TERMS AND CONDITIONS
TERMS OF SUPPLY
These are the Terms and Conditions of Quotation and Sale of all products supplied by Sunny Energy (Terms and Conditions). These Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any invoice, document or purchase order of the Customer, except as otherwise specified in writing by a duly authorised officer of Sunny Energy.
“Customer” means the person/s placing the order for Works and/or products supplied by Sunny Energy to the Customer as specified in any invoice, document or purchase order. The Customer warrants that they have the power to enter into this agreement and has obtained all necessary authorisations to allow them to do so.
“Sunny Energy” means the party that the Customer is contracting with whose business name and ABN appears on the quotation, invoice, receipt or TCA provided to the Customer.
“Quote” means any document containing a price for Works, including but not limited to Tax Invoices, quotations generated by computer or tablet devices or handwritten quotations.
“Works” means any services rendered, products delivered or any future or completed work done by Sunny Energy.
2. Binding Nature
- All orders placed with Sunny Energy shall only be accepted subject to these Terms and Conditions. The Customer has exclusively accepted and is immediately bound by these Terms and Conditions if the Customer places an order for the product/s or services, signs any Quote, pays the deposit, continues to provide instructions and/or accepts the product/s or Works.
- Sunny Energy may, at any time, alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by Sunny Energy to the Customer.
- If there is any error or omission in the Quote, Sunny Energy reserves the right to change the contract sum on the Quote. This clause applies even if the Quote has been accepted by the Customer. Prices quoted are subject to final costing assessment by Sunny Energy.
- Upon acceptance of the Quote by the Customer, Sunny Energy may require a deposit to be paid prior to any Works being commenced by Sunny Energy. This deposit is at the sole discretion of Sunny Energy.
- Notwithstanding any other clause, the contract sum on the Quote will only be valid for 30 days from the date of the Quote. Sunny Energy reserves the right to make any changes to the Quote if the 30 days lapses.
- At Sunny Energy’s sole discretion, a portion of or the full amount of the deposit may be non-refundable. The amount that is non-refundable is a true estimate of costs and expenses spent to date.
- Sunny Energy reserves the right to make any changes to the Quote including but not limited to the contract sum if either:
- a variation is requested by the Customer, or
- a Quote has not been fulfilled within 30 days of the date the Quote was produced.
Any variation from the Quote, schedule of works or specifications will allow Sunny Energy the right to stop the progress of any works until Sunny Energy and the Customer agree to changes. Payment for all variations must be made in full at the time which they are raised.
- After Sunny Energy accept the Customer’s order, the Customer may not cancel the order unless Sunny Energy agrees in writing.
Terms of Payment
- The Customer shall make payment according to the Quote or unless the Customer has been granted a credit account. Granting of a credit account shall be at the absolute discretion of Sunny Energy and unless otherwise agreed in writing with Sunny Energy the Customer granted a credit account shall make payment within the terms approved in the credit account.
- If the Customer fails to make payment in accordance with clause 4A, Sunny Energy shall be entitled to:
- require the payment of cash upon delivery and commencement of any further Works;
- charge default interest at the rate of 9% per annum on all overdue amounts (including late payment, charges and amounts other than the contract sum) calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment AND the parties agree that such default is not a penalty but is a true measure of damages incurred by Sunny Energy. Payments received from the Customer will be credited first against any default interest and all such charges shall be payable upon demand;
- claim from the Customer all costs relating to any action taken by Sunny Energy to recover moneys or goods due from the Customer including, but not limited to, any legal costs and disbursements on a solicitor-client basis; and
- cease any further Works for the Customer and terminate any agreement in relation to services and/or products that have not been provided or delivered; and
- The Customer shall not be entitled to set off against, or deduct from the contract sum, any sums owed or claimed to be owed to the Customer by Sunny Energy nor to withhold payment of any invoice because part of that invoice is in dispute.
- Any date or time quoted for delivery and completion of the Works is an estimate only and Sunny Energy shall endeavour to complete the Works at a time or times required by the Customer, but failure to do so shall not confer any right of cancellation, termination or refusal of delivery on the Customer’s part or render Sunny Energy liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
- If Sunny Energy is or will be delayed in delivery or completion of the Works by a cause beyond the reasonable control of Sunny Energy including by reason of any delay in delivery or any strike, lockout, unavailability of raw materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any Laws or regulations, the Customer acknowledges and agrees that the time for delivery and completion of the Works shall be extended by the extent of the delay.
