GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS
Effective 27 March 2024
1. DEFINITIONS AND INTERPRETATION
1.1. Capitalised terms or expressions used in these terms and conditions have the meanings set out in this clause 1.1:
ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
Business Day: a day on which banks are open for business in major cities in Australia and New Zealand, other than a Saturday, Sunday or public holiday in those cities.
Credit Account: the commercial credit account provided by the Supplier in accordance with its terms and conditions.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 20.9.
Confidential Information: any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of the disclosing party or any member of its Group, including but not limited to information relating to the disclosing party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities, customer lists; and all tangible materials embodying any of the preceding Confidential Information, including any documentation, records, listing, notes, data, sketches, drawings, computer storage disks, files, samples, equipment or other plans and the like.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and Services in accordance with these Conditions.
Customer: the person or legal entity who purchases the Goods from the Supplier, whether directly or indirectly or through a representative or any other person held out by the Customer as having the authority to bind the Customer to these Conditions.
Delivery: completion of delivery of an Order in accordance with clause 7.3.
Delivery Address: the address nominated by the Customer.
Delivery Date: the date by or on which the Goods specified in an Order or a Purchase Order is scheduled to be delivered or are ready to be collected by the Customer. Delivery Fee: the costs incurred in delivering the Goods to the Customer.
Delivery Note: the delivery note to be provided by the Supplier that shows the relevant delivery information concerning each Purchase Order.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: any components, equipment, materials, products, systems, goods (or any part of them) set out in the Order (where the context permits the terms Goods, Products or Services to be interchangeable for the other).
GST: Goods and Services Tax.
GST Law: the same meaning as “GST Law” in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act).
Incoterms are internationally recognised rules published by the International Chamber of Commerce that define the responsibilities of buyers and sellers for delivering goods in international trade.
Intellectual Property or Intellectual Property Rights: all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, drawings, patents, inventions, copyright, design rights, know-how, trademarks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
Order: an order for Products submitted by the Customer in accordance with clause 4.
Order Number: the reference number to be applied to an Order by the Supplier in accordance with clause 4.4.
Products: the Goods (or any part of them) set out in the Order and supplied to the Customer.
Price: the prices of the Products as determined in accordance with clause 5, and Price means the price of an individual Product as determined in accordance with that clause.
Possession: the same meaning given to that term in the PPSA.
Progressive or Periodic Supply: any Taxable Supply that satisfies the requirements of section 156-6 b of the GST Act.
PPSA: the Personal Property Securities Act 2009 (Cth).
Purchase Order: an order for Products submitted by the Customer in accordance with clause 4.
Security Interest: the same meaning given to that term in the PPSA.
Specification: any specification for the Goods, including any related plans and drawings, agreed in writing by the Customer and the Supplier.
Supplier: SunPower Corporation Australia Pty Limited with the ACN 67 009 066 380 of Suite 207/28 Riddell Parade Elsternwick, Victoria, 3185 Australia and any related entity making the supply (where the context permits the terms Supplier, Company or SunPower to be interchangeable for the other.
1.2. INTERPRETATION
In these Terms, the following rules of interpretation apply unless the contrary intention appears or the context otherwise requires:
(a) A person includes a natural person, corporate, trust, partnership, unincorporated body, government and local authority or agency (whether or not having a personality or comprises a separate legal entity).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a document (including these terms) includes any amendments, supplements, and replacements to that document.
(d) A reference to legislation or a provision of legislation (including subordinated legislation) is to that legislation as amended, consolidated, replaced, re-enacted or applied to new or different facts.
(e) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(f) Any words following the terms including, include, in particular, for example, or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(g) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia or United States dollars $ or US$ is a reference to the lawful currency of the United States of America unless the amount is specifically denominated in another currency.
(h) A reference to writing or written excludes fax but not email.
(i) If there is any conflict between the main body of this document and its schedules and attachments, the main body of these terms will prevail.
(j) If any act is required to be performed under the Contract by a party on or by a specified day and is performed after 5:00 p.m. on that day, it is deemed to be performed on the next day.
(k) If any act is required under the Contract on or by a specified day and that day is not a Business Day, the act must be performed on or by the next Business Day.
2. BASIS OF CONTRACT
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate or are implied by law, trade customer, practice or course of dealing. All previous negotiations, representations, warranties, memoranda or commitments about the subject matter of these Conditions are merged into these general terms and conditions of sale and purchase and have no further effect.
