1. Definitions 1.1 “Solar Centre” shall mean Toowoomba Solar Centre, Sonrod Pty Ltd (ABN 712 3919 2361 1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Solar Centre to the Customer. 1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis. 1.4 “Goods” shall mean Goods supplied by Solar Centre to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Solar Centre to the Customer. 1.5 “Services” shall mean all Services supplied by Solar Centre to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above). 1.6 “Price” shall mean the price payable for the Goods as agreed between Solar Centre and the Customer in accordance with clause 4 of this contract. 2. The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”) 2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable. 2.2 Where the Customer buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights. 3. Acceptance 3.1 Any instructions received by Solar Centre from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Solar Centre shall constitute acceptance of the terms and conditions contained herein. 3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price. 3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Solar Centre. 3.4 The Customer shall give Solar Centre not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Solar Centre as a result of the Customer’s failure to comply with this clause. 3.5 Goods are supplied by Solar Centre only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade. 3.6 The Customer acknowledges and accepts that Solar Centre shall not be liable for any loss, damages, or cost whatsoever in relation to complaints of water hammer or noises in the pipes after a solar hot water installation. Any service calls to rectify these complaints will be charged to the Customer unless a fault is found with either the system or the installation. 4. Price And Payment 4.1 At Solar Centre’s sole discretion the Price shall be either: (a) as indicated on invoices provided by Solar Centre to the Customer in respect of Goods supplied. (b) Solar Centre’s quoted Price (subject to clause 4.2) which shall be binding upon Solar Centre provided that the Customer shall accept Solar Centre’s quotation in writing within thirty (30) days. 4.2 Solar Centre reserves the right to change the Price in the event of a variation to Solar Centre’s quotation. 4.3 At Solar Centre’s sole discretion a deposit may be required. 4.4 At Solar Centre’s sole discretion: (a) payment shall be due before delivery of the Goods; or (b) payment for approved Customers shall be made by instalments in accordance with Solar Centre’s payment schedule. 4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice. 4.6 Payment will be made by cheque, or by bank cheque, or by credit card (plus a surcharge of up to four percent (4%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Solar Centre. 4.7 GST and other taxes and duties that may be applicable are included in the Price except when they are expressly excluded from the Price. 5. Delivery Of Goods 5.1 At Solar Centre’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Solar Centre or Solar Centre’s nominated carrier). 5.2 The failure of Solar Centre to deliver shall not entitle either party to treat this contract as repudiated. 5.3 Solar Centre shall not be liable for any loss or damage whatsoever due to failure by Solar Centre to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Solar Centre. 6. Risk 6.1 If Solar Centre retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery. 6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Solar Centre is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Solar Centre is sufficient evidence of Solar Centre’s rights to receive the insurance proceeds without the need for any person dealing with Solar Centre to make further enquiries. 6.3 Installation costs set out on an attached quotation (if any) are based on the methods and procedures as agreed between Solar Centre and the Customer and/or outlined on the attached quotation. In the event that the Customer requests changes to these methods and procedures, Solar Centre shall be entitled to charge for additional costs and/or work involved. 6.4 Solar Centre shall not be liable for any loss or damage whatsoever in relation to replacement, repair, or suitability of existing plumbing fittings, pumps and fittings, controllers, flue, piping, floor covering, wiring, roofing or any other household effect. 6.5 The Customer acknowledges and agrees that any quoted Price is based on the condition that any existing roofing, plumbing and wiring is in good condition, in a good state of repair, and in accordance with the current requirements of gas, electric or water authorities. The Customer also agrees to indemnify Solar Centre against any and all damages, loss or costs however arising resulting from the existing roofing, plumbing and wiring not being in a good condition, good state of repair, or not in accordance with the current requirements of gas, electric or water authorities. 6.6 The Customer acknowledges and agrees that any quoted Price excludes; any roof reinforcing required for solar installations, and any certification on roof designs. 6.7 Where the Law requires a temperature limiting device such as a mechanical tempering valve shall be fitted. The tempering valve has a range between forty-five degrees Celsius (45°C) to fifty-five degrees Celsius (55°C) and is required to be set at fifty degrees Celsius (50°C). Any instances where this is not fitted the Customer acknowledges and agrees that water temperature exceeding fifty degrees Celsius (50°C) needs to be handled with care to avoid scalding injuries. 7. Access 7.1 The Customer shall ensure that Solar Centre has clear and free access to the work site at all times to enable them to undertake the works. Solar Centre shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Solar Centre. 8. Underground Locations 8.1 Prior to Solar Centre commencing any work the Customer must advise Solar Centre of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site. 8.2 Whilst Solar Centre will take all care to avoid damage to any underground services the Customer agrees to indemnify Solar Centre in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1. 