Terms and Conditions
To the fullest extent legally possible, all dealings between Jasmin Solar Pty Ltd (ACN 158 644 225) of 2-3/98 Spencer Road Carrara QLD 4211 (and each of its subsidiaries, divisions, affiliates, associated and related entities, successors and permitted assigns) ("the Company" or "Jasmin Solar") and the Home Owner (as described in the Contract of Work Agreement) in relation to the supply and installation of solar systems are subject to the following General Terms and Conditions ("these Terms"), unless otherwise agreed in writing.
1. CUSTOMER CONTRACT OF WORK
1.1. Home Owner agrees and acknowledge that the Contract of Work ("CW"), attached herewith, constitutes an offer to purchase a photovoltaic solar electricity system from the Company.
1.2. The CW will come into effect subject to the Company providing confirmation or acceptance, in writing or otherwise, of the CW.
1.3. The Company reserves its right to cancel or terminate a CW and/or refuse any customers in its absolute discretion.
2. PURCHASE OF SOLAR SYSTEM
2.1. Subject to the fulfillment of these Terms, the Company will:
(a) supply Home Owner the photovoltaic solar electricity system ("System") for the purchase price ("Purchase Price") described in the CW.
(b) install the System at the property ("Property") at the address provided in the CW hereinafter referred to as the "Purchase".
2.2. By duly executing the CW, Home Owner agrees to the Purchase subject to and conditional upon the provisions of these Terms and to take delivery of the System at the Property.
2.3. Unless otherwise agreed in writing between Home Owner and the Company, details of the System, the Purchase Price and the Property are more particularly described in the CW. Jasmin Solar will use its best endeavors to supply and install the equipment as described, however should stock be unavailable at time of the scheduled installation, the Company reserves the right to provide and install replacement equipment of equal quality and value.
3. HOME OWNER WARRANTIES
3.1. Unless otherwise disclosed to and waived in writing by the Company, Home Owner acknowledges and warrants that:
(a) Home Owner is the registered owner of the Property;
(b) Home Owner has not entered into a similar previous agreement for the purchase and installation of a similar photovoltaic power generation system with any other person or company;
(c) there is no pre-approval or funding agreement in respect of the System under any government scheme or plan;
(d) no financial assistance under any government scheme or plan has been approved or provided in respect of any other small power generation unit at the Property;
(e) no small-scale technology certificates ("STCs") have been generated in respect of any small power generation unit/s at the Property.
3.2. Home Owner warrants that any and all information supplied to the Company for and in respect of the Purchase, including but not limited to information in relation to the STCs, is an honest and true representation and is not, expressly or implicitly, false or misleading in any part or form.
4. SMALL-SCALE TECHNOLOGY CERTIFICATES ("STCs")
4.1. Home Owner agrees to irrevocably assign to the Company the rights to claim the allocated STCs arising or created (and deemed to be arising or created) under the Federal Government Renewable Energy Target Scheme (or equivalent program as may be applicable from time to time) for and in respect of the System.
4.2. Home Owner must duly execute and deliver to the Company or its nominee, the STCs Assignment Form on the date of installation.
4.3. Upon assignment of the STCs (being the date of the STCs Assignment Form, or failing specification, the date on which the Company receives the signed STCs Assignment Form) to the Company:
(a) the right to generate the STCs will reside solely with the Company to be used and/or exercised at the absolute discretion of the Company from time to time;
(b) Home Owner will forfeit any rights, interests, entitlements or claims in the assigned STCs indefinitely;
(c) If and where required, Home Owner will appoint the Company to act as Home Owner's attorney to complete and do all things necessary to exercise, utilise or enforce Home Owner's claim in respect of the assigned STCs.
4.4. Home Owner agrees that the value of the STCs created (and/or deemed to be created) for the System will be credited against the Purchase Price, by way of partial payment of the Purchase Price. The balance of the Purchase Price combined with the discount afforded to the Home Owner ("Contract Value Price") will be due and payable pursuant to the Payment Terms contained in Clause 5 herein. For the avoidance of doubt, the value of the relevant amount to be credited is specified on the CW.