- The Customer shall examine the products immediately after delivery. Sunny Energy shall not be liable for any mis-delivery, shortage, defect or damage unless Sunny Energy receives details in writing within 14 days of the date of delivery of the products. The Customer will be taken to have accepted the products if no notice is provided to Sunny Energy within the 14 days’ period.
- If Sunny Energy is engaged to install said product/s the Customer shall not open, dismantle or otherwise handle the product/s, unless with prior authorisation from Sunny Energy.
Property and Risk
- Notwithstanding delivery of the product/s or their installation, property in any given products shall remain with Sunny Energy until the Customer has paid and discharged any and all other indebtedness to Sunny Energy on any account whatsoever including all applicable sales taxes and any other taxes, levies and duties.
- The Customer acknowledges that it is in possession of the products solely as a bailee for Sunny Energy until payment as defined in clause 7A has been made in full to Sunny Energy and until such payment, the Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery.
Products and Works
If any products and Works specified within a Quote is unavailable at the time of the Works being carried out, Sunny Energy in its absolute discretion may substitute a reasonable alternative.
- To the extent required by statute, subject to the conditions of warranty as may be set out in The Australian Consumer Law located in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL) Sunny Energy warrants that if a defect in any of the Works carried out by Sunny Energy is reported to Sunny Energy within 12 months of the date of completion, then Sunny Energy will either replace or remedy the Works subject to these Terms and Conditions.
- This warranty will not be applicable in any of the following events (but subject to the ACL):
- defect or damage caused which may be caused or partly caused by or arising through the failure of the Customer to properly maintain any Works, follow any instructions or guidelines provided by Sunny Energy, use of any Works in any other way than is outlined in the Quote, or by the Customer’s negligence;
- the Customer continues to use any of the Works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user;
- the Customer allows someone other than a licensed professional to deal with the Works;
- If the Works fail due to fair wear and tear, any accident or act of God; or
- if the Works are repaired, altered or overhauled without Sunny Energy express written consent.
- If Sunny Energy must make an inspection outside of our premises, Sunny Energy may charge the Customer for all reasonable costs incurred including labour, travelling and other out-of-pocket expenses incurred if the fault or defect is deemed to be outside this warranty.
- Components and parts from third party suppliers are subject to the same warranty (if any) as is extended to Sunny Energy by the supplier.
- If Sunny Energy replace defective goods, ownership in those defective goods transfers wholly and unconditionally to Sunny Energy.
- If a claim is made by a Customer and Sunny Energy, after assessing the item, deem this to be out of warranty, Sunny Energy will make reasonable attempts to contact the Customer to arrange for the items to be returned. If, after 30 days, the Customer has not made arrangements to have the goods returned, Sunny Energy may dispose of the goods at the Customer’s expense.
- Time is of the essence in relation to all stipulated time requirements in this clause.
- It is the sole responsibility of the Customer to check and confirm the order with Sunny Energy prior to signing the Quote. Sunny Energy will not be held liable for incorrect orders.
- It is the responsibility of the Customer to ensure that the Works can be completed without interruption, in a continuous work flow and on the mutually agreed date. Sunny Energy reserves the right to charge the Customer any extra costs incurred by Sunny Energy by virtue of interruption including but not limited to additional return to site charges and travel costs. The Customer shall be fully responsible to ensure that plumbing, electrical installations and any other installations not specified within the Quote do not foul the work area and associated areas. The customer shall be fully responsible for any necessary foundations.
- The Customer shall ensure that Sunny Energy has clear and free access to the work site at all times to enable them carry out the Works. Sunny Energy shall take all due and reasonable care when delivering and completing the Works in accordance with these Terms and Conditions.
- Sunny Energy may sub-contract the performance of the Works or any part of the Works to any person without the prior written consent of the Customer.
- The Customer must as soon as practicable obtain and maintain all approvals which are required for the lawful implementation and completion of the Works.
- Sunny Energy shall not be liable for any loss or damage to the site to the maximum extent permitted by Law.
