Introduction: These Consumer Terms and Conditions govern the agreement between Eco Tech Electrical Pty Ltd (the Contractor) and the Customer for the performance of electrical, solar, and battery services.
These Terms and Conditions apply to all transactions where the Customer is a consumer under applicable consumer protection legislation in Australia, including residential installations and small business installations where the total price of the Works does not exceed $100,000 (inclusive of GST).
By accepting a Quote, paying a Deposit, or permitting the Contractor to commence Works, the Customer agrees to be bound by these Terms and Conditions in full.
1. Agreement Structure and Definition of Consumer Works
1.1 Parties and Incorporation
a. This Agreement is made between the entity identified as the customer in the Quote (the Customer) and the Contractor.
b. The Contractor’s contact details are as follows:
i. Mobile Number: 0499 003 158 or 0450 696 606;
ii. Email Address: [email protected]; and
iii. Website: www.ecotechelectrical.com.au.
c. These Terms and Conditions, together with the written quote or estimate provided by the Contractor to the Customer (the Quote), constitute the entire agreement between the parties (the Agreement). This Agreement is incorporated by reference into each Quote issued by the Contractor. The Customer accepts the Quote and incorporates these Terms and Conditions by:
i. signing and returning the Quote to the Contractor;
ii. confirming acceptance of the Quote via email, text message, or other written or electronic communication;
iii. paying the Deposit specified in the Quote; or
iv. instructing or permitting the Contractor to commence the Works at the Premises.
d. Upon acceptance, a legally binding contract is formed.
e. In the event of any inconsistency between the Quote and these Terms and Conditions, the terms of the Quote will prevail to the extent of the inconsistency.
1.2 Definitions
For the purposes of this Agreement, the following definitions apply:
Business Day means a day that is not a Saturday, Sunday, or public holiday in the Northern Territory.
Consumer Works means electrical, solar, or battery installation, repair, or maintenance services performed by the Contractor where:
i. the services are performed at a domestic residential dwelling used primarily for personal, domestic, or household purposes (Residential Works); or
ii. the services are performed at commercial or business premises and the total price of the Works specified in the Quote is less than $100,000 inclusive of GST (Small Business Works).
Deposit means the initial payment required from the Customer before the Contractor commences the Works or orders Equipment, as specified in the Quote.
Do-and-Charge Works means Works performed on an hourly rate and materials basis, rather than for a fixed price.
Equipment means all solar panels, inverters, batteries, mounting structures, switchboards, cabling, and other electrical hardware or incidentals supplied by the Contractor.
Force Majeure Event means any event beyond the reasonable control of a party, including but not limited to acts of God, extreme weather events, lightning, cyclones, floods, bushfires, grid failures, pandemics, industrial action, or supply chain disruptions.
Grid Connection means the connection of the solar and/or battery system to the electricity distribution network.
Network Operator means the licensed operator of the electricity distribution network in the Northern Territory.
Premises means the residential property or commercial business premises where the Works are to be performed, as specified in the Quote.
Works means the electrical, solar, and battery installation, maintenance, repair, or commissioning services to be performed by the Contractor as specified in the Quote, comprising Consumer Works and excluding any services set out in clause 1.3.
1.3 Exclusion of Commercial and Specialised Services
a. To protect the commercial interests of the Contractor, this Agreement does not apply to, and explicitly excludes, the following commercial and specialised services:
i. any commercial, industrial, or business electrical, solar, or battery works where the total price of the Works specified in the Quote is $100,000 (inclusive of GST) or more;
ii. EPC (Engineering, Procurement, and Construction) projects for government, public authorities, or large private entities;
iii. business-to-business labour contracts and subcontracting work for commercial and industrial businesses or clients (other than Small Business Works);
iv. electrical engineering services; and v. government, municipal, and private tendered projects.
b. All such excluded services are commercial in nature and must be governed by the Contractor’s separate commercial terms of contract, business-to-business agreements, or specific tender documentation.
1.4 Customer Warranties
The Customer warrants that:
a. for Residential Works, the Premises is a residential property, and the Works are requested for domestic or household purposes; or
b. for Small Business Works, the total price of the Works specified in the Quote is less than $100,000 (inclusive of GST) and the Customer is a consumer within the meaning of applicable consumer protection legislation in Australia.
