1  Acceptance

THESE TERMS AND CONDITIONS CONSTITUTE A LEGALLY BINDING AGREEMENT MADE BY MAXIMUM ENERGY PTY LTD ACN 161 953 313 (“MAXIMUM ENERGY“, ‘WE“, “US” OR “OUR“) AND THE CUSTOMER NAMED IN THE QUOTATION (“YOU” OR “YOUR“).  BY SIGNING THE QUOTATION YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD AND AGREE TO BE BOUND BY THE QUOTATION AND THESE CONDITIONS, INCLUDING ANY ATTACHMENTS AND ANNEXURES (TOGETHER, THE “AGREEMENT“). 

2  Definitions and interpretation

2.1     Definitions

ACL means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

Agreement means the Quotation, these Terms and Conditions and any attachments and annexures to the Quotation and these Terms and Conditions;

Business Day means any day other than a Saturday, Sunday or public holiday in the State or Territory in which Your Property is located.

Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, Loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement;

Code means the Clean Energy Council’s Solar Retailer Code of Conduct;

Cooling Off-Period means 10 Business Days from the day after You received this Agreement;

Defect in relation to a Product, means a material failure of the Product to substantially comply with its Specifications;

GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law or otherwise on a supply;

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

GST Law has the same meaning as in the GST Act;

Liability means any liability or obligation (whether actual, contingent or prospective) including any Loss, irrespective of when the acts, events or things giving rise to the liability or obligation occurred;

Loss includes any loss, damage, cost, charge liability (including Tax liability) or expense (including legal costs and expenses);

PPS Act means the Personal Property Securities Act 2009 (Cth);

Products means the goods supplied under the Agreement;

Quotation means the quotation signed by both You and Maximum Energy;

Site-Specific Design means a full site-specific system design for Your Property;

Specifications means the specifications for the Product as supplied to You by Maximum Energy;

Tax means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition; and

Your Property means the property at which the Products are to be supplied and installed, as specified in the Quotation.

2.2  Interpretation

In this Agreement, unless the context otherwise requires:

(a)      a reference to:

(i)        the singular includes the plural and the plural includes the singular;

(ii)       a recital, clause, schedule or annexure is a reference to a clause of or recital, schedule or annexure to this Agreement and references to this Agreement include any recital, schedule or annexure;

(iii)      any contract (including this Agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated;

(iv)      a statute, ordinance, code or other law includes subordinate legislation (including regulations) and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(v)      a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority;

(vi)      a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns;

(vii)     a group of persons is a reference to any two or more of them taken together and to each of them individually;

(viii)    an entity which has been reconstituted or merged means the body as reconstituted or merged, and to an entity which has ceased to exist where its functions have been substantially taken over by another body, means that other body;

(ix)      a reference to a day or a month means a calendar day or calendar month;

(x)      money (including ‘$’, ‘AUD’ or ‘dollars’) is to Australian currency;

(b)      the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation;

(c)      the words ‘costs’ and ‘expenses’ include reasonable charges, expenses and legal costs on a full indemnity basis;

(d)      headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation; and

(e)      where there are two or more persons in a party each are bound jointly and severally.

3  Solar Retailer Code of Conduct

(a)      Maximum Energy must comply with the Code.  A copy of the Code is available on the Clean Energy Council’s website at

(b)      Subject to clause 3(c), to the extent any term in the Agreement would result in Maximum Energy being deemed non-compliant with the Code, then that term or condition will be severed from the Agreement.

4  Products and services

(a)      Maximum Energy will supply and install the Products at Your Property in accordance with the Agreement.

(b)      You must ensure that Maximum Energy and its sub-contractor(s) have full access to Your Property at the agreed date of installation.  If Maximum Energy or its sub-contractor(s) do not have sufficient access to Your Property on the agreed date then You will incur of call out fee of $150 if Your Property is located in a metropolitan area (i.e. within [insert]km of the closest capital city), or $250 if Your Property is located in a regional area.

(c)      You warrant and represent that You:

(i)        are the owner of Your Property; or

(ii)       otherwise have the consent of the owner of Your Property to have the Products installed at Your Property.

(d)      We will provide You with the Products and services under this Agreement within the timeframe set out in the Quotation.  However, the timeframes in the Quotation may be affected by certain circumstances outside of Our control (e.g. weather or dangerous conditions), in which case We will propose a revised timeframe.