- The Customer accepts all liability for, and indemnifies Sunny Energy against, any custom orders or additional requests that are outside the usual scope of works, including but not limited to anything that is labelled as a “client/customer requirement”. The usual scope of works, and what is outside same, is determined solely by Sunny Energy.
- Sunny Energy accepts no liability for the visual presentation or noise levels of installed products.
- If the Customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any property or assets of the customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a Liquidator or Provisional Liquidator is appointed, Sunny Energy may, in addition to exercising all or any of its rights against the Customer, suspend performance of any Works and immediately recover possession of any products not paid for in accordance with the Terms and Conditions. Sunny Energy will not be liable for any loss or damage the Customer suffers as a result of Sunny Energy exercising its rights under this clause.
- If a Customer cancels or alters any order or part order for any product at any time after Sunny Energy has received the order then Sunny Energy reserves the right to charge to the Customer the cost of any product/s or materials already acquired for the order together with cost of labour and tooling expended to the date of such cancellation or alteration. This is a genuine estimate of costs and expenses incurred by Sunny Energy to date.
Personal Property Securities Act 2009 (Cth) (PPSA)
- The Customer acknowledges and agrees that:
- these Terms and Conditions constitute a security agreement for the purposes of the PPSA and creates a registrable security interest under the PPSA in all Works supplied or will be supplied by Sunny Energy to the Customer;
- Sunny Energy has the right to register a financing statement under the PPSA with respect to the security interest created by these Terms and Conditions;
- if Sunny Energy registers a security interest under the PPSA, Sunny Energy may exercise any or all remedies afforded to it as a secured party, without prejudice to any other rights or remedies arising out of a breach by the Customer of any agreement with Sunny Energy; and
- the Works supplied or will be supplied by Sunny Energy to the Customer are collateral for the purposes of the PPSA.
- The Customer waives any right the Customer has under the PPSA to receive notice in relation to registration events.
- The Customer and Sunny Energy agree that neither party will disclose information of the kind specified under section 275(1) of the PPSA.
- Sunny Energy may elect, at its absolute discretion and at any time, that any section of the PPSA specified in section 115 will not apply to the extent permitted by section 115.
Privacy Act 1988 (Cth)
- The Customer hereby acknowledges that:
- Sunny Energy collects personal information such as contact details, bank account details, insurance details and credit card details and holds such information for seven (7) years. The purpose of the collection of personal information is only for internal use;
- it has been informed by Sunny Energy that personal information about them may be disclosed to or acquired from or to a credit reporting agency;
- The Customer hereby agrees:
- that Sunny Energy may contact any trade references or other credit references at any time whether now or in the future for the purpose of assessing credit worthiness;
- to Sunny Energy receiving from any other credit provider or providing to any credit provider any information whether by way of report record or otherwise relating to credit worthiness for the purposes of exchanging information, assessing credit worthiness and notification of default at any time whether now or in the future;
- to Sunny Energy obtaining from a credit reporting agency a credit report on the Customer for the purposes of assessing any credit application and the Customer further consents to Sunny Energy obtaining such reports from time to time for the purposes of assessing credit worthiness during the continuance of credit provision;
- to Sunny Energy obtaining from a business which provides credit information a report or information in relation to the Customer’s commercial credit worthiness or commercial dealings and using such information for the purpose of assessing the Customer’s application for credit; and
- that, in the event of default of payment of any of their debts Sunny Energy may disclose all information relating to the Customer’s account to its collection agency for the purpose of receiving any or all amounts outstanding.
- If any clause or part thereof of these Terms and Conditions is invalid or not enforceable in accordance with its terms, all other terms or parts thereof which are self-sustained and capable of separate enforcement without regard to the invalid or unenforceable clause or part thereof is and will continue to be valid and enforceable in accordance with its term.
- The Customer agrees that these Terms and Conditions are governed by and construed in accordance with the laws of South Australia and the Customer and Sunny Energy submits to the non-exclusive jurisdiction of the Courts of South Australia.
- Subject to other clauses in these Terms and Conditions and implied provisions, Sunny Energy shall not be liable whatsoever to the Customer for any indirect, consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Sunny Energy of these Terms and Conditions. In the alternative, Sunny Energy liability shall be limited to damages not exceeding the contract sum of the order.
- Sunny Energy may assign all or any part of its rights and obligations without the Customer’s consent.