Terms and Conditions

SOLARPORT AUSTRALIA PTY LTD (ABN 38 636 092 521) TERMS AND CONDITIONS

1.DEFINITIONS
1.1. The Supplier is SOLARPORT AUSTRALIA (ABN 38 636 092 521) of Level 1, 56 Gordon Street, Mackay, QLD, 4740
1.2. The Customer is the party or any person acting on behalf of and with the authority of the Customer that the Order is provided for.
1.3. The Guarantor is the person, or entity, who agrees to be liable for the debts of the Customer.
1.4. The Order shall be defined as any request for the provision of Goods and/or Services by the Customer with the Supplier which has been accepted by the Supplier.
1.5. The Goods are the Solar Panels and Solar Inverters and related parts and/or components that have been supplied to the Customer including any recommendations and/or designs.
1.6. The Services comprises of the delivery of the Goods provided by the Supplier in completing the Order.
1.7. The Premises are the land and/or buildings where the delivery of the Goods is to be carried out.
1.8. The Price is the amount invoiced for Goods supplied and/or Services provided.
1.9. Indirect, Special or Consequential loss or damage includes i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
1.10. Invoices include invoices for Goods supplied or for Services provided, or both.
1.11. G.S.T. refers to Goods and Services Tax under the Goods and Services Act 1999 (“G.S.T. Act”) and the terms used herein have meaning contained within the G.S.T. Act.
1.12. Security interest as defined in Section 12 of the Personal Property Securities Act 2009 (Cth).
1.13. Security Agreement, “Commingled Goods”, “Collateral”, “Financing Statement”, “Financing Change Statement” is defined under Section 10 of the Personal Property Securities Act 2009 (Cth.).
2.GENERAL
2.1. These Terms and Conditions together with the Supplier’s written or verbal quotation form forms this Agreement And should be read in conjunction with the Supplier’s Credit Application Form and Purchase Order Acceptance Form.
2.2. Any Order requested by the Customer is deemed to be an Order incorporating these Terms and Conditions and may not be varied unless expressly agreed to by the parties in writing. In the event that an inconsistency exists and/or arises between these Terms and Conditions and the Order it is acknowledged between the parties that these Terms and Conditions will prevail.
2.3. No subsequent correspondence or document or discussion shall modify or otherwise vary these Terms and Conditions unless such variation is in writing and signed by the Supplier.
2.4. The Terms and Conditions are binding on the Customer, his heirs, assignee's, executors, trustees and where applicable, any liquidator, receiver or administrator.
2.5. In these Terms and Conditions, the singular shall include the plural, the masculine shall include feminine and neuter and words importing persons shall apply to corporations.

2.6. Where more than one Customer completes this Agreement, each shall be liable jointly and severally.

2.7. If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and the offending provision shall be deemed as severed from these Terms and Conditions.

2.8. The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer.

2.9. The failure by the Supplier to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.

2.10. The Customer acknowledges that the Supplier may detail these Terms and Conditions on its website In this event, the Terms and Conditions on the Supplier’s website shall apply to any future dealings as between the parties and the Customer is deemed to have notice of any such Terms and Conditions and/or amendments.
3.PLACEMENT OF ORDERS

3.1. Orders placed by the Customer with the Supplier will be considered valid when placing the Order by verbally and/or in writing.
3.2. The Customer agrees that in the event of any dispute arising concerning the Order that the internal records of the Supplier will be conclusive evidence of what was ordered in all respects.
3.3. Any Quotation, written and/or verbal, given by the Supplier shall expire twenty-one (21) days after the date of the written quotation. All prices are based on taxes and statutory charges current at the time of the Quotation. Should these vary during the period from the date of the Quotation to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.
4.PRICE
4.1. G.S.T. will be charged on the tax invoices issued by the Supplier for those Goods and/or Services that attract G.S.T. at the applicable rate.
4.2. The Supplier reserves the right to change the Price to the Supplier’s Order in the event of a variation which was previously unknown or unforeseen by the parties at the time the Order was placed, and notice will be provided in writing by the Supplier within a reasonable time.
4.3. At the Supplier’s sole discretion, the Price shall be either:

4.3.1. As detailed on invoices provided by the Supplier to the Customer in respect of Goods supplied or Services provided; or

4.3.2. The Supplier’s quoted Price as for the Order (subject to clause 4.2.).
5.PROVISION OF GOODS AND/OR SERVICES
5.1. At any time before payment is made by the Customer, the Supplier reserves its right to:

5.1.1. Decline requests for any Goods and/or Services requested by the Customer.

5.1.2. Cancel or postpone the delivery of Goods and/or appointments for Services at their discretion.
5.2. Subject to otherwise complying with its obligations under this Agreement, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Goods and/or Services and of satisfying the Customer’s expectations of those Goods and/or Services.

5.3. In the discharge of its duties, the Supplier shall comply with all reasonable directions of the Customer as to the nature and scope of the Goods and/or Services provided.

5.4. Nothing in the above clause shall effect the Supplier’s right to exercise its own judgement and to utilise its skills as it considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise with its obligations under this Agreement.
5.5. All descriptive and forwarding specifications including but not limited to all publicity and promotional materials issued by the Supplier is intended to be illustrative only. None of the foregoing nor any particulars or representations contained therein shall form part of and shall not be deemed to have been incorporated in any contract with the Supplier.
5.6. Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Goods and/or Services at specific times requested by the Customer during the term of this Agreement and the Supplier will not be held responsible for any delay due to inclement weather, failure of the Customer to provide required Items or changes requested to be made by the Customer and/or in any circumstances beyond the Supplier’s reasonable control.
5.7. The Supplier may agree to provide, on request from the Customer, additional Goods and/or Services not included or specifically excluded in the Quotation/Order. In this event, the Supplier shall be entitled to make an additional charge.
Services

5.8. The Supplier reserves the right to charge for any delivery costs and handling fees

5.8.1. The Supplier will make all reasonable efforts to have the Goods delivered to the Purchaser on the date agreed between the parties, but the Supplier is under no liability whatsoever should delivery not be made by the period stated. Any delivery date specified is an estimate and approximate only.
5.9. Delivery of the Goods is conditional upon an existent mailing address being provided to the Supplier. The Customer hereby releases the Supplier from any liability whatsoever arising as a result of a wrongly supplied address. In addition, the Customer agrees to pay the full price of the Supplier’s invoice upon such occurrence.
5.10. Delivery of Goods shall be deemed to be complete when the Goods are collected by the Customer or are delivered to the Customer or to the carrier as nominated by either of the parties.
5.11. If the Customer fails to make all arrangements necessary to take delivery of the Goods, at the discretion of the Supplier and without prejudice to any other remedy available to it, the Customer is responsible to pay the transport and handling disbursements incurred by the Supplier during the re-delivery process, including but not limited to the Courier charges and/or Postal Charges as charged from time to time by the third party delivery services and also storage of the Goods fee; being the related costs and expenses, including but not limited to any insurance costs, incurred by the Supplier as a result of the Customer’s failure to take delivery of the Goods at the time and Premises agreed.
Claims

5.12. The Customer is responsible for inspecting the Goods upon delivery and report any claims in the manner as listed in 5.12.1 and 5.12.2 of this agreement. The Supplier reserves their rights to reject any claims made that are not in accordance with the said clauses.

5.12.1. Claims for incorrect pricing must be reported to the Supplier in writing within seven (7) days from the receipt of Goods clearly detailing the relevant invoice details and codes of the incorrectly priced Goods for which the claims are made.

5.12.2. Any shortage of Goods and/or parts of the same found to be missing and/or are in any defect must be reported to the Supplier in writing within forty eight (48) hours.