(e)      On completion of the work performed by Maximum Energy, We will remove from the site all goods, plant and equipment, rubbish and surplus material relating to the work performed. All such goods, plant and equipment, rubbish and material remain property of Maximum Energy unless otherwise agreed.

5  Site-Specific Design

(a)      We will provide You with a Site-Specific Design.

(b)      The Site-Specific Design will include the proposed roof plan (which may be a sketch or diagram), orientation and tilt, expected efficiency losses due to shading, the estimated energy yield (i.e. average daily performance estimate in kilowatt hours for each month of solar generation).

(c)      The performance estimate in the Site-Specific Design will be based on data obtained from the Clean Energy Council’s System Design Guidelines for Accredited Designs or other reputable sources.

(d)      We may provide the Site-Specific Design as a deliverable of the Agreement, in which case:

(i)        We will provide You with the Site-Specific Design prior to the expiry of any Cooling-Off Period;

(ii)       We will provide You with a generic outline of the likely system performance estimate before providing the Site-Specific Design (to allow You to make an informed purchase decision); and

(iii)      upon receiving the Site-Specific Design, You may cancel this Agreement for a full refund if You do not consent to or agree with the Site-Specific Design.

6  Quotation

(a)      The Quotation is based on a physical inspection by Maximum Energy or its nominated sub-contractor of the site where work is to be carried out, or upon details provided by You.

(b)      The Quotation is based on work being carried out on a Business Day between 7:30am and 4:00pm (local time).  Work carried out outside this period will incur additional fees and charges payable by You.

(c)      The Quotation does not include any charges or fees payable to electricity supply authorities or any other regulatory authority.

(d)      You must accept or reject the Quotation within thirty (30) days of its receipt. If not accepted within the specified time, the Quotation will no longer be valid. Maximum Energy may, at its option, extend this period by notification in writing to You (and if Maximum Energy extends the period under this clause then any acceptance You communicated before that extension will be valid and effective to accept the Quotation).

(e)      You may accept the Quotation by signing and returning a copy of the Quotation to Maximum Energy.

7  Extra chargeable work

(a)      There may be certain site conditions and special circumstances beyond Our control that result in extra chargeable work or costs not covered by the Quotation.  Accordingly, You may incur additional costs that are not covered in the Quotation, including:

(i)        fees for meter exchange or reconfiguration;

(ii)       damage on meter panels;

(iii)      changing dedicated off-peak control devices;

(iv)      asbestos removal;

(v)      unsafe conditions; and

(vi)      any other conditions or circumstances set out in the Quotation.

(b)      Any costs specified in clause 7(a) are not covered in the Quotation and will be borne by You.  We will advise you of any extra chargeable work that arises.

8  Payment

(a)      You must pay to Maximum Energy the total price for all goods and services within 30 calendar days from the date of invoice.

(b)      Payment may be made by cash, credit card or electronic transfer to Maximum Energy’s nominated account.

(c)      Maximum Energy shall issue invoices to You upon completion of each stage of the performed work. The Building and Construction Industry Security of Payment Act 2009 (SA) shall apply in respect to any progress payments.

(d)      We will issue You with a receipt upon receiving payment.

(e)      If You does not pay within the period mentioned in Clause 2(a), You shall pay interest on the outstanding amount fro m the date the payment becomes du e until the date the payment is made at a rate equal to 1.5% per calendar month, compounded monthly.

(f)       Maximum Energy will be entitled to recover from You all costs incurred by Maximum Energy (including but not limited to debt collector costs) in the event that You fail to make payment when a payment under this Agreement becomes due and payable.

(g)      Except by express written agreement between Maximum Energy and You, no set off will be permitted.

10  Risk and Ownership

(a)      Risk of loss, damage or destruction to the materials, equipment and other goods or any part thereof shall pass to You on installation.

(b)      Maximum Energy shall remain the owner of all installed materials, equipment and other goods until You have fully paid Maximum Energy all amounts owed to Maximum Energy and You have fulfilled all other obligations to Maximum Energy.

(c)      You acknowledge that We have a security interest for the purposes of the PPS Act in the Products until title to the Products passes to You.