2.2. The Supplier may, at any time, unilaterally vary these Conditions in its absolute and unfettered discretion.
2.3. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. Placing an Order for the supply of Goods constitutes an offer by the Customer to purchase the Goods from the Supplier in that Purchase Order. The Customer is responsible for ensuring that the terms of the Purchase Order and any applicable Specification submitted by the Customer are complete and accurate. A quotation for the Goods the Supplier gave shall not constitute an offer.
2.4. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Purchase Order and provides the Customer with an Order Number, at which point the Contract shall come into existence.
2.5. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. SUPPLY OF GOODS
3.1. The images, descriptions, illustrations, drawings, dimensions, and weights of the Goods in any documents, pamphlets, price lists, or any advertising materials displayed on our SunPower Access e-commerce site provided by the Supplier are for illustrative purposes only. Where the Supplier provides dimensions and measurements in the description of a pallet, the dimensions may vary slightly in real life. Any accessory featured with the Goods is for illustrative purposes only and may be sold separately. The Customer may not rely solely on such information, or any use does not constitute a sale by description nor form a part of the Contract.
3.2. Any information on figures or estimated savings regarding the performance of the Goods detailed in any documentation provided by the Supplier is indicative only and is not guaranteed. Any claims on energy generation or storage capacity may be less than estimates due to factors beyond the Supplier’s control and are subject to installation, use, and maintenance as recommended. The Customer is responsible for ensuring that the Goods in the Purchase Order are suitable for their intended use.
3.3. The Supplier reserves the right to amend the Specification of the Goods provided by the Supplier to the Customer from time to time and without notice to the Customer, provided that the modification does not materially alter the performance of the Goods.
3.4. The supply of Goods is on a non-exclusive basis, and nothing in these Conditions prevents the:
(a) Supplier from selling the Goods to any other customers or partners; and
(b) Customer from acquiring Goods that are similar or identical to those from any other Supplier.
4. ORDERS
4.1. The Customer may submit a Purchase Order (Purchase Order) at least five (5) Business Days before the Customer’s proposed Delivery Date or at least one (1) Business Day before the Collection Date to purchase the Goods from the Supplier in writing to the Supplier.
4.2. The Customer may also place an Order through SunPower Access e-commerce site https://partners.sunpower.maxeon.com/dashboard in accordance with its terms and conditions.
4.3. Each Purchase Order submitted to the Supplier must: (i) Specify the description, part number and quantity of Goods ordered; (ii) be given in writing by the Customer to the Supplier (iii) specify the Price of those Goods; in accordance with the prices stated in the Purchase Order or any price list furnished by the Supplier to the Customer; (iv) specify the Delivery Address and Delivery Date (and the Supplier will use reasonable endeavours to meet the preferred Delivery Date) OR the date the Goods specified in the order are ready for collection; (v) if the
Delivery Date is to be specified after the placing of an Order, the Customer must give the
Supplier reasonable notice in advance of the relevant information; (vi) the applicable Incoterms rule and delivery point; and (vii) specify the Customer’s contact details and any relevant information.
4.4. The Supplier will assign a number to each Purchase Order it accepts (Order Number) and notify those Order Numbers to the Customer together with the Delivery Date or on which the Goods specified in the Purchase Order will be ready for collection. Each party must use the relevant Order Number in all subsequent correspondence relating to the Purchase Order.
4.5. The scheduled Delivery Date or shipment date can only be changed or otherwise amended by the Supplier in writing.
4.6. Each Purchase Order is deemed a separate offer by the Customer to purchase the Goods on the terms of these Conditions.
4.7. The Supplier can accept or decline part or all of a Purchase Order at its absolute discretion.
4.8. The Purchase Order is not binding on the Supplier and shall not constitute acceptance of the Purchase Order unless:
(a) the Supplier has provided the Customer with a written confirmation and acceptance of the Purchase Order;
(b) the Supplier takes steps to procure the Goods for the Customer;
(c) the Supplier or a third party deliver part or all of the Goods contained in the Purchase Order to the Customer, its agents or carrier;
(d) the Customer has paid for the Goods, whether in whole or part, or
(e) informing the Customer in any manner of the commencement of performance on the Supplier’s part.
4.9. The Customer may change or cancel a Purchase Order within two (2) Business Days of placing an Order by submitting a change or cancellation request to the assigned partner support representative by email to partnersupport.au@maxeon.com. If the Customer submits the change or cancellation notice by email, such a request is effective from the date the Customer informs the Supplier by emailing the notice. Upon receiving the change request, the Supplier will confirm acceptance of such change request by email, and a new Purchase Order will be issued. All change or cancellation requests are subject to the Supplier's sole discretion.