5.12.3. In the instance where upon the delivery of the Goods the Customer and/or his agent signs a receipt document for the said Goods which states that the same Goods where received in an appropriate order and condition or words to that effect, the Supplier shall be free from all liabilities with respect to the loss and/or damage that is later discovered by the Customer as the signing of the said receipt prejudices all possible claims against the Supplier, unless the claim is in accordance with section 11 herein.
6.ACCESS TO PREMISES

6.1. Where required and during the delivery process of the Goods, the Customer grants full, safe and clear access to the Supplier, its servants and agents to the Premises and allows the Supplier its servant and agents to use any necessary essential services, resources, equipment, materials and information at no costs to the Supplier to complete the Services.

6.2. In the instance where the Customer fails to comply with 6.1. herein and/or the Supplier’s work is interfered with, at the Suppliers sole discretion the Customer will be charged an additional fee.
7.PAYMENT AND CREDIT POLICY 7.1. Any reference to Customer shall include all Customers, unless it refers to a specific group of Customers. 7.2. Account Customers

7.2.1. The Customers must make full payment to the Supplier within thirty (30) days from the date of the invoice.
Credit

7.3. Credit will only be granted at the sole discretion of the Supplier and upon submission of a complete Credit Application Form.
7.4. Any Credit granted may be revised by the Supplier at any time and at its discretion.
7.5. The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of the Terms and Conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing any act of insolvency.
7.6. The Customer agrees that upon such withdrawal, any and all monies owing on the account shall become immediately due and payable.
8.DISHONOUR OF CHEQUE

8.1. If any cheque issued by the Customer or by any third party in payment of the Price is dishonoured: 8.1.1. The Supplier may refuse to supply any further Goods and/or Services until satisfactory payment is
received in full, including bank fees and charges;

8.1.2. The Supplier is entitled to treat the dishonour of the Customer’s cheque as a repudiation of this Agreement and to elect between terminating this Agreement or affirming this Agreement, and in each case claiming and recovering compensation for loss or damage suffered from the Customer.

8.1.3. The Customer may be liable for a dishonoured cheque fee of $40.00.
9.DEFAULT

9.1. Invoices issued by the Supplier shall be due and payable pursuant to clause 7 herein (“Default Date”). Without prejudice to any other rights of the Supplier, the Customer may be charged account keeping fees of two per cent (2%) per month calculated on a daily basis on any payment in arrears.
9.2. If the Supplier does not receive the Outstanding Balance for the Price on or before the Default Date, the Supplier may, without prejudice to any other remedy it may have, forward the Customer’s outstanding account to a debt collection agency and/or law firm for collection for further action. The Customer acknowledges and agrees that:

9.2.1. After the Default Date, the Outstanding Balance shall include, but not limited to, all applicable fees and charges under this Agreement;

9.2.2. In the event of the Customer being in default of his obligation to pay and the overdue account is then referred to a debt collection agency, and/or law firm for collection the Customer shall be liable for the recovery costs incurred and if the agency charges commission on a contingency basis the Customer shall be liable to pay as a liquidated debt, the commission payable by the Supplier to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery and the following formula shall apply: Commission = Original Debt 100 – Commission % charged by the agency (including G.S.T.)

9.2.3. In the event where the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on

9.2.4. In the event where the Supplier or the Supplier’s agency refers the overdue account to a lawyer the Customer shall also pay as a liquidated debt the charges reasonably made or claimed by the lawyer on the indemnity basis.
10.RISK AND LIABILITY
10.1. The Customer will ensure when placing Orders that there is sufficient information to enable the Supplier to execute the Order.
10.2. The Supplier takes no responsibility if the specifications provided by the Customer are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by the Supplier for any work required to rectify the Order.
10.3. The Customer is responsible for ensuring that the Supplier is made aware of any special requirements pertaining to the Order and the Supplier relies upon the integrity of the information supplied to it.
10.4. The Supplier takes no responsibility and will not be liable for any damages or costs resulting in the Goods and/or Services being faulty as a consequence of insufficient information provided by the Customer.
10.5. The Supplier takes no responsibility for representations made in relation to the Goods and/or Services or any delay in the delivery of the Goods and/or Services made by a third party or third party manufacturer.
10.6. The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any loss incurred as a result of delay or failure to provide the Goods and/or Services or to observe any of these conditions due to an event of force majeure, for any cause or circumstances beyond the Supplier’s reasonable control.
10.7. The Supplier does not represent that it will carry out any Services and/or provide and/or deliver any Goods unless it is included in the Quote.
10.8. The Supplier shall under no circumstances be liable to the Customer, whether in Contract, tort (including negligence), breach of statutory duty or otherwise for any loss of profit, or any indirect or consequential loss or damage as defined in clause 1.8 herein arising under or in connection with the Order. The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Order shall in no circumstances exceed the total Price paid for the Goods and/or Services.
10.9. Subject to applicable law, the Customer accepts risk in relation to the Goods when the Goods pass to his care and/or control.
11.RETENTION OF TITLE
11.1. The risk in Goods shall pass on delivery and/or supply (including all risks associated with unloading), legal and equitable title in the Goods shall remain with the Supplier until full payment of all Goods supplied by the Supplier to the Customer is made. Pending such payment the Customer:

