Terms and Conditions of Trade.

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

Agreement means the terms and conditions contained herein, together with any quotation, order, invoice or other document expressed to be supplemental to this Agreement to the extent not inconsistent with these terms and conditions.

Customer means the person/s or entity ordering the Works as specified in any invoice, document or order, and if there is more than one Customer, it is a reference to each Customer jointly and severally, to the extent permitted by law, their executors, administrators, successors and permitted assigns;

Delivery means the earliest of:

(a) the Goods being delivered to the address nominated by the Customer;

(b) the Goods being collected by the Customer or the Customer’s agent;

(c) the Goods being left at the Customer’s premises or nominated delivery location; or

(d) where applicable, the completion of installation or commissioning by OGPP.

Fees means the fees payable by the Customer to OGPP for Goods or Works, in accordance with this Agreement;

Goods means all goods supplied by OGPP to the Customer and includes, where the context permits, any associated services or Works supplied in connection with those goods.

Battery or Batteries means a container consisting of one or more cells, in which chemical energy is converted into electricity and used as a source of power.

Accessories means any off-the-shelf item designed to be fitted to or used in connection with a battery electrical system.

OGPP means Off Grid Power Products Pty Ltd A.C.N 682 475 743, its successors and assigns or any person acting on behalf of and with the authority Off Grid Power Products Pty Ltd A.C.N 682 475 743;

Quote means any document provided by OGPP containing a price for Goods or Works, including but not limited to tax invoices, electronic quotations, or handwritten quotations;

Works means all services, labour, installation, commissioning and associated activities supplied by OGPP to the Customer at the Customer’s request from time to time (and includes any Materials supplied or used in connection with those Works).

For the avoidance of doubt, references to Goods include associated Materials supplied by OGPP, and may include associated Works where the context expressly requires.

Materials means any components, parts, consumables, equipment, hardware, cabling, fittings or other items supplied or used by OGPP in connection with the Works.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

1.2.1 a reference to a person includes:

(a) a corporation and government body;

(b) that person’s legal representative, successors and assigns;

1.2.2 words importing the singular number or plural number include the plural number and singular number respectively;

1.2.3 words importing a gender include all genders;

1.2.4 lists, the term “including”, and similar words of illustration or example are not words of limitation;

1.2.5 rules of construction and interpretation will not apply to disadvantage a party simply because the party was responsible for drafting part or all of this Agreement;

1.2.6 where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;

1.2.7 reference to Acts and Statutes include all Acts and Statutes amending, consolidating, or replacing the Acts and Statutes referred to, and all regulations, by-laws, and ordinances issued under them;

1.2.8 headings or marginal notes are for ease of reference only and do not form part of or affect the construction of this Agreement; 

1.2.9 if a party is identified as two or more persons then any agreements and undertakings on the part of either party will bind them jointly and each of them severally;

1.2.10 Where this Agreement refers to OGPP exercising discretion, forming an opinion, or making a determination, that discretion, opinion, or determination must be exercised reasonably, in good faith, and subject to the Australian Consumer Law.

2. BINDING NATURE

2.1 All orders placed with OGPP shall be subject to this Agreement. The Customer is taken to have accepted and is immediately bound, jointly and severally, by the terms and conditions in this Agreement, if the Customer places an order with OGPP for Goods or Works, signs any Quote, pays a deposit, provides instructions to OGPP to proceed with providing Goods or Works, or accepts delivery of any Goods or Works.

2.2 OGPP may vary these terms and conditions by providing written notice to the Customer. Any variation will apply only to orders placed after the date of notification, unless otherwise agreed in writing.

3. COMPLETION TIME

3.1 Any date or time quoted for delivery of Goods and/or completion of Works is indicative only. While OGPP will endeavour to meet any specified date, failure to do so will not of itself confer any right of cancellation or termination or render OGPP liable for loss or damage, subject always to the Customer’s rights under the Australian Consumer Law.

3.2 The Customer will not be relieved of any obligation to pay the Fees once Goods or Works have been supplied by reason of any delay in delivery or any strike, pandemic, unavailability of materials, accidents to machinery or equipment. Fires, floods, storms or tempests, acts of God, restrictions or interventions imposed by any laws or government regulations, and any other cause beyond the control of OGPP subject always to the Customer’s rights under the Australian Consumer Law.

3.3 OGPP will not be liable for any failure or delay in providing Goods or Works due to the circumstances set out in clause 3.2 above. 

4. TERMS OF PAYMENT

4.1 Once a Quote is accepted by the Customer, the Fees will not be varied except in accordance with this Agreement or as required by law.

4.2 Subject to clause 4.1, the Fees payable shall be:

(a) the amount stated in an accepted Quote; or

(b) where no Quote applies, the amount stated in tax invoices provided by OGPP; or

(c) where applicable, the amount as at the date of delivery according to any price list maintained by OGPP.