4.5. If the Federal Government Renewable Energy Target Scheme is discontinued, amended, withdrawn or cancelled, the Company may cancel the CW and refund Home Owner any monies already paid, save for any Non Refundable Deposits, where applicable.
5. PAYMENT TERMS
Unless otherwise provided in these Terms, at the time of signing this CW the Home Owner must make a Required Deposit payment ("Required Deposit") as indicated on the CW. Home Owner agrees that $600.00 of this Required Deposit payment will be Non Refundable ("Non Refundable Deposit") subject to the expiry of any applicable legislative Cooling Off period. Home Owner understands that the Non Refundable Deposit covers administrative fees such as grid connection approvals, stock ordering etc.
When received by the Company, the Required Deposit payment amount prescribed in the CW shall be deemed as a part-payment of the Contract Value Price.
5.1. Home Owner must pay the Contract Value Price in accordance with the Payment Terms ("Payment Terms") set out in the CW.
5.2. Subject to the provisions of these Terms, if and where the Company determines that any of the transactions contemplated under these Terms operate as or give rise to a security interest for the purposes of the Personal Property Security Act 2009 (Cth) ("PPSA"), the Company may do all such things it deems required or necessary to protect its security interest arising by these Terms, including but not limited to registering a charge or caveat on such properties secured herein. The full extent of the Company's rights in respect of the PPSA are set out in Clause 9.
5.3. The installation of the System will be subject to and conditional upon the receipt of the full outstanding balance payable to the Company prior to, or on the Installation Date (defined herein).
5.4. Unless otherwise provided in these Terms, upon termination of the CW for whatever reason the Company reserves its right to deduct any fees and expenses at its sole and absolute discretion from the monies already received from the Home Owner.
5.5 If for any reason the Company is unable to generate the STC certificates referred to in Clause 4, Home Owner will be liable to pay the POS STC discount amount described in the CW.
5.6 Should any portion of the Contract amount be financed and the finance institution declines to make payment on Home Owner's behalf for whatever reason, then Home Owner will become responsible to immediately pay the financed portion of the Contract as well.
6. INSTALLATION
6.1. Installation of the System is subject to and conditional upon
(a) Home Owner's CW being accepted by the Company;
(b) the Property being inspected and approved by the Company or its appointed agent;
(c) the proper documentation has been duly executed and received by the Company prior to the appointed installation date; and
(d) any other relevant requirements under these Terms have been satisfied.
(e) Home Owner must be present during the installation process.
6.2. In the event that the installation requires use of additional installation or safety equipment, then Jasmin Solar may charge the Home Owner an additional fee for the installation work. The Home Owner will be advised of any additional fees prior to the installation commencing.
6.3. Upon being satisfied with Home Owner's Purchase, the Company will provide Home Owner notice of the proposed installation date ("Installation Date") at its earliest possible convenience.
6.4. However whilst best efforts will be used to complete the installation within a reasonable time, the Installation Date is a guide for expected installation and nothing in these Terms can be construed as a guarantee that installation of the System will be completed on or before the Installation Date. Under no circumstances will the Company be liable for any loss, damage or delay occasioned to the Home Owner arising from late installation of the System.
6.5. In the event that the Home Owner is not in a position to allow the Company to install the System, the Company has the right to cancel this CW and to retain the Required Deposit in lieu of costs incurred.
6.6. The Company will ensure that the System is installed by competent, trained and insured installers ("Installers") accredited by the Clean Energy Council. The Company will in no way be taken as providing or supplying the installation services for and in respect of the System at the Property.
6.7. Notwithstanding any other provision in these Terms, the Company does not accept any responsibility or liability, however arising, for any loss, cost or damage at the Property or incurred by Home Owner by reason of or in connection with any act or omission of the Installer for and in relation to the installation of the System at the Property.
6.8. The Home Owner agrees and acknowledges that the Company will have no responsibility for the acts, omissions or costs of damage resulting from or arising in relation to the installation. Any and all claims for damages should be made directly to the Installers, who are required to have appropriate Insurance and Warranties as required by Law.
