RACV Commercial Energy Solutions terms and conditions

Agreement means the agreement to complete the Works which is composed of:

a)    the Quotation;

b)    these Terms and Conditions; and

c)    any attachments, schedules or annexures to the above.

Associate means, in relation to each party, its officers, agents, employees and contractors (of any tier).

Authorisation means any licence, permission, permit, consent, authorisation, approval, determination, requirement, certificate or the like issued or required by or to be obtained from any authority, or required under any legislative requirement, for or in connection with the WUC or the Works and includes the Grid Connection Authorisation.

Business Day has the meaning set out in the SOP Act.

Certificate of Electrical Safety means a certificate of electrical safety issued by a licensed electrician in accordance with the Electrical Safety Act 1998 (Vic) and the Electrical Safety (General) Regulations 2019 (Vic).

Confidential Information has the meaning given in clause 16.

Contract Sum means the sum to be paid for the Works stated in the Quotation, including any discount for a REC, but excluding any additions, adjustments or deductions which may be required to be made under these Terms and Conditions.

Contractor means RACV Solar Pty Ltd ABN 82 634 408 398.

Corporations Act means Corporations Act 2001 (Cth).

Date of Practical Completion means the date the Contractor provides the Purchaser with the Certificate of Electrical Safety.

Defect means a defect, fault or omission in the Works which is in breach of the Agreement but excluding fair wear and tear and defects, faults or omissions in the Works caused by a breach of the Agreement by the Purchaser or act or omission of the Purchaser or its Associates.

Dispute means a difference or dispute between the parties in connection with the subject matter of the Agreement.

Green Benefit means:

a)    any REC; and

b)    any other right, credit, certified emissions reduction unit, off-set, tradeable unit, allowance, concession, permit or benefit (including any emissions reduction credits that can be created under a voluntary emission reductions scheme, but only to the extent that such credits can, in relation to the same MW/h of output, be created in addition to RECs and other legislative based schemes),

that may arise, be earned, derived or capable of being claimed and arise as a result of:

c)    the production of electricity being associated with the reduction of the production or discharge of greenhouse gas, or the encouragement of generation of renewable energy sources; or

d)    the fuel source used by the Works to generate electricity being a renewable energy source.

Grid Connection Authorisations means the approvals issued by the relevant authority for the connection of the Works to the electricity grid at the Site.

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

Insolvency Event means:

a)    the board of the party passes a resolution under section 436A of the Corporations Act;

b)    a party is placed into administration pursuant to Part 5.3A of the Corporations Act;

c)    a deed of arrangement is entered into in respect of a party;

d)    a party resolves that it be wound up voluntarily;

e)    a winding up order is made in respect of a party;

f)    a receiver or receiver and manager, provisional liquidator, liquidator, or controller is appointed to a party;

g)    a court orders that there be a meeting of creditors or members of a party for any purpose related to Part 5.1 of the Corporations Act;

h)    a mortgagee takes possession of any assets of a party; or

i)    a party becomes, states in writing that it is, or is deemed under any law to be, insolvent or unable to pay its debts as and when they fall due,

and any other similar or analogous event to the above.

Installation Invoice has the meaning given in clause 5.3.

Intellectual Property Right means any patent, registered design, trademark or name, copyright or other protected intellectual property right.

Quotation means the quotation issued by the Contractor to the Purchaser for the Works.

Post Completion Documents means:

a)    the system operating manuals; and

b)    the beneft of any manufacturer's and supplier's warranties required by the Agreement, including warranties for items which are incorporated in the Works.

Practical Completion is that stage in the carrying out and completion of WUC when:

a)    the Works are complete except for minor Defects;

b)    those tests which are required by the Terms and Conditions to be carried out and passed before the Works reach Practical Completion have been carried out and passed; and

c)    the Contractor has provided a Certificate of Electrical Safety to the Pruchaser.

Purchaser means the purchaser stated in the Quotation.

Privacy Charter means the policy available at https://www.htha.com.au/privacy-policy.

REC means a renewable energy certificate and includes small scale technology certificates and large scale generation certificates issued by an authority

Related Body Corporate has the meaning set out in the Corporations Act.

SOP Act means the Building and Construction Industry Security of Payment Act 2002 (Vic).