(d)      Each security interest under this Agreement is a “purchase money security interest” under the PPS Act to the extent it secures payment of the amounts owing to Us, and the security interests attach to the Products when You obtain possession of them.

(e)      You agree to do (and irrevocably appoint Us as Your attorney to do) at Your cost anything which We consider necessary for the purposes of:

(i)        ensuring that the security interest is enforceable, perfected and otherwise effective;

(ii)       enabling Us to apply for any registration, complete any financing statement or give any notification in connection with the security interest so that We have the priority We require; and

(iii)      enabling Us to exercise rights in connection with the security interest.

(f)       We need not give any notice under the PPS Act (including notice of a verification statement) unless the notice is required by the PPS Act and the requirement to give it cannot be excluded.

(g)      The parties agree that they are not required to disclose any information of the kind referred to in section 275(1) of the PPS Act.

(h)      If there is any inconsistency between Our rights under this clause and Chapter 4 of the PPS Act, this clause prevails.

11      Intellectual Property

As between the parties, Maximum Energy retains all intellectual property rights in the Products and nothing in this Agreement transfers any intellectual property rights in the Products to You.

12  Warranty

(a)      Maximum Energy will carry out work in a good and workmanlike manner and supply material of the kind described in the Quotation and comply with all relevant Australian standards and requirements of all statutory authorities related to the work.

(b)      Maximum Energy provides a standard retailers warranty of five years (from the date of installation) on the operation and performance of the whole PV system including workmanship and products, in accordance with the terms of this clause.

(c)      Subject to clauses 12(e) and 12(g), Maximum Energy warrants that all Products will be free from Defects for a period of five (5) years from the date of supply.  In the event a Defect is found to exist during this time, Maximum Energy will at its option:

(i)        replace the Product with equivalent goods; or

(ii)       fix the Defect.

(d)      Subject to clauses 12(e) and 12(g), if the Quotation specifies that a particular Product or part of a Product has a warranty period of longer than five (5) years, then You will be entitled to the specified warranty for those goods as provided by the manufacturer of those goods (subject to the relevant manufacture’s warranty terms) from the date of their supply (and We will endeavour to assign the benefit of that warranty to You).

(e)      To the extent permitted by law, the warranty referred to in clauses 12(b) or 12(d) will not apply:

(i)        if the Product has not been installed, operated, maintained or used in accordance with all instructions and Specifications;

(ii)       if the Defect was caused due to damage, malfunction or failure resulting from any misuse, alterations, accident, fire, thunderstorm activity, act of God or other natural disaster, voltage supply issues, tampering or unauthorised repairs, use of defective or incompatible accessories, exposure to abnormally corrosive conditions or entry by any insect, vermin or foreign object in the Product.

(f)       To make a claim under clause 12(b) or 12(d), please contact Us in writing or by email at warranty@maximumenergy.com.au.  You will need to provide proof of purchase and a certificate confirming installation by a qualified electrician. 

(g)      If a supply under this Agreement is a supply of goods or services to a consumer within the meaning of ACL, nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability which cannot be excluded, restricted or modified.  However, to the extent that the ACL permits Maximum Energy to limit its liability, then Maximum Energy’s liability will be limited to:

(i)        in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and

(ii)       in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.

(h)      You indemnify Maximum Energy against all Claims, Liabilities and Losses which Maximum Energy incurs or is liable for in connection with:

(i)        any breach of the Agreement by You;

(ii)       Your negligence; and

(iii)      Your reckless, unlawful or wilful misconduct.

13  Force Majeure

Maximum Energy shall not be liable in any way for any loss or damage arising directly or indirectly, through or in consequence of production, delivery or holding stock of the Products being prevented or delayed by happenings or occurrences due to or by reason of any matters or thing beyond the reasonable control of Maximum Energy.

14  Cooling off, termination and refunds

14.1   Cooling-Off

(a)      If You purchased the Products or services through an unsolicited consumer agreement (e.g. door-to-door sales, telemarketing, or if You were approached by Us or Our sales representatives in a public place such as a shopping centre), then You may cancel this Agreement for any reason (at no cost) within the Cooling-Off Period.  If You cancel this Agreement after the Colling-Off Period, or if You cancel this Agreement and a Cooling-Off Period does not apply, You must pay Us:

(i)        a cancellation fee of $100; and

(ii)       all amounts for work performed by Maximum Energy as at the date of cancellation, including the cost of any Products installed or services performed.

