1. This Agreement and the Order Form govern the supply of the LED lighting (the products) and installation of same by CYANERGY to the Customer named in the schedule.
2. Each Order constitutes an offer by the Customer to CYANERGY to purchase LED lighting and the Installation of the LED lighting and is subject to acceptance by CYANERGY. Any Order accepted by CYANERGY shall constitute a binding agreement between the Customer and CYANERGY on the terms of this Agreement.
3. The Customer shall not vary or cancel an order, or change the Installation Date, without the written consent of CYANERGY.
4. If CYANERGY does elect to accept variations to the Order, the Customer shall pay for any variations to the Order at rates specified by CYANERGY which shall be in addition to the Price.
5. In case of any variation from the original contract, CYANERGY and customer both need to sign a variation contract attached as Appendix-A.
6. The Customer may, however, by written notice to CYANERGY, cancel an order for the Products prior to installation:
7. If the Customer cancels an order for the Products, then subject to the Customer has complied with its obligations under this Agreement, CYANERGY will provide a full refund to the Customer of all amounts paid prior to cancellation.
8. CYANERGY may at its sole and absolute discretion, by written notice to the Customer, cancel an order and/or terminate this Agreement at any time prior to installation of the Products, and for any reason whatsoever.
9. Upon such termination, and subject to the Customer has complied with its obligations under this Agreement, CYANERGY will pay a full refund to the Customer of amounts paid prior to such cancellation or termination.
10. If Products ordered by the Customer are not available at the time of Order they will be supplied by CYANERGY when available, and CYANERGY shall not be liable to the Customer to make good any loss or damage whether arising directly or indirectly as a result of any ensuing delay in delivery.
11. In the event the ordered product cannot be installed in full, CYANERGY in its absolute discretion issue a credit in note to the customer to reflect the return of that product.
12. In the interpretation of this Agreement, unless the contrary intention appears:
13. All prices charged by CYANERGY are subject to change with prior notice and unless otherwise specified, are exclusive of any GST. CYANERGY price lists or price catalogues do not constitute an offer by CYANERGY to supply any item set out in the price lists or price catalogues at the listed price.
14. Unless the Customer has been approved for Credit in writing by a finance company the Customer must pay to CYANERGY:
15. All payments by the Customer are to be made in cash, Credit Cards, bank cheque or other cleared funds.
16. The Customer must also pay to CYANERGY at the same time the Price is payable GST, and all other applicable taxes, duties, levies, penalties and any other government charges payable in relation to the supply of Products or provision of Services (which have not been included in the Price) on demand by CYANERGY.
17. If the Customer defaults in the payment of any sum of money due to CYANERGY, CYANERGY may charge interest at the current State Penalty Rate calculated daily until the date of payment and CYANERGY may cancel any Orders in existence (without prejudice to any other rights or remedies of CYANERGY).
18. The Customer must make all payments to CYANERGY required by this Agreement without set-off, deduction or counterclaim, and the customer agrees that the interest rate nominated is in the circumstances fair and reasonable.
19. If the payment is not paid within 10 business days after installation, CYANERGY keeps the right to pass the debt to a debt recovery agency and the customer is liable for any additional changes from the debt recovery agency
20. If the Customer has been approved for Credit, payment must be made to CYANERGY within 10 days of invoice, or another such period, if any, as agreed in writing by CYANERGY.
21. The Customer acknowledges that the Installation Date is an estimate only and should CYANERGY be unable to install the Products by the Installation Date then:
22. If any product cannot be replaced by LED, CYANERGY will not replace that product.
23. Any product CYANERGY cannot replace/install but the customer already charged for, will be refunded.
24. If the original order form is overquoted or underquoted, will be adjusted by signing a variation contract prior installation.
25. Upon entering into this Agreement to install LED lighting, the customer unconditionally undertakes to assign and is deemed to have assigned to CYANERGY its right to claim Energy Saving Certificates. The Customer agrees to complete and execute for the benefit of CYANERGY any documents, contracts, or papers reasonably necessary to give effect to this assignment. The Customer undertakes not to otherwise deal with its right to claim Energy Saving Certificates. After completion of the installation, the customer shall be present & sign the certificate documentation at the request of the installer/electrician.
