Terms of service

DPA TERMS OF SERVICE

(Clear & human version – legal meaning unchanged)

1. Application of Terms

  1. These Terms set out the contractual basis on which we supply you with Goods and Services. They apply whenever we quote, sell, or supply Goods or Services to you.
  2. Any terms or conditions in, attached to, or referenced in your Order (including purchase order terms) that differ from or are inconsistent with these Terms are expressly rejected and do not vary or supplement these Terms.
  3. Each supply we make following acceptance of an Order is a separate Contract, subject to these Terms.
  4. If we have granted you a credit facility, our Credit Facility Terms also apply. If there is any conflict or inconsistency between these Terms and our Credit Facility Terms, the Credit Facility Terms prevail to the extent of that conflict or inconsistency.

2. Quotations

  1. Our quotations are estimates only and are not an offer or obligation to supply any Goods or perform any Services.
  2. Unless stated otherwise, our quotations:
    1. exclude GST;
    2. exclude delivery costs; and
    3. are valid for 30 days from the quotation date.
  3. You acknowledge that quotations may include additional terms or conditions. These supplement, and are intended to be read together with, these Terms.
  4. We may withdraw, change, or extend the acceptance period of any quotation at any time before a Contract is formed under clause 11.

3. Formation of Contract

  1. You accept these Terms (or are deemed to accept them) when, after receiving a copy of these Terms, you:
    1. confirm your acceptance; or
    2. place an Order with us.
  2. We may decide not to accept your Order and do not need to give reasons. Nothing in these Terms obliges us to supply Goods or perform Services at any time.
  3. Your Order is an offer. A binding Contract only comes into existence when:
    1. we communicate our acceptance of your Order (in writing or electronically); or
    2. we supply any Goods or perform any Services following receipt of your Order.
  4. A Contract is formed at the location of ours where we receive your Order.

4. Price and Payment Terms

  1. Subject to clause 14, the Price for the Goods or Services is our then-current price list (as notified to you from time to time) as at the date of your Order.
  2. Where we issue a quotation, the Price is our quoted price (subject to clauses 6 and 24–27), provided you accept the quotation in writing within its validity period.
  3. Unless you have an approved credit facility, payment terms are strictly cash before delivery.
  4. Payment may be made by cash, EFT, Visa, or MasterCard. We may change accepted payment methods at any time.
  5. You acknowledge that we may charge a payment surcharge on applicable transactions equal to our reasonable cost of acceptance.
  6. We may require a non-refundable deposit. The deposit amount will be specified in our quotation or otherwise advised and becomes due immediately on Contract formation under clause 11, unless agreed otherwise in writing. For clarity:
    1. if a deposit is required, we are not obliged to supply any Goods or perform any Services until we receive the deposit in cleared funds; and
    2. the deposit is refundable only where:
      1. you are entitled to a refund under the Australian Consumer Law; or
      2. you terminate the Contract because of our breach.
  7. If GST is imposed on a Taxable Supply we make to you under a Contract, the price of that Taxable Supply is the GST-exclusive consideration plus the amount of GST payable (the “GST Amount”). Subject to us issuing a Tax Invoice, the GST Amount is payable at the same time and in the same manner as the related consideration. If we become liable to pay any tax, duty, excise, or levy in connection with a Contract, you must pay us those additional amounts on written demand.
  8. You must check all Tax Invoices and notify us of any errors or omissions within 7 days of receipt. If you do not, the Tax Invoice may be deemed accepted.
  9. Any amounts you owe us must be paid free of any set-off, counterclaim, deduction, or withholding.
  10. We may deduct or set off any monies we owe you on any account against any amounts you owe us.

5. Default

  1. If you do not pay any amount due under a Contract (including any required deposit) by the date specified in our Tax Invoice, then, without limiting any other rights we may have at law or in equity, we may:
    1. charge interest on the overdue amount at 10% per annum, accruing daily until payment in full;
    2. require you to pay in advance for any Goods or Services not yet supplied; and
    3. suspend or cease supplying any further Goods or Services to you.

6. Variations

  1. If you request or direct Goods or Services that are not strictly in accordance with our quotation or your Order, those Goods or Services are treated as a variation.
  2. You must submit any variation request in writing. A variation is only effective if we accept it in writing.
  3. You understand and agree that:
    1. all variations must be agreed in writing before the varied Goods or Services are supplied; and
    2. we may invoice variations at the rates in our quotation, as otherwise specifically quoted, or in line with our current price list.
  4. Despite clauses 24–26, and subject to any rights you may have under the Competition and Consumer Act 2010 (Cth) or other laws, we may vary the quoted Price if:
    1. the Goods or Services in your Order differ from those in our quotation, or change after the Contract is formed; or
    2. otherwise as allowed under these Terms.

