These Terms are entered into between Inkam Pty Ltd (ABN 57 617 274 745) trading as Find Solar Installer (“we”, “us” or “our”) and you, the person, organisation or entity described in the Quote (referred to as “you”), each a “Party” and collectively the “Parties”. These Terms apply to all Goods and Services provided by us to you.
1.1 You are deemed to have accepted these Terms by signing these Terms and returning the same to us (including by email), or by making part or full payment of the Price (including the Deposit).
1.2 You agree that these Terms form the entire agreement under which we will provide Goods and Services to you. Please read these Terms carefully and contact us if you have any questions.
2.1 We agree to provide you the Goods and Services in accordance with the Quote and these Terms.
2.2 We may provide the Goods and Services to you using Our Personnel, and they are included in these Terms.
2.3 To the maximum extent permitted by law, if these Terms expresses a time within which the Goods and Services are to be provided, you agree that such time is an estimate only, and creates no obligation on us to provide the Goods and Services by that time.
2.4 The Price and the Goods and Services can only be varied by written agreement between the Parties, including by email. If you request a variation to the Goods and Services (Variation), the request must be made in writing prior to our commencement of the Goods and Services. Any instructions or directions given by you that are in addition to the Goods and Services will constitute a deemed Variation. We have discretion as to whether we accept any Variation or deemed Variation. We may issue a further or amended Quote (including online) allowing for the Variation or deemed Variation. You may accept the further or amended Quote by confirming in writing (including by email). We will not be required to perform the Goods and Services, or any additional goods or services, the subject of any Variation or deemed Variation until you have accepted the amended or further Quote.
2.5 You acknowledge and agree that: (a) the usability and functionality of the Goods are dependent on the Property being equipped with the necessary electrical items (including electrical wiring, cabling, piping, metering, meter box compliance and circuit breaker) and any costs associated with ensuring the Property is equipped with electrical items will be at your cost;
(b) we will have no obligation to provide the Goods and Services (including installation services) if the Property is not fit for the provision of the Goods and Services;
(c) the Goods and Services do not include structural timber work or support timber (fascia boards, battens or framing timbers), unless expressly stated otherwise in writing (including in the Quote); and
(d) the performance of the Goods (including energy production or energy cost savings) are entirely dependent on the Property (including any geographical, atmospheric or structural conditions), and, to the maximum extent permitted by law, we will have no Liability for, and you waive and release us from, any Claim arising out of any of the matters referred to in this clause 2.4.
2.6 If we encounter any Latent Conditions during the performance of the Goods and Services, we will notify you as soon as reasonably practicable. Any additional goods, services or costs that we suffer or incur as a result of any Latent Conditions will be deemed a Variation, for which clause 2.4 will apply.
2.7 You agree to assign all your rights to create an STC to us. You agree to do all things reasonably necessary to assign all your rights to create an STC, to us, and, for us to create an STC.
2.8 If for any reason beyond our reasonable control, there is a delay of over 30 days from the date agreed between the Parties for the provision of the Goods and Services, you agree to pay any additional costs, expenses, damages or losses suffered or incurred by us, as a debt due and immediately payable.
3.1 If you, or any of Your Personnel, provide or supply any products, works, goods, services or appliances (Your Items) you acknowledge and agree that Your Items will be provided entirely at your own risk, are fit for purpose, and will allow us to comply with our obligations under these Terms.
3.2 You acknowledge and agree that Your Personnel are your responsibility. You will ensure that you and Your Personnel cooperate and coordinate with us so as to allow us to comply with our obligations under these Terms.
4.1 You agree to pay us the Price, any Expenses and any other amounts due and payable under these Terms in accordance with the Payment Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless indicated otherwise).
4.2 You acknowledge and agree that if a portion of the Price includes a discount due to the inclusion of a discount for the STC, this Price is an estimate only. You agree that the Price will be adjusted to reflect the STC price on the date agreed between the Parties for the installation Services of the Goods. You agree that any shortfall in your payment of the Price will be a debt due and immediately payable by you.
