Preconditions and Undertakings for the Installation of Electric Heat Pumps

1. By entering into negotiations with Home Green Pty Ltd (ACN 137 168 033) t/a Shine On (Company) in respect of any Company’s proposal for the installation of electric heat pump(s), the Customer represents and agrees that any contract that the parties enter in to in respect of the proposal shall incorporate the requirements set out in items 1 to 14.

2. The Company requires accurate and complete site information to proceed with its works. The Company may choose to undertake a site visit before starting works or request the Customer to provide site information required by the Company to undertake a site assessment. The Customer confirms and agrees that:

a. it has provided the Company all relevant information relating to the site including but not limited to location of the existing hot water system; and

b. specifically, it has provided the Company with all site information requested by the Company and ensured that the information it provided was true and complete.

3. Depending on the electric heat pump to be installed and scope of works required to be undertaken by the Company, alterations and/or improvements to the Customer’s electrical switchboard and/or distribution boards may be required to ensure that mandatory minimum standards are met.

a. If the Company determines that such alteration is essential, the Company must notify the Customer:

i. that alterations to the Customer’s main electrical switchboard and/or distribution boards are required to comply with the current mandatory standards prior to installation of the electric heat pump; and

ii. the details of the alterations required.

b. If alterations of the main electrical switchboard and/or distribution boards (as the case may be) are required:

i. the Customer will replace or upgrade its main electrical switchboard and/or distribution boards (as the case may be) to meet the current minimum mandatory standards at its own costs and expense before the Company can proceed with installation; and

ii. the Company may choose to provide a quote to the Customer for the required works. If the Customer accepts the quote, the Company will undertake these works prior to the installation of the electrical heat pump.

4. The Company will inform the Customer of any issues it identifies with the pre-existing structure or site prior to, or during installation with the Customer.

5.  If the Customer requires the installation of the electric heat pump on a mezzanine area, the Company will inform the Customer of any risks it identifies in this installation location, including any additional works which may be required to ensure that the load bearing capacity of the mezzanine area is appropriate. The Company may choose to provide a quote to the Customer for the required works. If the Customer accepts the quote, the Company will undertake these works prior to the installation of the electrical heat pump.

6. The Customer may be eligible to participate in the relevant Government Scheme. Government Scheme means an approved State or Federal program pursuant to which electrical heat pump can be installed and under which the Customer will benefit either in terms of a tradable certificate or a direct financial benefit can be received. The Government Schemes include:

a. the Victorian Energy Upgrades (VEU) in Victoria;

b. the Energy Savings Scheme (ESS) in New South Wales; and

c. other relevant government energy efficient schemes that may become available from time to time.

7. The Company will prepare all necessary documentation for the relevant Government Scheme. The Customer agrees to execute all necessary documentation in a timely manner.

8. The Customer has obtained approval from:

a. its landlord for the installation of the electric heat pump (where applicable); and

b. its body corporate/owners corporation for the installation of the electric heat pump (where applicable).

9. The Customer must ensure that all work areas are free from the presence or contamination of asbestos-containing materials (ACM) and must provide a copy of the updated asbestos register to the Company (where applicable).

10. The Company’s proposal or quotation sets out the amount payable by the Customer to the Company. The Customer must pay to the Company the deposit amount as set out in the Company’s proposal or quotation (where applicable).

11. The Company agrees that it shall obtain prior approval of the Customer before undertaking any additional works which are not quoted or priced for in the Company’s proposal or quotation.

12. Prior to installation, the Company may propose to substitute the electric heat pump in its initial proposal or quote with another electric heat pump product of equal or superior quality.

a. The Company will inform the Customer of any additional costs associated with such substitution (if any).

b. The Customer understands that it has the option to either accept or reject the substitute heat pump proposed by the Company (along with corresponding change in costs). The Customer must inform the Company of its response to the substitution in writing, in a reasonable time.

c. If the Customer accepts the substitute product, the Customer agrees that it shall be responsible for and pay any and all additional costs associated with such substitution, as informed to it by the Company.

d. If the Customer does not accept the substitute product, the Company shall have the option to terminate the agreement between the parties and refund any deposit paid to it by the Customer.

