AICA Energy Australia Pty Ltd Residential Solar PV System Contract Terms and Conditions

BACKGROUND

  1. The Contractor is a company that provides Electrical Services and supplies Goods.

  2. The Client wishes to engage the Contractor to provide Goods and Electrical Services.

  3. The Contractor hereby accepts such engagement in accordance with the provisions of this Agreement.


OPERATIVE PROVISIONS

  1. Definitions and interpretation

    1. Definitions

In this Agreement, the following words have the following meanings –

          Agreement means this agreement between AICA Energy and the Client;

   Attendance Date means the first date that the Contractor attends the Premises to supply the Goods and/ or perform the Electrical Services for or as directed by the Client.

    Australian Government means the Federal Department of Environment, Water Heritage and the Arts, the Australian Greenhouse Office, the Office of Renewable Energy Regulator or any equivalent Australian Government Department;

Business Day means a day that is not a Saturday, Sunday or public holiday in the State of Western Australia.

Business Hours means from and including 09.00 am to and including 5.00 pm on a Business Day.

Claim means any demand, claim, proceeding, penalty, fine and liability (whether criminal or civil, in contract, tort or otherwise).

Default Rate means ten percent (10%) per annum.

Deposit means a reasonable cost incurred by the Contractor to perform this Agreement and is in the amount set out in the Key Email, which is refundable in the absolute discretion of the Contractor if the Electrical Services and Goods cannot be supplied through no fault of either party.

Documentation Costs means the fixed sum of Two Hundred and Thirty-Five Dollars ($235.00) being all costs concerning the registration of a Security Interest created by this Agreement that the parties agree is necessary for the Contractor to register in the event of non-payment of the Fees when the Fees are due under this Agreement.

Electrical Officers means the Contractor’s personnel as determined in the absolute discretion of the Contractor who are allocated to perform the Electrical Services.

Electrical Services means the supply and installation of the Goods. 

          Fees means the balance of monies to be paid by the Client to the Contractor in consideration of the Goods and/ or the Electrical Services being the amount/s set out in the Key Email.

“Force Majeure Event” means any one or more of the following impediments: war (whether declared or not), armed conflict or the serious threat of the same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilization; civil war, riot, rebellion, revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; act of terrorism, sabotage or piracy; plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions; act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalization; act of God or natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought; explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current; general labour disturbance such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises; shortage or inability to obtain critical material or supplies to the extent not subject to the reasonable control of the Contractor.

Goods means solar panels, solar inverters, mounting systems, electrical components and batteries the nature of which are not used predominantly for personal, domestic or household purposes the precise details of which are set out in the Key Email. 

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Key Email means the email from the Contractor to a representative of the Client which further particularizes some of the key terms of this Agreement, a copy of which is attached to (and which forms part of) this Agreement and is marked “A”.  

Parties means the Contractor and the Client, and Party means either one of them.

Payment Location means the account with the financial institution to which the Client must pay all monies, as set out in the Key Email. 

Premises means the location where the Goods and/ or Electrical Services are supplied as set out in the Key Email.

Renewable Energy Certificate has the same meaning as in the Renewable Energy (Electricity) Act 2000 (C’th) and includes any other certificate, right or entitlement of a similar nature which arises under legislation;

  1. Interpretation

In this Agreement unless the context otherwise requires:

  1. A Party includes that Party’s officer/s, employee/s, representative/s, administrator/s, substitute/s, successors and permitted assign/s.

  2. Where under or pursuant to this Agreement or anything done under this Agreement the day on or by which any act, matter or thing is to be done is not a Business Day such act, matter or thing must be done on the immediately succeeding Business Day. 

  3. The rule of contra proferentem concerning the interpretation of this Agreement is expressly excluded. 

  4. The parties agree that the Header and Background, jointly and severally, are true and correct in every particular and form part of this Agreement

  1. Provision of services

    1. In consideration of the payment of the Fees, the Contractor will provide the Electrical Services and the Goods as set out in the Key Email to the Client at the Premises.

    2. The Contractor is not obliged to provide the Electrical Services and/ or the Goods where doing so would, in the reasonable opinion of the Contractor, expose the Electrical Officers to the risk of physical injury.

