TERMS AND CONDITIONS
Parties: These Terms are between Kenway Services Pty Ltd (trading as Reefcosa Electrical Air and Solar (ACN 140 455 803), its successors and assignees (referred to as “we” and “us”) and you, the person, organisation or entity described in the Quote (referred to as “you”). These Terms apply to all Services provided by us to you. “Guarantor” means that person (or persons), or entity who agrees herein to be liable for your debts if you are a Limited Liability Buyer on a principal debtor basis.
Acceptance: You have requested the Services set out in the Quote. You accept these Terms by:
- signing and returning the Quote;
- confirming by email or verbally that you accept the Quote;
- accepting the Quote online;
- instructing us to proceed with the Services; or
- making part or full payment for the Services.
You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions. Purchasing Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms.
Deposit: If the Quote indicates that we require a Deposit, we will not confirm an installation date, secure stock or commence performing the Services until you have paid the Deposit or the first instalment of our Fee.
Cancellation: You must provide us with at least 10 Business Days’ notice in writing of any cancellation. Failure to do so may result in any Deposit being forfeited. If no Deposit has been paid, you will be required to pay 10% of the quoted Fees, payable by you within 7 days of receipt of an invoice for that amount. If we have already ordered materials specific to the Services that cannot be returned or reused, you will be required to pay for the material costs in full. This amount may be deducted from any Fees already paid by you or will otherwise be payable by you within 7 days of receipt of an invoice for that amount. You can collect any materials from us once paid in full.
- We agree to perform the Services with due care and skill.
- If applicable to the Services, we are committed to performing the Services in a manner consistent with an installer of solar photovoltaic systems accredited by the Clean Energy Council (CEC) complying with the CEC Solar Retail Code of Conduct in the performance of the Services.
- We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.
- We may provide the Services to you using our employees, contractors and third-party providers, and they are included in these Terms.
- Third parties who are not our employees or our direct contractors will be your responsibility. We are not responsible for the products or services provided by those third parties.
- Where any manuals or handover documents are required in order for you to enjoy or use the Services or as a legal requirement we will provide these to you as electronic form and for no additional fee.
PRICE, INVOICING AND PAYMENT
- You agree to pay us the amounts set out in our Quote, including any Deposit required. All amounts are stated in Australian dollars (AUD). All amounts exclude Australian GST (where applicable). Payment may be made by way of payment methods as set out in our Quote when purchasing our Services.
- You agree to pay our Invoices by the payment date set out on the Invoice.
- Without prejudice to any other remedies we may have, if at any time you are in breach of any obligation (including those relating to payment), we may suspend or terminate the supply of Services to you and any of our other obligations under these Terms. We will not be liable to you for any loss or damage you suffer because we exercised our rights under this clause.
- If any account remains unpaid at the end of the second month after supply of the Goods or Services the following shall apply: An immediate amount of $50.00AUD shall be levied for administration fees which sum shall become immediately due and payable.
- We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.
- If invoices are unpaid after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to us.
- We reserve the right to report bad debts to independent credit data agencies.
- If the Quote states that the Fees and Expenses are an estimate only, you acknowledge that the final Fees and Expenses may be more or less than the estimated amounts. We will endeavour to inform you of any material variation as it becomes apparent.
- You agree to pay our Call Out Fees.
SECURITY AND CHARGE
- Notwithstanding anything to the contrary contained herein or any other rights which we may have howsoever:
- Where you and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both you and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to us or our nominee to secure all amounts and other monetary obligations payable under these Terms. You and/or the Guarantor acknowledge and agree that we (or our nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
- Should we elect to proceed in any manner in accordance with this clause and/or its sub-clauses, you and/or the Guarantor shall indemnify us from and against all our costs and disbursements including legal costs on a solicitor and own client basis.
- To give effect to the provisions of clause 4.1(a) and 4.1(b) inclusive hereof you and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint us or our nominee as your and/or the Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as us and shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of you and/or the Guarantor in any land, realty or asset in favour of us and in your and/or your Guarantor’s name as may be necessary to secure your and/or the Guarantor’s said obligations and indebtedness to us and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in our absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
- The Fee and Services can be varied by written agreement between us, including by email.
- We may at any time, in writing, inform you of the need for us to perform a Variation.
- If you request a Variation to the Services, we have discretion as to whether we make the Variation.
- Variations will not invalidate these Terms or be regarded as a repudiation of these Terms by us.
- If in our reasonable opinion a Variation requires additional time to perform the Services, then we will amend the term of this Agreement after consultation with you.
- If we need to charge an additional fee for a Variation (Additional Fee), then we will provide a written quote for the Additional Fee to you prior to commencing performance of the Variation. If:
- You accept the quote then these Terms are amended to incorporate the Variation and the Additional Fee but otherwise remains the same; or
- You do not accept the quote we may in our discretion terminate these Terms immediately.