Customer’s undertakings

13. The Customer undertakes to ensure or facilitate (as applicable), acknowledges, and accepts that:

a. The Customer will provide all information required by the Company pertaining to the site and the Customer’s current hot water services and any other information the Company may reasonably require.

b. If the Customer wants the electric heat pump to be installed on a mezzanine area, it will provide the Company with all information, and bear all the costs, to confirm the load bearing capacity of the mezzanine area. The Customer will bear all the risks and costs arising out of:

i. any incomplete or inaccurate information in respect of the load bearing capacity of the mezzanine area; and

ii. any works required to ensure that the mezzanine area has appropriate load bearing capacity for the installation of the electric heat pump(s).

c. The Customer will provide clear and unobstructed access to the site and location where the electric heat pump is required to be installed.

i. The Company shall not be liable for any delay in installation services caused by the Customer’s failure to provide clear and unobstructed access.

ii. The Company may charge the Customer additional costs incurred by the Company (as reasonably determined by the Company) if clear and unobstructed access is not provided to the site and location of installation. The Customer agrees to pay any such additional charges.

d. The Company is only required to inform the Customer of any issues it identifies with the pre-existing structure prior to, or during installation which impact the installation of the electric heat pump(s). The Customer understands and agrees that:

i. the Company shall not be liable for any inefficiencies in the functioning of the electric heat pump caused directly or indirectly due to any pre-existing infrastructure; and

ii. the Customer will bear all the risks and costs arising out of any issue with the pre-existing infrastructure, including but not limited to plumbing and electrical wiring.

e. The Customer will bear the cost of removal of the previous hot water services from the site. The Customer may request the Company’s assistance and the Company may agree to provide this service, at its discretion and for an additional cost determined by solely the Company, acting reasonably.

f. The Company proposes to install the electric heat pump at the location of the existing electric hot water pump. If the Customer wants the electric heat pump to be installed at another location, the Company may, at its discretion, agree to this and inform the Customer of the additional costs associated with any change or variation to the design or specification of the electrical heat pump or any other costs necessitated by the location change. The Customer agrees that it shall be responsible for such additional costs, as informed to it by the Company.

g. If, during the course of installation, the Company discovers that the switchboard is non-compliant with applicable Australian Standards, the Company will inform the Customer of this non-compliance and the additional costs associated with works required to make the switch board compliant. The Customer agrees that it shall be responsible for such additional costs, as informed to it by the Company.

h. The Customer will bear the cost of all ancillary works that need to be carried out for the installation of the electric heat pump that are not within the Company’s scope of works.

i. There are certain things that the Customer must do or permit to be done to be eligible for any Government Scheme. These requirements are specified or implied in the relevant Government Scheme and include, but are not limited to:

i. the replacement of an electric hot water system;

ii. collection of all photographic evidence, as well as business documentation relating to the electric heat pump works, as required by the scheme administrators of the relevant Government Scheme to attest that the installation was completed in accordance with regulatory requirements;

iii. the decommissioning of the old electric hot water system; and

iv. payment of any required minimum co-contribution (where applicable).

j. If the Customer does not carry out or permit to be carried out the requirements set out in item 13.i above:

i. the Customer will not be eligible for a subsidy; and

ii. as such the Customer will be required to pay for the full costs of the installations performed by the Company and agrees to pay the full costs to the Company as required; and

iii. will not be eligible for any benefit from any applicable Government Scheme.

k. It is the Customer’s responsibility, on behalf of the site owner, to confirm compliance for the site(s) where the installation is to take place pursuant to the relevant national and state legislation concerning the identification and management of ACM. This includes, but is not limited to:

i. making available for review by the Company an up-to-date asbestos register;

ii. where the presence of ACM is or should be reasonably suspected or has been identified by the Customer in a work area, undertaking at its own cost asbestos sampling and the application of applicable risk control measures by competent persons; and

iii. understanding that the presence or the condition of ACM may prevent the installation of the electric heat pump in a particular area or areas.

l. The Customer must:

i. inspect the site before the Company commences the performance of the works and advise the Company of any safety matters which it considers should reasonably be attended to prior to the Company commencing on the site; and

ii. ensure that those areas of the site where the Company is carrying out the works are maintained in compliance with the applicable regulatory health and safety requirements.

14. These preconditions and undertakings incorporate and form part of the Company’s terms of sale which can be found at shine-on.com.au.

Terms and Conditions of Sale

Terms and Conditions of Sale

1. Definitions

In these Terms:
Acquirer has the meaning set out in clause 5.5(a).
Agreement means the agreement between the Company and the Customer for the provision of the Offering comprising:
(a) the Order;
(b) the Preconditions;
(c) these Terms; and
(d) any Quotation.

Company means Home Green Pty Ltd (ACN 137 168 033) or any of its Related Bodies Corporate (as the case may be).

Customer means the customer (or any person acting on behalf of and with the authority of the customer) as described on any Order or Quotation, including their successors or permitted assigns.

Dispute means a dispute between the parties which has arisen in connection with the subject matter or interpretation of the Agreement, including a dispute concerning a claim in tort, under statute, or on any other basis in law or equity available under the law governing the Agreement.