4.10. If any such change request causes an increase or decrease in the cost of, or the time required for, performance of the Contract, an equitable adjustment shall be made in the contract price payable under the Contract. At the Customer’s option, any right to such an equitable adjustment shall be deemed to be absolutely and unconditionally waived by the Supplier unless asserted by the Supplier in a written notice to the Customer (including the amount of the claim) delivered to the Customer within thirty (30) days from the date of receipt by the Supplier of the applicable change request. If the cost of property made obsolete or excess due to a change request is paid by the Customer, the Customer may prescribe the manner of disposition of such property.
4.11. The Customer cannot cancel, change, or otherwise amend the Purchase Order after the Supplier has accepted it or it reaches “shipped” or “ready for collection” status, except with the Supplier’s written consent.
5. PRICE OF GOODS
5.1. Subject to the Supplier’s acceptance of the Purchase Order, the price of the Goods shall be the price as set out in the Purchase Order or proforma invoice, or, if no price is quoted, the price set out in the Supplier’s published price list as provided by the Supplier to the Customer from time to time.
5.2. The price of the Goods: (i) expressed in Australian dollars, US dollars or any other currencies agreed by the parties in the Purchase Order; (ii) excludes amounts in respect of GST and any other taxes, levies or charges imposed on the Goods, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid GST invoice; and (iii) excludes the costs of transportation of the Goods and any delivering or handling fees, which shall be invoiced to the Customer and included in the final invoice.
5.3. The Customer acknowledges that payments for the Goods are in advance. The Customer may be required to pay a non-refundable deposit to secure the Goods contained in the Purchase Order at the Supplier’s sole discretion. The Supplier may invoice the Customer for the Goods before the Order can be scheduled for delivery or ready for collection.
5.4. The Supplier may, by giving notice to the Customer at any time before the Purchase Order's acceptance, increase the Contract's price to reflect any increase in the cost of the Goods due to any factor beyond the Supplier’s control.
5.5. The Supplier reserves the right to increase the price of the Goods by giving notice to the Customer at any time before delivery to reflect any increase in the cost of the Goods that is due to:
(a) any request by the Customer to change the delivery date(s), quantities of types of Goods ordered, or Specification; or
(b) any delay caused by the Customer’s instructions or failure of the Customer to give the Supplier adequate or accurate information or instructions.
5.6. Unless otherwise agreed by the Supplier, the Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.7. In the event the Customer fails to make a payment due to the Supplier the due date, then, without limiting the Supplier’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. The Supplier shall be entitled to interest under this clause 5.7 at 2.5% per month on
the unpaid balance, and which interest may not be less than three times the base rate of the Reserve Bank of Australia.
5.8. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. PAYMENT
6.1. The Customer must make the payment for the Goods as follows:
(a) Credit Account: The Supplier’s credit line if the Customer has a credit account in accordance with its obligations with respect to that credit account.
(b) Debit or Credit Cards: A debit or credit card. The Supplier currently only accepts AMEX, Visa and MasterCard debit or credit card payments. We currently do not receive the following credit cards: Diners and JCB. All credit card payments will be processed through the PayWay-hosted payments solution for accepting debit and credit card payments.
(c) Bank Transfers: In full and clear funds by cash deposit or EFT. The Customer will be issued a proforma invoice with instructions on payment through a bank transfer within five (5) Business Days before the scheduled delivery or collection date. The Customer should allow three (3) Business Days to process the payment before confirming the Purchase Order. Payment is required in advance of any Delivery of the Goods sold. When the payment clears our account, the Supplier will proceed with your collection details or shipment of the Goods.
7. DELIVERY
7.1. The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note (Delivery Note) that shows (i) the Order Number, (ii) the scheduled delivery date or the date the Goods in the Purchase Order are ready for collection; (iii) the type and quantities of the Goods in the Purchase Order (including the product number of the Goods, where applicable); (iv) the relevant Incoterms rule (as applicable) and delivery point; and (v) in case of an Order being delivered by instalments, the outstanding balance of the Goods remaining to be delivered.
7.2. The Supplier will endeavour to deliver the Goods on the delivery date specified in the Delivery Note, provided that such delivery date is indicative only and may be subject to change due to operational demands of the Supply Chain or at our discretion. The Supplier will not be responsible for failure to deliver on these dates.
7.3. Delivery is completed upon unloading the order at the delivery location or picking it up from the warehouse. The Customer’s authorised representative has signed the delivery paperwork and physically possessed the Goods, as detailed on your Delivery Note or any Order.
