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SYSTEM PURCHASE TERMS AND CONDITIONS

 

Key Details                                

Parties

Customer 

As per Facility Quotation

AND

Supplier

Smart Commercial Solar Pty Ltd (ABN 27 155 596 928)

 

Background

  1. The Supplier intends to engineer, procure, and construct (“EPC”) a solar PV electric generating Facility for the customer (“Project”).

  2. The Facility will be located at the relevant Site of the Customer, connected to the Embedded Network at the relevant Point of Connection.

  3. The Supplier wishes to sell, and the Customer wishes to Buy the Facility for the Full System Value or Net System Value if applicable, on the terms and subject to the conditions of this Agreement.

 

OPERATIVE PROVISIONS 

1. Performance of the Works


Commencement and Performance of the Works 

(a) The Supplier must commence the Works on the Execution Date and continue to expeditiously and diligently perform the Works in accordance with the install program as produced and determined by the Supplier.

Services, Utilities and Consumables 

(b) The Supplier must at its own cost obtain the required services and other utilities as detailed in the Facility Quotation at the Site from the Execution Date until Practical Completion.

Design and engineering 

(c) The Supplier must design and complete the Works, the Facilities and any other works required to be carried out under the Agreement. 

Third Party Warranties 

(d) Without prejudice to any other warranties expressed elsewhere in this Agreement, the Supplier warrants that all Third-Party Warranties, including but not limited to the Third-Party Warranties will be provided for the benefit of the Customer. 

2. Supplier Obligations 

General Obligations 

(a) The Supplier must, among other things prepare, develop and improve the Facilities as reasonably required by the Supplier to perform the Works (excluding any new structural improvements required to the roof of each of the Sites if applicable) to allow the Project to be undertaken and completed in accordance with the requirements of the Agreement. 

(b) The Supplier must:

(i) commence the Works on the Execution Date; and 

(ii) regularly and diligently progress the performance of the Works. 

3. Customer Obligations 

(a) The Customer must:

(i) make timely payment to the Supplier of all amounts due under this Agreement; 

(ii) provide timely access to the Supplier; 

(iii) work collaboratively with the Supplier to ensure all work fronts are free and available for the performance of the Works; 

(iv) issue instructions in writing;

(v) pay any fees otherwise not included in the Facility Quotation; and

(vi) obtain any Government Approvals relevant for the Facility including approvals with the relevant local council or the relevant DNSP if not specifically provided by the Supplier under this Agreement as detailed in the Facility Quotation. 

(vii) the Customer agrees to provide the Supplier with the authority to act on its behalf in order to obtain any Government Approvals relevant for the Facility including approvals with the relevant local council or the relevant DNSP if they are to be obtained by the Supplier as outlined in the Facility Quotation.

 

4. Supplier Rights

(a)  The Customer acknowledges that the Supplier has the right to change the Components to be supplied to the Customer as approved in writing which may not be unreasonably withheld, provided the proposed Components provides the Customer with equivalent or higher performance than the original Components proposed.

(b)  Title and property of the Components will only pass to the Customer when the final payment has been made. Until such time:

(i)  property ownership and title of the Facility remains with the Supplier and the Customer agrees to hold the Facility as a bailee for the Supplier;

(ii)  the Customer authorises the Supplier, including its agents or contractors, to enter the Site to take possession of the Facility and use all reasonable means to obtain possession if the Customer fails to make payment in line with the Payment Terms set out in the Facility Quotation; and

(iii)  the Facility may not be sold by the Customer until all outstanding monies have been received by the Supplier.


(c)  The Customer assumes all physical risks for the Facility, including damage, theft or other loss, upon delivery of the Components to the Site.

(d)  The Customer indemnifies the Supplier against any damage, theft or other loss of the Facility if the Customer has not completed full payment for the Facility.

(e)  Final system design and operation may vary from the design as directed by structural requirements, energy network provider requirements or physical requirements of the Site.

(f)  The Supplier must have the right to perform its Works within normal business operating hours. If requested to perform any or all of the Works outside of these hours, the Supplier may issue the Customer with a Variation detailing the increase in the Full System Value due to the increase in cost and expense incurred to perform the Works outside of normal business operating hours.