Dispute Notice has the meaning set out in clause 17.1.
Force Majeure Event means an event of force majeure as defined at law, and includes but is not limited to:

(a) causes beyond the Company’s reasonable control resulting in it being unable to obtain necessary labour, materials components or manufacturing facilities;
(b) acts of God, acts of the Customer, acts of civil or military authority, priorities, fire, strikes or other labour disturbances, floods, cyclones, epidemics, war, riots, delays in transport or car shortages;
(c) epidemic, pandemic, or quarantine by order of any authority or any other event that is a public health risk as defined by the International Health Regulations published by the World Health Organization;
(d) a state of disaster or state of emergency is declared, an evacuation order (or equivalent) is issued by an authority, or any other act of or declaration by the government made in respect of the events described in (a), (b), or (c) above; or
(e) any other event or circumstance which is: (i) is beyond the control of the Company; (ii) prevents the performance of The Company’s obligations under the Agreement; and (iii) cannot be reasonably foreseen, prevented, overcome or remedied by the exercise by the Company of a reasonable standard of care and diligence.

Intellectual Property means any intellectual or industrial property whether protected by statute, at common law or in equity, including any trade mark, patent, invention, copyright, or design right (whether or not registrable), in any design, specification, process, technique, software, know how, trade secret, technical information, financial information, business method and confidential information.

Loss means any loss (including but not limited to direct loss, indirect loss, consequential loss, loss of anticipated profits or loss of business opportunity or both loss of anticipated profits and loss of business), liability, damage (including but not limited to any damages or compensation or any damage to reputation and damage to property), cost or expense (including legal costs on a full indemnity basis) of whatever kind and however it arises.
Mandatory Warranty has the meaning set out in clause 12.7.

Materials has the meaning set out in clause 14.1.

Offering means the Products and Services or the Products or the Services set out in the Quotation by the Company or described in an Order. Where there is a difference between the Quotation and the Order, the Quotation description shall prevail.

Order means any purchase order, work order, work authorisation or any other form of communication by the Customer requesting for the supply of the Offering by the Company (whether oral or written).

PPSA means the Personal Property Securities Act 2009 (Cth) or the Personal Property Securities Act 1999 (NZ) (as may be amended or replaced from time to time). Any reference to any particular part or section of the Personal Property Securities Act 2009 (Cth) shall be taken to refer to the equivalent part or section of the Personal Property Securities Act 1999 (NZ).

Preconditions means the applicable preconditions which must be fulfilled by the Customer and the undertakings that must be given by the Customer before the installation of the Products as set out in the Quotation or posted at www.shine-on.com.au.

Price means the price payable for the Services and Products in accordance with clause 3.1.

Products means equipment, goods, materials, parts or products described in an Order or a Quotation.

Quotation means any quotation provided by the Company to the Customer in respect of an Order.

Register has the meaning set out in clause 11.1.

Related Bodies Corporate is as defined in Section 9 of the Corporations Act 2001 (Cth) or has the same meaning as “related company” as defined in Section 2 of the Companies Act 1993 (NZ) (as may be amended or replaced from time to time), as applicable.
Services means all services as described in an Order or a Quotation (as the case may be).

Terms means these Standard Terms and Conditions of Sale as amended from time to time.

Warranty has the meaning set out in clause 12.1. Warranty Period means:

(a) in the case of the Products, the manufacturer’s warranty of the Products as set out in relevant product specification sheet or the product warranty documents (as the case may be); or
(b) in the case of the Services, the period as set out in the Warranty Statement.

Warranty Statement means the Company’s warranty statement (as may be amended or replaced from time to time and posted at www.shine-one.com.au).

2. Agreement

2.1 These Terms apply to and form part of the Agreement between the Company and the Customer. They supersede any previously issued terms and conditions of sale.

2.2 Acceptance by the Company to provide the Products or the Services or the Products and the Services, described or referred to in any Order issued by the Customer constitutes the formation of the Agreement and is expressly subject to and conditional upon these Terms.

2.3 Any Order for, or any statement of intent to purchase any Offering, payment of deposit, or any direction to proceed with any work, procurement or delivery of such Offering, shall constitute acceptance of these Terms by the Customer and a representation that the Customer is solvent.

2.4 The Customer acknowledges and accepts that any additional or different terms and conditions to these Terms provided in any communication from the Customer are not accepted by the Company and shall not be effective or binding on the Company unless expressly agreed to by the Company’s authorised representative in writing.

2.5 None of the Company’s agents or representatives other than an authorised officer or director of the Company are authorised to make any representations, statements, conditions or agreements. The Customer acknowledges that the Company is not bound by any such unauthorised actions.

2.6 By entering into any negotiations with the Company in respect of any proposal from the Company, and notwithstanding any express agreement by the Company’s authorised representative as set out in clause 2.4, the Customer represents and agrees that these Terms or any other contract in respect of the matters set out in the Quotation or the Order incorporate and shall be subject to the Preconditions.

3. Price

3.1 The Customer must pay the Price to the Company for the Offering:

(a) at the then current prevailing rates of the Company for the Offering; or

(b) at the Company’s absolute discretion, the amount specified in any Quotation.