7.4. The Customer agrees that any late delivery of the Goods will not constitute a material breach of these Terms and will not entitle you to terminate these Terms and the Contract. The Supplier shall not be liable for any delay in delivery of the Goods caused by Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions relevant to the Goods supply. If the Supplier cannot deliver the Goods to the Customer for any reason outside of any Force Majeure Event, the Customer will be liable for any additional Delivery Fees or storage fees incurred by the Supplier in attempting to deliver the Goods.
7.5. The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) after the Supplier notifies the Customer that the Goods are ready (Collection Order).
7.6. Collection Orders or pick-ups are available through the Supplier’s logistics partner in the states where the Supplier operates. The Customer must collect the Order from the designated warehouse or delivery location between 9:00 am and 3:00 pm on the Business Day shown in the Delivery Note (Collection Date). The Supplier reserves the right to charge any storage fees on the Goods not collected more than three (3) Business Days after the Collection Date at $10 per pallet per week or portion thereof. Should the Goods remain uncollected more than ten (10) Business Days after the Collection Date, the Supplier may terminate the Contract, resell the Goods and reserve the right to charge handling fees incurred by the Supplier at the rate reasonably determined by the Supplier.
7.7. The Supplier may deliver the Goods in instalments or make partial shipments to the Customer without liability or penalty. The Customer will receive a separate delivery note if delivery is in instalments. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7.8. Unless otherwise agreed upon in writing by the Supplier, all deliveries shall be made CIP (insert named port or place or point of delivery) Incoterms 2020 for Orders outside of Australia and New Zealand or EXW or DDP (insert named place of delivery within Australia) Incoterms 2020 for domestic Orders in accordance with the terms of the Purchase Order.
8. TITLE AND RISK OF LOSS
8.1. Unless otherwise agreed in writing by the Supplier, the risks in the Goods shall pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other Goods that the Supplier has supplied to the Customer or
(b) the Goods have been delivered to the Customer.
8.2. Title to the Goods shall not pass to the Customer until the Supplier receives payment in full for the Goods and satisfaction of any other obligations the Customer owes to the Supplier.
8.3. Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the
Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their total price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.1 and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to (i) the Goods and (ii) the ongoing financial position of the Customer.
8.4. At any time before title to the Goods passes to the Customer, the Supplier may:
(a) by notice in writing, terminate the Customer’s right under clause 19 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Goods in its possession that have not been resold or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored to recover them.
9. SECURITY INTEREST
9.1. The Customer grants a Security Interest in the Goods as security for the payment of all amounts owing to the Supplier and the performance of all obligations under these Conditions.
9.2. The Supplier reserves the right to change these Conditions if the Customer’s financial condition changes unless the Customer gives an appropriate security.
9.3. The Customer authorises the Supplier to file all financing statements and other documents and otherwise to do all things necessary to perfect and continue the Security Interest, to protect and preserve the Goods and to realise the Security Interest held by the Supplier.
10. ACCEPTANCE AND DEFECTIVE GOODS
10.1. The Customer is deemed to have accepted the Goods if the Customer fails to give Notice of rejection in accordance with clause 10.2(b).
10.2. The Customer may reject some or all of the Goods that do not comply with the applicable warranty set out in clause 11.1 (Defective Goods), subject to clause 10.2 and clause 10.5 if:
(a) the Customer inspects the Goods on Delivery within seven (7) calendar days of Delivery and notifies the Supplier in writing that some or all of the Goods received are defective;
(b) the Customer must give the Supplier written Notice of rejection in accordance with clause 19.1 in the case of a defect that is apparent on normal visual inspection within seven (7) calendar days of Delivery
(c) the Supplier is given a reasonable opportunity to examine the Goods and
(d) at the Supplier’s request, either return or prepare and provide a safe package of the Goods for the Supplier to pick up and dispose of per our instructions.
10.3. Subject to the applicable limited warranty document, if the Customer rejects Goods under clause 10.2, the Supplier may, at the Supplier’s option and cost, repair, replace, or refund the original purchase price of the Goods.
10.4. Subject to clause 19, any rejection of the Goods is non-conforming to specifications under clause 11, or Defective Goods must include the following details: (i) Order Number as shown in the accepted Purchase Order; (ii) product description, stock code or identification number of the non-conforming Goods; (iii) quantity of Goods received; (iv) consignment number; (v) at least five (5) photographs of the defective or damaged part that is non-conforming; (vi) location of the defective Goods and (vii) the Customer’s contact details and point of contact at the location.