  2. Warranties

    1. The Contractor warrants that:

      1. it will provide the Electrical Services with reasonable care and skill;

      2. the Electrical Services will be performed by the Electrical Officers;

      3. all Electrical Officers have been suitably trained by the Contactor; and

      4. the Contractor will be solely responsible for all payments to the Electrical Officers.

    2. The Client warrants that it shall – 

      1. Make all payments to the Contractor as referred to (and in the manner set out) in clause 10 hereof; and

      2. It shall ensure that the Contractor has unfettered access to the Premises to perform the Electrical Services during Business Hours on a Business Day subject to the Contractor providing five (5) Business Days written notice concerning that unfettered access. 

    3. Nothing in this Agreement constitutes the relationship of partnership or employer and employee between the Contractor and the Client or between the Client and the Contractor’s employees and agents (including but not limited to the Electrical Officers) and it is the express intention of the parties that any such relationships are denied.

  3. Exclusion of Liability

    1. The Client agrees to possess, use, maintain and store the Goods at the Client’s risk. The Client agrees that the Contractor will have no responsibility or liability for any loss or damage to any property or person of the Client. To the full extent permitted by law, the Client releases and discharges the Contractor and its agents and employees from:

      1. any Claim on the Contractor; and

      2. any loss or damage whatsoever and whenever caused to the Client or any officer, employee or agent of the Client whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial loss or otherwise,

arising directly or indirectly from or incidental to their use, maintenance or storage of the Goods and, jointly and severally, from the performance of the Electrical Services.

  1. Application of non-excludable terms

    1. If the Goods or Electrical Services have a value or are of a kind ordinarily acquired for personal, domestic or household use or consumption such as to attract to this Agreement the operation of the provisions of the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law (ACL), appended as schedule 2 to the Competition and Consumer Act 2010 (Cth)) and any relevant legislation of any other state or territory, certain conditions and warranties will be implied into this Agreement and rights and remedies conferred upon the Client with respect to the Goods which cannot be excluded, restricted or modified by agreement (non-excludable terms).

    2. If there are any non-excludable terms in this Agreement, clause 6 will apply to them. 

    3. The Client acknowledges that with respect to any non-excludable terms, the Contractor’s liability is limited to replacement (or the cost of replacement) of the Goods, the supply (or the cost of supply) of equivalent Goods or the repair (or the cost of repair) of the Goods whichever is lower as determined by the Contractor.

  2. Limitation of liability concerning non-excludable terms

    1. Subject to clause 5, the Client agrees that neither the Contractor gives – nor any dealer, other previous supplier of the Goods or any person purporting to act with the authority of the Contractor has given – any condition, warranty or representation whatsoever in favour of the Client:

      1. as to the condition or quality of the Goods including, without limitation, latent and other defects and whether or not discoverable by the Contractor or the Client;

      2. as to the suitability or fitness for ordinary or any special use or purpose of the Goods; or

      3. as to the correspondence by the Goods to any description of them.

    2. Subject to clause 5, in no event will the Contractor be liable for any loss or damage which the Client suffers arising from, or caused or contributed to by, the Contractor’s negligence or by the negligence of any officer, employee, servant or agent of the Contractor. Nor will the Contractor be liable for special, indirect or consequential loss or damage as a result of a breach by the Contractor of this Agreement including, but not limited to, loss of profits or revenue, the costs arising from the loss of use of the Goods and the costs of any substitute Goods which the Client acquires.

             (c)     Damage to Client’s Premises

1) The Client acknowledges that:

a) despite AICA Energy or AICA Energy’s Installer using its reasonable endeavours to avoid damaging the Client’s Premises, certain damage to the Client’s Premises may occur as a necessary consequence of Installation of the System, including but not limited to:

i) in relation to the Installation of a Solar Power System, damage to garden beds, tile breakage, roof dents and masonry damage;

ii) In relation to the Installation of a Battery Storage System, damage caused from drilling, wall tile breakage, damage caused as a result of attaching bollards to the ground surrounding the battery and masonry damage to the ground and wall; and

iii) noise may occur as a result of Installation and operation of the System, and AICA will not be liable for any loss incurred by the Client in connection with such damage or noise.

