SUPERCHARGED ENERGY GENERAL TERMS AND CONDITIONS (“TERMS”)
- Nature and Scope of Terms
1.1 Unless otherwise agreed in writing, these Terms apply to all sales of Solar
Energy Equipment by Supercharged Energy, all rental or hire of
equipment and all agreements Supercharged Energy enters into in
respect of the sale and purchase of power. Any terms in respect of sale,
hire or purchase of power that are entered into between Supercharged
Energy and the Customer are additional to these Terms and shall also
apply to the sale or hire of solar energy equipment or purchase of power
(as relevant). Headings in these Terms are a guide only and shall not
effect interpretation of these Terms. If there is any conflict of inconsistency
between these Terms and any other agreement between Supercharged
Energy and the Customer, the other agreement shall prevail over these
Terms.
1.2 Once an Order has been made by the Customer, the Customer shall not
be entitled to withdraw any such order for 20 Business Days or for any
longer period set out in any other agreement between the Customer and
Supercharged Energy. In the event that an Order has not been accepted
by Supercharged Energy in accordance with any agreed timeframe, then
the Customer may cancel the Order. Supercharged Energy may decline
to accept an Order and cancel an Order at any time prior to acceptance.
Neither party shall have any claim against the other in respect of any
cancellation in accordance with this clause.
1.3 Notwithstanding that an agent of Supercharged Energy may sign this
Order to confirm the details therein, no Order is binding on Supercharged
Energy until it further confirms in writing that it has accepted the Order
and, without limiting the foregoing, Supercharged Energy may require the
Customer to enter into further agreements relating to the sale or hire of
equipment or purchase of power prior to accepting an order and may
require a guarantor of the Customer’s obligations prior to accepting an
order.
- Installation of Solar Energy Equipment.
2.1 Where Supercharged Energy installs Solar Energy Equipment for the
Customer as part of an Order, it warrants that all such installation will:
(a) comply with all relevant law (including, without limitation, the
Electricity Safety Regulations 2010);
(b) all electrical work shall be undertaken by an electrical technician;
and
(c) be reasonably fit for the purpose for which it is intended, provided
that the purpose is fully communicated in writing by the Customer.
2.2 Unless otherwise agreed in writing, all installation work shall be completed
on a business day during normal working hours (7am to 6pm).
2.3 A Customer shall provide Supercharged Energy with notice of any defects
in workmanship within 3 calendar months of installation and
Supercharged Energy shall make good any proven defects in
workmanship.
2.4 Supercharged Energy does not warrant the quality or performance of any
Solar Energy Equipment installed or provided by it, but it shall pass on the
benefit of any manufacturer’s warranty to the Customer. Unless stated in
any other agreement with Supercharged Energy and subject to clause
5.2, it shall be the Customer’s responsibility to ensure that any warranty,
registration or other manufacturer’s terms are complied with following
installation and the Customer sole remedy will be with the manufacturer.
2.5 Supercharged Energy shall effect and maintain Public Liability Insurance
to a value of not less than $5,000,000.00.
- Exclusions
3.1 The Customer is responsible for connection of all Solar Energy Equipment
to the National Grid and the installation of any meter at the premises and
must organise that with its electricity retailer/distributor. Although
Supercharged Energy:
(a) will assist the Customer with the completion of any paperwork that
the Customer is required to supply to its electricity retailer/distributor
in respect of connection of the Solar Energy Equipment to the
National Grid; and
(b) may assist the Customer with connection to the National Grid and/or
installation of a metre at the premises at the Customer’s request, the
Customer is wholly responsible for all costs, risks and any other
liability incurred in respect of that connection and Supercharged
Energy excludes all responsibility or liability in respect of any such
work to the fullest extent permitted by law. In no circumstances will
Supercharged Energy have any liability for any delay, costs, or
failure to connect the Solar Energy Equipment to the National Grid.
3.2 If the Customer’s meter board and/or switch board does not meet current
standards, it may be necessary to upgrade them as part of the installation.
Any costs with such installation are not included in the Order and
Supercharged Energy shall be entitled to charge installation fees to the
Customer if it is required to undertake such work.