4.3 If there is a genuine clerical or typographical error or omission in a Quote, OGPP reserves the right to correct the Quote prior to acceptance.

4.4 The Customer must pay the Fees to OGPP within fourteen (14) days of OGPP providing the Customer with a tax invoice for Goods or Works, or within such other time frame specified by OGPP. 

4.5 If the Customer fails to make payment in accordance with clause 4.4, OGPP shall be entitled to:

(a) require payment up front and in full before commencement of any further Works or the provision of further Goods;

(b) charge default interest at the rate of 10% per annum simple interest, calculated from the due date for payment on a day-to-day basis on any monies due but unpaid; and

(c) cease any further Works for the Customer until such time as all monies owing are paid in full.

5. GOODS AND SERVICES TAX (GST)

5.1 Terms used in this clause 5 have the meaning given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

5.2 Unless otherwise expressed the Fees have been fixed without regard to the impact of GST.

5.3 If GST is or becomes payable on a Taxable Supply made under or in connection with this Agreement, the party providing consideration for that Taxable Supply (recipient) must pay an additional amount equal to the GST payable on the Taxable Supply.

5.4 The additional amount payable under clause  5.3 must be paid at the same time as the consideration for the Taxable Supply or on the date which the party making the supply delivers a tax invoice (whichever is later).

6. TERMINATION

6.1 OGPP may terminate this Agreement by written notice if the Customer breaches any material provision.

6.2 OGPP may also terminate this Agreement if the Customer being a natural person or persons becomes insolvent, enters external administration, or is otherwise unable to pay its debts as they fall due, or being a corporation has liquidators or administrators appointed, or enters into any composition arrangement with creditors.

6.3 Notwithstanding termination of this Agreement, the Customer is liable for payment of all Fees.

6.4 The Customer may terminate this Agreement where OGPP commits a material breach that is not remedied within a reasonable time after written notice, subject to the Customer’s rights under the Australian Consumer Law.

7. ASSIGNMENT

7.1 OGPP may assign or otherwise deal with the whole or any part of this Agreement without the prior written consent of the Customer.

7.2 The Customer cannot assign any contractual warranty provided under this Agreement, without the prior written consent of OGPP. This clause does not limit any rights that may transfer under the Australian Consumer Law.

8. RETENTION OF TITLE

8.1 Notwithstanding delivery or installation of the Goods, title in the Goods shall remain with OGPP until the Customer has paid all Fees and other amounts owing, to the fullest extent permitted by law, regardless of whether the Goods are acceded to or attached to any property of the Customer or a third party.

8.2 The Customer acknowledges that following delivery or installation, they are in possession of the Goods as a bailee for OGPP until such time as all Fees and other amounts owing have been paid in full. 

9. PERSONAL PROPERTY AND SECURITIES LAW

9.1 Terms used in this clause 9 have the meaning given to them in the Personal Property Securities Act 2009 (Cth).

9.2 OGPP may, acting reasonably and subject to the Australian Consumer Law, register a Security Interest over any Personal Property, at any time prior to full payment of the Fees.

9.3 The Customer undertakes to do anything (such as obtaining consents and signing documents) which OGPP may require for the purposes of:- 

9.3.1 ensuring that OGPP's Security Interest is enforceable, perfected and otherwise effective under the PPSA; 

9.3.2 enabling OGPP to gain first priority for OGPP's Security Interest; and 

9.3.3 enabling OGPP to exercise rights in connection with OGPP's Security Interest.

9.4 OGPP's rights under this Agreement are in addition to and not in substitution for OGPP's rights under other law (including the PPSA) and OGPP may choose whether to exercise rights under this Agreement and/or under such other law as OGPP sees fit. 

9.5 To the extent that Chapter 4 of the PPSA applies to any Security Interest under this Agreement, the following provisions of the PPSA are contracted out of this Agreement pursuant to section 115 of the PPSA in respect of all Goods or Property to which that section can be applied:

9.5.1 section 95 (notice of removal of accession to the extent it requires OGPP to give a notice to the Customer); 

9.5.2 section 96 (retention of accession); 

9.5.3 section 121(4) (notice to grantor); 

9.5.4 section 125 (obligations to dispose of or retain collateral); 

9.5.5 section 130 (notice of disposal to the extent it requires OGPP to give a notice to the Customer); 

9.5.6 section 129(2) and 129(3); 

9.5.7 section 132(3)(d) (contents of statement of account after disposal); 

9.5.8 section 132(4) (statement of account if no disposal); 

9.5.9 section 135 (notice of retention); 

9.5.10 section 142 (redemption of collateral); and 

9.5.11 section 143 (re-instatement of security agreement). 