10.5. The Supplier is not liable for a Product’s failure to comply with clause 11, where: (i) the Customer makes any further use of those Products after giving Notice in accordance with clause 10.2 (ii) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions for the storage, transportation, commissioning, installation, use or maintenance of the Products or best industry practices; (iii) the Customer alters or repairs those Products without the written consent of the Supplier; (iv) the defect arises as a result of fair wear and tear, wilful damage, negligence, abnormal storage or working conditions, or (v) the Products differ from the Specification due to changes to ensure they comply with applicable statutory or regulatory requirements.
10.6. Once the Supplier has complied with clause 10.3, the Supplier is not liable to the Customer, and the Customer has no further remedy to the Customer. In addition, the Customer has no further remedy (including under clause 12 or clause 15) arising out of or in connection with the rejected Goods’ failure to comply with clause 11.
11. PRODUCT WARRANTY
11.1. The Supplier warrants that the Goods include a limited manufacturer’s warranty on delivery, which may be issued by one of our affiliates or suppliers. No other warranties are provided. All other warranties are expressly excluded. The Goods are intended for use only in Australia and New Zealand (as applicable), and any warranty applicable to the Goods may be void outside of Australia and New Zealand. For details of the relevant terms and conditions, please refer to the warranty documents provided with the Goods. Our limited warranty documents are available here: Limited Products Warranty or https://sunpower.maxeon.com/au/resources.
11.2. TO THE EXTENT THAT THE CUSTOMER HAVE ACQUIRED THE GOODS AS A CONSUMER UNDER APPLICABLE LAW:
A. THE BENEFITS GIVEN TO THE CUSTOMER UNDER ANY WARRANTY ARE IN ADDITION TO CONSUMER GUARANTEES PROVIDED UNDER APPLICABLE LAW AND OTHER RIGHTS AND REMEDIES UNDER LAWS RELATING TO THE GOODS.
B. THE GOODS COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER AUSTRALIAN CONSUMER LAW. THE CUSTOMER IS ENTITLED TO A REPLACEMENT OR REFUND FOR A MAJOR FAILURE AND COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE. THE CUSTOMER IS ALSO ENTITLED TO HAVE THE GOODS REPAIRED OR REPLACED IF THE GOODS FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE.
C. SUBJECT TO SUBPARAGRAPH (D) BELOW, NOTHING CONTAINED IN THESE CONDITIONS EXCLUDES, RESTRICTS OR MODIFIES ANY CONDITION, WARRANTY, GUARANTEE OR OTHER OBLIGATION IN RELATION TO THE SUPPLY OF GOODS (THE “STATUTORY OBLIGATIONS”) WHERE TO DO SO IS UNLAWFUL.
D. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE SOLE LIABILITY OF SUNPOWER AND ITS RELATED BODIES CORPORATE FOR BREACH OF ANY SUCH STATUTORY OBLIGATIONS WILL BE LIMITED TO (EXCEPT AS OTHERWISE
SPECIFICALLY SET FORTH HEREIN): (I) REPLACEMENT OF THE GOODS, SUPPLY OF
EQUIVALENT GOODS, OR PAYMENT OF THE COST OF REPLACING THE GOODS OR SUPPLYING EQUIVALENT GOODS; OR (II) THE REPAIR OF THE GOODS OR THE
PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED, (IN EACH CASE AS SUNPOWER MAY SELECT IN ITS SOLE DISCRETION).
THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO THE EXTENT PROHIBITED OR LIMITED BY APPLICABLE LAW. IF ANY PROVISION OF THESE LIMITED WARRANTY TERMS IS HELD UNENFORCEABLE OR ILLEGAL BY A COURT OR OTHER BODY OF COMPETENT JURISDICTION, SUCH PROVISION(S) SHALL BE MODIFIED (OR IF NECESSARY SEVERED) TO THE MINIMUM EXTENT REQUIRED SUCH THAT THE REST OF THESE LIMITED WARRANTY TERMS WILL CONTINUE IN FULL FORCE AND EFFECT.
12. TERMINATION
12.1. Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceases to carry on business;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business or
(d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
12.2. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.3. On termination of the Contract for any reason, the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest. In respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately upon receipt.
12.4. Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination [or expiry].
12.5. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after the termination of the Contract shall remain in full force and effect.