4.3 We may issue invoices in respect of the Price, and periodically in respect of any Expenses.
4.4 The Price and any Expenses are payable by the earlier of the date set out in our invoice, and [7 days] after the date of the invoice (Payment Date).
4.5 If an invoice is unpaid by the Payment Date, we may:
(a) suspend or cease provision of the Goods and Services to you until we receive payment;
(b) engage debt collection services and/or commence legal proceedings in relation to any such amounts;
(c) enter any property where the Goods are located in order for us to recover and repossess the Goods (and you will do all things necessary to obtain the right for us to enter any property); and/or
(d) 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 [3 days] after the Payment Date, and we may recover as a debt due and immediately payable the costs of doing so.
4.6 If any amount due and payable under these Terms is outstanding by [45 days] or more, you authorise us to charge the outstanding amount against your nominated credit card. You agree to sign all relevant forms and consents that may be necessary to allow us to charge the nominated credit card and keep such forms and consents current.
4.7 Unless otherwise particularised in any Quote, Quotes will remain valid for a period of [30 days] from the date of the Quote, after which we may withdraw the Quote and/or vary the Quote or any amount in the Quote.
5.1 You warrant that:
(a) there are no legal restrictions preventing you from agreeing to these Terms;
(b) you have ensured that the Property is fit for the provision of the Goods and Services;
(c) there are no hidden services, utility delivery conduits or any other obstructions in the Property;
(d) you will cooperate with us, and provide us with all documentation, information, instructions and access to the Property and facilities (including, at no extra cost to us, access to the toilet and water facilities) necessary to enable us to provide the Goods and Services in a timely manner;
(e) you are the lawful owner of the Property or otherwise have the consent of the lawful owner of the Property to allow us to provide the Goods and Services without breaching any third party property rights;
(f) you are responsible for obtaining any access, consents, licences and permissions from other parties necessary for the Goods and Services to be provided, at your cost, and for providing us (and Our Personnel) with the necessary consents, licences and permissions;
(g) you will ensure that the Property is free from harm or risk to health and safety (including prior to the provision of the Services, removing any items on the Property that may disrupt or disturb the Services);
(h) you will have spare roof tiles available on the Property prior to the provision of the Services;
(i) you will ensure that Your Personnel and any third parties (including any visitors to the Property) will maintain a safe distance from the location where any Goods are to be installed, while any Services are in progress;
(j) if applicable, you are registered for GST purposes; and
(k) if applicable, you hold a valid ABN which has been advised to us.
6.1 Unless otherwise stated in the Quote, the Price will include all costs associated with the delivery of the Goods to the Property (including, without limitation, any excise or customs duties, taxes or levies).
6.2 You acknowledge and agree that:
(a) we order the Goods from our Manufacturer;
(b) we may provide you with an estimated lead time, or date, for delivery of the Goods, and that any such estimate is an estimate only; and
(c) delivery of the Goods may be affected by circumstances beyond our control, including Force Majeure Events and delays experienced by third parties including our Manufacturer.
7.1 Title in the Goods will remain with us until the Price and all other amounts due and payable to us under these Terms is paid to us in full. Risk in the Goods will pass to you on delivery of the Goods to the Property. Until title in the Goods passes, you will hold the Goods as bare bailee only.
7.2 For the avoidance of doubt, and to the maximum extent permitted by law, you will be responsible for, and indemnify us against, any loss or damage to the Goods that occurs after delivery of the Goods to you.
8.1 We may, in our discretion, offer you warranties with respect to the Goods or Services. Any warranties will be attached to the Quote.
8.2 Any warranty referred to in clause 8.1 will be governed by the terms of the relevant warranty and these Terms. You acknowledge and agree that the provision of any of Your Items may void any warranty referred to in clause 8.1.
9.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Goods and Services, please contact us.
9.2 A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
10.1 These Terms will commence on acceptance of these Terms by you (in accordance with clause 1.1) and will continue until the earlier of, Completion, or the date on which these Terms are terminated in accordance with this clause 10.