- Cost Increases and Payments
3.1 Subject to any different terms in an agreement between the Customer and
Supercharged Energy in respect of the sale or hire of solar energy
equipment or the purchase of power, the Customer shall pay
Supercharged Energy any deposit stated in the Order upon acceptance
of the Order by Supercharged Energy and the balance owing upon
installation. Where the Customer has nominated a credit card as the
Customer’s preferred payment method, the Customer authorises
Supercharged Energy to deduct any payments made in accordance with
these Terms from that credit card.
3.2 Supercharged Energy’s prices referred to in these Terms or any other
agreement with the Customer are exclusive of GST (unless expressly
stated otherwise). The Customer shall pay GST on any supply of
goods and services by Supercharged Energy , as invoiced by the
Supercharged Energy on the payment terms that relate to that invoice
and, if rendered on the same date or on the same invoice as the
Equipment supplied, at the same time as payment for the Equipment to
which the GST relates.
3.3 If in the period of 20 Business Days’ from the date that the Customer has
made the Order, any of Supercharged Energy’s costs are increased as a
result of factors beyond the reasonable control of Supercharged Energy,
including, without limitation, changes in the costs of labour, materials,
employers liability, freight, insurance, third party insurance, GST or any
other taxes or levies, then the Customer shall additionally pay the amount
of any such increase.
3.4 Where a variation to the installation is required due to a request by the
Customer or due to the nature or location of the installation which could
not have been reasonably foreseen by the Contractor in the
circumstances at the time of the Order, then the party seeking the
variation shall set out full details of the required variation in writing to the
other and the parties shall, acting reasonably, agree and increase or
decrease in price which shall be added to the price of the installation and
Supercharged Energy shall prepare a record of the Variation setting out
in full the variation, any delay as a consequence and the change in price
and how it is constituted, which both parties shall sign.
3.5 If the parties cannot agree the cost of any variation, the following shall be
applied as follows:
(a) Additions shall be charged at cost plus overheads, plus 10%
together with materials at trade price plus 20%; and
(b) Deleted/subtracted work shall be written down at cost.
3.6 To the extent permitted these terms replace any other terms that might
otherwise be implied by the Construction Contracts Act 2002.
- Title, risk and insurance and the Personal Property Securities Act
1999 (“PPSA”)
4.1 All Solar Energy Equipment supplied by Supercharged Energy to the
Customer shall at all times remain the property of the Supercharged
Energy, and subject to any rental or hire agreement between the
Customer shall have no right, title or interest in or to the goods supplied
by Supercharged Energy (save the right to possession and use of the
Solar Energy Equipment subject to the terms and conditions of the
Agreement) until all amounts payable to Supercharged Energy are paid in
full.
4.2 The risk of loss, theft, damage or destruction of the Equipment shall pass
to the Customer on delivery to the premises specified by the Customer.
The Equipment shall remain at the sole risk of the Customer and the
Customer shall maintain such insurance as Supercharged Energy may
from time to time consider reasonably necessary and advise to the
Customer and the Customer shall provide evidence of such insurance to
Supercharged Energy upon request. If the Customer fails to effect or
maintain any of the insurances required under the Agreement, the
Supercharged Energy shall be entitled (at its sole discretion) to effect and
maintain the same, pay such premiums as may be necessary for that
purpose and recover the same as a debt due from the Customer.
4.3 The Customer shall give immediate written notice to the Supercharged
Energy in the event of any loss, accident or damage to Solar Energy
Equipment while at the Customer’s premises prior to payment by the
Customer.
4.4 The Customer shall, on demand, supply copies of the relevant insurance
policies or other insurance confirmation acceptable to the Supercharged
Energy and proof of premium payment to the Supercharged Energy to
confirm the insurance arrangements.
4.5 Prior to the Customer paying all amounts owing to Supercharged Energy
in full, the Customer grants a specific security interest in all Solar Energy
Equipment provided by Supercharged Energy and the proceeds of all
such Solar Energy Equipment in terms of the PPSA.
4.6 The Customer will, if requested by the Supercharged Energy, sign any
documents, provide all necessary information and do anything else
required by the Supercharged Energy to ensure that the security interest
is a perfected purchase money security interest (as that term is defined in
the PPSA).
4.7 The Customer will not enter into any security agreement that permits any
other person to register any security interest in respect of the Equipment
or the proceeds of such Equipment.