Site means the lands and other places to be made available and any other lands and places made available to the Contractor by the Purchaser for the purpose of the Agreement.

Site Audit means an audit carried out by the Contractor to assess the Site for the proposed Works.

Site Conditions means any physical conditions on, under or over the surface of, or at or in the vicinity of, the Site including:

a)    all existing systems and services, above or below ground level and the location of all facilities with which such systems and services are connected;

b)    the conditions of existing infrastructure and buildings on the Site;

c)    ground water, ground water hydrology and the effects of any de-watering

d)    physical and structural conditions above, upon and below the ground, including but not limited to geotechnical conditions, pollution and contamination (other than any inground services or works and partially completed structures below the ground that are specifically captured in the Information Documents that were supplied to the Contractor during the design and quotation period);

e)    the existence of asbestos, materials containing asbestos or other material classed as dangerous or hazardous;

f)    topography, ground surface conditions and geology including seismic conditions, rock (including soft rock), tree removal, other materials and sub-surface conditions; and

g)    climatic and weather conditions, rain, surface water run-off and drainage, water seepage, windblown dust and sand.

Terms and Conditions means this document.

WHS Law means the Occupational Health & Safety Act 2004 (Vic), the Occupational Health and Safety Regulations 2017 (Vic) and all other applicable occupational health and safety legislation, regulations, rules, Codes of Practice and Australian Standards as amended from time to time.

WHS Principal Contractor has the same meaning as ‘Principal Contractor’ in the WHS Law.

Works means the whole of the work to be carried out and completed in accordance with the Agreement, including the provision of materials, which by the Agreement is to be handed over to the Purchaser.

WUC (from "Work Under this Contract") means the Work which the Contractor is or may be required to carry out and complete under the Agreement and includes remedial work, construction plant and temporary Works.

Like words have a corresponding meaning.

a)    The Quotation is an offer from the Contractor to the Purchaser for the Works in accordance with the Agreement.

b)    By accepting or otherwise proceeding in accordance with the Quotation within any validity period specified in the Quotation, the Purchaser is deemed to have accepted the terms of the Agreement.

c)    The Agreement takes precedence over the Purchaser's own terms or finance arrangements.

3.1 Warranty

a)    The Contractor warrants to the Purchaser that the Contractor:

(i)    at all times is suitably qualified and experienced, and will exercise due skill, care and diligence in the carrying out and completing of WUC; and

(ii)    will carry out and complete WUC in a proper and workmanlike manner so that the Works, when completed, will comply with all the requirements of the Agreement.

b)    The Purchaser warrants to the Contractor that:

(i)    the Purchaser holds and maintains any Authorisations required by a legislative requirement for the performance of the WUC, excluding the Grid Network Authorisation;

(ii)    the Purchaser is the owner of the Site, or has the approval of the owner of the Site to engage the Contractor to perform the Works; and

(iii)    all representations, warranties and information provided by the Purchaser prior to the date of the Agreement are true, correct and complete as at the date of the Agreement and are not, by omission or otherwise, misleading,

and to the extent that the Purchaser does not comply with the warranties provided under this clause 3.1(b), the Contractor will be entitled to an extension of time under clause 11 and additional costs assessed by the Contractor in accordance with reasonable rates or prices, which will include a reasonable amount for profit and overheads and added to the Contract Sum.

3.2 Authorisations

a)    The Contractor will apply for the Grid Connection Authorisation.

b)    Subject to clause 3.2(a), the Purchaser will:

(i)    to the extent that the Purchaser is entitled to a Green Benefit, apply for a Green Benefit within a reasonable time; and

(ii)    obtain, hold and maintain any Authorisations required by a legislative requirement for the performance of the WUC.

c)    The purchaser must notify the Contractor of the outcome of any aplication made by the Purchaser under clause 3.2(b)(i) promptly and without

3.3 System design and performance

The Purchaser acknowledges that any energy output figures provided by the Contractor are indicative only, and that actual output figures are dependent on the characteristics of the Site.

4.1 Payment

a)    The Purchaser must pay the Contract Sum to the Contractor in accordance with the Agreement.

b)    Unless otherwise indicated, the Contract Sum is exclusive of GST. The Purchaser is required to pay all GST in respect of the Works at the time that payment is required.