b) If the roof on which the Solar Power System is Installed leaks, or damage (other than damage of the kind described in clause (a) ) is caused to the Client’s Premises, as a direct result of the Installation of the System and the Client requires AICA to fix such leak or damage, the Client must promptly notify AICA of this after the Client becomes aware, or ought to have become aware, of the leak or damage.

c) AICA Energy will fix the relevant leak or damage to the Client’s Premises (as the case may be) at its cost, except if AICA reasonably determines that the leak or damage:

(1) is of the kind described in clause (1);

(2) was caused other than as a direct result of the Installation of the System;

(3) was caused by the acts or omissions of the Client or any third party; or

(4) is a result of a pre-existing condition of the Client’s Premises, in which case  the Client agrees

(5) that AICA is not required to fix such leak or damage; and

(6) to pay AICA on demand, AICA’s reasonable costs in attending in the Client’s Premises and inspecting the leak or damage.

  1. Delivery of Goods

7.1    Client to obtain possession of Goods

  1. On the Attendance Date and at the Client’s own expense the Contractor must give, and the Client must take, possession of the Goods.

  2. Despite paragraph 7.1(a), the Client must make any necessary arrangement to obtain delivery of the Goods. The Contractor will not be liable for any delay in obtaining, or (where delivery is to be made by a third party, other than a third party acting as agent of the Contractor) refusal of, delivery. The Contractor will not be liable for any damage incurred by the Goods in the course of delivery.

  3. The Client acknowledges that despite paragraph 7.1(a), the Contractor has not given any warranty or representation concerning the delivery of the Goods. The Client agrees that the Client’s obligation to make the payments set out in clause 10.1 at the times set out in that clause will not be affected by any delay in delivery howsoever caused.

7.2   Client’s inspection of the Goods

  1. The Client acknowledges that before receiving the Goods, the Client inspected the Goods. As a result of that inspection the Client was satisfied as to the condition, quality and safety of the Goods, the fitness of the Goods for the Client’s purposes and the compliance of the Goods with their description.

  2. The Client agrees as between the Client and the Contractor that the Client, on taking delivery of the Goods, will accept the Goods as they are with all faults and defects (if any).

7.3    Written acknowledgment of acceptance

The Client will give the Contractor a written acceptance of the Goods. The delivery of such an acceptance to the Contractor will, without any further act, irrevocably constitute acceptance of the Goods by the Client for all purposes of this Agreement and will bind the Client absolutely that the Goods have been fully and unconditionally accepted by the Client for the purposes of this Agreement.

7.4     Power grid connection and meter installation

7.4.1 The Client acknowledges that although AICA Energy may assist in arranging for the Goods to be connected to the main grid and for installation of the meter at the Premises, AICA Energy’s does not agree to undertake that connection and installation under this Agreement and is not a party to any agreement between the Client and the Client’s electricity retailer and/or distributor, which may be entered into for that purpose. AICA Energy’s Commercial Terms & Conditions

7.4.2 The costs and risks of that connection and installation under clause 12.1 are not included in any way in this Agreement.


  1. Complaint 

    1. Without derogating from (and subject to clauses 4, 5, 6 and 7 hereof), the parties irrevocably agree that any legal proceeding brought by the Client may be stayed upon the application of the Contractor and the client shall indemnify the Contractor for all costs (including but limited to legal representation and all preparatory work in relation thereto) so incurred by the Contractor concerning any application to stay proceedings – 

      1. where such legal proceedings concern Goods or Electrical Services that were supplied by the Contractor to the Client more than six (6) calendar months prior to the issue of such legal proceedings; and/ or 

      2. where the Client has not, prior to the issue of such legal proceedings, provided written notice to the Contractor of the subject matter of such legal proceedings and facilitated the reasonable opportunity of the Contractor to rectify the alleged defect/s (with such reasonable period to not be less than fourteen (14) Business Days).

  2. No Cooling Off Period 

    1. By entering into this Agreement and accepting the Goods and/ or Electrical Services, the Client understands and acknowledges that the Contactor has incurred cost and expense for the sole benefit of the Client.

    2. By reason of (a), the Client accepts that (amongst other things) the Supply of the Goods and/ or Electrical Services is not an unsolicited supply (including but not limited to within the meaning of the ACL even if the ACL is found to govern this Agreement) and therefore it would not be fair or reasonable for this Agreement, the supply of the Goods or the Electrical Services to be subject to a ‘cooling off’ period. 