3.2 Any increase in the cost of the supply of the Products or the delivery of the Services between the date of the Quotation and the date of supply of the Products and the delivery of the Services shall be borne by the Customer.

3.3 The Price may be subject to change without written notice to the Customer.

3.4 Any Price quoted by the Company is based on the costs of labour, materials and statutory obligations applicable at the date of the Quotation. Any variations in these rates or obligations incurred by the Company shall be payable by the Customer.

3.5 The Company shall be entitled to charge its reasonable additional costs and fees for all delays caused as a result of the Company obeying any instructions given by the Customer or the Customer not fulfilling the Customer’s obligations under the Agreement.

4. GST and other taxes

4.1 The Price is exclusive of GST. The Customer must pay the Company an additional amount for any GST payable in respect of any taxable supply made under or in connection with the Agreement, provided the Company provides the Customer with a tax invoice in respect of that taxable supply.

4.2 If there is an adjustment event in relation to the taxable supply:

(a) the Company must refund to the Customer the amount by which the GST paid by the Customer pursuant to clause 4.1 exceeds the adjusted GST on the taxable supply; or

(b) the Customer must pay to The Company the amount by which the adjusted GST on the supply exceeds the amount of GST paid pursuant to clause 4.1.

4.3 Any other taxes (excluding income taxes) duties, fees, charges or assessments of any nature levied by any government authority in connection with the Agreement shall be paid directly by the Customer to the governmental authority concerned. If the Company is required by law or otherwise to pay such a levy or such fines (or both levy and fines), penalties or assessments in the first instance, or as a result of the Customer’s failure to comply with any applicable laws or regulations governing the payment of such imposition by the Customer, the amount of any payments so made by the Company shall be reimbursed by the Customer upon submission of the Company’s invoices.

5. Property and risk

5.1 All risk and liability for the Products will transfer to the Customer on delivery of the Products to the Customer or any third party who is acting on behalf of the Customer.

5.2 The Company shall remain the sole and absolute owner of the Products until the Price for the Products has been received in full by the Company.

5.3 Subject to the provisions of the PPSA, the Company shall be entitled, in addition to the rights conferred by clause 5.4(b), to retake possession of all Products in the possession of the Customer which have been supplied by the Company sufficient, at a minimum, to clear any outstanding indebtedness by the Customer to the Company under the terms of the Agreement. The Customer:

(a) agrees that the Company shall not be required to distinguish between the Products which has been paid for and the Products which has not been paid for; and

(b) consents to the Company entering the relevant premises for the purpose of retaking possession of the relevant Products.

5.4 Subject to the provisions of the PPSA, until the Company has received payment in full of the Price for all Products supplied by the Company:

(a) the Customer shall be bailee of the Products for the Company;

(b) the Customer grants the Company an irrevocable licence to enter the Customer’s premises and retrieve the Products; and

(c) the Customer shall not sell or dispose of any of the Products or any interest in the Products without the prior written consent of the Company.

5.5 If the Company consents in writing to the sale or disposal or if any sale or disposal is made in breach of clause 5.4 and notwithstanding such breach:

(a) the Customer shall inform any person to whom it proposes to sell or dispose of the Products or any interest in the Products (Acquirer) of the Company’s interest in the Products;

(b) the Customer shall ensure that the terms of the sale or disposal of the Products to the Acquirer includes a term which is substantially the same as this clause 5;

(c) notwithstanding that the payment of the Price for the Products would not otherwise have been due by the Customer, the Customer shall be obliged to pay the Price for the Products to the Company as soon as it receives payment from the Acquirer;

(d) the Customer shall hold all its rights against the Acquirer in trust for the Company and, to the extent necessary to discharge all debts owing to the Company in respect of the supply of the Products only, any proceeds the Customer receives;

(e) the Customer agrees that the Company shall be entitled to trace all and any proceeds arising from any sale or disposal of the Products until full payment of the Price for the Products has been received by the Company;

(f) the Customer agrees that the Company shall be entitled to trace all and any proceeds arising from any sale or disposal of the Products until the Customer pays the full price to the Company for all other parts or equipment supplied by the Company; and

(g) the Customer shall, at the Company’s request, assign its claims against the Acquirer and agrees irrevocably to appoint the Company and each of its officers as its attorney to give effect to and complete that assignment.

6. Specifications

The Company reserves the right at any time to change the specifications in respect of the Offering and will provide alternative products of equal or superior performance. A change in the Products’ specifications does not entitle the Customer to return the Products, terminate this Agreement, to cancel an Order or otherwise avoid its obligations and liabilities under this Agreement.

7. Delivery

7.1 Any dates for delivery of the Products and the Services advised by the Company are approximate and are based upon the Customer providing prompt access to any area requiring the Company’s Offering and prompt receipt of all the necessary information in respect of the Offering required.