2. Performance of Works and Variations
2.1 Scope of Services
a. The Contractor shall perform the Works specified in the Quote in a professional, workmanlike, and diligent manner, in accordance with the specifications set out in the Quote and the requirements of this Agreement.
b. The Contractor warrants that:
i. all Works will be carried out by qualified, licensed, and accredited personnel, under the leadership and supervision of qualified and licensed electricians holding Solar Accreditation Australia accreditations;
ii. all materials and Equipment supplied by the Contractor will be new, fit for purpose, and compliant with applicable Australian standards and industry codes; and iii. the Works will comply with all applicable electrical safety standards, building codes, and regulatory requirements in force in the Northern Territory.
c. The Contractor may, in its absolute discretion, engage qualified and licensed subcontractors to perform any part of the Works, provided that the Contractor remains responsible for the quality of the subcontracted work in accordance with these terms.
2.2 Variation Procedures
a. A variation occurs when the scope of the Works is altered, including any addition, omission, substitution, or modification to the Works, materials, or Equipment specified in the Quote (a Variation).
b. The Variation procedure is governed by the following terms:
i. Either party may request a Variation. The Contractor is not obliged to perform any Variation until it has been documented and approved in accordance with this clause.
ii. If a Variation is requested, the Contractor will provide the Customer with a written variation proposal detailing the scope of the varied work, any necessary adjustments to the schedule, and the additional cost or saving associated with the Variation.
iii. The Customer must approve the Variation in writing (including via email, text message, or electronic signature) before the Contractor commences the varied work.
iv. If the Contractor identifies a necessity for a Variation during the performance of the Works (including but not limited to pre-existing electrical defects, structural roof deficiencies, hazardous materials, or hidden site conditions), the Contractor will suspend the affected portion of the Works and notify the Customer. The Contractor will not proceed with the varied work until the Customer provides written approval.
v. If the Customer does not approve a necessary Variation within five (5) Business Days of receiving the variation proposal, the Contractor may terminate the Agreement or suspend the Works, and the Customer shall pay the Contractor for all Works completed and materials supplied up to the date of suspension or termination.
vi. Where a Variation is required urgently to address an immediate safety hazard, comply with an emergency regulatory direction, or prevent damage to the Premises, and the Customer is not reasonably contactable, the Contractor may perform the necessary Variation without prior written approval. The Customer shall pay the reasonable costs incurred by the Contractor in performing such urgent Variation, calculated in accordance with the Contractor’s standard rates.
vii. All approved Variations will be billed in addition to the original Quote price and will be subject to the payment terms set out in this Agreement.
3. Pricing and Payment Terms
3.1 Quoted Works and Do-and-Charge Rates
a. The price for the Works will be specified in the Quote and may be structured as either Quoted Works (fixed price) or Do-and-Charge Works (hourly rate plus materials).
b. For Quoted Works, the Customer shall pay the fixed price specified in the Quote, subject to any approved Variations and adjustments in accordance with this Agreement.
c. For Do-and-Charge Works, the Customer shall pay the Contractor for all labour, materials, and expenses incurred in performing the Works, calculated as follows:
i. Labour Rates: Charged at the Contractor’s standard hourly rates as specified in the Quote or the Contractor’s current rate schedule, calculated in minimum blocks of thirty (30) minutes;
ii. Travel Charges: Travel time and vehicle service fees will be charged at the rates specified in the Quote or the Contractor’s standard rate schedule;
iii. Materials and Equipment: Charged at the cost of the materials and Equipment supplied, plus the Contractor’s standard administrative and handling margin of twenty percent (20%); and
iv. Call-Out Fees: A minimum call-out fee, which includes the first hour of labour on site, will apply to all emergency, urgent, or after-hours Do-and-Charge Works.
d. All prices quoted or charged are subject to Goods and Services Tax (GST) at the prevailing rate, which will be clearly itemised on all Quotes and tax invoices.