7. Order Cancellations

  1. Once a Contract has been formed, you may not cancel all or part of an Order, defer delivery, or return Goods unless we first consent in writing. Any consent may be conditional on you reimbursing and indemnifying us for all losses we have incurred or may incur because of the cancellation, deferral, or return, including third-party restocking fees, cartage, bank charges, other incidental expenses, and loss of profit.

8. Delivery

  1. Unless our quotation states otherwise, you are responsible for all packaging and delivery costs, including freight, handling, and other charges. Where you appoint a carrier to deliver the Goods, you are also responsible for any insurance for the Goods.
  2. You must make all arrangements necessary to take delivery of the Goods when they are tendered for delivery.
  3. You acknowledge that any delivery period or date we state is an estimate only and not a contractual commitment. We are not liable for any loss or damage suffered by you or any third party due to any delay in delivery.
  4. Delivery will be made during Normal Working Hours on Business Days, unless agreed otherwise in writing.
  5. Delivery is deemed to occur when:
    1. you or a third party on your behalf collects the Goods from us;
    2. the Goods are delivered to the delivery address in your Order (or any other location agreed in writing); or
    3. your nominated carrier takes possession of the Goods, in which case the carrier is deemed to be your agent.
  6. If requested, you or your authorised representative must sign our delivery docket to confirm that the Goods have been received in apparent good order and condition.
  7. If delivery is deferred:
    1. at your request; or
    2. because you are unable to accept delivery when:
      1. we are ready to deliver (if no delivery date is specified); or
      2. the Goods are due for delivery (where a delivery date is specified),
      then we may charge you, and you must pay:
      1. reasonable storage charges, accruing daily until delivery; and
      2. a re-delivery fee where a prior delivery attempt has been made.
  8. You acknowledge and accept that:
    1. we may deliver Goods in instalments and may require payment for each instalment in line with these Terms; and
    2. you are not relieved from any obligation under these Terms or any Contract due to delivery delays, and a delay does not entitle you to cancel the Contract.

9. Risk

  1. Risk of loss of, or damage to, the Goods passes to you upon delivery to you, your agent, or a carrier commissioned by you under clause 33.
  2. You must insure the Goods for their full replacement value against loss, damage, or destruction (including by accident, theft, fire, explosion, flood, negligence, and any other insurable risk) on or before delivery, and name us as co-insured.
  3. If you request that Goods be delivered to an unattended location, left outside your premises, or left outside our premises for collection, we may do so at your sole risk.

10. Retention of Title

  1. Until you have paid in full for the Goods and all other monies owing to us (under any Contract or other account), title in the Goods does not pass to you. You agree that we retain legal and equitable title to all Goods we supply and that have not yet been sold, until all amounts owing are paid in full.

11. Returns

  1. Within 7 days of the date of delivery, you must:
    1. notify us in writing, with details, of any claim that the Goods are not in line with your Order (including shortfall, incorrect supply, or damage); and
    2. provide photographic evidence (satisfactory to us) of any alleged damage.
  2. If you do not give notice under clause 41, then, to the extent permitted by law, the Goods are treated as accepted by you and must be paid for in accordance with the Contract.
  3. Unless agreed otherwise in writing, you must pay all costs associated with returning Goods (to or from us or any third party), including freight, insurance, handling, and other charges.
  4. Goods may not be returned without our prior written consent. To the extent permitted by law, Goods specifically produced or procured at your request cannot be returned under any circumstances.
  5. Any return (except for Goods we deem to be incorrectly supplied or defective) will incur a handling and administration charge of 20% of the purchase Price of the returned Goods, unless agreed otherwise in writing.
  6. Goods returned to us must be unsoiled, undamaged, appropriately packed and wrapped, and include all original packaging and documentation.
  7. We are not liable for any damage to Goods that occurs in return transit.

12. Small-scale Technology Certificates (STCs)

  1. Where:
    1. you have assigned your Small-scale Technology Certificates (STCs) to us in return for an upfront discount or rebate; and
    2. you have provided incorrect or fraudulent information to obtain those STCs, or the STCs otherwise fail (for any reason),
    then, without limiting our legal or equitable rights, you must repay us on demand, as a liquidated debt, the difference between the value of STCs claimed and the actual value of STCs.
  2. Without limiting clause 48, if we overpay you for an STC (whether as a rebate, discount, or otherwise), you must repay us on demand, as a liquidated debt, the difference between the amount paid and the actual STC value.

13. Description of Goods

  1. It is a condition of sale that any description or specification we give or that appears in our printed material is for general guidance only. We are only responsible to the extent that the Goods meet the standards in that description or specification. The description or specification does not amount to a guarantee of fitness for any particular purpose.
  2. If Goods are required for a particular purpose, you must state that purpose clearly in your Order and obtain written confirmation from us that the Goods will meet that purpose. If you do not do this, and we do not expressly confirm in writing that the Goods are fit for your stated purpose, you agree that you did not rely on our skill or judgment for suitability of the Goods.