7.2 All delivery costs for the Offering shall be in addition to the Price unless expressly stated otherwise by the Company.

7.3 Unless otherwise agreed, all shipments are ‘Ex Works’ (EXW) (as defined in INCOTERMS 2020 published by the International Chamber of Commerce as revised from time to time) at the Company’s premises.

7.4 The Company shall not be liable for any delay in delivery of the Offering caused by a Force Majeure Event.

7.5 In the event of a delay under clause 7.4, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the Force Majeure Event.

7.6 The Customer undertakes to:

(a) maintain all other items or equipment, which may affect the testing, maintenance or operation of the Products;

(b) provide access to any area or equipment requiring the Offering;

(c) provide all assistance as the Company may reasonably require for the delivery of the Products and the performance of the Services; and

(d) comply with all operating and maintenance instructions in relation to the Products.

7.7 The Customer shall be deemed to have accepted the delivery of the Offering at the site or location specified by the Customer.

8. Preconditions for installation

8.1 The Customer undertakes to ensure that all the Preconditions are fulfilled prior to the delivery and installation of the Products by the Company.

8.2 The Customer acknowledges and agrees that the Company shall not be responsible or liable for any claims arising from or in connection with:

(a) any fault or defect in the Products;

(b) non-performance of the Products; or

(c) any delay in the installation of the Products, if any of the Preconditions is not met.

8.3 The Customer agrees to indemnify the Company from and against any Loss arising from any delay in the installation of the Products, non-performance of the Products or fault or defect in the Products caused by the Customer’s failure to meet the Preconditions.

9. Cancellation

9.1 The Company may at its sole absolute discretion consider any written request from the Customer to cancel an Order. If the Company agrees to the cancellation, the Company reserves the right to withhold an amount up to the value of the initial deposit that the Company considers reasonable to cover its costs.

9.2 The Company reserves the right to cancel and refund the deposit in full paid by the Customer if there is a significant change in market conditions, including but not limited to changes to or cancellation of a government program providing subsidies and incentives, a significant fall in the exchange rate, unexpected component price rises, a significant fall in the value of any entitlements under the relevant government program or occurrence of similar event.

10. Payment

10.1 Unless otherwise specified by the Company in writing, payment of the Price is to be made by the Customer within seven (7) days from the date of a tax invoice for the Offering issued by the Company.

10.2 At the Company’s sole discretion, a deposit or pre-payment of the Price may be required.

10.3 Time for payment for the Offering is of the essence. In the event an invoice is overdue, the Company may suspend the provision of the Offering, until payment is made without incurring any liability to the Customer.

10.4 Payment of the Price and any other payment must be made in cleared funds by cash, cheque, bank transfer, credit card, direct debit, or by any other method as agreed between the Customer and the Company.

10.5 In the event of bankruptcy or insolvency of the Customer or in the event any proceeding is brought against the Customer, voluntarily or involuntarily, under any bankruptcy or insolvency laws, the Company shall be entitled to cancel any outstanding order for the Offering at any time during the period allowed for filing claims against the Customer and shall receive reimbursement for its reasonable and proper cancellation charges.

10.6 The Company (in its absolute discretion and at its option) may retain possession of any products or equipment repaired, modified, inspected, maintained or serviced under this Agreement until the Price is paid in full.

10.7 If the Price is not fully paid within thirty (30) days from the date of the relevant tax invoice, the Company may charge interest on the outstanding amount owed by the Customer at the rate of ten and a half percent (10.5%) per annum accruing daily from the due date until the date of payment.

10.8 The Customer indemnifies the Company from and against all Loss incurred by the Company in pursuing any sums owed by the Customer to the Company.

11. Security

11.1 The Customer consents to the Company creating and maintaining a registration on the Personal Property Securities Register (Register) in any required form, in relation to any security interest contemplated or created by the Agreement, including a security interest as defined in the PPSA.

11.2 The Customer agrees to sign any necessary documents and provide all reasonable assistance and information to facilitate the registration and maintenance of a security interest on the Register if required by the Company. The Company reserves the right to register a financing statement or financing change statement in respect of any security interest and the Customer waives the right to receive notice of a verification statement in relation to any registration of a security interest on the Register, by way of clause 11.1 or 11.2, in respect of any Products supplied.

11.3 The Customer undertakes to do any and all acts that are reasonably required by the Company so as to:

(a) allow the Company to create and maintain a perfected security interest (including a purchase money security interest) pursuant to the PPSA in respect of the Products supplied and any and all proceeds of the Products (where applicable);

(b) allow the Company to register a financing statement or financing change statement;

(c) ensure that the Company maintains its secured position under the PPSA;

(d) not register a financing statement or financing change statement without the Company’s prior written consent; and/or

(e) not register or commit to the register of a financial statement or financing change statement in respect of the Products, in favour of a third party, without the Company’s prior written consent.