7. ADDITIONAL CHARGES
7.1. Home Owner will responsible for any additional charges and expenses that may be incurred in order to connect the System to Home Owner's local electricity network for and in respect of the Property, including but not limited to:
(a) charges relating to Meter changeovers, Meter Box upgrades or installation;
(b) charges for changes to peak and off peak billing; and
(c) other similar charges which may be necessary or required by Home Owner's electricity provider or supplier.
(d) Trenching or other site specific requirements not specifically addressed in the CW.
7.2. Home Owner will be responsible for any additional costs and expenses to remedy defects at the Property which, in the sole and absolute opinion of the Company (or its employees, agents or contractors) are required, in order to install the System at the Property. Such costs and expenses may include (without limitation) expenses to remedy: the presence of asbestos, inaccessible, unsuitable or unsafe roofs, defective wiring or wiring that does not meet the acceptable standards for similar type of electrical works.
7.3. Upon its due diligence of the Property, the Company will notify Home Owner in writing of any defects at the Property which must be remedied at Home Owner's own expense and an approximation of the additional costs and expenses Home Owner may incur. Home Owner will have the option to cancel the CW, upon which any monies paid under the CW and/or these Terms will be refunded, save and except the Non Refundable Deposit (subject to the operation of Clause 21).
8. PERMITS AND APPROVALS
8.1. If Home Owner's local municipal council, strata company or any other authority requires Home Owner to obtain permits and/or building approvals to install the System at the Property, Home Owner will be required to obtain such at own expense before the System may be installed.
9. RISK AND TITLE
9.1. Property in goods will not pass until payment in full of all monies owed to the Company on any basis ("Full Payment").
9.2. The Company reserves the right to take possession and dispose of the System as it sees fit at any time until Full Payment is confirmed. Home Owner irrevocably grants permission to the Company (or its agents) to enter any site, land or property where the System is, in order to do so and with such force as may be reasonably required or necessary.
9.3. Where there is a sale or disposition of the Property prior to Full Payment, Home Owner agrees to hold all proceeds arising from the sale of the Property on trust for the Company in a separate bank account (as nominated by the Company from time to time) and will immediately pay to the Company from such proceeds the outstanding balance of all amounts due and payable under the CW and/or these Terms.
9.4. Until Full Payment, Home Owner agrees:
(a) to execute documents and do such further acts as may be required by the Company to register any security interest granted to the Company by the CW under the PPSA;
(b) to waive its rights to receive the notifications, verifications, disclosures or other documentation as set out under Chapter 4 of the PPSA, to the extent they are applicable;
(c) where the Company has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply; and
(d) to not give (or allow another person to give) the Company any written demand requiring them to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA.
9.5. Upon delivery of the System to the Property, Home Owner accepts any and all risks and liabilities in respect of the System including the risk of any damage to, loss or theft of the System.
9.6. The Company accepts no liability for defects caused by Home Owner's handling or use of the System, or where Home Owner has failed to observe the Payment Terms.
10. NO GUARANTEE OF PERFORMANCE
10.1 The Company will use its best endeavors to install the System in a position that is likely to maximise its performance.
10.2 Home Owner acknowledges that the performance of the System will be subject to a number of variable factors, including without limitation, the number of hours of sunlight per day, cloud cover and weather patterns, the location of the System and the location of surrounding structures and trees, maintenance and general cleanliness of the panels.
10.3 The Company cannot and do not guarantee or warrant the performance of, or any particular level of performance of, the System and will accept no responsibility in the event that the performance of any System is less than expected by the Home Owner.
10.4 Any representation provided by the Company in relation to the expected output of the System is solely for information purposes and may only be used as a guide to the expected performance of similar Systems. The Company disclaims any liability that may arise from a customer's reliance on these representations.
10.5 Home Owner is responsible to ensure that the System is in full working condition at all times. The Company does not accept any liability for financial or electricity generation losses originating from a defective or under-performing System.
11. FEED-IN TARIFFS
11.1 The Company gives no warranty and makes no representations or guarantees in relation to Home Owner's entitlement to Feed-in Tariffs ("Feed-in Tariffs") (if any) that may be available for any electricity fed back into the electricity grid at the Property by the System.