  3. Fees

10.1 Amounts payable by the Client

  1. The Client must pay:

    1. the Deposit upon receipt of the Key Email;

    2. the Fees on the same Business Day as the supply of the Goods and/ or Electrical Services which are the subject of this Agreement, regardless of the progress of the metering; and 

    3. the Documentation Costs on the next Business Day after the time set out in (ii) hereof.

  2. GST: The Client must pay any GST on a supply made in connection with this Agreement.

  3. Any amount wrongly paid by the Client into an account which is not the Payment Location. 

10.2 Enforcement costs and expenses

The Client must on demand reimburse the Contractor for all costs, charges, expenses, fees, disbursements (including all reasonable legal costs on a solicitor and own client basis) paid or incurred by the Contractor of or incidental to:

  1. any breach, default or repudiation of this Agreement by the Client (including the fees of all professional consultants properly incurred by the Contractor in consequence of, or in connection with, any such breach, default or repudiation); and

  2. the exercise or attempted exercise of any right of the Contractor under or by virtue of this Agreement, including all amounts incurred in repossessing the Goods from the Client under the terms of this Agreement and in enforcing this Agreement generally.

10.3 Method of payment

  1. The Client must make all payments to the Contractor and without any reduction, set-off, defence, counter-claim or recoupment of any kind whatsoever.

  2. Each payment must be made in immediately available funds by 4 pm AEST on its due date at Payment Location or at such other place as the Contractor may from time to time direct in writing. 

  3. When making a payment, the Client must quote relevant reference numbers and the invoice number.

10.4 Allocation of payments

All money received by the Contractor under this Agreement will be applied in the following order and manner:

  1. first, in payment of all costs, charges and expenses properly incurred in or incidental to the exercise or performance or attempted exercise or performance of any of the powers or authorities conferred by this Agreement or otherwise arising in relation to this Agreement;

  2. second, in or towards payment of such other expenses in relation to the Goods as the Contractor is empowered under this Agreement to appropriate and thinks fit to pay; and

  3. third, in or towards payment to the Contractor of the amounts due to the Contractor under this Agreement.

  1. Contractorship of the Goods

11.1 Contractor retains title to Goods

Subject to full compliance by the Client with clause 10 hereof, the Contractor retains full title to the Goods even though:

  1. the delivery of the Goods to the Client; and

  2. the possession and use of the Goods by the Client,

subject only to the rights of the Client as a mere bailee of the Goods with a right only to use them in accordance with, and under, this Agreement.

  1. Location of the Goods

12.1 No unauthorized removal

Subject to full compliance by the Client with clause 10 hereof, the Client must not remove the Goods from the Premises.

  1. PPSA

13.1 Contracting Out of PPSA Enforcement

If chapter 4 of the PPSA does apply to the enforcement of a security interest arising under or in connection with this Agreement, the Client agrees the following provisions of the PPSA will not apply to the enforcement of that security interest:

  1. section 95 (notice of removal of accession), to the extent that it requires the Contractor to give the Client a notice;

  2. section 96 (when a person with an interest in the whole may retain accession);

  3. subsection 121(4) (enforcement of liquid assets – notice to grantor);

  4. section 125 (obligation to dispose of or retain collateral);

  5. section 130 (notice of disposal), to the extent that it requires the Contractor to give the Client a notice;

  6. paragraph 132(3)(d) (contents of statement of account after disposal);

  7. sub-section 132(4) (statement of account if no disposal);

  8. section 135 (notice of retention), to the extent that it requires the Contractor to give the Client a notice;

  9. section 142 (redemption of collateral); and

  10. section 143 (reinstatement of security agreement).

13.2 Controllers

Where a person is a controller in relation to the Goods, the parties agree that part 4.3 of the PPSA will not apply to the enforcement of any Security Interest in the Goods by that controller.

13.3 Registration on PPSR

The Client consents to the Contractor effecting a registration on the PPSR (in any manner the Contractor considers appropriate) in relation to any security interest arising under or in connection with this Agreement and the Client agrees to provide all assistance required by the Contractor to facilitate this. 