9. Title 9.1 Solar Centre and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid Solar Centre all amounts owing for the particular Goods; and (b) the Customer has met all other obligations due by the Customer to Solar Centre in respect of all contracts between Solar Centre and the Customer. 9.2 Receipt by Solar Centre of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Solar Centre’s ownership or rights in respect of the Goods shall continue. 9.3 It is further agreed that: (a) where practicable the Goods shall be kept separate and identifiable until Solar Centre shall have received payment and all other obligations of the Customer are met; and (b) until such time as ownership of the Goods shall pass from Solar Centre to the Customer Solar Centre may give notice in writing to the Customer to return the Goods or any of them to Solar Centre. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and (c) Solar Centre shall have the right of stopping the Goods in transit whether or not delivery has been made; and (d) if the Customer fails to return the Goods to Solar Centre then Solar Centre or Solar Centre’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and (e) the Customer is only a bailee of the Goods and until such time as Solar Centre has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Solar Centre for the Goods, on trust for Solar Centre; and (f) the Customer shall not deal with the money of Solar Centre in any way which may be adverse to Solar Centre; and (g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Solar Centre; and (h) Solar Centre can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and (i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Solar Centre will be the owner of the end products. 10. Personal Property Securities Act 2009 (“PPSA”) 10.1 In this clause: (a) financing statement has the meaning given to it by the PPSA; (b) financing change statement has the meaning given to it by the PPSA; (c) security agreement means the security agreement under the PPSA created between the Customer and Solar Centre by these terms and conditions; and (d) security interest has the meaning given to it by the PPSA. 10.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions: (a) constitute a security agreement for the purposes of the PPSA; and (b) create a security interest in: (i) all Goods previously supplied by Solar Centre to the Customer (if any); (ii) all Goods that will be supplied in the future by Solar Centre to the Customer. 10.3 The Customer undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Solar Centre may reasonably require to: (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii); (b) indemnify, and upon demand reimburse, Solar Centre for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of Solar Centre; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Solar Centre; and (e) immediately advise Solar Centre of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales. 10.4 Solar Centre and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions. 10.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 10.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 10.7 Unless otherwise agreed to in writing by Solar Centre, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA. 10.8 The Customer shall unconditionally ratify any actions taken by Solar Centre under clauses 10.3 to 10.5. 11. Defects 11.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Solar Centre of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Solar Centre an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Solar Centre has agreed in writing that the Customer is entitled to reject, Solar Centre’s liability is limited to either (at Solar Centre’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods. 11.2 Goods will not be accepted for return other than in accordance with 11.1 above. 12. Warranty 12.1 Subject to the conditions of warranty set out in clause 12.2 Solar Centre warrants that if any defect in any workmanship of Solar Centre becomes apparent and is reported to Solar Centre within twelve (12) months of the date of delivery (time being of the essence) then Solar Centre will either (at Solar Centre’s sole discretion) replace or remedy the workmanship. 12.2 The conditions applicable to the warranty given by clause 12.1 are: (a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: (i) failure on the part of the Customer to properly maintain any Goods; or (ii) failure on the part of the Customer to follow any instructions or guidelines provided by Solar Centre; or (iii) any use of any Goods otherwise than for any application specified on a quote or order form; or (iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or (v) fair wear and tear, any accident or act of God. (b) the warranty shall cease and Solar Centre shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Solar Centre’s consent. (c) in respect of all claims Solar Centre shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim. 12.3 The conditions applicable to the warranty given on Goods supplied by Solar Centre are contained on the “Warranty Card” that will be supplied with the Goods. 13. Intellectual Property 13.1 Where Solar Centre has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Solar Centre, and shall only be used by the Customer at Solar Centre’s discretion. 13.2 The Customer warrants that all designs or instructions to Solar Centre will not cause Solar Centre to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Solar Centre against any action taken by a third party against Solar Centre in respect of any such infringement. 14. Default & Consequences of Default 14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at Solar Centre’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 14.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Solar Centre. 14.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Solar Centre from and against all costs and disbursements incurred by Solar Centre in pursuing the debt including legal costs on a solicitor and own client basis and Solar Centre’s collection agency costs. 