11.1.1. Shall hold the Goods as Bailee for the Supplier and shall return the Goods to the Supplier if so requested.

11.1.2. Agrees to hold the Goods at the Customer’s own risk and is liable to compensate the Supplier for all loss or damage sustained to the Goods whilst they are in the Customer’s possession;

11.1.3. The Customer should store the Goods separately and in such a manner that it is clearly identified as the property of the Supplier and keep the Goods insured to full replacement value;

11.1.4. The Customer must not allow any person to have or acquire security interest in the Goods whilst the Goods are in the Customer’s possession;

11.1.5. The Customer may sell and/or use the Goods in the ordinary course of business, however:

11.1.5.1. If the Goods are resold before all monies are paid to the Supplier, the Customer shall hold the proceeds of sale in a separate identifiable account on trust for the Supplier and promptly account the Supplier for those proceeds in payment of the Price for the Goods.
11.2. The Supplier is authorised to enter the Premises or the premises where the Customer stores the Goods without liability for trespass or any resulting damage in retaking possession of the Goods until the accounts owed to the Supplier by the Customer are fully paid.
11.3. Notwithstanding the provisions above, the Supplier shall be entitled to issue legal proceedings to recover the Price of the Goods.
12.PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)

12.1. The Customer acknowledges that these Terms and Conditions will constitute a Security Agreement which creates a security interest in favour of the Supplier over all present and after acquired Goods and/or Services supplied by the Supplier to the Customer to secure the payment of the Price or any other amount owing under this agreement from time to time including future advances.
12.2. The Customer acknowledges that by accepting these Terms and Conditions and by virtue of the retention of title clause as provided for in Clause 13, the security interest is a purchase money security interest (“PMSI”) as defined under Section 14 of the PPSA for all present, after acquired Goods and/or Services including any Commingled Goods.
12.3. The security interest will continue to apply as an interest in the Collateral for the purposes of PPSA with priority over registered or unregistered security interest.
12.4. The Supplier may register the security interest as PMSI on the Personal Property Securities Register (“PPSR”) under the PPSA without providing further notice to the Customer.

12.5. The Customer agrees the Supplier is not required to disclose information pertaining to the Supplier’s security interest to an interest party unless required to do pursuant to PPSA or under the general law.
12.6. The Customer agrees and undertakes:

12.6.1. To sign any documents and/or provide further information reasonably required by the Supplier to register Financing Statement or Financing Change Statement on the PPSR;

12.6.2. To indemnify the Supplier for all expenses and/or costs incurred by the Supplier in registering a Financing Statement or Financing Change Statement on PPSR including the costs of amending, maintaining, releasing and enforcing any security interests in the Goods;

12.6.3. Not to register and/or make a demand to alter a Financing Statement in the Collateral without prior written consent of the Supplier;

12.6.4. To provide the Supplier with seven (7) days written notice of any change or proposed change to the Customer’s business name, address, contact details or other changes in the Customer’s details registered on the PPSR;

12.6.5. To waive any rights of enforcement under Section 115 of the PPSA for Collateral not used predominantly for personal, domestic or household purposes;
12.6.6. To waive any rights to receive Verification Statement in respect of any Financial Statement or Financing Charge Statement under Section 157 of the PPSA.
13.TERMINATION AND CANCELLATION

Cancellation by Supplier

13.1. The Supplier may cancel any Order to which these Terms and Conditions apply or cancel delivery of Goods and/or the provision of Services at any time before the Goods are delivered or the Services are provided by giving written notice to the Customer. The Supplier shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.