4.2 Cost escalation

a)    The Contract Sum may be adjusted by the Contractor from time to time after the date of the Agreement to reflect increases in the Quotation and the adjustment will be priced in accordance with reasonable rates or prices, which will include a reasonable amount for profits and overheads.

b)    The Contractor must provide written notice to the Purchaser of any proposed increase to the Contract Sum that is greater in the aggregate than 10% of the Quotation.

c)    If the increase to the Contract Sum is greater in the aggregate than 10% of Quotation, the Purchaser may within 10 Business Days of receipt of the Contractor's written notice under clause 4.2(b):

(i)    notify the Contractor in writing that the increase to the Contract Sum is accepted; or

(ii)    reject the increase and terminate the Agreement under clause 18.5(b)(ii).

d)    If the Purchaser rejects the increase to the Quotation (in whole or in part), the Contractor may:

(i)    continue to perform the WUC for the Quotation; or

(ii)    terminate the Agreement under clause 18.5(a)(ii).

e)    If the Purchaser fails to provide notice to the Contractor within the period of time stated in clause 4.2(c), the Purchaser is deemed to have accepted the increase to the Quotation.

f)    The parties acknowledge and agree that:

(i)    the rights stated in clause 4.2 are the parties' sole entitlement arising out of or in connection with an increase to the Quotation; and

(ii)    the parties have no claim arising out or in connection with an increase to the Quotation other than as stated in clause 4.2.

6.1 Care of the Works

The Contractor is responsible for the care of:

a)    the plant, materials and equipment forming part of the Works from the date of the Agreement to the date those plant, materials and equipment forming part of the Works are delivered to the Site, at which time the responsibility for the care of the plant, materials and equipment forming part of the Works (except to the extent provided in clause 6.1(b)) will pass to the Purchaser; and

b)    subject to clause 6.1(a), the whole of the Works from the date of the Agreement until 4:00pm on the Date of Practical Completion, at which time the responsibility for the care of the Works will pass to the Purchaser.

6.2 Title

Title in the Works, including all plant, materials and equipment forming part of the Works, transfers to the Purchaser from when payment of the Installation Invoice is made by the Purchaser.

7.1 Collection

The Contractor may collect and disclose:

a)    the Purchaser's personal information to:

(i)    perform the Works and WUC (including the provision of personal information to suppliers and third parties in order to carry out WUC); and

(ii)    promote the Contractor's products and services to the Purchaser;

b)    the Purchaser's de-identified and aggregated information to:

(i)    provide services to third party providers for research and analytic purposes; and

(ii)    enhance the Contractor and the Related Bodies Corporate of the Contractor in developing and marketing current and future services.

7.2 Privacy Charter

The Purchaser may access, correct, delete or opt-out of the collection and use of personal information in accordance with the Privacy Charter.

a)    Before the Contractor commences WUC, the Contractor must effect the following insurances:

(i)    public and product liability insurance for $10 million on and from the date of the Agreement and throughout the term of the Agreement; and

(ii)    contract works insurance for the value of the Contract Sum.

9.1 Requirements for Site

The Purchaser must give the Contractor sufficient access to the Site for:

a)    the performance of a Site Audit; and

b)    commencement and performance of WUC on Site, on and from the date of the Agreement.

9.2 Site conditions

a)    The Purchaser must ensure that:

(i)    the proposed Site is clear and unobstructed; and

(ii)    all Site Conditions that may obstruct access to, or performance of, the Works have been removed or relocated to allow the Contractor to carry out the WUC, unless specifically included as part of the WUC.

prior to the date agreed by the parties that the Contractor is to commence the Works on Site.

b)    To the extent that:

(i)    the Purchaser fails to perform its obligation under clause 9.2(a) and provide reasonable notice to the Contractor that it has been unable to do so; and

(ii)    any unknown or adverse Site Conditions are discovered during the WUC,

the Contractor may (upon prior written notice) charge the Purchaser an amount for the reasonable direct costs incurred by the Contractor in:

(iii)    the Purchaser fails to perform its obligation under clause 9.2(a) and provide reasonable notice to the Contractor that it has been unable to do so; and

(iv)    any unknown or adverse Site Conditions are discovered during the WUC,

c)    The amount under clause 9.2(b) may include:

(i)    the cost of supplying plant;

(ii)    the cost of labour; and

(iii)    administrative overheads and preliminaries.

d)    The parties acknowledge and agree that the Contractor has not given any warranty or made any representation that the Site is suitable for the WUC at the date of the Agreement.

