design.
7.1 If ISLAND SOLAR retains ownership of the Materials under clause 12 then:
(i) the Client or the Client’s nominated carrier takes possession of the Materials at ISLAND SOLAR’s address; or
(b) where ISLAND SOLAR is to both supply and install Materials then ISLAND SOLAR shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
7.2 Notwithstanding the provisions of clause 7.1 if the Client specifically requests ISLAND SOLAR to leave Materials outside ISLAND SOLAR’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.
7.3 ISLAND SOLAR shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, ISLAND SOLAR accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.4 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, switchboards, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including but not limited to, the structure not being watertight, wood rot, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) ISLAND SOLAR reasonably forms the
opinion that the Client’s property is not safe for the installation of Materials to proceed then ISLAND SOLAR shall be entitled to delay installation of the Materials (in accordance with clause 6.2) until ISLAND SOLAR is satisfied that it is safe for the installation to proceed. ISLAND SOLAR may in agreement with the Client bring the property up to a standard suitable for installation to proceed but all such Works undertaken, and any additional Materials supplied shall be treated as a variation and be charged for in addition to the Price.
7.5 The Client acknowledges and accepts that:
(a) where ISLAND SOLAR has performed temporary repairs that:
(i) ISLAND SOLAR offers no guarantee against the reoccurrence of the initial fault, or any further damage caused;
(b) ISLAND SOLAR is only responsible for components that are replaced by ISLAND SOLAR and does not at any stage accept any liability in respect of previous Materials and/or Works supplied by any other third party that subsequently fail and found to be the source of the failure;
(i) fade or change colour over time;
7.6 ISLAND SOLAR will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
7.7 Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 5.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
7.8 ISLAND SOLAR shall upon installation ensure that all installed Materials meet current industry standards applicable to noise levels, however ISLAND SOLAR cannot guarantee that noise levels will remain constant post installation as the Materials may be impacted by many factors such as the weather, lack of maintenance, tampering etc. Whilst ISLAND SOLAR will take all due care when working in ceiling space/cavities, ISLAND SOLAR will not be liable for any hairline cracks that may occur and/or where screws become dislodged due to general and normal movement within a ceiling, unless due to the negligence of ISLAND SOLAR.
7.9 In the event that;
(a) any of the Materials needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved;
7.10 The Client further accepts that:
(a) all electronic security systems, smoke detectors, heat detectors and any similar devices installed at or attached to the address are:
(i) for monitoring and detection purposes only and should not be regarded as life saving devices; and
(b) it shall be the Client’s responsibility:
(i) to ensure the security system equipment is tested and maintained to full operational condition;
(c) the Client is (for all purposes) solely responsible for the migration of all files and data (regardless of their format) prior to the commencement of the Works. ISLAND SOLAR shall not be held responsible or liable for any loss, corruption, or deletion of files or data (including, but not limited to the software) resulting from illegal hacking or mislabelling or misfiling.
7.11 ISLAND SOLAR accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with ISLAND SOLAR and/or the manufacturers’ recommendations.
8. Worksite Access and Condition
8.1 ISLAND SOLAR is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by ISLAND SOLAR will be placed in a designated area appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed.
(a) the Client shall ensure that ISLAND SOLAR has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). ISLAND SOLAR shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of ISLAND SOLAR;
(b) it is the Client’s responsibility to provide ISLAND SOLAR, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities; and
8.3 The Client agrees to be present at the Worksite when and as reasonably requested by ISLAND SOLAR and its employees, contractors and/or agents.
8.4 Worksite Inductions
(a) in the event the Client requires an employee or sub-contractor of ISLAND SOLAR to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay ISLAND SOLAR’s standard (and/or overtime, if applicable) hourly labour rate; or
9. Underground Locations
9.1 Prior to ISLAND SOLAR commencing any work the Client must advise ISLAND SOLAR of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.
9.2 Whilst ISLAND SOLAR will take all care to avoid damage to any underground services the Client agrees to indemnify ISLAND SOLAR in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.