11.2 Home Owner acknowledges that entitlement to any such Feed-in Tariffs applicable to the System be subject to legislation and regulations prevailing from time to time.
11.3 For clients who enter into a CW on the $1 contract all excess feed in credits exported to grid will be granted to Jasmin Solar by way of an Irrevocable Authority.
12. EXPRESS WARRANTIES
12.1 When the System is installed the Home Owner will be provided with warranty information for the components of the Solar System and also information on maintaining and servicing the Solar System. Home Owner should refer to the specific warranty and instruction card provided by the manufacturer of the relevant component.
12.2 A one (1) year warranty is provided by Jasmin Solar for the workmanship associated with the installation of the System ("Installation Warranty"). The following terms and conditions relate to the Installation Warranty:
(a) The Installation Warranty is provided by Jasmin Solar of 2/3/98 Spencer Road Carrara QLD 4211 1300 591 415 repair free of charge the System if the System is defective due to any installation workmanship during the one (1) year warranty period, commencing from the Installation Date of the System. Please note that in remedying any faulty workmanship goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the products.
(c) To make a claim under the Installation Warranty during the warranty period, Home Owner must notify Jasmin Solar by phone 1300 591 415; email [email protected], or by post 2-3/98 Spencer Road Carrara QLD 4211, that the installation workmanship is faulty and complete any warranty documentation required by Jasmin Solar and send such documentation to any of the addresses set out above.
(d) To the maximum extent permitted by law, Home Owner must bear the costs and expenses of claiming under the Installation Warranty.
(e) The benefits given to the Home Owner in this Installation Warranty are in addition to any other rights and remedies under any law in relation to the products to which the Installation Warranty relates. Jasmin Solar goods come with guarantees that cannot be excluded under the Australian Consumer Law. Home Owner is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Home Owner is also entitled to have the goods repaired if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(f) Subject to clause 12.2 (e) above, but otherwise to the maximum extent permitted by law, this Installation Warranty will not apply:
(i) to defect, damage or failure resulting from misuse, accident, neglect, abuse, improper use or improper or inadequate maintenance and care, tampering or unauthorised repairs by any person, or any acts of God or force majeure (such as hail or weather related damage), general wear and tear; or
(ii) to any failure, to the extent that the failure is not a failure arising from faulty installation workmanship.
13. EXCLUSION OF WARRANTIES AND LIABILITY
13.1 The Company does not make any representations or warranties to the Home Owner in connection with the System, its components or its installation in addition to those expressed in Clause 12, except for those warranties which cannot be excluded from this CW by law.
13.2 Notwithstanding any other provision in these Terms, the Company is not, nor can it be deemed to be, the manufacturer of the components of the System. The System and its components will be covered by warranties of the relevant manufacturer.
13.3 To the maximum extent permitted by law (including the provisions of the Australian Consumer Law ("ACL")), the Company will be under no liability to the Home Owner for any damages or losses, direct, indirect or consequential, arising from or in relation to the defects in the manufacture, packaging, delivery or the installation of the System.
13.4 In all cases of the Company's liability for a breach of a term or condition implied by the ACL shall be limited at the Company's option to the repair or the replacement of the System with an equivalent System.
14. COMPANY'S OBLIGATIONS
14.1 The Company agrees to:
(a) supply and install the System at the Property within six (2) months of the date of the CW;
(b) engage only accredited and qualified tradesmen to install the System;
(c) upon the completion of the installation of the System at the Property, immediately issue a Statement of Compliance (duly signed by the Installer) to the relevant government department certifying that the System has been installed and complies with all applicable regulations, a copy of which shall be forwarded to the Home Owner.