9.3 Responsibility for internet connection

With effect from 1 October 2024, all new, upgrading and replacement rooftop solar systems are required by law to have an emergency backstop which requires:

a)    a compatible inverter: so that the export and generation from the inverter is capable of being remotely managed; and

b)    a reliable internet connection: to ensure your Distributed Network Service Provider (DNSP) can communicate with the inverter.

Further information can be found here: https://www.energy.vic.gov.au/households/victorias-emergency-backstop-mechanism-for-solar.

The Contractor is not responsible for the maintenance of the internet or data connection at the Site including fixing issues such as reset passwords, dislodged ethernet cables or poor internet quality. If a hardwired data connection is selected, spare ethernet port(s) are needed in the router as well as suitable access points/cavities to run the cable. If a SIM dongle is selected, the Purchaser is responsible for assessing the quality of the signal at the site prior to installation and may be responsible to renewing data plans after installation (if any) over time.

If at any time the DNSP is unable to communicate remotely with the rooftop solar system, for reasons such as:

d)    interruptions to internet connectivity, via wireless or mobile services;

e)    electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions whatever the case;

f)    interruptions in web services by any internet service provider; or

g)    malfunctions, upgrades, preventative or maintenance activities or interruption in telecommunications supply,

the Purchaser must use best endeavours to re-establish connection.

h)    If the Contractor is asked to return to the Site to resolve an issue deemed to be outside of the Contractor's control, the Contractor reserves the right to charge a call out fee.

a)    For a period of 12 months from the Date of Practical Completion, the Purchaser may by written notice, at an interval of no less than three months, request the Works be tested for performance reporting purposes.

b)    If:

(i)    the Purchaser notified the Contractor under clause 13 of a Defect; or

(ii)    the Purchaser is entitled to have the Works tested in accordance with clause 10(a),

the Contractor may, by reasonable written notice to the Purchaser, conduct the required testing as determined by the Contractor. The results of tests will be made available by the Contractor to the Purchaser.

c)    Costs incurred in testing will be paid:

(i)    where the test is consequent on or reveals a breach of the Agreement by the Purchaser, by the Purchaser;

(ii)    where the test is consequent on or reveals a Defect, by the Contractor; or

(iii)    where the test is requested under clause 10(a), by the Contractor.

11.1 Progress

a)    The Contractor must ensure that WUC reaches Practical Completion within a reasonable time.

b)    If the Contractor is or will be delayed in reaching Practical Completion by:

(i)    suspension by the Contractor pursuant to the SOP Act;

(ii)    delay or disruption caused by an act of prevention of the Purchaser or its Associates;

(iii)    any change in a legislative requirement;

(iv)    variations directed by the Purchaser;

(v)    delay or disruption caused by an authority;

(vi)    inclement weather;

(vii)    industrial action;

(viii)    delay or disruption to the supply of plant, materials or equipment; or

(ix)    any other event outside of the Contractor's reasonable control,

the Contractor will be entitled to extension of time for carrying out WUC (including reaching Practical Completion).

11.2 Post Completion Documents

Within 20 Business Days of the Date of Practical Completion, the Contractor will provide the Purchaser with the Post Completion Documents.

a)    To the extent that the Agreement includes a product or hardware that the Contractor cannot reasonably procure after the date of the Agreement, the Purchaser acknowledges and agrees that the Contractor may substitute the product or hardware for a product or hardware that is suitable and of a similar quality and nature to the proposed product or hardware.

b)    To the extent that the substitution under clause 12(a) causes the Contractor to incur more or less cost than otherwise would have been incurred had the substitution not been required, the difference shall be assessed by the Contractor and added to or deducted from the Contract Sum.