10. Compliance with Laws
10.1 The Client and ISLAND SOLAR shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Works.
10.2 Both parties acknowledge and agree:
(a) to comply with the National Construction Code of Australia (NCC) and the Building Products (Safety) Act 2017 (NSW), the Building Act 2004 (ACT), section74AA (products associated with building works and/or the intended use) and section74AE (Chain of Responsibility) of the QBCC Act 1991 (QLD) in respect of all workmanship and building products to be supplied during the course of the Works; and
10.3 Where the Client has supplied products for ISLAND SOLAR to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in ISLAND SOLAR’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with state and/or territory regulations, then ISLAND SOLAR shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 5.2.
10.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
10.5 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards.
10.6 If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by the Contractor, then the Contractor shall notify the Client immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Client’s account.
10.7 Any live Works or Works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. The Contractor’s live Works procedures are designed to eliminate risk of injury to the Contractor’s employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Works for which additional charges may be applicable. This shall be invoiced in accordance with clause 5.2.
11. Modern Slavery
11.1 For the purposes of this clause:
(a) “Act” means the Modern Slavery Act 2018 (cth)
11.2 If the Client is a Reporting Entity, it shall comply with all of its obligations under the Act.
11.3 Whether the Client is a Reporting Entity or not, the Client shall:
(a) use reasonable endeavours to identify, assess and address risks of modern slavery practices in its operations and supply chains;
(b) use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;
(d) provide to ISLAND SOLAR a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and
(i) concerning the Client’s compliance with the Act;
11.4 The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and ISLAND SOLAR will be able to terminate the Contract for any breach by the Client.
11.5 The Client warrants that any information supplied to ISLAND SOLAR is true and accurate and may be relied upon for the purposes of the Act.
11.6 The Client shall indemnify ISLAND SOLAR against any loss or liability suffered by ISLAND SOLAR as a result of the Client’s breach of this clause 0.
12.1 ISLAND SOLAR and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid ISLAND SOLAR all amounts owing to ISLAND SOLAR; and
12.2 Receipt by ISLAND SOLAR of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to ISLAND SOLAR on request;
(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of ISLAND SOLAR;
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Client to ISLAND SOLAR for Works – that have previously been supplied and that will be supplied in the future by ISLAND SOLAR to the Client.
13.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ISLAND SOLAR may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, ISLAND SOLAR for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of ISLAND SOLAR;
13.4 ISLAND SOLAR and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by ISLAND SOLAR, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client shall unconditionally ratify any actions taken by ISLAND SOLAR under clauses 1.13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of ISLAND SOLAR agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Client indemnifies ISLAND SOLAR from and against all ISLAND SOLAR’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ISLAND SOLAR’s rights under this clause.
14.3 The Client irrevocably appoints ISLAND SOLAR and each director of ISLAND SOLAR as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
15.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify ISLAND SOLAR in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow ISLAND SOLAR to inspect the Materials or to review the Works provided.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
15.3 ISLAND SOLAR acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ISLAND SOLAR makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. ISLAND SOLAR’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Client is a consumer within the meaning of the CCA, ISLAND SOLAR’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If ISLAND SOLAR is required to replace any Materials under this clause or the CCA, but is unable to do so, ISLAND SOLAR may refund any money the Client has paid for the Materials.
15.7 If ISLAND SOLAR is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then ISLAND SOLAR may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
15.8 If the Client is not a consumer within the meaning of the CCA, ISLAND SOLAR’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Client by ISLAND SOLAR at ISLAND SOLAR’s sole discretion;
15.9 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(a) the Client failing to properly maintain or store any Materials;
15.11 ISLAND SOLAR may in its absolute discretion accept non-defective Materials for return in which case ISLAND SOLAR may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Materials plus any freight costs.
15.12 Subject to clause 15.1, customised, or non-stocklist items or Materials made or ordered to the Client’s specifications are not acceptable for credit or return.
16. Intellectual Property
16.1 Where ISLAND SOLAR has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in ISLAND SOLAR, and shall only be used by the Client at ISLAND SOLAR’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of ISLAND SOLAR.