14.2   Termination

(a)      Maximum Energy may (but is not obliged to) terminate this agreement immediately upon issuing a refund to the Customer for any reason set out in clause 14.3(a).

(b)      Either party may terminate this Agreement if the other party breaches this Agreement and fails to remedy the breach within 14 days of receiving written notice from the other party requesting it to do so.

(c)      On termination of this Agreement:

(i)        Maximum Energy will be under no obligation to provide the Products or services;

(ii)       all Products installed or in Your possession must be returned to Maximum Energy (unless You have paid for those Products and no refund has been issued in relation to those Products); and

(iii)      all amounts for work performed by Maximum Energy, including the cost of any Products installed, become immediately due and payable (unless the Customer is entitled to a full refund in accordance with clause 14.3).

(d)      Termination does not affect the accrued rights or remedies of either party.

14.3   Refunds

(a)      You will be entitled to a full refund upon making a written request within 5 Business Days of any of the following occurring:

(i)        the Site-Specific Design provided to You is significantly different to the design included in the Quotation and is not approved by You;

(ii)       the Site-Specific Design is provided as a deliverable of the Agreement and:

(A)      We do not provide You with the Site-Specific Design before the expiry of any cooling-off period; and

(B)      You do not consent to the Site-Specific Design upon receipt;

(iii)      the estimated delivery timeframe for installation completion that was agreed at the point of Agreement is not honoured for reasons reasonably within Our control, and You do not consent to a revised timeframe;

(iv)      We act on Your behalf to obtain grid connection approval but do not obtain such approval prior to installation, and You do not receive approval from the energy distributor to connect a system; or

(v)      extra chargeable work arises where the costs are payable to Us, which was not specified in the initial Quotation, those additional costs are not borne by Us and You do not consent to those additional costs.

(b)      Please note that We may terminate the Agreement immediately upon issuing You a refund in accordance with clause 14.3(a).

(c)      You will be entitled to a partial refund if You take responsibility for obtaining grid connection approval (rather than Us on Your behalf) and:

(i)        the application is rejected; and

(ii)       the Agreement has already been signed.

If this occurs, You are entitled to terminate the Agreement with a refund of all money paid under this Agreement less Our reasonable expenses incurred up to the time of termination.

15  Privacy

(a)      By engaging Maximum Energy, You acknowledge and agree that Maximum Energy will collect, use, store and disclose Your personal information in accordance with its Privacy Policy.  A copy of Maximum Energy’s Privacy Policy is available at www.maximumenergy.com.au

(b)      Maximum Energy’s Privacy Policy explains how You can seek access to and correction of the information We hold about You, and how You may complain to Us about a breach of the Australian Privacy Principles and how We will deal with such a complaint.

(c)      If You have a privacy enquiry or complaint, please contact Maximum Energy in writing.

16  Complaints Handling

(a)      If You have a query or complaint, please contact Maximum Energy in writing.

(b)      Maximum Energy will address any complaints in accordance with its complaints handling policy, which is available at www.maximumenergy.com.au.

17  GST

This clause applies if a party to this Agreement is, or becomes, liable to pay GST regarding any Supply of goods, services or anything else under this Agreement.

17.1   Definitions

Capitalised expressions which are not defined in this Agreement but which have a defined meaning in the GST Act have the same meaning in this clause.

17.2   GST payable in addition to consideration

If a party (Supplier) makes a Taxable Supply under this Agreement, then the Recipient of the Taxable Supply, must pay the Supplier the GST payable on the Taxable Supply in addition to the consideration for the Supply.

17.3   Tax Invoice

Within seven days of a Supply being made under this Agreement, the Supplier must provide to the Recipient a Tax Invoice or other documentation that complies with the requirements for a valid Tax Invoice under the GST Act.

17.4   Payment of GST

Subject to the Supplier issuing a Tax Invoice to the Recipient as required under clause 17.3, the Recipient must pay the GST on the Taxable Supply under this Agreement to the Supplier at the same time and in the same manner as the Recipient pays the consideration for the Supply to the Supplier.