13. LIMITATION OF LIABILITY
13.1. NOTHING IN THESE TERMS LIMITS OR EXCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR WILFUL MISCONDUCT; FRAUD OR FRAUDULENT MISREPRESENTATION OF THE SUPPLIER; OR ANY OTHER LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW OR OTHER APPLICABLE LAW. SUBJECT TO THE LIABILITIES MENTIONED ABOVE, THE SUPPLIER WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE CONTRACT (INCLUDING WITHOUT LIMITATION, LOSS OF SALES OR BUSINESS OPPORTUNITY, ANY ANTICIPATED SAVINGS, REVENUE, PROFITS, GOODWILL, USE OR CORRUPTION OF SOFTWEAR, DATA OR INFORMATION, OR OTHER ECONOMIC ADVANTAGE), HOWEVER, THEY ARISE, WHETHER IN BREACH OF THE CONTRACT, BREACH
OF WARRANTY OR TORT, INCLUDING NEGLIGENCE, EVEN IF THAT PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR
DAMAGES WILL BE LIMITED AND EXCLUDED UNDER THIS CLAUSE 13 EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FAILS ITS ESSENTIAL PURPOSE. SUBJECT TO THIS CLAUSE 13, THE MAXIMUM AGGREGATE LIABILITY OWED BY THE SUPPLIER TO THE CUSTOMER FOR ANY LOSS, DAMAGE OR INJURY ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF OR THE SUPPLY OF GOODS UNDER THIS CONTRACT, INCLUDING ANY BREACH BY THE SUPPLIER OF THESE CONDITIONS,
HOWEVER ARISING, UNDER ANY INDEMNITY, IN TORT (INCLUDING NEGLIGENCE),
UNDER ANY STATUTE, CUSTOM, LAW OR ON ANY OTHER BASIS, SHALL BE LIMITED TO THE TO THE TOTAL FEES PAID BY THE CUSTOMER UNDER THE CONTRACT AND THE REMEDIES IN CLAUSE 10.3 AND CLAUSE 13.2 IN RESPECT OF DEFECTIVE GOODS REJECTED BY THE CUSTOMER FOR ANY OTHER LOSS OR DAMAGE OR INJURY ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, INCLUDING ANY BREACH BY THE SUPPLIER OF THIS CONTRACT OR THESE CONDITIONS, HOWEVER ARISING, UNDER ANY INDEMNITY, IN TORT
(INCLUDING NEGLIGENCE), UNDER ANY STATUTE, CUSTOM, LAW OR ON ANY OTHER
BASIS.
13.2. Where a warranty cannot be legally excluded, including for the purposes of the non-excludable statutory guarantees under the ACL under clause 11, our liability is limited and at our discretion to (a) replace the rejected Goods or supply equivalent goods; (b) repair of the Goods; (c) reimbursement for the cost of having the Goods replaced; or (d) reimbursement for the cost of having the Goods repaired. Once we have complied with this clause 13.2, we are no longer liable to you, and you have no further remedy (including under clause Error! Reference source n ot found.) arising out of or in connection with the rejected Defective Goods. To the extent permitted by law, the Supplier excludes all other liability to the Customer arising out of or in any way connected with these Terms, including any liability as specified in clause 11.
13.3. Nothing in these Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law (ACL) in Schedule 2 of the Competition and Consumer Act 2010 (Cth), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to the remedies provided.
14. INTELLECTUAL PROPERTY RIGHTS
14.1. Any technical documents delivered to the Customer shall remain the exclusive property of the Supplier, which is the sole owner of all and any Intellectual Property Rights contained in the Products and any other items delivered to the Customer. The Customer undertakes to refrain from using documents that would likely damage the Supplier's Intellectual Property Rights.
14.2. In the event a court of competent jurisdiction decides that any of the Supplier’s products infringe, or if the Supplier determines that its products likely infringe, the Supplier, at its option and expense, shall (i) modify the infringing portion of the Product to make it non-infringing; (ii) replace the infringing Product with a non-infringing Product having substantially similar functionality; (iii) obtain the right to continue using the infringing Product; or (iv) refund to Customer the purchase price of the Product prorated over a five (5)-year period from the Delivery Date.
14.3. The Supplier’s obligations under this section shall not apply to the extent of any Claim or infringement resulting from (i) Buyer’s continued use of the infringing product after receipt of notice from Seller of a claim or after receipt of the remedy required of Seller under this section; (ii) modifications to the product by any party other than Seller; (iii) modifications to a product made by Buyer and pursuant to Buyer’s express instructions; (iv) combination of the product with other products, processes or materials not provided by Seller or which are not in compliance with Seller’s technical instructions; or (v) Buyer’s or final customer’s use of the product other than in accordance with the terms stated herein.