16.2 The Client warrants that all designs, specifications or instructions given to ISLAND SOLAR will not cause ISLAND SOLAR to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify ISLAND SOLAR against any action taken by a third party against ISLAND SOLAR in respect of any such infringement.
16.3 The Client agrees that ISLAND SOLAR may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which ISLAND SOLAR has created for the Client.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at ISLAND SOLAR’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Client owes ISLAND SOLAR any money, the Client shall indemnify ISLAND SOLAR from and against all costs and disbursements:
(a) incurred; and/or
in regard to legal costs on a solicitor and own client basis, internal administration fees, ISLAND SOLAR’s contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
17.3 Further to any other rights or remedies ISLAND SOLAR may have under this Contract, if a Client has made payment to ISLAND SOLAR, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by ISLAND SOLAR under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
17.4 Without prejudice to ISLAND SOLAR’s other remedies at law ISLAND SOLAR shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to ISLAND SOLAR shall, whether or not due for payment, become immediately payable if:
(a) any money payable to ISLAND SOLAR becomes overdue, or in ISLAND SOLAR’s opinion the Client will be unable to make a payment when it falls due;
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
18.1 Without prejudice to any other remedies ISLAND SOLAR may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions ISLAND SOLAR may suspend or terminate the supply of Works to the Client. ISLAND SOLAR will not be liable to the Client for any loss or damage the Client suffers because ISLAND SOLAR has exercised its rights under this clause.
18.2 ISLAND SOLAR may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice ISLAND SOLAR shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to ISLAND SOLAR for Works already performed. ISLAND SOLAR shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by ISLAND SOLAR as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19.1 All emails, documents, images or other recorded information held or used by ISLAND SOLAR is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. ISLAND SOLAR acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). ISLAND SOLAR acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by ISLAND SOLAR that may result in serious harm to the Client, ISLAND SOLAR will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to ISLAND SOLAR in respect of Cookies where the Client utilises ISLAND SOLAR’s website to make enquiries. ISLAND SOLAR agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
19.3 The Client agrees for ISLAND SOLAR to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by ISLAND SOLAR.
19.4 The Client agrees that ISLAND SOLAR may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
19.5 The Client consents to ISLAND SOLAR being given a consumer credit report to collect overdue payment on commercial credit.
19.6 The Client agrees that personal credit information provided may be used and retained by ISLAND SOLAR for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
19.7 ISLAND SOLAR may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
19.8 The information given to the CRB may include:
(a) Personal Information as outlined in 19.3 above;
19.9 The Client shall have the right to request (by e-mail) from ISLAND SOLAR:
(a) a copy of the Personal Information about the Client retained by ISLAND SOLAR and the right to request that ISLAND SOLAR correct any incorrect Personal Information; and
19.10 ISLAND SOLAR will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
19.11 The Client can make a privacy complaint by contacting ISLAND SOLAR via e-mail. ISLAND SOLAR will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
20. Service of Notices
20.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not ISLAND SOLAR may have notice of the Trust, the Client covenants with ISLAND SOLAR as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
22. Other Applicable Legislation
22.1 At ISLAND SOLAR’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 1999 (New South Wales), Building Industry Fairness (Security of Payment) Act 2017 (Queensland), and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
22.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 22.1 (each as applicable), except to the extent permitted by the Act where applicable.
23.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
23.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the Queanbeyan Courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client's purchase order).
23.4 Subject to clause 15, ISLAND SOLAR shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by ISLAND SOLAR of these terms and conditions (alternatively ISLAND SOLAR’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
23.5 ISLAND SOLAR may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
23.6 The Client cannot licence or assign without the written approval of ISLAND SOLAR.
23.7 ISLAND SOLAR may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of ISLAND SOLAR’s sub-contractors without the authority of ISLAND SOLAR.
23.8 The Client agrees that ISLAND SOLAR may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for ISLAND SOLAR to provide Works to the Client.
23.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
23.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
23.11 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.