 

5. Green Benefits

(a) Title to all Green Benefits created by the Supplier will pass to the Customer on the earlier of:

(i) the completion of the installation for a Project that is applicable to create STC's or in turn the Customer accepts the Supplier's Net System Value as at the Execution Date upon which the STC's will be assigned to the Supplier in return for the Customer to pay the Net System Value as opposed to the Full System Value; or

(ii) the completion of the installation for a Project that is applicable to create STC's and the Customer has elected to pay the Supplier the Full System Value as at the Execution Date and receive the STC's for their own enjoyment and benefit.

(b) Should the value of the STC's change by more than 10% from the value stated in the Facility Quotation, from the Execution Date to the date the Project reaches Practical Completion, the Supplier has the right to adjust the Net System Value (up or down) to the new value of the STC's as at the date of Practical Completion. Any change in value within a 10% tolerance of the STC Value described in the Facility Quotation will not have any impact on the Net System Value of the Project.

(c) With respect to LGC's the Supplier will assist the Customer in deciding upon a method to trade their LGC's for the period applicable to trade LGC's by:

(i) Setting up the Facility with any relevant Components or requirements to ensure LGC's can be created;

(ii) Establishing discussions with any Green Benefit Retailer to ensure that the Customer can monetise the value of LGC's should they wish to,

unless there has been a separate arrangement made between the Parties with regard to how to treat the LGC component of the Project.

 

6. Warranties

Mutual Warranties

(a) Each Party warrants and represents that it:

(i) is validly existing under the laws of its place of incorporation and has the power and authority to carry on its business as that business is now being conducted;

(ii) is duly authorised to enter into and be bound by this Agreement; and

(iii) holds all licenses, approvals and permits required by law to perform its obligations under this Agreement

 

Warranties in relation to the Works

(b) Without prejudice to any other warranties expressed elsewhere in this Agreement, the Supplier warrants that:

(i)  the Works will be performed by an appropriately qualified and skilled construction contractor;

(ii)  the Components will be fit for purpose; and

(iii)  the Facilities comply with and are capable of being operated in a manner that achieves the requirements of this Agreement.

 

General

(c) The Supplier acknowledges that the Customer has entered into this Agreement on the basis of the Facility Quotation.

 

7. Supplier to inform themself

(a) The Supplier must be deemed to have:

(i) examined the Site and its surroundings unless the Customer has not allowed access during the quoting stage prior to the Execution Date of which any Site Condition not discovered that was not specifically called out prior to the Execution Date may be a Latent Condition as defined under clause 8;

(ii) informed themself as far as practicable of the Works and the Components for the execution of the Works; and

(iii) informed themself as far as practicable of the availability of labour and materials for the execution of the Works.

 

8. Latent conditions

(a) If the Supplier encounters on the Site or its surroundings physical conditions including artificial obstructions which the Supplier considers:

(i) differ materially from those which would have been ascertainable to them if they had done their due diligence as they had during the quoting phase; and

(ii) could not reasonably have been anticipated at the Execution Date by a Supplier experienced and competent in carrying out work of the type with which the Agreement is concerned had the Supplier done their due diligence as they had during the quoting phase,

the Supplier must notify the Customer immediately upon becoming aware of the Latent Condition and before the conditions are disturbed notify the Customer in writing within five (5) Business Days of the conditions encountered (“Latent Condition”).

(b) On receipt of such notice from the Supplier the Parties must determine acting reasonably whether any Variation to the Works is necessary and if so must take action under clause 18.

(c) If the Supplier encounters on the Site or its surroundings existing damage that could otherwise be considered the fault of the Supplier, the Supplier must forthwith and where possible before the conditions are disturbed notify the Customer in writing within five (5) Business Days of the damage encountered.

 

9. Performance Guarantee 

The Supplier guarantees that the Works and all parts of the Works, including all Components, will meet the relevant Performance Guarantee for the term and specified in the Facility Quotation. 

 

10. Supplier Workmanship Warranty 

The Supplier must provide in favour of the Customer a Workmanship Warranty covering quality of installation Works for the period set out in the Facility Quotation regarding the Works and must ensure that the Customer must have the benefit of any warranties specified to be obtained by the Supplier from any third party. 