14. Intellectual Property

  1. All rights, title, and interest in the Intellectual Property Rights in all Works and Goods supplied or sold by us are, and remain, our property.
  2. All improvements, derivatives, and modifications to those Intellectual Property Rights (“Improvements”) vest in us immediately on creation. To the extent necessary, you assign all rights, title, and interest in the Improvements to us.
  3. You acknowledge that you have no right to use our Intellectual Property Rights under these Terms, except as expressly set out in them or otherwise agreed in writing.

15. Indemnity

  1. You are liable for, and indemnify us against, all liability, claims, damage, loss, costs, and expenses (including collection costs, debt recovery fees, and legal costs on an indemnity basis) we incur, directly or indirectly, because of your default in performing your obligations under any Contract.
  2. Your indemnity is reduced proportionally only to the extent that:
    1. our negligence or breach of our obligations directly contributed to the liability, claim, damage, loss, cost, or expense; or
    2. these Terms specifically make us liable for costs of rectifying or repairing any defect in, malfunction of, or damage to the Goods.
  3. Your indemnity is a continuing, separate obligation that survives completion or termination of any Contract.
  4. We do not have to incur any expense or make any payment before enforcing the indemnity.

16. Nature of Relationship

  1. Nothing in these Terms or any Contract creates a relationship of agency, partnership, joint venture, trust, or any relationship other than that of independent contracting parties dealing at arm’s length.

17. Limitation of Liability

  1. We are not liable for any loss or damage (including due to our negligence) you suffer or incur in connection with any incorrect information in an Order or otherwise provided by or on your behalf.
  2. Subject to clauses 60, 62, 63, and 65, our liability for any loss or damage (however caused, including by our negligence) you suffer or incur in connection with a Contract is limited to the amount paid by you to us under that Contract before you first suffered the relevant loss or damage.
  3. The limitation in clause 61 is an aggregate limit for all claims, whenever made.
  4. Subject to clause 65, we are not liable for any Excluded Loss (however caused, including by our negligence) you suffer or incur in connection with any Contract.
  5. Clauses 60–63 apply to claims for breach, anticipated breach, and all other conduct, regardless of the seriousness or nature of the conduct.
  6. If the Competition and Consumer Act 2010 (Cth) or any other law provides a non-excludable guarantee in relation to Goods or Services supplied under a Contract, and our liability cannot be excluded but can be limited, then clauses 60–63 do not apply to that liability. Instead, our liability is limited, at our option, to:
    • for Goods: replacing the Goods or supplying equivalent Goods; and
    • for Services: supplying the Services again or paying the cost of having them supplied again.

18. Termination of Contract

  1. We may terminate any Contract immediately by written notice if:
    1. you fail to pay a required deposit or any other amount when due;
    2. you commit a material or persistent breach of these Terms and do not remedy it within 7 days of receiving written notice of the breach; or
    3. for any reason, we are no longer able to supply the Goods or Services (or any part of them).
  2. Termination does not affect rights that have already accrued to either Party at the time of termination, whether under the Contract or otherwise.

19. Costs

  1. You must pay our costs and expenses incurred in pursuing recovery action or any claim or remedy against you, including collection costs, debt recovery fees, bank dishonour fees, and legal costs on a full indemnity basis.

20. Force Majeure

  1. We are not liable for any delay or failure to perform an obligation under any Contract if caused by a Force Majeure Event.

21. Variation of Terms

  1. Any variation of these Terms or a Contract requested by you is only effective if agreed in writing by both Parties. Clerical errors (such as spelling, grammar, or numerical mistakes) may be corrected by us without notice.
  2. We may amend these Terms by notifying you in writing. The amended Terms apply to any Order you place after you have been notified.

22. Assignment

  1. Neither Party may assign, transfer, or novate its rights or obligations under a Contract without the other Party’s prior written, fully informed consent (which must not be unreasonably withheld).

23. Waiver

  1. A waiver of any provision or breach of these Terms or any Contract is only effective if in writing and signed by the Party giving it. Failure to enforce rights arising from a breach does not constitute a waiver of rights in relation to any future breach.

24. Severance

  1. If any provision of these Terms or a Contract is illegal, invalid, or unenforceable, it is read down to the extent needed to make it enforceable, or if that is not possible, it is severed. The remaining provisions continue in full force.

25. Entire Agreement

  1. Subject to clause 4, the Contract is the entire agreement between the Parties about its subject matter. All previous negotiations, understandings, representations, or commitments are merged into the Contract and have no further effect. No oral explanation or information affects the meaning of the Contract or creates any collateral agreement, warranty, or understanding.