- If we are unable to accommodate the Variation, we may request that we be paid for Services performed to date and terminate these Terms.
YOUR OBLIGATIONS AND WARRANTIES
- You warrant that:
- you are at least 18 years of age;
- you will be present or contactable during the installation of the Services;
- there are no legal restrictions preventing you from agreeing to these Terms;
- you will cooperate with us, and provide us with information that is reasonably necessary to enable us to perform the Services as requested from time to time, in a timely manner;
- the information you provide to us is true, correct and complete, including but not limited to any plans or drawings required;
- there are no structural integrity issues with the roof or electrical systems of the property;
- the roof has the ability to carry the weight of the Solar System Installation;
- you will not infringe any third-party rights in working with us and receiving the Services;
- you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
- you are the registered owner of the property and are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
- You will ensure that, if the Services are to be performed on your property, you are authorised to occupy those premises and obtain the Services;
- You will ensure that if the Services are to be performed on your property, that at all times the property is safe and that all facilities provided by you for the purposes of enabling the Services to be performed are also safe, including restraining any animals that may impose risk to us;
- You will ensure that we have free and unimpeded access to the place in which the Services are to take place at all times and that you will do all things to ensure that we are not delayed by matters within your control;
- You accept that we have the right to impose stand down charges and recover additional costs incurred where work is delayed by reason not in our control and where we are unable to reasonably reschedule services;
- you will not employ, canvass, solicit, entice, induce or attempt to employ our employees or contractors; and
- It is your responsibility to ensure that your property insurance adequately covers the cost of your PV solar system. The ownership and insurance risk of the PV solar system passes to you upon installation and us receiving full payment.
- You hereby disclaim any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to you by any servant or agent of ours and you acknowledge that you buy the Goods and Services relying solely upon your own skill and judgement.
- If applicable to the Services, we have calculated the performance expectations for the Solar Installation System and your property in accordance with the CEC Solar Installation System Design Guidelines.
- You will inform us if you have previously received, or been approved for any rebate or small-scale technology certificate (STCs) for small generation power system at the Installation Address.
- You accept that you pay us the STC’s as part payment for your system. The STC’s will be paid directly to us. If the Office of Clean Energy Regulator determines you are not eligible to receive STC’s, and therefore we are unable to receive the STC’s as part payment, you will be liable to pay us the value of the STC’s, as determined by market rates or by the rate set at the time you are deemed to have accepted these Terms.
- If you are not eligible for STC’s, or if you wish to claim the STC’s incentive yourself, the complete payment (including trading costs of the STC’s) of the system is due before installation and the amount owing will be the rate set at the time you are deemed to have accepted these Terms. You acknowledge that if you breach any conditions of the STC’s incentive regulations, you may be financially liable to the Office of Clean Energy Regulator. If you commit any breach of the Incentive Regulation, you acknowledge that we will not be liable to you. We will arrange for the complete documentation and processing of the sale of STC’s.
- You hereby assign to us all the Owner existing and future rights, title and interest in and to all STCs created or able to be created in respect of the Solar Installation System (STC Assignment).
- You acknowledge and agree that:
- we have calculated the STC Incentive based on:
- the maximum quantity of STCs that can be created in respect of the Solar Installation System under law, taking into account the performance expectations; and
- the monetary value of that quantity of STCs;
- offered the Fees on the basis of deducting the STC Incentive from the actual price of the Solar Installation System.
- we have calculated the STC Incentive based on:
- When we are engaged to undertake underground excavation work, you should obtain plans of underground services such as pipes and cables on the property before the proposed work on the property.
- Should you fail to provide us with the appropriate plans for the property you will indemnify us from any claim for costs, expenses or losses from a third party for any damage to third party property, including the asset owner.
- You agree and acknowledge that you are responsible for the costs incurred by us as a result of us striking ground that is harder to dig than normal in our absolute discretion.
- WORK HEALTH & SAFETY
You agree and acknowledge that:
- Whilst works are being carried out the property is considered a work site and therefore must comply with all legislation and must follow the following conditions.
- An approximate age of the property must be advised to ascertain potential risk.
- Disclosure of the presence of asbestos, where known by you, within the work site must be made prior to the commencement of works.
- All work areas must be free of potential hazard to us and any of our representatives.
- Any representative of ours can refuse to complete the Services if they believe that the working environment is in breach of company policy and/or legislation.
- We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than where necessary, to third party suppliers, or as required by law); to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; and only to use your Confidential Information for the purpose for which it was disclosed by you, and not for any other purpose.
- You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect our Confidential Information from any unauthorised disclosure; and only to use our Confidential Information for the purpose for which it was disclosed or provided by us to you and not for any other purpose.