13.4 Verification Certificate

The Client waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

13.5 Proceeds and Security Agreement

The Client acknowledges that if the Contractor’s interest under this Agreement is a security interest for the purposes of the PPSA:

  1. that security interest relates to the Goods and all Proceeds of any kind; and

  2. this Agreement is a security agreement for the purposes of the PPSA.

  1. Events of default

(a) Each of the following events is an Event of Default, namely:

  1. if the Client fails to pay any of the money payable pursuant to clause 10.1 hereof by the date and time due for payment, with time being of the essence concerning each such separate payment obligation of the Client;

  2. if the Client fails to perform any obligation imposed by this Agreement upon the Client, and such default continues for five (5) Business Days after service of a notice upon the Client by the Contractor requiring the Client to remedy the same;

  3. if the Client becomes (voluntarily or involuntarily) bankrupt (if the Client is a natural person), or if an external controller is appointed to, or a Court orders the winding up of, the Client (if the Client is a company);

  4. if any execution or other process of any court or authority is issued against or levied upon the Goods (other than as a result of any act or omission on the part of the Contractor);

  5. if the Goods are abandoned or condemned or are seized or appropriated by any lawful authority.

(b) If an Event of Default occurs, the Contractor may at its option:

  1. enforce performance: by proceeding by appropriate court action, either at law or in equity, enforce performance by the Client of the applicable term/s of this Agreement or recover damages for the breach concerned; or

  2. termination: terminate this Agreement and the Client’s right to possession of the Goods by notice in writing to the Client. Upon service of such notice all rights of the Client to or in the use of the Goods will terminate and the Contractor may, directly or by its agent take possession of the Goods. The Contractor will, upon taking possession of the Goods, hold, possess and enjoy the Goods free from any right of the Client or its successors or assigns to use the Goods for any purpose.

(c) Events constituting fundamental breach

(i) Each and every payment obligation of the Client as set out in clause 10.1 hereof is an essential and fundamental term of this Agreement such that any failure to comply with them will constitute a repudiation of this Agreement entitling the Contractor to accept such repudiation. 

  1. The presence of subclause (i) does not mean, and will not be construed as meaning, that there are no other terms and conditions which are fundamental and essential terms and conditions of this Agreement.

  2. If the Contractor terminates this Agreement following any such repudiation by the Client then without prejudice to any other right or remedy available to the Contractor it is expressly agreed and declared that the Contractor must be entitled to recover from the Client.

15  Site inspection, representations and adjustments to the Sale Price

15.1 Both parties acknowledge that in calculating the Sale Price AICA Energy has relied on:

a. a preliminary site inspection of the Premises conducted by AICA Energy prior to the execution of this Agreement;

b. representations by the Client in relation to the ownership and title of the Premises, the nature of the Premises and the eligibility of the Client for certain

discounts, government offers, and rebates, as contained in this Agreement and in any communication by the Client prior to the date of this Agreement; and

c. the Client’s representation and warranty, constituted by its execution of this Agreement, that to the best of the Client’s knowledge and belief, having made due enquiry, there is no asbestos, asbestos fibres or asbestos related products either at the Premises or likely to be disturbed by the installation of the Goods at the Premises. The Client also represents and warrants that after due enquiry  the property is not subject to heritage listing, body corporate or local government restrictions prohibiting the installation of the equipment. 

15.2 Despite clause 15.1.1, the Client acknowledges that AICA Energy may conduct further site inspections in order to confirm the Client’s representations and to prepare for the installation of the Goods at the Premises, and in that regard:

a. the Client grants permission to AICA Energy and its employees, contractors and/or agents to enter the Premises where the Goods are proposed to be installed and commissioned at any reasonable time during Business Hours provided that AICA Energy has given notice of the site inspection at least 3 days prior to the date of the site inspection; and

b. the Client agrees to ensure that a representative of the Client will be present at the Premises for all such site inspections

15.3 It is the Client’s obligation to ensure that the Client’s representations referred to in clause 15.1(b)-(c) are correct.

15.4 Any site inspection(s) by AICA Energy does not relieve the Client of its obligation to ensure that the Client’s representations referred to in clause 15.1(b)-(c)  are correct.