26. Governing Law

  1. These Terms and any Contract are governed by the laws of Victoria and the laws of the Commonwealth of Australia in force in Victoria.
  2. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria, and relevant federal courts and appellate courts.

27. Definitions

  1. Unless the context requires otherwise:
    • “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
    • “Business Day” means a day that is not a Saturday, Sunday, or public holiday in Melbourne, Australia.
    • “Contract” means a contract for the supply of Goods or Services, constituted by our quotation (if any), your Order, and these Terms.
    • “Credit Facility Terms” means our credit facility terms as set out in the credit agreement you execute (if applicable).
    • “Customer”, “you”, “your” means the entity (company, partnership, person, or other entity) acquiring Goods or Services from us.
    • “DPA Solar”, “we”, “us”, “our” means DPA Solar Pty Ltd ACN 139 664 681 as trustee for The DPA Solar Unit Trust ABN 21 064 484 430.
    • “Excluded Loss” means any:
      1. consequential loss;
      2. loss of revenues;
      3. loss of reputation;
      4. loss of goodwill;
      5. loss of profits;
      6. loss of bargain;
      7. indirect loss;
      8. special loss;
      9. lost opportunities (including opportunities to contract with third parties);
      10. loss or damage in connection with third-party claims against you; or
      11. loss or corruption of data.
    • “Force Majeure Event” means any event beyond our reasonable control, including act of God, government actions, fire, explosion, storm, flood, frost, snow, earthquake, embargo, strike, lockout, civil commotion, riot, insurrection, war, epidemic or pandemic, damage or mechanical breakdown, failure of a supplier or service provider, or similar events.
    • “Goods” means all goods supplied by us to you (including any performance of Services where context permits) as described on our Tax Invoices, quotations, or other documents.
    • “Government Authority” means:
      1. a government or government department or agency;
      2. a governmental, semi-governmental, or judicial person; or
      3. any person (whether autonomous or not) responsible for administering a law.
    • “GST” has the meaning given in the GST Act.
    • “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    • “Intellectual Property Rights” means all industrial and intellectual property rights worldwide, present or future, whether protectable by statute, common law, or equity, including copyright, trade secrets, know-how, trade marks, designs, patents, and the right to apply for registration.
    • “Normal Working Hours” means 9:00 am to 5:00 pm.
    • “Order” means a written or oral order you place offering to acquire Goods or Services from us.
    • “Parties” means DPA Solar and the Customer, and “Party” means either of them.
    • “Price” means the price payable for Goods or Services, as notified by us to you.
    • “Services” means all services we perform (and where context permits includes any supply of Goods).
    • “Tax Invoice” and “Taxable Supply” have the meanings given in the GST Act.
    • “Terms” means these terms of trade.
    • “Works” means all literary, artistic, and other works (including physical works and production materials) created by us (alone or with others) in the course of or related to any Contract, in which Intellectual Property Rights may subsist, and all drafts, variations, adaptations, and alterations.

28. Interpretation

  1. If there is any inconsistency between the documents comprising a Contract, the order of precedence (highest to lowest) is:
    1. any additional terms in our quotation (if applicable);
    2. our Credit Facility Terms (if applicable);
    3. these Terms; and
    4. any other documents we issue.
  2. Unless the context requires otherwise:
    1. a reference to these Terms or another document includes any variation or replacement;
    2. a reference to a clause is a reference to a clause in these Terms;
    3. the singular includes the plural and vice versa;
    4. “right” includes any benefit, remedy, authority, discretion, or power;
    5. “information” includes information in any form or medium, written or unwritten;
    6. “person” includes an individual, partnership, company, association, joint venture, Government Authority, or other entity;
    7. a reference to a person includes their successors, executors, administrators, substitutes, and assigns;
    8. a reference to any law includes regulations and instruments under it, and amendments, re-enactments, or replacements.
  3. Headings are for convenience only and do not affect interpretation.
  4. “Includes”, “including”, and “for example” are not words of limitation and are taken to mean “without limitation”.
  5. “In writing” or “written” includes any form of recorded communication that can be read and reproduced, including electronic communications.
  6. Where two or more persons are a Party, that term refers to each of them jointly, each of them severally, and any two or more jointly.
  7. An agreement, covenant, obligation, representation, or warranty in favour of or given by two or more persons is for the benefit of, or binding on, them jointly and severally.
  8. Unless stated otherwise, all monetary amounts are in Australian dollars (AUD), and all documents and correspondence between the Parties will be in English.
  9. Nothing in these Terms is to be read as excluding, restricting, or modifying any non-excludable rights under the Competition and Consumer Act 2010 (Cth) or any other law.