 

11. Statutory requirements 

(a) The Supplier must comply with and give all notices required by any acts of parliament, ordinances, regulations, by-laws, orders and proclamations made or issued under any such act or ordinance and with the lawful requirements of public, municipal and other authorities affecting or applicable to the Works or the execution of the Works and must give all notices and pay and bear all fees in connection therewith unless otherwise agreed to in writing with the Customer.

(b) If, in the opinion of the Supplier, any of the contract documents are at variance with any such requirements, the Supplier must give written notice to the Customer specifying those alterations which they consider necessary so the contract documents might be amended to comply with such requirements and applying for approval from the Customer. 



12. Site measurement

The Supplier must take all measurements from any structure if applicable as it proceeds on the Site for the proper execution and building in of the Works. 

 

13. Supplier's representative 

Whilst engaged on the Works the Supplier must have a competent representative in charge who must be authorised and able to take and carry out such instructions as the Customer may give regarding the Works. 

 

14. Possession of Site 

(a) Subject to the provisions here set out, the Customer must by the Execution Date give to the Supplier possession of enough of the Site to enable the Supplier to commence and proceed with the Works and thereafter to execute the Works under the Agreement. Should delay take place in giving the Supplier possession of the Site or enough of it to enable them to commence and proceed with the Works and in consequence of it delay be caused to the Supplier in completing the Works then such delay must be deemed not to be a breach of the Agreement. 

(b) The Supplier must at all reasonable times give to the Customer and to any person authorised in writing by the Customer access to the Site for the supervision and examination of any Works carried out or materials supplied under the Agreement at the Site. 

 

15. Materials 

(a) The Supplier must as soon as practicable after being awarded the Agreement, take all steps, including ordering where necessary, to secure the timely delivery of all materials in their scope, services and fabrications so as not to adversely affect progress of the execution of the Project. 

(b) Where despite the proper placing of orders by the Supplier as soon as practicable after the awarding of the Agreement the Supplier becomes aware by reasonable checks and follow up with their suppliers, that deliveries may not happen on the date predicted, the Supplier must notify the Customer of any such delay.

(c) Whenever the Supplier stores on the Site, materials and articles for the Works, they must protect the said materials or articles from theft and damage, any work to achieve this security or protection must be at the cost of the Supplier. 



16. Site cleaning 

(a) The Supplier must at their own cost and to the satisfaction of the Customer;

(i) during performance and until Practical Completion of the Works or as reasonably directed by the Customer clean-up and properly remove from the Site all rubbish and surplus material arising from the execution of the Agreement unless agreed otherwise in writing by the Customer; and 

(ii) at Practical Completion of the Works remove all temporary works, constructional plant and equipment they may have constructed or brought onto the Site and leave the Site in a condition suitable for handing over to the Customer. 

(b) The Customer acknowledges that Site cleaning is regarding the construction of the Project, not the cleaning of the solar panels as part of this Agreement. 



17. Safety 

(a) The Supplier must comply with the requirements of all codes, regulations, rules and industry practice in relation to safety. 

(b) The Supplier must provide a comprehensive and Site-specific safe work method statements (SWMS) for all Works to be completed on Site and ensure all Site attendees are signatories. 

(c) During progress of the Works the Customer may conduct on-Site safety meetings during such hours reasonable to the Supplier with regard to giving notice. The Supplier must be represented by a representative at such safety meetings of which it receives prior notice.

(d) The Supplier must immediately notify the Customer of all accidents involving their employees or employees of their Suppliers which result in: (i) cessation of an employee's work; 

(ii) medical treatment; and 
(iii) damage to or failure of plant and equipment.

(e) The Supplier must, within two (2) Business Days of an accident occurring, provide to the Customer a copy of an accident report in compliance with the requirements of any relevant statutes or statutory regulations. 

 

18. Variations 

(a) If the Supplier deems that a change in the Works requires a Variation, the Supplier must first issue a notice to the Customer in writing prior to the execution of any Works ("Variation Notice"). 

(b) No Variation must vitiate the Agreement, but the moneys otherwise payable to the Supplier under this Agreement must be adjusted having regard to the value of the Variation determined under clause 18(c). 