3.2 Deposits and Payment Milestones
a. The payment schedule for the Works will be set out in the Quote. In the absence of a specific payment schedule in the Quote, the following default schedule applies.
b. Deposit: The Customer must pay a Deposit of 50 percent (50%) of the total Quote price upon accepting the Quote. The Contractor is not required to schedule the Works, secure installation dates, or order any Equipment until the Deposit is received in cleared funds. The Deposit is non-refundable once the Contractor has ordered Equipment or allocated resources for the Works, subject always to the Customer’s non-excludable statutory rights under Australian consumer law.
c. Progress Payments: For larger residential installations, including solar and battery systems, the Contractor may issue progress invoices at the completion of specific milestones, which may include:
i. Milestone 1 (Equipment Delivery);
ii. Milestone 2 (Installation Completion); and
iii. Milestone 3 (Commissioning and Handover).
d. Final Payment: The final balance of any invoice is due and payable within seven (7) days of the date of the invoice, or immediately upon Practical Completion of the Works, whichever occurs first.
e. Practical Completion:
i. Practical Completion is achieved when the Works are physically complete, tested, and safe for operational use in accordance with the specifications in the Quote, notwithstanding any minor omissions, cosmetic defects, or pending third-party administrative or technical processes.
ii. For the avoidance of doubt, Practical Completion is determined solely by reference to the Contractor’s performance of the physical installation and testing. It is not contingent upon, and explicitly excludes, any delays or actions associated with third parties, including but not limited to:
a. formal grid connection approval, activation, or programming by the Network Operator;
b. physical solar meter exchange, installation, or reconfiguration by the Network Operator or the Customer’s electricity retailer; or
c. the activation or processing of any solar feed-in tariffs, government rebates, or environmental certificates.
iii. Upon the Contractor notifying the Customer (verbally or in writing) that the system has been physically installed, tested, and is safe for operational use, Practical Completion will be deemed to have occurred, and the final balance of the invoice shall become due and payable in accordance with clause 3.2(d).
3.3 Late Payments and Default
a. Payment by the due date is a fundamental condition of this Agreement. If the Customer fails to pay any invoice by the due date, the Contractor may, without prejudice to any other rights or remedies available to it:
i. charge interest on the overdue amount at a rate of ten percent (10%) per annum, calculated daily and compounded monthly, from the day after the due date until the date the invoice is paid in full;
ii. suspend the performance of all further Works under this Agreement or any other agreement with the Customer, upon giving forty-eight (48) hours’ written notice, in which case the Contractor will not be liable for any loss, damage, or delay caused by the suspension;
iii. withdraw any discounts, promotional offers, or special pricing previously applied to the Quote; and iv. recover from the Customer all costs, expenses, and disbursements incurred by the Contractor in recovering or attempting to recover the outstanding debt, including but not limited to debt collection agency fees, administrative fees, and legal costs on a full solicitor-and-client/indemnity basis.
b. The Contractor reserves the right to terminate the Agreement for material breach if any invoice remains unpaid for more than fourteen (14) days after its due date.
4. Site Access, Inspections, and Customer Obligations
4.1 Access and Safety
a. The Customer must facilitate the safe, continuous, and unhindered performance of the Works. The Customer’s obligations include, but are not limited to:
i. providing the Contractor’s employees, subcontractors, and authorised representatives with continuous, safe, and unhindered access to the Premises, including the interior of any dwelling or commercial building, roof space, switchboard, meter box, and any other areas required to perform the Works:
a. for Residential Works, during the hours of 7:00 AM to 5:00 PM on Business Days, or as otherwise agreed; or
b. for Small Business Works, during the hours specified in the Quote, which may include scheduled after-hours or weekend access to minimise operational disruption to the Customer’s business;
ii. ensuring that the Premises (including any commercial work areas, public access zones, and common areas for Small Business Works) are safe and free from physical hazards, structural defects, and hazardous materials (including asbestos) prior to the commencement of the Works;
iii. notifying the Contractor in writing of any known hazards, safety risks, induction requirements, or specific site and safety rules applicable to the Premises before the Works commence;
iv. securing all pets, domestic animals, and livestock, and ensuring that staff, customers, and visitors are kept clear of the work areas and access paths for the duration of the Works;
v. providing the Contractor’s personnel with reasonable access to amenities, including clean water, electricity, and toilet facilities, at no cost to the Contractor; vi. ensuring that no other tradespeople, residents, staff, or visitors interfere with, obstruct, or enter the immediate work areas while the Works are being performed; and
vii. for Small Business Works, obtaining all necessary consents, licences, and approvals from landlords, body corporate entities, local councils, or relevant planning authorities required to permit the performance of the Works at the Premises.
b. If the Contractor is unable to access the Premises or must suspend the Works due to an unsafe environment, an unsecured animal, commercial operational interference, or obstruction by the Customer or third parties, the Customer shall pay the Contractor a frustration and delay fee, calculated at the Contractor’s standard hourly rate for all affected personnel, plus any travel expenses incurred.