15.5 The Client acknowledges that AICA Energy may determine that additional installation charges may be applicable if at the time of installation of the Goods at the Premises any changes have occurred at the Premises since the site inspection or if any of the Client’s representations referred to in clause 15.1(b)-(c) are incorrect and, because of those changes or that incorrectness the installation cost is increased.

15.6 If AICA Energy determines that additional installation charges are applicable under clause 15.4:

a. AICA Energy must provide Notice to the Client of the additional installation costs or change in equipment specification; and

b. The Sale Price and the Final Amount will be adjusted by increasing them by the amount of the additional installation costs.


15.7 If AICA Energy attends the site and the system can not be fitted due to site restrictions then the customer shall be liable for reasonable costs of attendance to the site by AICA staff. 

16  Assignment of Renewable Energy Certificates to AICA Energy

16.1 If clause 17.6 does not apply:

a. upon entering into this Agreement, the Client unconditionally undertakes to assign and is deemed to have assigned to AICA Energy any rights to or rights to create Renewable Energy Certificates that may exist or arise in relation to the Goods;

b. the Client agrees that valuable consideration in the form of a point-of-sale discount has been provided to the Client by AICA Energy in exchange for the Client assigning to AICA Energy the rights to or rights to create Renewable Energy Certificates; 

c. the Client irrevocably agrees to complete and execute for the benefit of AICA Energy any documents, contracts, or papers reasonably necessary to give effect to the assignment referred to in clause 16.1(a); and

d. the Client unconditionally undertakes not to otherwise deal with Renewable Energy Certificates or a right relating to Renewable Energy Certificates that may exist or arise in relation to the Goods, including but not limited to the supply and installation of the Goods at the Premises.

16.2 At the time of entry into this Agreement, the Client may elect to retain any right or rights to create Renewable Energy Certificates referred to in clause16.1 by providing AICA Energy with notice in writing and the Parties agree in writing to amend the Sale Price and Final Amount to include the market value of the rights on the date of entry into this Agreement, as determined by AICA Energy.


17. Solar Credits Discount

17.1 Unless otherwise stated, capitalised terms in this clause 6 have the following meaning:

a. The Photovoltaic Rebate Program has the same meaning as in the Renewable Energy (Electricity) Regulations 2001.

b. Program means the Solar Homes and Communities Plan, the Renewable Remote Power Generation Program and the National Schools Solar Program, each of which is defined in the Renewable Energy (Electricity) Regulations 2001.

c. Small Generation Unit/small-scale technology certificates (STCs) has the same meaning as in the Renewable Energy (Electricity) Regulations 2001.

d. Solar Credits Amount means any additional amount that may become payable under this clause 17;

e. Solar Credits Discount means the discount offered by AICA Energy to the Client on the basis of the Warranties given under this clause 6 and on the basis that the supply and installation under this Agreement is eligible for the multiplier for Renewable Energy Certificates for Small Generation Units under regulation 20AA of the Renewable Energy (Electricity) Regulations 2001; and

f. Warranties means the warranties referred to in clause 17.4.

17.2 The Client acknowledges that the Sale Price has been calculated on the basis that the Solar Credits Discount applies to the supply and installation of the Goods.

17.3 Unless otherwise agreed by the Parties in writing, by executing this Agreement the Client is taken to have accepted the Solar Credits Discount and to be bound by this clause 17.

17.4 The Client undertakes warrants and represents that, as at the date of this Agreement and continuing until the installation of the Goods at the Premises is completed and the Client has complied with its obligations 

a. no person, including the Client, has received pre-approval or approval for financial assistance, nor is there any funding agreement in force, under any Program, in relation to the Goods;

b. no person, including the Client, has applied for, received or had approved any financial assistance under any Program or under the Photovoltaic Rebate Program in respect of any Small Generation Unit including but not limited to the Goods at the Premises; and

c. the Goods will constitute the first Small Generation Unit installed at the Premises.

17.5 If, as a result of a breach of any of the Warranties, the Solar Credits Discount does not apply to the supply and installation of the Goods:

a. the Sale Price and Final Amount will be increased by the value of the Solar Credits Discount as determined by AICA Energy, and AICA Energy will provide the Client with Notice in writing of the amount of the increase, being the Solar Credits Amount, and the amended Sale Price and amended Final Amount; and

b. If installation of the Goods has been completed and the Client has paid AICA Energy the Sale Price before the value of the Solar Credits Discount is added back, the Client must pay to AICA Energy the Solar Credits Amount within 7 days of receiving Notice of the Solar Credits Amount from AICA Energy.