(c) A Variation must be valued by the Supplier providing a quotation for the Variation to the Customer noting substantial upgrades, extensions or additions are to be treated as a new Project. 

(d) Unless otherwise agreed the rate or price for each Variation must be determined under the Agreement before the Variation is effected. 

(e) Should there be a delay either: (i) enforced by the Customer in providing access to the Site prior to the commencement of the installation of the Facility or in providing information required for the design of the Facility; or 

(ii) A Force Majeure Event; or 

(iii) Any other such delay outside of the reasonable control of the Supplier, and 

such delay impacts the Supplier's ability to procure any Components, the Supplier has the right (acting reasonably) to review any potential price impacts this may have on the Full System Value or Net System Value and issue a Variation Notice to the Customer outlining the change in Full System Value or Net System Value. 

(f) Factors that may impact the Full System Value or Net System Value may include but are not limited to: 

(i) Foreign exchange rates that differ by more than 3% from the Execution Date up until the date of the delay described in 11(e); or 

(ii) Freight and shipping costs that differ materially as determined by the Supplier (acting reasonably) from the Execution Date up until the date of the delay described in 11(e); or 
(iii) Stand down, rescheduling and labour cost increases passed on from the Supplier's Subcontractor as a result of delays incurred from the Execution Date up until the date of the delay described in 11(e). 


19. Progress claims and payments 

(a) At the intervals or milestones stated in the Facility Quotation and defined in this Agreement the Supplier may submit to the Customer progress claims showing:

(i) the amount claimed by the Supplier; and

(ii) the milestone met by the Supplier. 

(b) All progress claims must be paid by the Customer to the Supplier within seven (7) days from the receipt of an invoice. 

 

20. Goods and services tax 

(a) Except for terms defined in this Agreement, capitalised expressions set out in this clause bear the same meaning as those expressions in the new tax system (Goods and Services Tax) Act 1999 (Cth). 

(b) Unless this Agreement provides otherwise, and subject to this clause, any consideration that may be provided for under the Agreement is exclusive of GST. If a party makes a Taxable Supply for this Agreement for a consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and as the Value is otherwise payable, any GST payable regarding the Taxable Supply. A party's right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply. 

(c) If one party must reimburse another party for costs incurred by the other party, those costs include no amount in respect of GST for which the other party may claim an input tax credit. 

(d) If any consideration payable to a party under this Agreement is determined by reference to another amount, the GST exclusive amount must be used. 

 

21. Termination by the Parties 

(a) Without prejudice to any other rights and remedies, if:

(i) the Customer having failed to pay to the Supplier any amount that may become due within the period provided for does not thereafter pay such amount within seven (7) days of receipt of a notice from the Supplier stating that notice of determination may be served if payment is not made within seven (7) days; or

(ii) the Customer must become bankrupt or insolvent or execute a deed of assignment for the benefit of creditors or otherwise must acknowledge insolvency or if the Customer goes into liquidation (otherwise than for reconstruction), 

then the Supplier by written notice delivered to the Customer may terminate this Agreement.

(b) Should this Agreement be terminated due to but not limited to the following:

(i) Structural assessment deem part of or whole of the roof (if relevant) being unsuitable withstand the weight and installation of the Facility;

(ii) Landlord approval not being granted or only granted on terms unacceptable to the Customer or the Supplier;

(iii) Variations proposed on the Facility make the Project no longer feasible as determined by the Customer (acting reasonably),

then any costs incurred by the Supplier as a result of performing the Works up until the date that the termination takes place shall be passed on to the Customer.

(c) These costs may include but not limited to:

(i) Structural assessments;

(ii) Geotechnical works;

(iii) Grid connection application costs;

(iv) Site inspections and travel costs; and

(v) Engineering and internal resource costs.

(d) Any invoices sent by the Supplier to the Customer in relation to this clause 21 must be paid by the Customer within seven (7) days of receiving an invoice.

(e) Should the Customer have paid to the Supplier an amount in excess of the amount being claimed by the Supplier in clause 21(d), the Supplier shall set off this amount prior to any reimbursement to the Customer as a result of the termination.