14.1 Purchaser to surrender

a)    The Contract Sum may include a discount in consideration of the Purchaser providing the Contractor with any Green Benefit that the Purchaser obtains from an authority

b)    To the extent that the Purchaser is eligible to a Green Benefit and the Contract Sum includes a discount under clause 14.1(a), the Purchaser agrees to assign any Green Benefit to the Contractor or to any party the Contractor directs within 10 Business Days of the Purchaser receiving the Green Benefit.

14.2 Variation to Green Benefit

To the extent that the Contractor includes a discount for the surrender of a Green Benefit under clause 14.1(a), the Purchaser acknowledges and agrees that where the relevant authority determines that the Purchaser:

a)    is not eligible to a Green Benefit; or

b)    is eligible to a Green Benefit of a reduced value.

the difference will be assessed by the Contractor and added to or deducted from the Contract Sum.

This clause survives termination of this contract.

15.1 Aggregate Liability Cap

a)    In the Agreement, Aggregate Liability Cap means an amount equal to the sum of:

(i)    the Contract Sum; and

(ii)    insurance proceeds recoverable under the insurances the Contractor is required to maintain under the Agreement or that would have been recoverable under the insurances the Contractor is required to maintain under the Agreement but for the Contractor’s failure to effect and maintain the insurances in accordance with the Agreement, or comply with the relevant contracts of insurance or its obligations in relation to the insurance.

b)    With the exception of the Contractor’s liability in respect of the following heads of liability under or arising out of the Agreement:

(i)    personal injury or death of any person; and

(ii)    any liability that cannot be limited or excluded at law,

the Contractor's maximum aggregate liability to the Purchaser under or arising out of the Agreement is capped at the Aggregate Liability Cap.

15.2 Liability for Consequential Loss

a)    In the Agreement, Consequential Loss means any:

(i)    special, indirect, incidental or consequential loss or damage;

(ii)    any real or anticipated loss of profit, loss of opportunity, loss of benefit, loss of revenue, loss of generation, loss of production, loss of business;

(iii)    loss of goodwill, loss of savings, loss of reputation; and

(iv)    loss of use and/or loss or corruption of data,

arising in contract, statute, equity, tort (including negligence) or otherwise, howsoever arising.

b)    To the fullest extent permitted by law, neither party will have any liability to the other for Consequential Loss under or arising out of the Agreement, with the exception of any liability:

(i)    in connection with any fraudulent, malicious or illegal acts or omissions of either party;

(ii)    in connection with the personal injury to or death of any person;

(iii)    in connection with any breach of an obligation related to confidentiality or Intellectual Property Rights under the Agreement; and

(iv)    which cannot be limited or excluded at law.

15.3 Cap on General Damages (Delay)

a)    General Damages Cap (Delay) means 10% of the Contract Sum.

b)    The Purchaser will only be entitled to, and the Contractor is liable to pay, damages for a failure by the Contractor to achieve Practical Completion within a reasonable time under or in relation to the Agreement in the aggregate up to the General Damages Cap (Delay).

16.1 WHS Principal Contractor

a)    The Purchaser must appoint at all times the Purchaser or its Associate as the WHS Principal Contractor in respect of the Works unless prohibited at law.

b)    The Purchaser will ensure that the Purchaser or its Associate discharge all the duties and performs any obligations of the WHS Principal Contractor in respect of the Works.

16.2 Work health and safety

a)    The Contractor must comply with the provisions of the WHS Law, all legislative requirements relating to the safety of persons on or about the Site and the carrying out of the Works.

b)    Both parties must ensure:

(i)    a safe working environment;

(ii)    safe systems of work; and

(iii)    information, instruction, training and supervision reasonably necessary to ensure that all of its employees and its subcontractor's employees are safe from injury and risks to safety, health and welfare.

c)    Where there is an inconsistency or ambiguity between this clause and 16.2 and the WHS Law, the WHS Law will prevail.

a)    Subject to clause 7, all information exchanged between the parties under the Agreement or gained by either party as a result of performing its obligations under the Agreement are confidential.

b)    The obligation of confidentiality under this clause 17 is a continuing obligation.

18.1 Contractor's default

a)    If the Contractor commits a substantial breach of the Agreement, the Purchaser may by notice to the Contractor terminate the Agreement.

b)    Substantial breaches by the Contractor includes:

(i)    failing to use the materials or standards of Work required by the Agreement;

(ii)    wrongful suspension of Work;

(iii)    the Contractor committing an Insolvency Event;

(iv)    abandonment; and

(v)    any breach by the Contractor of its obligations under the Agreement relating to WHS Law.