4.8 The Customer agrees, (to the extent permitted under the PPSA and
unless the Supercharged Energy agrees by notifying the Customer in
writing), that the Customer will have no rights under Part 9 (Enforcement)
of the PPSA. For example, but without limitation,
(a) the Customer will have no rights under sections 114(1)(a) (to receive
notice of sale), section 117(c) (relating to distribution of surplus), and
section 133 (reinstating the agreement),
(b) the Customer waives its rights under section 116 (to receive statement of
account) and sections 120(2) and 121 (to receive notice of any proposal
and object to any proposal to retain the Equipment).
4.9 The Customer waives its right under the PPSA to receive a copy of any
verification statement or financing change statement (as those terms are
defined in the PPSA).
4.10 The Customer agrees that where the Supercharged Energy has rights in
addition to those in Part 9 of the PPSA, those rights will continue to apply.
4.11 If the Customer is in default of these terms, and without prejudice to any
other claims Supercharged Energy may have in respect of the default, the
Customer will return the Solar Energy Equipment at its cost to
Supercharged Energy upon demand and if the Customer fails to do so
within 10 working days of such demand, or where Supercharged Energy
reasonably believes the Solar Energy Equipment are at risk,
Supercharged Energy’s agent may enter upon and into land and premises
owned, occupied or used by the Customer, or any premises
where the Solar Energy Equipment are situated as the invitee of the
Customer and take possession of the Solar Energy Equipment, and
Supercharged Energy will not be liable for any reasonable loss or damage
suffered as a result of any action by Supercharged Energy under this
clause.
- Liability
5.1 Supercharged Energy’s maximum aggregate liability for breach of the
Agreement (including any liability for the acts or omissions of its
employees, agents and subcontractors), whether arising in contract, tort
(including negligence), misrepresentation or otherwise, shall in no
circumstances exceed the cost of the goods and services provided by
Supercharged Energy.
5.2 Notwithstanding any other provision in these terms, where the Solar
Energy Equipment are supplied for personal, domestic or household use
by the Customer, these Terms shall be read as subject to the Consumer
Guarantees Act 1993 and clauses 5.3 does not apply.
5.3 If the Customer is acquiring goods and services from Supercharged
Energy primarily for the purposes of a trade or business or for commercial
or investment purposes, the Customer acknowledges:
(a) that the provisions of the Consumer Guarantees Act 1993 do not
apply to the supply of the goods and services by Supercharged
Energy to the Customer.
(b) that it must rely upon its own judgment as to the nature, quality and
condition of the goods and services supplied by Supercharged
Energy and as to their sufficiency for any use or purpose;
(c) that Supercharged Energy is under no duty to ascertain the
suitability of the goods or services t for any purpose whatsoever and
that no such representation has been made by the Supercharged
Energy, whether during negotiations prior to these Terms being
entered into or at any other time and accordingly, the parties agree
to contract out of sections 9, 12A, 13 and 14(1) (as applicable) of
the Fair Trading Act 1986 in respect of these Terms and any other
agreement between them.
5.4 Subject to any rights the Customer may have under clause 4.12, these
terms set forth the full extent of the Supercharged Energy’s obligations
and liabilities in respect of the goods and services it provides to the
Customer. In particular, there are no conditions, warranties or other terms,
express or implied, including as to quality, fitness for a particular purpose
or any other kind whatsoever, that are binding on the Supercharged
Energy except as specifically stated in the Agreement. The conditions,
warranties and guarantees set out in the Sale of Goods Act 1908, Part 3
of the Contract and Commercial Law Act 2017 or implied by the common
law will not apply and are expressly excluded from these Terms to the
maximum extent permitted by law.
5.5 To the fullest extent permitted by law, neither party shall be liable under
this Agreement for any: (a) loss of data; (b) loss of anticipated savings or
goodwill; (c) loss of business, contracts or any business interruption; or
(d) indirect or consequential loss or special, compensatory or punitive
damages, and in each case however caused, even if foreseeable or
notified by the other party . Supercharged Energy shall not be liable to
Customer under or in connection with the Agreement for any loss of profits
or loss of revenue, howsoever arising.