11.4 The Company and the Customer agree that no information (as defined in Section 275(1) of the PPSA) will be provided to an interested person or person requested by an interested person. This clause 11.4 may be waived by providing prior written notice to the Company authorising the disclosure of the above information to a specified party.

11.5 In the event that the Agreement is subject to Chapter 4 of the PPSA:

(a) The Company and Customer agree that, pursuant to Section 115(1) of the PPSA, the Customer waives Sections 95, 96, 118, 121(4), 125, 130, 132(3)(d), 134, 135, 142 and 143 of the PPSA; and

(b) The Company and Customer agree that, pursuant to Section 115(7) of the PPSA, Sections 127, 129(2), 129(3), 130(1), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137 of the PPSA do not apply to the Agreement.

11.6 The Agreement (including clauses 5 and 6 of these Terms) is a security agreement for the purposes of the PPSA. For the avoidance of any doubt, collateral, for the purposes of Section 20(2) of the PPSA includes, but is not limited to, the Products (as described in the Agreement) or other products provided by the Company to the Customer at any subsequent time.

11.7 The Company may apply amounts received in connection with the sale of the Products to satisfy obligations secured by security interests contemplated or constituted by the Agreement, at the Company’s absolute discretion.

12. Warranty

12.1 Subject to clause 12.2, the Company warrants to the Customer that:

(a) the Services to be performed under the Agreement will be performed with reasonable care and skill in accordance with any specifications; and

(b) the Products to be provided under the Agreement will be free from material defects and will be of the kind and quality stipulated in the Agreement (Warranty).

12.2 The Warranty does not apply:

(a) where the defect is caused by the Customer; or

(b) where maintenance is not carried out as required; or

(c) where the Customer or other party did not comply with all operating and maintenance instructions in relation to the Products; or

(d) where the Customer or any third party misuse the Products; or

(e) where any Products or equipment has been repaired or otherwise tampered with by any person other than a person authorised by the Company to make repairs; or

(f) the alleged defect of the Products is within acceptable industry variances for products of that kind; or

(g) the product has been subjected to abnormal conditions or environments; or

(h) in cases of normal wear and tear.

12.3 The Warranty shall apply only to defects appearing within the Warranty Period. After the Warranty Period the Customer is deemed to have accepted the Offering.

12.4 If the Company breaches the Warranty, provided the Customer has given the Company written notice of such breach within the Warranty Period, the Company’s liability is limited to the remedies under clause

12.7, provided that any Products to be returned must be returned at the Customer’s cost.

12.5 The liability of the Company for any Loss incurred by the Customer as a result of the Warranty breach (whether the claim is based on contract or negligence) will not in any case exceed the cost of correcting defects in the Offering. The foregoing shall constitute the exclusive remedy of the Customer and the exclusive liability of the Company.

12.6 Any condition, term, guarantee or warranty which would otherwise be implied in the Agreement is hereby excluded to the full extent permitted by law.

12.7 Where legislation implies in the Agreement any condition, term, guarantee or warranty (Mandatory Warranty), and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such Mandatory Warranty, the Mandatory Warranty is deemed to be included in the Agreement and the liability of the Company for any breach of such Mandatory Warranty is limited, at the absolute discretion of the Company, to one or more of the following:

(a) if the breach relates to the Products:

(i) the replacement of the Products or the supply of equivalent products;

(ii) the repair of such Products;

(iii) the payment of the cost of replacing the Products or of acquiring equivalent Products; or

(iv) the payment of the cost of having the Products repaired; and

(b) if the breach relates to the Services:

(i) the supplying of the Services again; or

(ii) the payment of the cost of having the Services supplied again.

12.8 The Customer acknowledges that it must comply with the Warranty Statement to make a claim against the Warranty.

12.9 The provisions of this clause 12 shall survive termination of the Agreement for any reason.

13. Limitation of liability
13.1 The Company’s liability under any claim by the Customer in respect of this Agreement or matters associated with this Agreement is limited to the portion of the Price allocable to the Offering which gives rise to that claim. This limitation of liability includes any liability in respect of negligence for any Loss or damages arising out of, connected with, or resulting from this Agreement, or from the performance or breach thereof, or from the delivery, installation, technical direction of installation, operation or use of any equipment, material or components covered by or furnished under this Agreement.

13.2 The Company is not liable for any:

(a) loss of profits or revenue, loss of use of the equipment or any associated equipment, facilities or services downtime costs;

(b) special, consequential or indirect loss or damages; or

(c) for any claims by third parties against the Customer for such loss or damages.

13.3 The Company does not give any warranty with respect to (without limitation):

(a) breaches of the Warranty not reported to the Company within the Warranty Period;(b) failures or damage in respect of the Services due to misapplication, abuse, improper installation or abnormal conditions of temperature, dirt or corrosive matter;

(c) Products which have been in any way tampered with or altered by anyone other than an authorised representative of the Company;

(d) Products damaged in shipment or otherwise without fault of the Company; or

(e) expenses incurred by the Customer in an attempt to repair or rework any alleged defective Products.