  1. General

18.1    Force majeure

  1. In addition to any common law rights of the Contractor, the Contractor shall not have any liability under this Agreement for any failure by it to perform any obligation under this Agreement which was the result of a Force Majeure Event.

  2. The effect of a Force Majeure Event on the ability of the Contractor to perform any obligation imposed on the Contractor under this Agreement, shall be determined by the Contractor in its absolute discretion.

  3. The Contractor must as soon as practicable notify the Client of the occurrence of a Force Majeure Event referred to in this clause 18.1. 

  4. The Contractor may elect to terminate this Agreement due a Force Majeure Event referred to in this clause 18.1, whereupon the Contractor shall within ten (10) Business Days of the Contractor providing the notification referred to in (c) or within ten (10) Business Days of the Client providing to the Contractor its bank details, whichever occurs later, the Contractor shall refund all monies paid by the Client to the Contractor concerning any Goods and Electrical Services which are the subject of this Agreement.

18.2 Amendments

This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.

18.3    Assignment

  1. The Client shall not assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the Contractor.

  2. The Contractor may assign or otherwise transfer this agreement, and all of its rights and obligations under this agreement, to any third party at any time on notice to the Client.

18.4     Entire agreement

  1. Save for any email sent by the Contractor to the Client, this Agreement contains the whole agreement between the Parties in respect of the subject matter of this agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.

  2. To the extent of any inconsistency between an email sent by the Contractor to the Client and the Agreement, any email from the Contractor to the Client supersedes this Agreement.

  3. The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement. 

18.5 Agency, partnership etc

(a) This Agreement does not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. 

(b) Neither Party has, nor may represent that it has, any authority to make any commitments on the other Party’s behalf.

18.6 Severability and survival of covenants

If any provision of this Agreement is or at any time becomes void or unenforceable the remaining provisions will continue in full force and effect. Any void or unenforceable provision will be replaced forthwith by a lawful and enforceable provision which so far as possible achieves the same economic benefit or burden for the Contractor and the Client as the unlawful or unenforceable provision was intended to achieve. All obligations of the Client under this Agreement will survive the expiration or termination of this Agreement to the extent required for their full observance and performance.

18.7 No waiver

         No failure or delay on the part of the Contractor to exercise any power or right under this Agreement will operate as a waiver of that power or right. 

18.8 Further assurances

To the extent permissible by law the Client must at its expense do any further act and execute any further document which the Contractor may reasonably request in order to protect the Contractor’s title to the Goods and the Contractor’s rights, powers and remedies under this Agreement.

18.9 Notices

Any notice or demand to be given under or in relation to this Agreement will be deemed to be duly given or made if it is in writing and – 

  1. delivering it to the recipient party personally (whereupon notice is deemed effective immediately);

  2. emailing it to the email address of the recipient party as set out in the Header of this Agreement (whereupon notice is deemed effective immediately; unless subsequently the sender receives a failed or delayed message response whereupon notice is deemed to not have occurred); or 

  3. sending it by ordinary post to the physical address of the recipient party as set out in the Header of this Agreement (whereupon notice is deemed effective three (3) Business Days after postage.

18.10 Governing law, submission to jurisdiction, stay for wrong forum 

(a) This Agreement is governed by the laws – and the parties irrevocably submit to the exclusive original jurisdiction of the Courts – of the State of Western Australia, and any Courts who may hear an appeal therefrom.

(b) The parties agree that if any proceedings are commenced in a Court outside of the State of Western Australia, such proceedings may be permanently stayed upon application by the party responding such proceeding (“respondent”) and the party who did cause the issue of that proceeding shall indemnify the respondent for all costs (including but limited to legal representation and all preparatory work in relation thereto) so incurred by the respondent concerning any application to stay proceedings.

18.11 Independent Legal Advice 

The parties warrant, respectively, that they have each received separate independent legal advice or the reasonable opportunity to obtain independent legal advice and that, based upon such advice or opportunity, they freely enter into this Agreement.