- Indemnity
6.1 The Customer indemnifies Supercharged Energy from and against all
liabilities, expenses, losses, damages and costs (including legal costs on
a full indemnity basis whether incurred by or awarded against a party)
including those associated with any third party claim, and whether arising
under contract, tort (including negligence) or otherwise and additionally
shall fully indemnify Supercharged Energy or its directors, principals,
employees, contractors or agents sustains or incurs (directly or indirectly)
arising out of or resulting from:
(a) Any breach of these Terms by the Customer;
(b) Any contravention of applicable laws or regulations by the
Customer, including export and import control laws;
(c) Any claim by any third party arising from any act or omission of the
Customer in connection with these Terms (whether negligent or not),
including:
(d) Any misrepresentations, warranty or agreement, express or implied
made by the Customer with respect to the Supplier, or any third party
supplier or manufacturer of the goods supplied to Supercharged
Energy by the Customer;
(e) Without limiting the foregoing, any negligent, wilful, reckless or
unlawful act or omission of, or any intentional misconduct by the
Customer in connection with these Terms; or
(f) Any claim by the Customer, to the extent that such claim is beyond
the scope of Supercharged Energy’s liability to the Customer under
these Terms.
- Health and Safety
7.1 The Customer Supercharged Energy and its contractors, employees,
agents or principals (“Personnel”) will abide by the health and safety
policies of the Customer and agrees that where required personnel will
personally comply with and observe all safety precautions and procedures
including wearing protective clothing and equipment if required to do so
at the Customers Premises
7.2 Supercharged energy shall take reasonable care of the safety of all of its
Personnel at the Customer’s premises and abide by good and safe work
practices to comply with the requirements of the Health and Safety at
Work Act 2015.
7.3 Both parties shall work together to identify or point out any hazards or
potential hazards that come to their attention and shall work together to
eliminate such hazards
7.4 Without limiting any other provision of these Terms, should Supercharged
Energy reasonably form the view that its Personnel will be unsafe in
performing the work at the premises of the Customer, it may suspend work
until the Customer eliminates any identified hazards or may cancel this
contract if the Customer cannot do so or does not do so on reasonable
notice.
Privacy Act 1993
7.1 The Customer and any party or parties guaranteeing its obligations and
liabilities under the Agreement (“Guarantor(s)”) authorise the
Supercharged Energy to: (a) collect, retain and use any information about
the Customer for the purpose of assessing the Customer’s
creditworthiness or marketing products and services to the Customer; and
(b) disclose information about the Customer, whether collected by the
Supercharged Energy from the Customer directly or obtained by the
Supercharged Energy from any other source, to any other credit provider
or any credit reporting agency for the purposes of providing or obtaining
a credit reference, debt collection or notifying a default by the Customer.
Where the Customer and/or the Guarantor(s) are an individual the
authorities under this clause are authorities or consents for the purposes
of the Privacy Act 1993.
7.2 The Customer and/or the Guarantors shall have the right to request from
the Supercharged Energy a copy of the respective information retained
by Supercharged Energy in respect of them and the right to request the
Supercharged Energy to correct any incorrect information in respect of
them.
- Definitions
In these Terms, the following capitalised Terms bear the meanings set out
in this clause 8:
Business Day: a day other than a Saturday, Sunday or public holiday in
Auckland, New Zealand;
Customer: the person, company, firm or organisation which has signed
the Order relating to Solar Energy Equipment or relating to the purchase
of power from Supercharged Energy;
Delivery: the transfer of physical possession of the Equipment to the
Customer;
Deposit: The sum to be paid by the Customer to the Supercharged
Energy prior to Delivery (if any), on the date specified in the Order or as
otherwise agreed between the Parties;
GST: means Goods and Services Tax payable in terms of the Goods and
Services Tax Act;
Order: means Supercharged Energy’s Solar Equipment Purchase/Rental
Order and Tax Invoice and Power Purchase Order Form or any other
written order form in a form which is expressly accepted by Supercharged
Energy in writing;
National Grid means New Zealand’s national electricity grid;
Party: means either the Supercharged Energy or the Customer and
“Parties” means both the Supercharged Energy and the Customer;
Site: means (i) the Customer’s premises or (ii) such other premises that
the Customer has the lawful right to install or utilise the Equipment and
which the Supercharged Energy has approved in writing in advance;
Solar Energy Equipment means solar energy equipment provided by
Supercharged Energy which generates electricity and may be
connection to the National Grid and also includes any other goods or
personal property that may be supplied by Supercharged Energy to the
Customer; and
Supercharged Energy: means Supercharged Energy Limited trading as
Supercharged Energy.