4.2 Pre-Installation Inspections and Structural Suitability
a. The Contractor may conduct a pre-installation inspection of the Premises, including the roof structure, switchboard, meter box, and existing electrical wiring, to assess suitability for the proposed Works.
b. The Customer warrants that:
i. the roof structure, including framing, battens, and sheeting, is structurally sound and capable of safely supporting the weight of the solar panels, mounting frames, and associated Equipment;
ii. the existing electrical installation at the Premises, including the switchboard, consumer mains, sub-boards, and earthing system, complies with current electrical safety standards and is capable of safely supporting the additional electrical load and generation of the new system; and iii. the Premises is free from asbestos and other hazardous materials in the areas where the Works are to be performed.
c. If the pre-installation inspection or the performance of the Works reveals any pre-existing structural defects, non-compliant electrical wiring, inadequate switchboards, or hazardous materials:
i. the Contractor will immediately notify the Customer in writing;
ii. the Contractor is not required to commence or continue the Works until the Customer, at their own expense, rectifies the defect or hazard to the satisfaction of the Contractor and in compliance with applicable standards;
iii. the Customer may request the Contractor to rectify the electrical or switchboard defects as a Variation, subject to written agreement on pricing in accordance with clause 2.2; and
iv. the Contractor is not liable for any delays, losses, or additional costs incurred by the Customer as a result of pre-existing defects or the suspension of Works under this clause.
5. Grid Connection, Approvals, and Performance Disclaimers
5.1 Network Operator Approvals
a. The installation of a solar and/or battery system requires formal approval from the local Network Operator to connect to the electricity distribution grid and may require a physical meter exchange or reconfiguration.
b. The parties agree to the following allocation of responsibilities regarding grid connection:
i. The Contractor will, as an administrative service, assist the Customer by preparing and submitting the necessary grid connection application to the Network Operator on the Customer’s behalf, provided that the Customer promptly provides all required information, documentation, and signatures.
ii. The Customer is the applicant and remains legally responsible for complying with all terms, conditions, and technical requirements imposed by the Network Operator.
iii. The Customer must pay all application fees, connection fees, meter exchange fees, and other charges levied by the Network Operator or the Customer’s electricity retailer in connection with the grid connection and meter modification. These fees are not included in the Quote unless explicitly stated otherwise.
iv. The Contractor is not liable for any delays, conditions, restrictions, or refusals imposed by the Network Operator. The Customer acknowledges that the Network Operator has sole discretion over whether to approve the grid connection and what export limits, if any, will apply to the system.
v. The Customer must not switch on or operate the solar and/or battery system until formal permission to operate has been granted by the Network Operator and any required meter exchange or reconfiguration has been completed. The Contractor is not liable for any fines, penalties, or loss of solar generation arising from the unauthorised operation of the system.
5.2 Solar Performance and Feed-in Tariff Disclaimer
a. The Customer acknowledges and agrees that any performance estimates, solar generation yields, financial savings, or payback calculations provided by the Contractor in a Quote, proposal, or marketing material are estimates only.
b. These estimates are based on standard industry modelling, historic meteorological data, and assumptions regarding typical household energy consumption. The actual performance, energy generation, and financial savings of the system will vary and are subject to numerous factors beyond the Contractor’s control, including but not limited to:
i. daily and seasonal weather variations, cloud cover, and solar irradiance;
ii. shading on the solar panels caused by trees, vegetation, adjacent buildings, antennas, or other obstructions, including shading that develops after installation;
iii. the accumulation of dust, dirt, bird droppings, or debris on the solar panels;
iv. the orientation, tilt angle, and geographical location of the solar panels;
v. changes in the Customer’s electricity consumption patterns, peak usage times, and load profile;
vi. grid voltage fluctuations, network outages, or export limitations imposed by the Network Operator; and vii. the degradation of solar panels and battery storage capacity over time in accordance with manufacturer specifications.
c. The Contractor does not guarantee, warrant, or represent that the system will achieve any specific energy yield, financial return, or reduction in electricity bills.
d. The Customer is responsible for conducting their own assessment of the suitability and financial viability of the system.
e. The Customer further acknowledges that feed-in tariffs (the rates paid for exporting solar energy to the grid) are determined solely by electricity retailers and government policy. Feed-in tariffs are subject to change, reduction, or withdrawal without notice. The Contractor is not responsible for, and makes no representations regarding, the availability, eligibility, or rate of any feed-in tariffs or government rebates.