- These obligations do not apply to Confidential Information that:
- is authorised to be disclosed;
- is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;
- is received from a third party, except where there has been a breach of confidence; or
- must be disclosed by law or by a regulatory authority including under subpoena.
- This clause will survive the termination of these Terms.
- FEEDBACK AND DISPUTE RESOLUTION
- Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
- If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
- The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
- If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Queensland to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
- Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
RETENTION OF TITLE
Title in any goods we supply to you does not pass to you until they have been paid for in full, even if we have installed them.
To the extent allowed by law, if you fail to make a due payment, we may enter the site or your premises and take reasonable action to remove the goods without us being liable to you for damage to the site, premises of the goods caused by such removal.
Notwithstanding clause 11, risk in any goods we supply to you shall pass to you at 4pm on the date of completed installation.
- You must inspect the Goods and Services on completed installation and notify us of any alleged defect, shortage in quantity, damage or failure to comply with the description or Quote. You must afford us an opportunity to inspect the Goods and Services within a reasonable time following installation if you believe the Goods and/or Services are defective in any way. To the extent permitted by law, if you fail to comply with these provisions the Goods and/or Services shall be conclusively presumed to be in accordance with these Terms and free from any defect or damage.
- For defective Goods which we have agreed in writing that you are entitled to reject, our liability is limited to either (at our sole discretion) replacing the Goods or repairing the Goods/ reperforming the Services provided that:
- You have complied with the provisions of clause 14.1;
- You have notified us of any alleged defect, shortage in quantity, damage or failure to comply with the description or Quote within seven (7) days of completed installation;
- We will not be liable for Goods or Services which have not been stored or used in a proper manner;
- you commit a non-remediable breach of these Terms;
- you commit a remediable breach of these Terms and do not remedy the breach within a reasonable time after receiving written notice of the breach;
- we consider that a request for the Services is inappropriate, improper or unlawful;
- you fail to provide us with clear or timely instructions to enable us to provide the Services;
- we consider that our working relationship has broken down including a loss of confidence and trust;
- for any other reason outside our control which has the effect of compromising our ability to perform the Services within the required timeframe; or
- you fail to pay an invoice by the due date.
- being a person, becomes bankrupt or makes an assignment of its estate for the benefit of its creditors;
- being a company, becomes insolvent, has a liquidator, provisional liquidator, administrator or receiver appointed or takes or has taken or instituted against it any action which may result in the liquidation of the company or if it enters into any Subcontract with its creditors,
the other Party may, without issuing a notice to show cause, terminate the Agreement by written notice.
- the Services being unavailable; and
- any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with your inability to access or use the Services or the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
- products or services you purchase from a third party;
- any variance in results from our [system performance and electricity bill savings] estimates. While we try to be as accurate as possible, there are many variables that can affect these results;
- any disturbance or rectifications made to an unforeseen service such as any cables, water pipes, gas pipes, storm water drains. You are required to provide us with any plans necessary before the commencement of the Services;
- any pre-existing damage;
- effects on any roof manufacturer’s warranty;
- any incorrect measurements provided to us;
- any changes to layout/plans on the day of install that are required as a matter of law or functionality;
- any personal injury caused to you or any third party other than due to our negligent act or omission;
- any damage caused to your property other than due to our negligent act or omission;
- any damage cause to old and brittle roofing tiles that may be cracked or damaged during installation;
- any Additional Fees that arise unexpectedly as part of the job, that were not identified initially, such as scissor lift hire. In this event we will follow the Variation procedure in clause 4;
- your “feed in tariff incentive” as administered by the relevant State or Territory government;
- your STC’s incentive as administered by the Office of Clean Energy Regulator;
- the outcome of the pre-approval process or any delays due to this process with the Electricity Distributer;
- any Additional Fees that may be associated with the need to obtain an upgrade to your existing meter box or the installation or reprograming of a new Smart Meter. In this event we will follow the Variation procedure in clause 4;
- any damage caused by an extreme weather event which the Solar Installation System is not designed to withstand;
- any damage caused where the Solar System Installation is misused, abused, neglected, not being maintained according to any instructions or repaired, modified, reinstalled or repositioned by anyone other than a service technician approved by us in writing; and
- any unexpected costs which may arise in relation to the removal and handling of asbestos at your property in relation to the installation of the solar system.
- any information provided by you that is not accurate, up to date or complete or is misleading or a misrepresentation;
- your breach of these Terms;
- any misuse of the Services by you, your employees, contractors or agents;
- your breach of any law or third-party rights; and
- any injury caused by your property (or access to the property) and/or your equipment being unsafe.
Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between the Parties and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
- carrying out additional Services;
- omitting any part of the Services; or
- changing the scope of the Services.