13.4 The Customer agrees to indemnify the Company from and against:

(a) any Loss arising from the injury or death of any person caused by an act, omission or negligence or otherwise of the Customer, the Customer’s employees, servants and agents whilst the Company supplies the Products or performs the Services; and

(b) any Loss caused to the Company, whether such Loss was caused by the act, default or negligence on the part of the Company or otherwise.

13.5 The Customer shall assume all risks and liabilities for and in respect of the provision of the Offering, and for injuries to or death of persons and damage to property howsoever arising and the Customer indemnifies the Company from and against:

(a) the loss of or damage to any Products or parts thereof for which payment of the Price has not yet been made in full, whether by fire, theft, accident, seizure, confiscation or otherwise whilst in the Customer’s custody, possession or control; and

(b) all other Loss howsoever arising incurred as a result of or in connection with the provision of the Offering.

13.6 The Customer acknowledges and agrees that:

(a) to the maximum extent permitted by law, the Company will not be liable to the Customer or any other person under any circumstances for any loss or damage suffered or incurred by the Customer or for any injury or death to any person, or for any indirect, incidental or consequential damages sustained or incurred by the Customer, whether such liability arises directly or indirectly as a result of:

(i) any negligent act or omission or wilful misconduct of the Company or its employees or agents;

(ii) the supply, performance or use of any Products Services; or

(iii) any breach of the Company’s obligations under this Agreement.

(iv) other than the terms in this Agreement, no other term, condition, agreement, warranty, representation or understanding (whether express or implied) in any way binding upon the Company, other than these Terms, is made or given by or on behalf of the Company; and

(v) the Customer is solely responsible for making an assessment that any Products or Service is reasonably fit for the Customer’s intended purpose and required use, and such purpose or required use is in accordance with all applicable laws.

14. Materials supplied by the Customer

14.1 The Customer shall provide to the Company any patterns, designs, specifications, drawings, samples, technical information, or any other information required by the Company or specified in the Agreement (whether in electronic format or otherwise) or which the Customer has agreed in writing to provide to enable the Company to supply the Offering (Materials).

14.2 All Materials and the Intellectual Property of the Materials remain the property of the Customer.

14.3 The Company will not use the Materials for any purpose other than to the extent required to supply the Offering to the Customer.

15. Data
The Customer authorizes and provides consent to the Company to use any data associated with provision of the Offering for the Customer’s business. This clause 15 shall survive termination of the Agreement.

16. Termination and cancellation

16.1 The Company may suspend or terminate the Agreement immediately:

(a) upon giving written notice to the Customer in the event that the Customer is in default of a material term of the Agreement and fails to remedy such default within fourteen (14) days of notice from the Company to do so, if such default is capable of remedy;

(b) the Customer has failed to pay an invoice by its due date; or

(c) if the Customer or any of its Related Bodies Corporate becomes insolvent, is made bankrupt, is placed into external administration or liquidation or has a receiver or other controller appointed over its assets or experiences any similar action in respect of its financial standing.

16.2 Termination of the Agreement pursuant to this clause 16 shall be without prejudice to the rights of either party accruing prior to termination

17. Dispute resolution

17.1 If a Dispute arises, either party may give the other party written notice of the Dispute identifying and providing details of the Dispute (Dispute Notice) by email or by registered post.

17.2 Within seven (7) days of receipt of a Dispute Notice, representatives of the parties having authority to bind the parties shall confer to seek to resolve the Dispute. In the event of any doubt, the representatives who have the authority to bind the party shall be the Chief Executive Officers (or equivalent) of the parties. All aspects of such conference(s) shall be subject to “without prejudice” privilege.

17.3 Neither party may commence any court proceedings prior to complying with clauses 17.1 and 17.2.

17.4 Notwithstanding the existence of a Dispute, each party must continue to perform its obligations under this Agreement.

18. Assignment and sub-contracting

18.1 The Company may assign, transfer or novate its rights and/or obligations (where applicable) under the Agreement or subcontract the performance of the Services or the supply of the Products to a third party without the Customer’s prior written consent.

18.2 The Customer must not assign, transfer or novate its rights and/or obligations (where applicable) under the Agreement without the Company’s prior written consent.

19. General

19.1 The Company shall have no liability to the Customer in respect of any matter in connection with the Agreement unless the claim together with full particulars thereof is lodged with the Company within fourteen (14) days of the occurrence of the event(s) or circumstance(s) on which the claim is based.

19.2 If any provision or part of any provision of the Agreement is unenforceable, the parties agree that such unenforceability shall not affect any other part of such provision or any other provision of the Agreement.