6. Risk, Title, and Security
6.1 Passing of Risk and Retention of Title
a. The risk of loss, damage, or destruction of all Equipment and materials supplied by the Contractor passes to the Customer immediately upon delivery of the Equipment or materials to the Premises. The Customer must insure the Equipment against theft, fire, storm, and accidental damage from the time of delivery, and must maintain such insurance until the Equipment is paid for in full.
b. Legal, equitable, and beneficial ownership of, and title to, all Equipment and materials supplied under this Agreement remains solely with the Contractor and does not pass to the Customer until the Contractor has received payment in full, in cleared funds, of all amounts owing by the Customer to the Contractor under this Agreement, including any interest and recovery costs.
c. Until title to the Equipment passes to the Customer:
i. the Customer holds the Equipment as a bailee and fiduciary agent for the Contractor;
ii. the Customer must store and maintain the Equipment in good condition, protect it from damage, and ensure it is clearly identified as the property of the Contractor; and
iii. the Customer must not sell, dispose of, encumber, charge, or create any security interest over the Equipment.
d. If the Customer fails to pay any invoice by the due date, or if the Agreement is terminated, the Contractor, its employees, and authorised agents may, without prejudice to any other rights, enter the Premises (or any other property where the Equipment is stored) without notice, but subject to any necessary court approval and repossess the Equipment. The Customer irrevocably authorises the Contractor to enter the Premises for this purpose and indemnifies the Contractor against any claims, damages, or costs arising from such entry and repossession.
6.2 Security Interest
a. The Customer acknowledges and agrees that this Agreement, and specifically the retention of title provisions in clause 6.1, constitutes a security agreement that creates a security interest in all Equipment and materials supplied by the Contractor, and in the proceeds of such Equipment, to secure the payment of all outstanding amounts under this Agreement.
b. The Customer agrees that:
i. the Contractor may register its security interest on the national personal property securities register;
ii. the Customer must, immediately upon request, do all things, sign all documents, and provide all information required by the Contractor to register, perfect, maintain, and enforce its security interest;
iii. the Customer must not register, or permit to be registered, any other security interest, charge, or encumbrance over the Equipment without the prior written consent of the Contractor;
iv. to the maximum extent permitted by law, the Customer waives its right to receive any verification statement, financing statement, or financing change statement in relation to the registration of the Contractor’s security interest; and
v. the parties agree that any provisions of the applicable personal property securities legislation that may be excluded by agreement are excluded to the maximum extent permitted by law.
c. The Customer shall indemnify the Contractor for all costs, including registration fees and legal expenses, incurred in registering, maintaining, or enforcing the security interest.
7. Workmanship Warranty and Defect Claims
7.1 Workmanship Warranty Period
a. The Contractor provides a voluntary workmanship warranty (the Workmanship Warranty) to the Customer for a period of five (5) years (the Warranty Period) commencing from the date of Practical Completion of the installation.
b. The Workmanship Warranty covers defects that arise solely from a failure by the Contractor to perform the installation services with due care and skill, in a proper and workmanlike manner, and in accordance with the specifications set out in this Agreement.
c. The Workmanship Warranty does not cover:
i. the Equipment itself, which is subject to separate manufacturer warranties. The Contractor will provide the Customer with details of all manufacturer warranties and will assist the Customer with manufacturer warranty claims where reasonable; or
ii. any defect, failure, or damage caused by factors other than the Contractor’s installation services, as detailed in clause 7.2.
7.2 Warranty Claim Process and Exclusions
a. To make a valid claim under the Workmanship Warranty, the Customer must follow this procedure:
i. The Customer must notify the Contractor in writing within fourteen (14) days of identifying the alleged defect.
ii. The written notice must include:
a. the Customer’s name, address, and contact details;
b. the date of installation and the invoice number;
c. a detailed description of the alleged defect; and
d. supporting evidence, including photographs and operational data where applicable.
iii. The notice must be sent to the Contractor:
a. via email at [email protected], or
b. by post to the following address: Shed 2, 138 Coonawarra Road, Winnellie.
iv. The Customer must allow the Contractor, its employees, or authorised representatives reasonable access to the Premises during Business Days to inspect, test, and assess the alleged defect.