17.5   Reimbursement or indemnity

Despite any other provision of this Agreement, if the whole or part of any consideration under this Agreement is a reimbursement or an indemnity to one party of an expense, loss, outgoing or liability incurred or to be incurred by the other party, the consideration excludes any GST included in such expense, loss, outgoing or liability incurred or to be incurred for which the other party can claim an Input Tax Credit.  The other party will be assumed to be entitled to a full Input Tax Credit unless it can establish otherwise.

17.6   Adjustment Events

If an Adjustment Event occurs regarding a Supply under this Agreement, the Supplier must issue to the Recipient an Adjustment Note regarding the Adjustment Event within seven days of the Supplier becoming aware of the Adjustment Event.

17.7   Additional amount

If the Adjustment Note gives effect to an Increasing Adjustment, the Recipient must pay to the Supplier the GST component of the Increasing Adjustment not later than the fourteenth business day of the month following the month in which the Adjustment Note is issued to the Recipient.

17.8   Credit or refund

If the Adjustment Note gives effect to a Decreasing Adjustment, the Supplier must pay to the Recipient the GST component of the Decreasing Adjustment not later than the fourteenth business day of the month following the month in which the Adjustment Note is issued to the Recipient.

18  General

18.1   Subcontracting

You hereby agree that Maximum Energy may license or sub-contract all or any part of its rights and obligations under the Agreement.

18.2   Governing law and jurisdiction

(a)      This Agreement is governed by and is to be construed in accordance with the laws applicable in South Australia, Australia.

(b)      Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of South Australia, Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

18.3   Severability

(a)      Subject to clause 18.3(b), if a provision of this Agreement is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of this Agreement.

(b)      Clause 18.3(a) does not apply if severing the provision:

(i)        materially alters the:

(A)      scope and nature of this Agreement; or

(B)      the relative commercial or financial positions of the parties; or

(ii)       would be contrary to public policy.

18.4   Amendment

This Agreement may only be varied or replaced if the variation or replacement is in writing and signed by both parties.

18.5   Assignment

(a)      Maximum Energy may assign its rights and obligations under this Agreement.

(b)      You must not assign or deal with its rights under this Agreement without the prior written consent of Maximum Energy.

18.6   Counterparts

This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one agreement. 

18.7   Entire understanding

(a)      This Agreement contains the entire understanding between the parties as to the subject matter of this Agreement.

(b)      You acknowledge and agree that all of the representations made by Maximum Energy are set out in the Quotation, these Terms and Conditions and any annexures or attachments to those documents.

(c)      All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this agreement are merged in and superseded by this agreement and are of no effect.  No party is liable to any other party in respect of those matters.

(d)      No oral explanation or information provided by any party to another:

(i)        affects the meaning or interpretation of this agreement; or

(ii)       constitutes any collateral agreement, warranty or understanding between any of the parties.

19  Disclaimers

(a)      The figures provided in the Quotation are an estimate only based on the information that You have provided to Us.  These figures are not guaranteed.  If the information provided is not accurate, this may affect the figures in the Quotation.

(b)      The system efficiency specified in the Quotation is estimated by the system designer to account for losses that may include shading, inverter efficiency for DC to AC conversion battery efficiency, cable losses, dirt, manufacturer tolerances, grid-tie  system outages, maintenance downtime, and other factors.

(c)      The energy output specified in the Quotation is calculated based on historical solar irradiance and temperature data at the location of Your Property, factoring in panel tilt, orientation, system parameters, including system efficiency.  It also assumes a full year-round utilisation of generated electricity and will change based on usage and feed in tariffs.

(d)      All stenographic and clerical errors in the Quotation are subject to correction.

(e)      The Quotation is based on all Products being installed at the same time.  If You choose to install the Products at different times, there may be additional costs.

(f)       The Quotation is subject to final inspection and variations may be required due to factors outside Our control, such as building quality and availability of electricity.  Any increase in costs will be agreed with You prior to commencing any work.

(g)      Your electricity contract/tariff may change following the installation of solar.  You should contact Your electricity retailer:

(i)        before signing this Agreement, to check what new electricity tariff rates may be applied; and

(ii)       after installation of the solar PV system, to confirm that the agreed tariff has been applied.

20  Special Conditions

20.1   Application

(a)      The parties must strictly comply with the terms and conditions (if any) set out in clause 20.2 (Special Conditions);

(b)      The Special Conditions will prevail to the extent (but only to the extent) of any inconsistency between the Special Conditions and any other term or condition of this Agreement.

 

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