 

22. Force Majeure 

Force Majeure Event 

(a) If a party (“Affected Party”) is prevented, in whole or in part, from carrying out its obligations under this Agreement other than an obligation to pay money (“Affected Obligations”) as a result of a Force Majeure Event:

(i) the Affected Party must as soon as reasonably practicable give a notice to the other party advising them of that fact and providing details of the nature of the event and its anticipated duration; 

(ii) from the date a notice is received by the other party, the Affected Obligations are suspended; 

(iii) the Affected Party must:

(A) use its best endeavours to overcome or remove the effects of the Force Majeure Event as quickly as practicable; and 

(B) take all reasonable steps to mitigate the impact of the Force Majeure Event on the Affected Obligations; 


(iv) unless this Agreement is terminated, the Affected Party must resume performance of the Affected Obligations as soon as possible after the Force Majeure Event abates sufficiently to permit a resumption of performance; and 
(v) the Supplier has no entitlement to, and the Customer has no liability for;

(A) any losses but must pay to the Supplier any monies due up until the commencement of a Force Majeure Event for Works completed based on the percentage of Works completed to the next Payment Milestone; or

(B) any delay or other costs in any way incurred by the Supplier due to a Force Majeure Event.

(vi) the Customer has no entitlement to, and the Supplier has no liability for:

(A) any Losses or incurred due to a Force Majeure Event; or

(B) any delay or other costs in any way incurred by the Customer due to a Force Majeure Event. 

 

Termination during a Force Majeure Event 

(b) If a Force Majeure Event that prevents in whole or in part the performance of a party’s obligations under this Agreement continues for a period of one-hundred and eighty (180) days, either party may by not less than ten (10) Business Days' prior written notice to the other party terminate this Agreement without liability for breach of contract but without prejudice to any rights accrued at the date of termination. 



23. Notices 

Any notices necessary or required to be given by one party to the other must be deemed to have been sufficiently given if delivered by electronic mail, by hand or if sent by pre-paid post to the person to whom it is necessary or required to be given at the address appearing in the Agreement. A notice sent by prepaid post must be deemed to have been served on and received by the party to whom it is addressed two (2) days after the day of posting. 

 

24. Entire Agreement 

This Agreement supersedes and/or cancels all previous letters, offers, quotations and negotiations sent or received, except as included in or appended to this Agreement and must take effect according to its tenor notwithstanding any prior agreement or correspondence at variance with these terms and conditions. 

 

25. Counting of days 

Where under any provision of this Agreement any notice is to be given or any other acts, matters or things are to be done in a stated period of days, these days must not be counted, namely: Saturdays, Sundays, and statutory or public holidays. 

 

26. Severability 

In the event any provision or part of this Agreement is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Agreement, will be inoperative. 

 

27. Definitions and interpretation

27.1 Definitions 

In these conditions: 

Agreement means this agreement together with the Facility Quotation. 

Business Day means any day that is not a Saturday, Sunday, a public holiday or a day when banks are closed. 

Commencement of Works Onsite means on the day the Supplier starts the set out and marking up of the Facility at the Site in preparation for the installation of the Components required for the installation of the Facility.

Components means all of the materials required for the installation of the Facility as detailed in the Facility Quotation. 

Customer has the meaning in the Facility Quotation.

Detailed Design Complete means upon the successful completion of the detailed design documents created by the Supplier and evidence of such sent to the Customer, the Customer agrees that this milestone has been met.

DNSP means distribution network service provider.

Energisation means once the Supplier has received the DNSP approval and has energised the Facility or a period of ninety (90) days surpasses from the date the Supplier reaches Practical Completion (whichever occurs first), the Customer agrees that this milestone has been met.

Execution Date means the date the Customer executes this Agreement on the Facility Quotation.

Execution of Agreement means upon the successful negotiation and execution of this Agreement, the Customer agrees that this milestone has been met.

Facility or Facilities means the roof-mounted, ground mounted or other, captive solar photovoltaic electricity generator to be engineered, procured and constructed by the Supplier in accordance with the Technical Specification and the Regulatory Framework, together with all associated connection assets, protection equipment and related infrastructure, required for generation, transmission, distribution, delivery and supply of Energy to the Customer at the Point of Connection at the Site. 