15. HOME OWNER'S OBLIGATIONS
15.1 The Home Owner agrees to:
(a) upon signing the CW, do all things and sign all documents reasonably required by the Company to secure its rights, title and interests arising from these Terms in respect of the System;
(b) provide the Company and its employees, agents and contractors (including the Installer) all reasonable access to the Property and any reasonable cooperation required to ensure efficient installation, servicing or removal of the System from time to time;
(c) pay a removal charge of $3,500 in the event that the system needs to be removed after installation in accordance with this CW; and
(c) upon receiving the Statement of Compliance from the Company, do all things required or necessary to complete the assignment of all STCs created (or deemed to be created) by the System to the registered agent nominated by the Company in writing from time to time.
16. DEFAULT
16.1. In the event a party commits a material breach of these Terms (Defaulting Party), the other party (Non-defaulting Party) may serve a written notice upon the Defaulting Party specifying the breach and requiring the Defaulting Party to rectify such breach within fourteen (14) days, unless otherwise specified in the notice.
16.2. Should the Defaulting Party not remedy the breach of the these Terms within the specified time, the Non-defaulting Party shall be entitled to terminate the CW immediately, without notice, and shall be entitled to damages not only arising from the breach but any other entitlements pursuant to this Agreement.
16.3. Any termination of the CW will be without prejudice to any accrued rights or obligations of the parties.
17. DISPUTE RESOLUTION
17.1. In the event a dispute ("the Dispute") arises under the provisions of the CW the parties agree to resolve the dispute at an informal level including participating in negotiations or mediations.
17.2. Where the Dispute cannot be resolved at an informal level, the parties will refer the Dispute to an independent arbitrator agreed to by the parties, failing agreement to be appointed by the president of the governing legal profession institution or society in the Home Owner's State of residence. The determination of the independent arbitrator shall be binding upon the parties.
17.3. The parties hereby agree to resolve the Dispute amicably and with a good faith attempt to resolve the Dispute.
18. ENTIRE AGREEMENT
These Terms constitute the whole agreement between the parties and any negotiations, discussions or representations prior to the parties entering this CW are to be disregarded.
19. FORCE MAJEURE
Any obligation of the Company to perform any obligation under this CW is suspended (and the required time for carrying out that obligation is extended) for the time and to the extent that the Company is prevented from or delayed in performing that obligation by any event or circumstance beyond the reasonable control of the Company.
20. GOVERNING LAW
This CW will be governed by the laws applicable in the State of South Australia.
21. COOLING OFF PERIOD
(a) The Home Owner understands that under Australian Consumer Law the Home Owner may be entitled to a Cooling Off period during which period the Home Owner may terminate this CW without penalty.
(b) If the initial contact with the Home Owner was unsolicited, then a cooling off period of 10 days shall be applicable.
(c) If the Home Owner terminates this CW during the cooling off period under the Australian Consumer Law, Jasmin Solar will return or refund to the Home Owner any consideration (or the value of any consideration) that the Home Owner gave pursuant to this CW.
(c) All notices to terminate this CW during the cooling off period set out above can be made by the Home Owner to Jasmin Solar personally or via email to [email protected]. or mail to Jasmin Solar Pty Ltd, 2-3/98 Spencer Road Carrara QLD 4211; or by fax to 07 3112 4280.
22. ASSIGNMENT
Notwithstanding that the Company may assign, transfer or sub-contract its duties and obligations under these Terms to a third party, the Company will remain liable for its obligations under these Terms. Home Owner must not assign these Terms without express consent from the Company.
23. WAIVER
No conduct of any party (including a failure to exercise or delay in exercising) will operate as a waiver of its rights or otherwise prevents the exercise of such rights under these Terms.
24. VARIATION
These Terms may only be modified, amended, added to or otherwise varied in writing and executed by both parties.
25. SEVERABILITY
25.1 Both parties agree and acknowledge that these Terms are fair and reasonable in all the circumstances, whereby any part of these Terms and Conditions can be severed without affecting any other part.
25.2 All obligations of the Home Owner under these Terms will survive the expiration or termination of these Terms to the extent required for their full observance and performance.
26. NOTICES
26.1 A notice, consent or other communication under these Terms shall only be effective if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail or fax.
26.2 If it is sent by mail, it is taken to have been received three (3) Business Days after it is posted. If it is sent by fax, it is taken to have been received when the addressee actually receives it in full and in legible form.