9.6 The Customer waives their rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPSA. 

9.7 OGPP and the Customer agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Customer must do everything necessary on their part to ensure that section 275(6)(a) of the PPSA continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing to OGPP the benefit of section 275 (6)(a) and OGPP shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause. 

9.8 To assure performance of the Customer's obligations under this Agreement, the Customer hereby gives OGPP an irrevocable power of attorney to do anything OGPP considers the Customer should do under this Agreement. 

9.9 OGPP may recover from the Customer the cost of doing anything under this clause 9, including registration fees.

9.10 The Customer must not sell, assign, sub-let, lend, pledge, mortgage, let on hire or otherwise deal with or part with possession of the Goods or any individual item or part of an item without OGPP's prior written consent except where permitted under the Australian Consumer Law.

10. WARRANTY

Warranty claims are governed by OGPP’s Warranty Policy, available on our website. This policy operates in addition to, and does not exclude, any rights or remedies available under the Australian Consumer Law.

11. RETURNS & REFUNDS

Returns and refunds are governed by OGPP’s Returns & Refunds Policy (as in force at the time the Goods were purchased, unless a later version is more favourable to the Customer), available on the OGPP website, which forms part of these Terms and Conditions.

12. RISK

12.1 Risk in the Goods passes to the Customer upon delivery or collection, after the Customer has had a reasonable opportunity to inspect the Goods (being no later than delivery unless otherwise agreed in writing), subject to the Customer’s rights under the Australian Consumer Law and clause 11. Risk passes to the Customer notwithstanding that title in the Goods may remain with OGPP under clause 8. For the avoidance of doubt, the passing of risk is independent of the passing of title.

12.2 Shipping and delivery of goods are governed by OGPP’s Shipping Policy, available on our website. This policy forms part of these Terms and Conditions and must be read in conjunction with them.

13. CUSTOMER'S ACKNOWLEDGEMENTS 

13.1 To the extent permitted by law, OGPP accepts no liability for minor variations in visual appearance or operational noise that do not affect the performance or safety of the Goods.

14. SEVERABILITY

14.1 If anything in this Agreement is unenforceable, illegal or void then it is severed, and the rest of this Agreement remains in force.

15. ENTIRE UNDERSTANDING

15.1 This Agreement:

15.1.1 is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and

15.1.2 supersedes any prior agreement or understanding on anything connected with that subject matter.

15.2 Each party has entered into this Agreement without relying on any representation by any other party or any person purporting to represent that party.

16. VARIATION

16.1 An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.

17. WAIVER

17.1 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

17.2 The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.

17.3 A waiver or variation is not effective unless it is in writing.

17.4 Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

18. RELEASE AND LIMITATION OF LIABILITY

18.1 Subject to clause 18.2 and to the maximum extent permitted by law and the Australian Consumer Law, OGPP excludes liability for loss or damage to the extent permitted by law suffered by the Customer arising from the supply of the Goods or Works. Nothing in this clause is intended to exclude, restrict, or modify any rights or remedies available to the Customer under the Australian Consumer Law.

18.2 Where liability cannot be excluded, OGPP’s liability is limited, at its option, to:

(a) the replacement of the Goods;

(b) the repair of the Goods;

(c) the payment of the cost of replacing the Goods; or

(d) the payment of the cost of having the Goods repaired.

This clause does not apply to Goods or services to which the Australian Consumer Law requires a different remedy.

19. INDEMNITY

19.1 The Customer indemnifies OGPP against all claims, demands, actions, proceedings or prosecutions arising from the Customer’s use of the Goods or Works, to the extent not caused by OGPP’s negligence or breach of this Agreement and does not apply to the extent such loss arises from OGPP’s negligence or breach of the Australian Consumer Law

20. NOTICES

20.1 A party may send a notice in connection with this Agreement by hand delivery, prepaid post or electronic mail to another party at the address of, or in such other way as, the receiving party may have last notified each other party in writing.

20.2 A notice is deemed to be received:

20.2.1 if delivered in person, when delivered;

20.2.2 if sent by prepaid post, on the second business day after the date of posting;

20.2.3 when the email enters the recipient’s information system.

(a) the message has been delivered to and is capable of being retrieved from the electronic mailing address of the addressee; and

(b) the addressee has become aware that the message has been sent to that electronic mailing address.

21. NON-MERGER

21.1 The rights and obligations of the parties in respect of the covenants, warranties, and representations contained in this Agreement will not merge but survive termination, completion or assignment of this Agreement.

22. FURTHER ASSURANCES

22.1 Each party must, at its own expense, do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including but not limited to the execution of documents.

23. GOVERNING LAW

23.1 This Agreement shall be construed and take effect in accordance with, and shall be governed by, the law in force in Queensland.

23.2 Each of the parties submits to the jurisdiction of the courts of the state of Queensland and the Commonwealth of Australia.