10.2 Within 10 days of acceptance of these Terms, you may terminate these Terms by providing written notice to us, either in person or by pre-paid post (Cooling-off Period). Upon termination of these Terms within the Cooling-off Period, we agree to return to you any Deposit you have paid to us under these Terms.
10.3 We may terminate these Terms at any time prior to 3 days before the date agreed between the Parties for the provision of the Goods and Services, by providing you with notice in writing (including by email). We agree to refund any part of the Price paid by you to us.
10.4 We may terminate these Terms by written notice if you have breached these Terms (including a failure to make payment of any part of the Price) and have failed to remedy the breach within 5 days of being notified of the breach by us. Upon termination of these Terms under this clause 10.3, you agree that any Deposit or other payments made under these Terms are not refundable to you, and you must pay us any part of the Price outstanding, and any Expenses suffered or incurred by us, as at the date of termination.
10.5 If you terminate, cancel or repudiate these Terms after the Coolingoff Period, you will pay the costs as a debt immediately due and payable incurred by us to the date of such purported termination, cancellation or repudiation (including any costs of the Goods and Services supplied up to the date of termination, cancellation or repudiation). If a Deposit has been paid by you, this may be held by us and repayment is at our absolute discretion.
10.6 On Completion of the Goods and Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
10.7 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
11.1 ACL: Certain legislation, including the Australian Consumer Law, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Goods and Services which cannot be excluded, restricted or modified (Statutory Rights). If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Goods and Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. Subject to your Statutory Rights, we exclude all express and implied warranties and all material, work and services (including the Goods and Services) is provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
11.2 Subject to your Statutory Rights, any relevant warranties, and to the maximum extent permitted by law, on Completion of the Goods and Services, we will have no obligation to re-perform (including, as applicable, to change, modify or reinstall) the Goods and Services.
11.3 Exclusions: To the maximum extent permitted by law, we exclude any Liability or Claim, and you waive and release us from any Liability or Claim (whether under statute, contract, equity, negligence or other tort, indemnity, or otherwise) caused or contributed to by:
(a) any Latent Conditions;
(b) any loss of, or damage, to property;
(c) acts or omission of you or Your Personnel, or any third party (not engaged by us);
(d) any information, documentation, specifications, directions, instructions, advice, work, goods, services or other things given or provided by you (or any of Your Personnel) or any third party, including Your Items;
(e) the Goods and Services being unavailable or delayed (for any reason);
(f) any defect, error, omission or lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, business performance, profit, outcome or benefit) with respect to the Goods and Services;
(g) any event or circumstance outside of our reasonable control, including a Force Majeure Event; and
(h) 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 connected with the Goods and Services and/or these Terms, even if we were expressly advised of the likelihood of such loss or damage.
11.4 Limitation: To the maximum extent permitted by law, our total Liability arising out of or in connection with these Terms, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to:
(a) us re-supplying the relevant Goods and Services to you; or
(b) at our option, us refunding to you the amount you have paid us for the Goods and Services to which your Claim relates, but, in any event, our Liability under these Terms or otherwise will be limited to, and must not exceed, the portion of the Price paid by you to us for the Goods and Services, to which your Claim relates.
11.5 Despite any provision to the contrary, to the maximum extent permitted by law, our Liability under or in connection with these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you, Your Personnel or any third party (not engaged by us).
11.6 This clause 11 will survive the termination or expiry of these Terms.
12.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims and Liabilities caused or contributed to by:
(a) acts or omissions of you or Your Personnel;
(b) any information, documentation, specifications, directions, instructions, advice, work, goods, services or other things given or provided by you (or any of Your Personnel), including Your Items; and
(c) your breach of these Terms.
12.2 This clause 12 will survive the termination or expiry of these Terms.
13.1 GST: If and when applicable, GST payable on the Price for the Goods and Services will be set out on our invoices. You agree to pay the GST amount at the same time as you pay the Price.
13.2 Security interest: These Terms create a registrable security interest in favour of us, and your consent to the security interest (and any other registrable interest created in connection with these Terms) being registered in any relevant securities register (and you must do all things to enable us to do so).