26. Upon entering into this Agreement to install LED lighting, the Customer unconditionally undertakes to assign and is deemed to have assigned to CYANERGY its right to claim Victorian Energy Efficiency Certificate.
The Customer agrees to complete and execute for the benefit of CYANERGY any documents, contracts, or papers reasonably necessary to give effect to this assignment. The Customer undertakes not to otherwise deal with its right to claim Victorian Energy Efficiency Certificates (VEECs). After completion of the installation, the customer shall be present & sign the VEECs documentation at the request of the installer.
27. CYANERGY shall use its best endeavours to provide the Services by the Installation Date.
28. Unless otherwise agreed by the parties in writing, CYANERGY shall not be responsible for providing any services other than the Services (including any variations to the Services).
29. The Customer grants permission to CYANERGY and its employees, contractors and/or agents to enter, at any time, the premises at the Installation Address, for the purposes of performing the Services. The Customer agrees to make himself/ herself or a representative present at the premises, when and as reasonably required by CYANERGY or its employees, agents and contractors.
30. If CYANERGY becomes unable, due to the occurrence of a Force Majeure Event, to carry out any obligation, in whole or in part, placed on it by this Agreement, CYANERGY may, in its absolute discretion either:
31. The Customer may be liable to pay Additional Expenses in connection with the Products or Services if CYANERGY or its employees, agents or contractors deem that the Customer’s premises are not immediately suitable for the installation of the Products including, without limitation, due to the presence of asbestos, inaccessible roofs or defective wiring.
32. Additional Expenses anticipated by CYANERGY at the Order Date shall be itemized in the order form. However, these expenses are estimates only and are not binding on CYANERGY.
33. If CYANERGY determines, in its sole discretion, that the Customer is required to pay any Additional Expenses not provided for in the order form, in order to complete the services, CYANERGY will first notify the Customer of the quantum of the Additional Expenses and give the Customer an option to sign the variation contract.
34. If the customer doesn’t accept the variation contract, CYANERGY will complete the job in the original contract whatever possible without any additional cost.
35. The Products remain the property of CYANERGY (and CYANERGY retains title to the Products) until the Price and any other payment or sum due to CYANERGY has been paid in full by the Customer, regardless of whether installed or not and regardless of the location of goods.
36. All Products shall be at the risk of the Customer from the time that installation of the Products at the Customer’s premises has been completed.
37. The Customer must not offer, sell, assign, sublet, mortgage, pledge, Encumber or otherwise deal with the Products in any way which is inconsistent with or would detract from CYANERGY’s ownership of the Products until the Price and any other payment or sum due to CYANERGY has been paid in full by the Customer. If requested by CYANERGY, the Customer must ensure the Products are clearly identifiable as the property of CYANERGY.
38. In the event that the Customer is in default of its obligations under this Agreement, any Order or any other agreement that exists between the Customer and CYANERGY, CYANERGY will at its election be entitled to the immediate return of the Products and for this purpose may enter the Customer’s premises to recover any Products. If CYANERGY so elects, the Customer must at its cost take all necessary action (including obtaining the consent of any third party) to enable CYANERGY to exercise its rights under this clause.
39. Unless otherwise stated by CYANERGY in writing, the exact specifications, dimensions, and masses quoted in respect of any Products are approximate and subject to change without notice and subject to commercial tolerances.
40. CYANERGY reserves the right at its discretion to substitute any part or component of the Products with a comparable part or component of similar functionality.
41. The Customer affirms for the benefit of CYANERGY that any and all information provided by the Customer to CYANERGY in connection with any Order to purchase the Products is true and correct.
42. The Customer agrees to sign any consents or other forms required by CYANERGY under which it will consent, amongst other things, to CYANERGY obtaining credit information about the Customer or providing a credit report in relation to the Customer or exchanging credit information about the Customer to third parties.
43. The Customer acknowledges and agrees that under no circumstances will it take any interest in CYANERGY’s Intellectual Property, and CYANERGY reserves all of its rights in respect of its Intellectual Property.