15. INDEMNITY
15.1. Intellectual Property Rights Indemnity. Except to the extent caused or contributed to, by the negligent act or omission, wilful misconduct or breach of the Contract by the Customer, and subject to clause 14, the Supplier, at its expense, will have sole control of the defence of and shall indemnify and hold the Customer harmless from any claim, action, suit or proceeding made or brought against the Customer by a third party alleging that the Customer’s use of the Products infringes such third party’s patent, trade secret, copyright or other intellectual property right (Claim). The Supplier's indemnification obligation under this clause 15 shall be subject to the Customer providing the Supplier with notice of any Claim within forty-eight (48) hours from the date the Claim is made, cooperation with the Supplier in the defence and settlement of the Claim and granting the Supplier sole control over the defence or settlement of the Claim.
15.2. Third Party Claims of Infringement. If any third party makes a claim or notifies an intention to make a claim against the Customer that may reasonably be considered likely to give rise to a liability under 15.1 (Third Party Claim), the Customer must:
(a) as soon as reasonably practicable, give written notice of the Third-Party Claim to the Supplier, specifying the nature of the Third-Party Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise, or take any action in relation to the Third-Party Claim without the prior written consent of the Supplier;
(c) give the Supplier and its professional advisers access at reasonable times (on reasonable prior Notice) to its premises and its Representatives and to any relevant assets, accounts, documents and records within the power or control of the Customer to enable the Supplier and its professional advisers to examine them and to take copies
(at the Supplier’s expense) to assess the Third-Party Claim; and
(d) give the Supplier sole authority to admit, avoid, dispute, compromise, settle or defend the Third-Party Claim,
the Customer must use reasonable endeavours to mitigate any loss it may suffer or incur due to an event that may give rise to a claim under clause 15.1.
16. CONFIDENTIAL INFORMATION.
16.1. Each party undertakes that it shall not, at any time and for two (2) years after termination of the Contract, disclose to any person any Confidential Information concerning the other party's business, assets, affairs, customers, clients, or supplier, except as permitted by clause 16.30.
16.2. Confidential Information excludes information or data that: (i) is already rightfully in possession of the receiving party at the time of its disclosure by the disclosing party; (ii) is now or becomes a part of the public domain by publication other than by or through the fault of the receiving Party; (iii) is rightfully received by the receiving party from a third party who has a right to disclose such information, without restriction on disclosure and breach of these Conditions or any other agreement; (iv) is independently developed by the receiving party, without any reverse engineering or similar action of the disclosing party’s Confidential Information.
16.3. Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information to exercise the party’s rights or carry out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 16.3 and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.4. Neither party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
17. COMPLIANCE WITH LAWS AND POLICIES
17.1. In performing its obligations under the Contract, the Customer must comply and must procure that each member of its Group, agents, employees, officers, representatives, contractors or subcontractors complies with:
(a) all applicable laws, statutes, regulations, regulatory policies, guidelines or industry codes from time to time in force; and
(b) the mandatory policies in accordance with this clause 17.
17.2. The Customer undertakes to indemnify, protect, defend and hold the Supplier harmless from any losses, damages, and costs arising out of, from or caused in any way by any actual or alleged violation of any of the laws and policies contained herein.
17.3. Code of Conduct. The Customer agrees to comply with Maxeon’s Code of Business Ethics and Conduct, which requires all its employees, officers, representatives, contractors, subcontractors, or advisers to do the same. Maxeon’s Code of Business Ethics and Conduct is available here: https://corp.maxeon.com/esgpolicies.
17.4. Anti-Corruption Laws. The Customer shall comply and ensure that its employees, officers, representatives, contractors, subcontractors or advisers with all applicable anti-corruption laws and regulations in Australia and in all other jurisdictions in which you operate or do business, including but not limited to Singapore Prevention of Corruption Act, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010, and will take no action that you believe, in good faith, would cause either Party to violate such laws. In performing your obligations under these Terms, neither you nor your Representatives will give, offer, pay, promise to pay, or authorise the payment of any Prohibited Payment, and you will provide us with Notice reasonably in advance of any of your Representatives becoming a Government Official.
17.5. Human Rights/Modern Slavery. The Customer acknowledges, understands, accepts and agrees to comply with all applicable Modern Slavery Laws and Maxeon’s standards regarding human trafficking and modern slavery as outlined in Maxeon’s Global Human Rights Policy at https://corp.maxeon.com/esgpolicies. The Customer understands that a violation of any standard set forth by Maxeon may result in the termination of the Customer’s business relationship with SunPower, including any Order or Purchase Order under the Contract and agrees that termination for that reason will be without any penalty or obligation to pay any compensation or reimbursement to the Customer whatsoever as a result of such termination (despite any other provision of these Terms).