Facility Quotation means the document presented by the Supplier to the Customer that details all of the inclusions and exclusions of the Facility which can be executed by the Customer in order to enter into this Agreement on these terms. 

Force Majeure has the meaning in clause 22. 

Force Majeure Event means: 

(a) flood, earthquake or act of God (but excluding weather conditions that do not cause the Site to be unsafe to perform the Works as determined by the Supplier, acting reasonably); 

(b) riot, civil disorder, rebellion, epidemic, pandemic, terrorism or revolution; 

(c) government actions or restrictions imposed outside of the ordinary way of being able to conduct business; or 

(d) strikes at state or national level, industrial disputes at a national level, strikes or industrial disputes by labour not employed by the affected party, its Subcontractors, or suppliers.

Full System Value has the meaning in the Facility Quotation. 

Government Approvals means all consents, permits, clearances, authorisations, approvals, rulings, exemptions, registrations, filings, decisions, licenses, notifications, or any similar requirement and any renewal, replacement or variation required to be issued by or made with any Government Authority in connection with the performance of the Works, operation and maintenance of the Facilities or development of the Project. 

Government Authority means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, government or regulatory department, commission, body, instrumentality, minister, tribunal or court, agency or other authority. 

Green Benefit means an LGC, STC and any other right, entitlement, credit, offset, allowance or certificate, whether present or future, that are able to be created, transferred and obtained by the Supplier, and to which the Supplier, is or becomes entitled in relation to the Facility. 

Green Benefit Retailer means a company in the business of dealing and monetising any Green Benefit for the benefit of either the Customer or the Supplier. 

Latent Condition has the meaning in clause 8. 

LGC means large scale generating certificates. 

Net System Value has the meaning in the Facility Quotation if applicable, and further indicates the price that the Customer would pay to the Supplier if the Facility was applicable to generate STC’s or other Green Benefit. 

Performance Guarantee has the meaning in the Facility Quotation. 

Point of Connection means the interconnection point at the Site. 

Practical Completion means: 

(a) the Project is complete to the satisfaction of the Supplier except for minor omissions and Defects that do not prejudice the convenient use of the Facility; and

(b) the Facility is in a state whereby if it is turned on it has the capability of generating Energy but is left switched off due to circumstances reasonably out of the control of the Supplier such as the DNSP providing its final approval to energise; and

(c) The Customer understands that the time taken to obtain the DNSP approval to energise is outside of the control of the Supplier, however the Supplier shall use all reasonable endeavours to obtain the DNSP approval to energise should it have not been granted before Practical Completion is achieved.

Project has the meaning in the background. 

Site or Sites has the meaning in the Facility Quotation. 

Site Conditions means the conditions regarding the Site, including: 

(a) the condition of the roof and the other structural conditions relevant to the performance of the Works in accordance with this Agreement;

(b) the general and local conditions for environment, meteorological, seismic activity, climatic conditions and ocean conditions;

(c) transportation, access, waste disposal, handling and storage of materials;

(d) availability and quality of all necessary utilities and availability and condition of roads and associated road infrastructure (such as including tunnels and overpasses); and

(e) physical conditions where the Works are to be performed and the surrounding area as a whole. 

STC means small scale trading certificates which are generated for Facilities with an aggregate size of no more than 100 kWp on a single NMI. 

Submission of Grid Connection Application means upon the successful submission of the grid connection application by the Supplier to the DNSP and evidence of such supplied to the Customer, the Customer agrees that this milestone has been met.

Supplier means Smart Commercial Solar Pty Limited of ABN 27 155 596 928. 

Third Party Warranties means any warranties provided by others and not the Supplier. 

Variation means an alteration to this Agreement agreed to in writing by the Parties due to a change in the Works that increase the Full System Value or delay the Works from achieving Practical Completion. 

Workmanship Warranty has the meaning in Facility Quotation. 

Works means the whole of the works, services and other activities to be performed and completed for the development, design, engineering, financing, fabrication, procurement, construction, installation, commissioning, testing and delivery to the Sites for the Facilities, including the Components and Variations provided for by this Agreement.