b. If the Contractor’s inspection confirms a defect covered by the Workmanship Warranty, the Contractor will, at its own cost, repair or rectify the installation defect within a reasonable timeframe.
c. The Workmanship Warranty is strictly subject to the following exclusions and does not apply to any defect, failure, or damage arising directly or indirectly from:
i. extreme weather events, natural disasters, lightning, cyclones, floods, bushfires, earthquakes, or other Force Majeure Events;
ii. unauthorised modifications, alterations, repairs, or additions to the system or electrical installation performed by any person other than the Contractor or its authorised representatives;
iii. failure by the Customer to properly operate, monitor, or maintain the system in accordance with the manufacturer’s instructions, user manuals, or industry guidelines;
iv. normal wear and tear, cosmetic degradation, or environmental weathering of the Equipment or mounting structures; v. pre-existing structural defects, roof deterioration, or electrical deficiencies in the Premises;
vi. accidental damage, vandalism, abuse, neglect, or intentional misuse of the system by the Customer or third parties; vii. pest infestation, bird damage, rodent activity, or vegetation growth affecting the system; or viii. grid voltage fluctuations, power surges, or network outages.
7.3 Relationship with Statutory Consumer Guarantees
a. The voluntary Workmanship Warranty provided under this clause 7 operates in addition to, and does not exclude, restrict, or modify, any non-excludable statutory consumer guarantees, rights, or remedies available to the Customer under applicable consumer protection legislation in Australia.
b. The Contractor’s goods and services come with guarantees that cannot be excluded under applicable consumer protection laws. For major failures with the service, the Customer is entitled:
i. to cancel their service or goods contract with the Contractor; and
ii. to a refund for the unused portion, or to compensation for its reduced value.
c. The Customer is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, the Customer is entitled to have the failure rectified in a reasonable time. If this is not done, the Customer is entitled to a refund for the goods or services and to cancel the contract for the goods and services and obtain a refund of any unused portion.
d. The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
8. Consumer Guarantees and Liability
8.1 Statutory Guarantees
a. The Contractor acknowledges that where the Customer is a consumer within the meaning of applicable consumer protection legislation of Australia or the Northern Territory, the Customer is entitled to certain non-excludable statutory guarantees regarding the quality, fitness for purpose, and performance of the goods and services supplied under this Agreement.
b. Nothing in this Agreement, including any limitation of liability, exclusion of warranty, or indemnity, is intended to exclude, restrict, or modify any statutory guarantee, right, or remedy that cannot be lawfully excluded, restricted, or modified.
c. If any provision of this Agreement is found to be void, invalid, or unenforceable under applicable consumer protection laws, that provision will be severed from this Agreement, or read down to the minimum extent necessary to make it valid and enforceable, and the remaining provisions of this Agreement will continue in full force and effect.
8.2 Limitation of Liability
a. Subject always to the non-excludable statutory consumer guarantees referred to in clause 8.1, and to the maximum extent permitted by law, where the Customer is a consumer under applicable consumer protection legislation and the goods or services supplied by the Contractor are not of a kind ordinarily acquired for personal, domestic, or household use or consumption, the liability of the Contractor for a breach of a statutory consumer guarantee (other than a guarantee as to title, undisturbed possession, or undisclosed securities) is limited, at the option of the Contractor, to:
i. in the case of services:
a. the supplying of the services again; or
b. the payment of the cost of having the services supplied again; and
ii. in the case of goods:
a. the replacement of the goods or the supply of equivalent goods;
b. the repair of the goods;
c. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
d. the payment of the cost of having the goods repaired.
b. Subject to clauses 8.1 and 8.2(a), and to the maximum extent permitted by law, the Contractor’s total aggregate liability to the Customer for any loss, damage, cost, expense, claim, or liability arising out of or in connection with this Agreement, the Works, or the Equipment, whether in contract, tort (including negligence), under statute, or otherwise, is limited to the total amount actually paid by the Customer to the Contractor under this Agreement.
c. The Contractor is not liable to the Customer under any circumstances for any indirect, special, punitive, or consequential loss or damage, including but not limited to:
i. loss of profits, revenue, or business opportunity;
ii. loss of anticipated energy savings or financial returns;
iii. loss of use of the Equipment or the Premises;
iv. loss of data or business interruption; or v. costs associated with alternative power supply during system outages.
d. The Contractor is not liable for any damage to the Premises, the roof, or the Customer’s property, unless such damage is directly caused by the negligence or wilful misconduct of the Contractor’s personnel during the performance of the Works. Any such damage must be reported to the Contractor in writing within forty-eight (48) hours of occurrence to enable inspection and rectification.
e. The Contractor is not liable for any failure or delay in performing the Works where such failure or delay is caused by a Force Majeure Event, the Customer’s default, or the actions of third parties (including the Network Operator).