13.2. In the event the Order is subject to Progress payments, the Supplier shall be entitled to suspend and/or cease the completion of the Order if the Customer’s Progress Payments are in arrears. The Supplier is entitled to recommence the provision of Goods and/or Services once the arrears are clear and the Progress Payments are up to date.

13.3. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:

13.3.1. Any money payable to the Supplier becomes overdue and after a request for payment in writing has been made; or

13.3.2. The Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

13.3.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer or any judgement is taken out against the Customer and remains unpaid for more than seven (7) days.
Cancellation by Customer

13.4. Any Order cannot be cancelled by the Customer unless expressly agreed to by the Supplier in writing.

13.5. Once the Goods are delivered, the Supplier will not accept the return of Goods from the Customer and will not apply a credit to the Customer’s account in the event that the Customer is returning the Goods due to a change of mind by the Customer, and/or the return of excess Goods and/or unsold Goods held by the Customer. This does not restrict the Supplier's obligations to accept return of Goods under applicable laws (including the Competition and Consumer Act) or in relation to any applicable express warranty.
13.6. In the event that the Order for Goods is cancelled seventy two (72) hours (time being of the essence) following the receipt of a Quote and/or submission of the Purchase Order Acceptance Form the Customer shall be liable to pay fifty percent (50%) of the total value of the Price for the relevant Order and in addition at the discretion of the Supplier the Customer will be liable to pay for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
13.7. If the Customer places an Order with the Supplier and the Supplier places an Order with a third party Supplier to meet the Customer’s request, the Customer shall be liable for the Price of the Goods ordered if the Customer cancels the Order and the Goods have already been dispatched.
13.8. The Supplier acknowledges that in the event the Supplier contravenes any of the terms listed herein, then clauses 13.4., 13.5., 13.6., 13.7. and 13.8. will not apply.
14.SET-OFF

14.1. The Customer shall have no right of set-off in any suit, claim or proceeding brought by the Supplier against the Customer for default in payment.
14.2. The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off.
15.INSURANCE

15.1. The Customer is responsible to effect whatever insurance cover he requires at his own expense.
16.AGREED USE

16.1. The Customer acknowledges that the Customer may forfeit any rights if any, he may have against the Supplier if:
16.1.1. The Goods are applied for any other use for which the Goods are not intended or substantially not in accordance with the instructions provided by the Supplier;

16.1.2. Any alteration to the Goods is carried out other than in accordance with intended alterations and/or the Goods are not repaired by an authorised repairer.

16.2. The Customer further acknowledges sole responsibility for any damage or injury to property or person caused by using the Goods in any way and shall indemnify in full the Supplier, its servants and/or agents in relation to all such claims.
17.JURISDICTION

17.1. This Agreement is deemed to be made in the State of Victoria and all disputes here under shall be determined by the jurisdiction of the appropriate Court nearest Chelsea in the State of Victoria.
18.PRIVACY ACT 1988

18.1. The Customer and/or the Guarantor/s agrees;

18.1.1. For the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Supplier.

18.1.1.1. That the Supplier may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency.
18.2 The Customer consent to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

19.ENTIRE AGREEMENT

19.1. These Terms and Conditions as defined in Clause 2.1 constitute the whole Agreement made between the Customer and the Supplier.
19.2. This Agreement can only be amended in writing signed by each of the parties.
19.3. All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by him or on his behalf that are in conflict with any clauses in this document in anyway.
19.4. Nothing in these Terms and Conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia

 

© 2019 by SOLARPORT AUSTRALIA PTY LTD (ABN 38 636 092 521)