13.3 Confidentiality: Both Parties will (and both Parties will ensure its respective personnel will) keep confidential, and not use or permit any unauthorised use of, any of the other Party’s confidential or commercially sensitive information, without the other Party’s written consent, except where the disclosure is required by law.
13.4 Privacy: To the extent required by law, we agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth). We may retain personal information of you for purposes related to the operation of our business (including the provision of warranties).
13.5 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, or employer-employee relationship.
13.6 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
13.7 Severance: If any provision under these Terms is held to be unenforceable or invalid, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid, failing which, that provision (or part of it) will be severed from these Terms, without affecting the enforceability or validity of the remainder of these Terms.
13.8 Notices: Unless otherwise specified in these Terms, any notice given under these Terms will be in writing and addressed to the address last notified by the relevant Party. Any notice may be sent by standard post or email, and notices will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
13.9 Entire Agreement: These Terms, the Quote, 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.
13.10 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Goods and Services to you, including on our website or in our promotional material.
13.11 Intellectual Property: All Intellectual Property developed, adapted, modified or created by or on behalf of us or Our Personnel, (including in connection with these Terms or the provision of the Goods and Services) exclusively for you under these Terms, will vest in you, subject to your payment of the Price, and all other amounts due under these Terms, in full. You grant us a non-exclusive, irrevocable, worldwide, sublicensable and transferable right and licence to use any intellectual property that vests in you under these Terms, to comply with our obligations under these Terms.
13.12 Further Assistance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under these Terms.
13.13 Jurisdiction & Applicable Law: These terms are governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
14.1 Any reference to “Goods and Services” may mean “Goods and/or Services” as the case may be.
14.2 In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and: ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time. Completion means when we reasonably determine that the Goods and Services in relation to the Quote are complete. Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense, or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence), equity, or statute, whether indirect, incidental, special, consequential, and/or incidental, and whether involving a third party or a Party to these Terms or otherwise.
Cooling-off Period means the period whereby you may cancel or terminate these Terms, as set out in clause 10.2. Deposit means, if any, the amount set out in the Quote. Expenses means any additional costs or expenses suffered or incurred by us in the provision of the Goods and Services (including, but not limited to, any costs of storing and re-delivering the Goods where you fail to provide access for, or accept, any delivery of the Goods).
Force Majeure Event means an event or circumstance beyond the reasonable control of a Party, including but not limited to war, riots, civil unrest, fire, flood, cyclone, typhoon, earthquake, lightning, explosion, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, and acts of state or governmental action prohibiting or impeding any Party from performing its obligations under these Terms. Goods are the goods particularised in the Quote. GST means GST as defined in the A New Tax System (Goods and Goods and Services Tax) Act 1999 (Cth), as amended, from time to time.
Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relations to inventions (including patent rights), patents improvements, registered and unregistered trademarks, designs, any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, data or formulae, business names, company names or internet domain names, and any confidential information.
Latent Conditions means any condition, event, circumstance, matter or thing in, on or around the Property (including any rotten, insecure or unstable building work) or otherwise that could that will, or will likely result in us, you or any third party suffering or incurring additional cost or delay, or would require a change to the Quote, Goods, Services, Price and/or these Terms.
Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).
Manufacturer means the manufacturer or supplier we engage, from time to time, for the supply of the Goods. Our Personnel means our contractors, subcontractors, agents and/or employees. Payment Terms is as particularised in the Quote. Price means our fees, expenses and prices, as set out in the Quote. Property means the site or property where the Goods will be installed and used, as set out in the Quote. Quote means the Quote to which these Terms refer to, which will be provided by us to you within a reasonable time from the acceptance of these Terms. Services are the services particularised in the Quote. STC means the small-scale technology certificate for solar energy systems.
Terms means these terms and conditions and any document, referred to, or attached to, it (including the Quote). Variation means amended or additional Goods and Services, including but not limited to changes to the Quote, Goods, Services, or Price, as further particularised in clause 2.4.
Your Personnel means any of your employees, agents, contractors, tenants or patrons, any owner of the Property, or any other person who is under your direction or control.