14.4 Without prejudice to any other remedies Solar Centre may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Solar Centre may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Solar Centre will not be liable to the Customer for any loss or damage the Customer suffers because Solar Centre has exercised its rights under this clause. 14.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable. 14.6 Without prejudice to Solar Centre’s other remedies at law Solar Centre shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Solar Centre shall, whether or not due for payment, become immediately payable in the event that: (a) any money payable to Solar Centre becomes overdue, or in Solar Centre’s opinion the Customer will be unable to meet its payments as they fall due; or (b) 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 (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer. 15. Security And Charge 15.1 Despite anything to the contrary contained herein or any other rights which Solar Centre may have howsoever: (a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Solar Centre or Solar Centre’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Solar Centre (or Solar Centre’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should Solar Centre elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Solar Centre from and against all Solar Centre’s costs and disbursements including legal costs on a solicitor and own client basis. (c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Solar Centre or Solar Centre’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1. 16. Compliance with Laws 16.1 The Customer and Solar Centre shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works. 16.2 The Customer acknowledges and agrees that any changes that occur due to local council by-laws or Government Rebates will incur additional charges to the quoted Price. 16.3 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works. 16.4 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation. 16.5 According to Australian Standard AS3500, the Customer is advised to have their roof inspected by a suitably qualified person, such as a Structural Engineer, to ensure the roof design is adequate to support the full mass of a solar hot water system and to ensure the Goods referred to in clauses 6.4, 6.5 and 3.6 are adequately inspected, repaired, replaced, compliant, or are suitable. 17. Cancellation 17.1 Solar Centre may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Solar Centre shall repay to the Customer any sums paid in respect of the Price. Solar Centre shall not be liable for any loss or damage whatsoever arising from such cancellation. 17.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Solar Centre (including, but not limited to, any loss of profits) up to the time of cancellation. 18. Privacy Act 1988 18.1 The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for Solar Centre to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Solar Centre. 18.2 The Customer agrees that Solar Centre may exchange information about the Customer 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 for the following purposes: (a) to assess an application by the Customer; and/or (b) to notify other credit providers of a default by the Customer; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or (d) to assess the creditworthiness of the Customer. The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988. 18.3 The Customer consents to Solar Centre being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 18.4 The Customer agrees that personal credit information provided may be used and retained by Solar Centre for the following purposes (and for other purposes as shall be agreed between the Customer and Solar Centre or required by law from time to time): (a) the provision of Goods; and/or (b) the marketing of Goods by Solar Centre, its agents or distributors; and/or (c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or (e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods. 18.5 Solar Centre may give information about the Customer to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Customer; (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer. 18.6 The information given to the credit reporting agency may include: (a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number; (b) details concerning the Customer’s application for credit or commercial credit and the amount requested; (c) advice that Solar Centre is a current credit provider to the Customer; (d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started; (e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed; (f) information that, in the opinion of Solar Centre, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations); (g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once; (h) that credit provided to the Customer by Solar Centre has been paid or otherwise discharged. 19. Building and Construction Industry Payments Act 2004 19.1 At Solar Centre’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply. 19.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable. 20. General 20.1 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. 20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland. 20.3 Solar Centre shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Solar Centre of these terms and conditions. 20.4 In the event of any breach of this contract by Solar Centre the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods. 20.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Solar Centre nor to withhold payment of any invoice because part of that invoice is in dispute. 20.6 Solar Centre may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. 20.7 The Customer agrees that Solar Centre may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Solar Centre notifies the Customer of such change. 20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. 20.9 The failure by Solar Centre to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Solar Centre’s right to subsequently enforce that provision.