1. This Agreement and the Order Form govern the supply of Solar PV (the products) and installation of same by CYANERGY to the Customer named in the schedule.
2. The Agreement is governed by the laws of the Australian States and Territories in which the Premises are located, and each party irrevocably submits to the non-exclusive jurisdiction of the courts. The customer’s rights under the warranty sit alongside the customer guarantees which are required under ACL and cannot be excluded.
3.By entering into this Agreement with you, we agree to comply with the Clean Energy Council’s Code of Conduct.
4. Each Order constitutes an offer by the Customer to CYANERGY to purchase Solar PV and the Installation of the Solar PV 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.
5. Customer can cancel the order within 10 business days cooling off period.
6. No installation will take place during this cooling off period.
7. If the customer wants to cancel after this cooling off period, the initial deposit will be forfeited.
8. The Customer shall not vary or cancel an order, or change the Installation Date, without the written consent of CYANERGY.
9. 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.
10. In case of any variation from the original, CYANERGY and customer both need to sign a variation contract attached as Appendix-A.
11. The Customer may, however, by written notice to CYANERGY, cancel an order for the Products prior to installation:
12. If the Customer cancels an order for the Products, then subject to the Customer having complied with its obligations under this Agreement, CYANERGY will provide a full refund to the Customer of all amounts paid prior to cancellation.
13. 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.
14. Upon such termination, and subject to the Customer having 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.
15. If the original Products, ordered by the Customer, are not available at the time of installation, the customer agrees that CYANERGY may substitute an item or component of equivalent or better specifications to the Component that the customer originally purchased. In such instances, CYANERGY will inform the customer prior to the installation date and request for an approval in writing beforehand. If the customer does not agree with the proposed substitution, CYANERGY will reschedule the installation with the original products or delivery of the original products when they are available.
16. 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 that is properly communicated.
17. 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.
18. In the interpretation of this Agreement, unless the contrary intention appears:
19. 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.
20. Unless the Customer has been approved for Credit in writing by a finance company the Customer must pay to CYANERGY:
21. All payments by the Customer are to be made in cash, Credit Cards, bank cheque or other cleared funds.
22. 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.
23. If the Customer defaults in the payment of any sum of money due to CYANERGY, CYANERGY may charge interest at the current Victorian 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).
24. 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.
25. 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 customer is liable for any additional changes from the debt recovery agency.
26. If the customer assigns the right to create the STCs on the installation of eligible system, it is regarded as a sale for GST purposes.
27. If the customer is not registered or required to be registered for GST, then the assignment will not be subject to GST.
28. Where the assignment leads to price offsetting, the GST consequences of purchasing the system and assigning the STCs need to be considered separately.
29. 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
30. The customer is advised (where relevant in the state of installation), before a contract is signed, that:
31. The scenario where customer takes responsibility for obtaining grid connection approval and the application is rejected where the contract has already been signed, the customer is entitled to the return of all moneys paid minus reasonable expenses incurred by CYANERGY to the point of termination of the contract.
32. In case the customer authorizes CYANERGY to prepare and submit the documentation required for grid connection approval and the application is rejected where the contract has already been signed, the customer is entitled to a full refund.
33. CYANERGY will endeavour to arrange the Installation:
34. The Customer acknowledges that the Installation Date is an estimate only and should CYANERGY be unable to install the Products by the Installation Date due to unforeseen circumstances outside of our control then:
35. Installation will be conducted by our “CEC” accredited installer.
36. If any brand is not available or shortages in market will delay installation and the customer will be notified in written.
37. Any product CYANERGY cannot install but the customer already charged for, will be refunded.
38. If the original order form is overquoted or underquoted, will be adjusted by signing a variation contract prior installation.
39. Upon entering into this Agreement to install Solar PV, the Customer unconditionally undertakes to assign and is deemed to have assigned to CYANERGY its right to claim Small-scale technology certificates (STCs).
40. 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 Small-scale technology certificates (STCs). After completion of the installation, the customer shall be present & sign the s documentation at the request of the installer.
41. CYANERGY will not be liable for the value of any Feed-in Tariffs (FiT’s), incentives such as Small-Scale Technology Certificates (STC’s), any government rebates etc.
42. The electricity contract/tariff may change following the installation of solar and that the customer should contact their electricity retailer: before signing a contract, to check what new electricity tariff rates may be applied; and after installation of the solar PV system, to confirm that the agreed tariff has been applied.
43. CYANERGY shall use its best endeavours to provide the Services by the Installation Date.
44. 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).
45. 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.
46. 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.
47. 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:
48. The Customer may be liable to pay Additional Expenses, not covered in the Quote, in connection with the Products or Services if CYANERGY or it’s contractors deem that the Customer’s premises are not immediately suitable for the installation due to site conditions or special circumstances.
49. Additional Expenses anticipated by CYANERGY at the Order Date shall be itemised in the order form. However, these expenses are estimates only and are not binding on CYANERGY.
50. If CYANERGY determines 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. In such instances, customer can choose to cancel or terminate contract at their discretion to get full refund.
51. If the customer doesn’t accept the variation contract, CYANERGY will complete the job in the original contract whatever possible without any additional cost.
52. If any significant changes to the design of the PV system, including the estimated performance is determined during/prior installation, CYANERGY will seek customer’s approval through a fresh quote or variation contract; otherwise the customer shall be refunded in full.
53. The customer will get a full refund upon request when:
54. 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.
55.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.
56. 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.
57. 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.
58. 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.
59. 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.
60. 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.
61. 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.
62. 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.
63. Upon the occurrence of an Event of Default, CYANERGY may by notice in writing to the Customer:
64. 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.
65. 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.
66. Each of these events or circumstances is an Event of Default:
67. 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.
68. Except to the extent of Non-Excludable Rights, CYANERGY will not be liable for:
69. 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:
70. 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:
71. 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.
72. 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.
73. This Agreement may only be varied by written agreement between the parties.
74. The rights of CYANERGY are cumulative and are in addition to any other rights of that party.
75. This Agreement is governed by the laws of the Government of Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts.
76. 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.
77. 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.
78. 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.
79. 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.
80. 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.
81. Any notice that is required to be given under this Agreement must be in writing. It may be:
82. 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.
83. The customer acknowledges in the event that CYANERGY or its installers are unable to install the Solar system 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.
84. 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 sub-contractor 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.
85. 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.
86. 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.