17.6. Unauthorized Use of Intellectual Property. Subject to clause 14, the Customer will not allow any aspect of the Goods to infringe on any person or entity’s Intellectual Property Rights.
17.7. Notice of Violation. The Customer must notify the Supplier in writing as soon as the Customer becomes aware of any breach or suspected breach by the Customer or its Representatives to take action that might constitute or be construed as a violation of any of the laws, practices or regulations described in this clause 17, or when it has or should have reason to suspect that a breach of this clause 17 has or may occur. We may take any action it reasonably deems necessary to avoid violating such laws, practices or regulations.
18. FORCE MAJEURE
18.1. Except for the Customer’s payment obligations owed to the Supplier, neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for the performance of such obligations shall be extended accordingly.
18.2. The party affected by a Force Majeure Event (Affected Party) must:
(a) give oral notice of the Force Majeure as soon as is reasonably practicable and no later than forty-eight (48) hours of its commencement but no later than three (3) Business Days after that date, notify the other party in writing of (i) the nature and particulars of the Force Majeure Event; (ii) the date on which the Force Majeure Event started; (iii) the likely or potential duration of the Force Majeure Event; and (iv) the effect of the Force Majeure Event on the Affected Party’s ability to perform any of its obligations under the Contract; and
(b) use all reasonable endeavours to remedy, mitigate or minimise the effect of the Force Majeure Event on the performance of its obligations.
18.3. The non-performing Party will have the burden of proving the establishment of the elements of Force Majeure; such Party will use reasonable efforts to mitigate and overcome the Force Majeure expeditiously.
18.4. If the period of delay or non-performance continues for two (2) weeks, the parties shall meet to study the impact of the Force Majeure Event and use their best endeavours to agree on a solution.
18.5. Without affecting any other right or remedy available to it, if the period of delay or nonperformance continues for one (1) month, the party not affected may terminate the Contract by giving ten (10) Business Days written notice to the affected party.
19. NOTICE
19.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case), if to the Supplier by registered mail to the following address:
SunPower Corporation Australia Pty Limited
Suite 207/28 Riddell Parade
Elsternwick, VIC 3185
Australia
(b) sent by email to the following addresses (or an address substituted in writing by the party to be served): partnersupport.au@maxeon.com and salesaustralia@maxeon.com.
19.2. Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by express post service, next working day delivery service, at 9.00 am on the second Business Day after posting, or
(c) if sent by email at the time of transmission, or if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
19.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20. GENERAL
20.1. Amendments. These Conditions will not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing not made a part of the Contract by its express terms. Terms on either Party’s standard forms will not modify or override the terms of these Conditions or any Contract. We reserve the right to amend, modify or revoke any terms and conditions herein without notice or consent.
20.2. Assignment and Transfer.
(a) The Supplier may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the Supplier’s prior written consent.
20.3. Arbitration. The Customer agrees that any disputes arising out of or in connection with these Terms shall be referred to and finally resolved by arbitration administered by the Singapore
International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which is deemed to be incorporated by reference in this provision. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be in English.
20.4. Entire Agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that entering into the Contract does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
(c) Notwithstanding clause 2.1, in circumstances where the Customer placed an Order on SunPower Access unless the terms contained therein are otherwise expressly or implicitly preserved by these Conditions herein, in which case they will co-exist with the Conditions herein, and to the extent of any inconsistency, these Conditions will prevail.
20.5. Governing Law.
(a) The Contract, these Conditions, and any dispute claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Victoria, Australia.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising in Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with the Contract and these Conditions.
20.6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 20.6, the parties shall negotiate in good faith to agree on a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.7. Survival. Clauses 0 (Intellectual Property Rights), 16 (Confidentiality), and 17 (Compliance with Laws and Policies), including SunPower’s remedies, survive termination or expiry of any commercial arrangement regarding the sales of Products and Services.
20.8. No Third-Party Beneficiaries; Exception for Product Warranties. These Conditions are made and entered into for the sole protection and benefit of the parties hereto and their respective permitted successors and assigns, including its contractors and affiliates. No other person or entity will be a third-party beneficiary of or have any direct or indirect cause of action or claim in connection with these Conditions. Notwithstanding the preceding, the Product Warranties will benefit the Customer’s clients and users of the Products.
20.9. Variation. No contract variation shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.10. Waiver.
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any right remedy.