18.2 Purchaser's default

a)    If the Purchaser commits a substantial breach of the Agreement, the Contractor may by notice to the Contractor terminate the Agreement.

b)    Substantial breaches by the Purchaser includes:

(i)    failing to make a payment due and payable pursuant to the Agreement;

(ii)    the Purchaser committing an Insolvency Event;

(iii)    a breach of clause 9.2;

(iv)    a breach of clause 16;

(v)    the Purchaser, its directors or officers (within the meaning of section 9 of the Corporations Act) is charged with committing a fraudulent or criminal act or in a Court of competent jurisdiction; or

(vi)    the Purchaser repudiates the Agreement at law.

18.3 Termination

If the Agreement is terminated pursuant to clause 18.1 or 18.2, the parties’ remedies, rights and liabilities will be the same as they would have been under the law governing the Agreement had the defaulting party repudiated the Agreement and the other party elected to treat the Agreement as at an end and recover damages.

18.4 Consequences of termination

a)    If the Contractor terminates the Agreement, it may require the Purchaser to:

(i)    deliver all documentation provided by the Contractor to the Purchaser in connection with the Works or WUC; and

(ii)    provide access to the Site to enable the Contractor to remove all plant, materials and equipment and any Works for which title has not transferred to the Purchaser.

b)    If the Agreement terminates for any reason:

(i)    the Purchaser may assume possession of the Site; and

(ii)    either party may exercise all legal and equitable rights available to that party.

18.5 Termination for other reason

a)    The Contractor may, by notice to the Purchaser, terminate the Agreement if:

(i)    the Site Audit establishes that the Site is not suitable for the Works; or

(ii)    under clause 4.2(d)(ii).

b)    The Purchaser may, by notice to the Contractor, terminate the Agreement if:

(i)    the relevant authority rejects the Grid Connection Authorisaiton application; or

(ii)    under clause 4.2(c)(ii).

c)    If the Agreement is terminated:

(i)    under Clause 18.5(a)(i) or clause 18.5(b)(i), the Purchaser will be entitled to a refund of any amounts paid to the Contractor, less an amount for the reasonable direct costs incurred by the Contractor in performing the Works to the date of termination, which may include:

A.    the cost of supplying plant;

B.    the cost of labour; and

C.    administrative overheads and preliminaries;

(ii)    clause 18.5(a)(ii) or clause 18.5(b)(ii), the Contractor will be entitled to payment of the following amounts:

A.    for work carried out prior to the date of termination, the amount which would have been payable if the Agreement had not been terminated;

B.    for work which has been performed but which has not achieved a payment milestone, the cost incurred by the Contractor for the performance for those works; and

C.    the reasonable direct cost of removing from the Site all labour, plant, materials, equipment and work and other things used in WUC, which may include the Works to the extent that title has not transferred to the Purchaser in accordance with clause 6.2.

a)    If a dispute arises, the parties must, prior to the initiation of any legal action use their best efforts in good faith to reach a reasonable and equitable resolution of the dispute.

b)    The parties agree that in the event a dispute cannot be resolved within 20 Business Days of that dispute arising, it must be referred to senior representatives of each party for resolution.

c)    The parties agree that in the event a dispute cannot be resolved within 10 Business Days of that dispute being referred to the parties' senior representatives, or such other time as the parties may agree, that dispute may be resolved by way of litigation.

d)    Nothing in this clause prevents a party from seeking urgent injunctive, or declaratory relief.

a)    To the extent the SOP Act applies, where there is an inconsistency between the Agreement and the SOP Act, the SOP Act shall prevail to the extent neessary to avoid the inconsistency.

b)    Any notice to be given shall be deemed to be sufficiently given if served personally on the Purchaser or on its representative on the Site or to both parties at their respective registered offices and may be hand delivered, sent by prepaid post or respective email address.

c)    The Agreement is governed by the law of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.

d)    The Agreement contains the whole of the agreement between the parties. The parties acknowledge that any conditions or obligations in the Contractor's scope of services pertaining to these works are void and do not form part of the Agreement.