9. Termination, Dispute Resolution, and Governing Law
9.1 Termination Rights
This Agreement may be terminated or suspended in accordance with the following terms:
a. Termination by the Contractor for Cause: The Contractor may terminate this Agreement immediately upon written notice to the Customer if:
i. the Customer fails to pay any outstanding invoice within fourteen (14) days of its due date;
ii. the Customer commits a material breach of this Agreement (including a failure to provide safe and unhindered access in accordance with clause 4.1) and fails to remedy that breach within fourteen (14) days of receiving written notice to do so; or
iii. the Customer becomes bankrupt, enters into a debt agreement, or is otherwise unable to pay their debts as they fall due.
b. Termination by the Customer for Cause: The Customer may terminate this Agreement immediately upon written notice to the Contractor if the Contractor commits a material breach of this Agreement and fails to remedy that breach within fourteen (14) days of receiving written notice specifying the breach and requiring its rectification.
c. Suspension of Works: The Contractor may suspend the Works immediately if the Contractor, in its absolute discretion, determines that the Premises is unsafe, structurally unsuitable, contains hazardous materials, or if the Customer fails to comply with any safety direction. The suspension will remain in place until the safety hazard or defect is rectified by the Customer at their own cost.
d. Upon termination of this Agreement for any reason:
i. the Customer must immediately pay the Contractor for all Works completed, services performed, and Equipment and materials supplied up to the date of termination, calculated on a pro-rata basis for Quoted Works, or at standard rates for Do-and-Charge Works;
ii. the Contractor may enter the Premises to recover any Equipment and materials for which payment has not been received in full; and
iii. termination does not affect any accrued rights, remedies, or liabilities of either party, including the Contractor’s right to recover outstanding debts, interest, and collection costs.
9.2 Dispute Resolution Procedure
a. If a dispute arises between the Customer and the Contractor in connection with this Agreement, the Works, or any invoice (a Dispute), the parties must attempt to resolve the Dispute in good faith in accordance with the following procedure:
i. Notice of Dispute: The party claiming a Dispute has arisen must give written notice to the other party (the Dispute Notice). The Dispute Notice must clearly specify the nature of the Dispute, the facts relied upon, and the outcome or remedy sought.
ii. Good Faith Negotiation: Within fourteen (14) days of receiving the Dispute Notice, representatives of each party (which must include, for the Contractor, one of the co-directors, Adam Bate or David Rojas) must meet (either in person at a mutually convenient location in the Northern Territory, or via video conference) to negotiate in good faith and attempt to resolve the Dispute.
iii. Mediation: If the Dispute is not resolved within twenty-one (21) days of the initial Dispute Notice, either party may refer the Dispute to mediation. The mediation will be conducted in Darwin, Northern Territory, by a mediator agreed upon by the parties. If the parties cannot agree on a mediator within seven (7) days of the referral, the mediator will be appointed by the president of the relevant professional association or dispute resolution body in the Northern Territory. The costs of the mediator and the mediation venue will be shared equally between the parties, and each party will bear their own legal and preparation costs.
iv. Condition Precedent to Litigation: Neither party may commence formal court proceedings (except for payment disputes, urgent interlocutory or injunctive relief) in relation to the Dispute until the mediation process has been concluded or has failed to resolve the Dispute within thirty (30) days of the mediator’s appointment.
b. The parties must continue to perform their respective obligations under this Agreement, to the extent practicable, while the Dispute resolution process is ongoing.
9.3 Governing Law
a. This Agreement, and any Dispute or claim arising out of or in connection with it, is governed by, and must be construed in accordance with, the laws in force in the Northern Territory of Australia.
b. The parties irrevocably submit to the exclusive jurisdiction of the courts of the Northern Territory, and any courts competent to hear appeals from those courts, in respect of any proceedings arising out of or in connection with this Agreement.
c. The Customer acknowledges that they have read, understood, and agree to be bound by these Terms and Conditions.