19.3 The Company may alter, amend, revise or change any terms of the Agreement with reasonable notice given to the Customer of any such alteration, amendment, revision or change. If the Customer proceeds to accept the supply of the Offering, from the Company, the Customer shall have accepted such alteration, amendment, revision or change in the terms of the Agreement. The Agreement (as amended from time to time) shall apply to all of Offering supplied by the Company to the Customer and shall comprise the entire agreement between the parties notwithstanding any other terms and conditions which may be supplied by the Customer.19.4 Any waiver by the Customer of strict compliance with any provision of the Agreement shall not be effective unless in writing and signed by an authorised officer of the Customer.

19.5 This Agreement shall be governed by and construed in accordance with the laws in force in Victoria and the parties submit to the exclusive jurisdiction of the courts of Victoria.

19.6 No provision of the Agreement shall be construed adversely against one party solely on the basis that that party was responsible for the drafting of that provision.

Electric Heat Pump – Warranty

Customer Notice:

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

1. to cancel your service contract with us; and
2. to a refund for the unused portion, or to compensation for its reduced value.

You are 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, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

1. Thank you (the Customer) for installing an electric heat pump (Product) from Home Green Pty Ltd (ACN 137 168 033) trading as Shine On Solar and Shine On Energy (Company).

2. The Company has provided installation services (Services) in relation to the Product. The Company warrants that the Services the Customer receives are free from defects in workmanship (Services Warranty) for one (1) year from the date the Services are provided to the Customer. (Services Warranty Period).

3.  The Product is supplied with the manufacturer’s warranty provided by the manufacturer of the Product (Product Warranty). The Product Warranty shall be available for the duration set out in the Product Warranty documentation supplied during the installation of the Product (Product Warranty Period).

4. No party or individual is authorised to make any other warranties on behalf of the Company, or to modify this warranty.

5. This warranty is non-transferrable.

6. If, during the Services Warranty Period, a claim is made that there is a defect in Services:

a. Where the Company determines that there has been a defect in Services, the Company will rectify the Services; and

b. Where the Product has been damaged due to a defect in Services, the Company will replace and install a new Product.

7. In the event a defect arises with the Product:

a. during the Services Warranty Period; and

b. a valid warranty claim is lodged within the Product Warranty Period,

the Company will provide its labour free of charge in connection with reinstallation of the Product (where reinstallation is required). In the event a defect arises with the Product outside the Services Warranty Period, the Customer must contact the manufacturer directly.

8. If the Customer believes there is a breach of the Services Warranty or Mandatory Warranty, the Customer must:

a. notify the Company, in writing, during the Services Warranty Period;

b. provide the Company proof of purchase and any other documentation requested by the Company;

c. identify the alleged defect in the Service and/or Product; and

d. where applicable, and at the Company’s request, return the Product to the place of purchase or provide reasonable access for the Company to inspect the Product at the Customer’s premises.

9. The Company shall be entitled to inspect the Product to verify the validity of the Customer’s warranty claim. If there is no defect in the Product after inspecting and testing, the Customer must pay the Company’s usual costs of service work and testing.

Contact Details
Home Green Pty Ltd (ACN 137 168 033) trading as Shine On Solar and Shine On Energy
Contact: Operations Team
Head Office: K109, 63-85 Turner Street, Port Melbourne Victoria 3207
Phone: 1300 013 648
Fax: +61 (0)3 9939 9980
Email: warranty@shine-on.com.au

Complaint Management Procedure for Heat Pump Customers

As part of our customer satisfaction obligations, Shine On has a comprehensive customer complaint procedure.

Shine On will record, monitor and review complaints or faults in order to identify any trends to improve the service given to our customers.

We recognise our customers have a right to raise a concern and we will resolve any issues customers may have with our products or services in an effective, respectful and professional manner.

Upon receipt of customer issues (both written and verbal) we adhere to the following procedure in order to maintain our genuine commitment to complete customer satisfaction:

Customers may contact Shine On to lodge a complaint by:

• Calling 1300 013 648
• Emailing warranty@shine-on.com.au
• Submitting a website enquiry
• Contacting the BDM who they initially engaged with
• Post: Suite K109, 63-85 Turner Street, Port Melbourne VIC 3207

NB: please note that although we welcome phone calls regarding complaints, in order to follow up thoroughly and resolve the issue, Shine On requires the complaint in writing from the customer.

Shine On requires the following information in writing:

• Customer’s reference number
• Customer’s name and contact details, and name of business
• The nature of the complaint or fault, including as much information as possible
• Customer’s proof of purchase
• Clarification of the complaint or fault being experienced, and details of any evidence that supports the complaint

Shine On aims to resolve all written complaints promptly. All complaints will be acknowledged within five business days of submission together with an estimation of the time frame for resolving the complaint based on the nature of the issue and its complexity. Where possible, complaints may be resolved at the first point of contact.