44. Upon the occurrence of an Event of Default, CYANERGY may by notice in writing to the Customer:
45. In respect of any terminated Order (other than an Order validly cancelled by the customer under the terms of this agreement) the Customer must pay to CYANERGY any and all losses, damages, costs, interest, fees, charges (including handling charges) and expenses incurred or suffered by CYANERGY and its suppliers as a result of the Customer’s default of this Agreement and the subsequent cancellation of the Order. The Customer shall have no recourse whatsoever against CYANERGY as a result of any termination of an Order by CYANERGY under this agreement.
46. The Customer must give CYANERGY full details of any Event of Default as soon as it becomes aware that an Event of Default has occurred.
47. Each of these events or circumstances is an Event of Default:
48. The parties acknowledge that, under applicable State and Commonwealth law, certain clauses, conditions, guarantees and warranties may be implied in this Agreement and there are rights and remedies conferred on the Customer in relation to the provision of goods or of services which cannot be excluded, restricted or modified by agreement (Non-excludable Rights). The terms of this Agreement are subject to the non-excludable rights.
49. Except to the extent of Non-Excludable Rights, CYANERGY will not be liable for:
50. Where (and to the extent) permitted by law the liability of CYANERGY of a Non-Excludable Right can be limited, CYANERGY’s liability is limited, at CYANERGY’s election, to one of the following:
51. Notwithstanding any other provision in this Agreement, CYANERGY is in no circumstance (whatever the cause) liable in contract, tort (including, without limitation, negligence or of statutory duty) or otherwise to compensate the Customer for any:
52. To the full extent permitted by law, CYANERGY’s liability to the Customer for all claims made by the Customer, in relation to an of this Agreement or otherwise, whether arising under contract, negligence or any other tort, under statute or otherwise, will not exceed in aggregate the amounts paid by the Customer under this Agreement.
53. This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
54. This Agreement may only be varied by written agreement between the parties.
55. The rights of CYANERGY are cumulative and are in addition to any other rights of that party.
56. This Agreement is governed by the laws of the State of Victoria/NSW and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria/NSW.
57. Any provision of this Agreement which is unenforceable, illegal or void or partly unenforceable, illegal or void is, where possible, to be severed to the extent necessary to make this Agreement enforceable, but so as not to affect the enforceability of the remaining provisions of this Agreement.
58. No failure or partial failure by a party to enforce any of its rights under this Agreement constitutes a waiver or partial waiver of that right, and no waiver is effective unless it is in writing and signed by authorised representatives of each party.
59. The Customer shall not assign its rights, or novate is obligations, under this Agreement without the prior written consent of CYANERGY. CYANERGY may assign its rights or novate its obligations under this Agreement, without obtaining the consent of the Customer.
60. The customer gives permission for pictures to be taken before, during, and after install. These pictures are the property of CYANERGY. And, the pictures along with the installation summary may be used in various marketing contents.
61. The Customer must promptly sign all documents and do all things that CYANERGY from time to time CYANERGY reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.
62. Any notice that is required to be given under this Agreement must be in writing. It may be:
63. Customer acknowledges that CYANERGY has made no representation in relation to the continuity of feed-in tariffs or the quantum or rate thereof the customers further acknowledge is that he/she they have made their own enquiry into the performance of the solar system or LED lighting.
64. The customer acknowledges in the event that CYANERGY or its installers are unable to install the system or LED lighting by reason of the condition of the premises not complying with the requirement of any governmental or statutory body, or if the premises are deemed to be too unsafe for the purpose of the installation by CYANERGY or its sub-contractors then CYANERGY may terminate this agreement.
65. In the event that any claim is made by you as the customer under any warranty agreement or obligation provided by the manufacturer of the goods supplied and such claim is made after the expiration of warranty from the date of installation of such good which requires CYANERGY or its subcontractor to attend at the installation address then CYANERGY will be entitled to charge a fee, commiserate with the cost of the provision of that service.
66. The customer acknowledges that the Goods are the subject of a warranty produced by the manufacturer and that in no circumstances shall CYANERGY be liable should the warranty become for any reason unenforceable.
67. In the event during the course of installation any damage to the roof tiles or other roofing materials, CYANERGY accept no liability for replacement of damaged tiles or any other roofing materials.