Solar for Apartments program terms and conditions - Round 1

Version 1.0 for round 1 applicants

1. Background

These Terms and Conditions apply to Applicants in Round 1.

By submitting an Application, Applicants agree to be bound by these Terms and Conditions (see Sections 5 and 14 of the Eligibility Requirements).

If an Applicant signs a Funding Agreement, the Applicant will also be bound by the terms and conditions in the Funding Agreement. To the extent of any inconsistency between these Terms and Conditions and the Funding Agreement, the Funding Agreement will prevail.

2. Definitions and Glossary

In these Terms and Conditions:

Applicant means an OC which applies for a Grant in the Program.

Application means a completed Application Form and all supporting information and materials submitted to Solar Victoria by the Applicant as part of the application process as described in the Eligibility Requirements.

Application Form means the application form for the Program in the form required by Solar Victoria.

Application Process means the process for requesting and assessing applications as described in the Eligibility Requirements, and includes shortlisting Applicants for conditional approval, selecting successful Applicants to be eligible to apply for final approval, and finalising and executing a Funding Agreement with each successful Applicant.

Authorised Solar Retailer means a solar retailer that is listed as an authorised solar retailer on Solar Victoria’s website (https://www.solar.vic.gov.au/find-authorised-retailer), as varied from time to time by Solar Victoria.

Closing Date means the closing date set out in the Eligibility Requirements.

Confidential Information of Solar Victoria means all information (regardless of its form) disclosed or otherwise made available by Solar Victoria to the Applicant or of which the Applicant otherwise becomes aware in connection with these Terms and Conditions and the Program which is about Solar Victoria or its operations, dealings, organisation, personnel, business, strategies, ideas, designs, intellectual property rights, trade secrets or know how or is otherwise designated by Solar Victoria as confidential, but does not include information which:

  1. is in or which subsequently enters the public domain other than as a result of a breach of these Terms and Conditions;
  2. the Applicant can demonstrate was independently developed by the Contractor or in its possession before the date of these Terms and Conditions; or
  3. is lawfully obtained by the Applicant from another person entitled to disclose such information.

Consequential Loss means economic loss, loss of contract, loss of profit or revenue loss of opportunity, loss of production, production stoppage, loss of data or other loss, harm, damage, cost or expense (including legal fees) in the nature of special, indirect or consequential loss or damage.

Eligibility Requirements means the ‘Solar for Apartments Program Round 1: Eligibility requirements and how to apply’ including these Terms and Conditions published at solar.vic.gov.au.

Eligible Property means an eligible property as specified in the Eligibility Requirements.

Eligible System means an eligible solar PV system as specified in the Eligibility Requirements, subject to any additional requirements as specified in any Funding Agreement.

Funding Agreement has the meaning given to that term in the Eligibility Requirements.

Government Authority means any government, semi-government, administrative, fiscal, judicial or quasi-judicial body, government or department, commission, body, instrumentality, minister, tribunal or court, agency or other authority (whether in the State of Victoria, another Australian State or Territory or the Commonwealth of Australia).

Grant means the funding allocated by Solar Victoria to an OC in relation to the Program.

Law means:

  1. acts, ordinances, regulations, by-laws, orders, awards and proclamations in force in the State of Victoria;
  2. binding requirements, orders, and/or directives and mandatory approvals (including conditions) of a Government Authority which have the force of law, where now or at any time in the future in effect.

Loss means any loss, damage, cost, expense, claim, charge, liability, suit, action, penalty, compensation, fine or outgoing suffered, paid or incurred whether direct or indirect or consequential, present or future, fixed or unascertained, actual or contingent and whether arising under an indemnity, in contract (including any breach of these Terms and Conditions), in equity (including breach of an equitable duty, breach of confidentiality or breach of fiduciary duty), under statute (including breach of statutory duty to the maximum extent possible), in tort (including for negligence or negligent misrepresentation) or other (including in restitution), and includes Consequential Loss.

OC means an owners corporation as defined under the Owners Corporations Act 2006 (Vic).

Privacy Law means the laws, principles and codes relating to the collection, use, disclosure, storage or granting of access to personal information (as defined in the Privacy and Data Protection Act 2014 (Vic)) and includes the Privacy Act 1988 (Cth), the SPAM Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth) and includes any applicable codes of practice made under those Acts.

Program means the Solar for Apartments Program

Solar Victoria means the portfolio entity within Victorian Government Department of Energy, Environment and Climate Action and its successor Government departments, and all references to the Department or Solar Victoria will be read and construed as references to the Crown in Right of the State of Victoria.

State means the Crown in right of the State of Victoria.

STC Assignment Form means the small-scale technology certificate assignment form.

Tax Invoice has the meaning given to that term in A new Tax System (Goods and Services Tax) Act 1999 (Cth).

Taxes means any taxes, rates, levy, impost, duties or other charges assessed or payable to any Government Authority and includes additional taxes, interests, penalties, charges, fees or other amounts imposed in relation to a failure to file a return or to pay the tax.

Terms and Conditions means these Solar for Apartments Program terms and conditions.

3. Representations and Warranties

Solar Victoria does not make any representations or provide any undertakings to Applicants other than to invite them to submit an Application.

The information in this document or ancillary material has been prepared by Solar Victoria in good faith. However, Solar Victoria does not warrant the accuracy or completeness of the content of the Eligibility Requirements and these Terms and Conditions and Solar Victoria will not be liable for any error or omission or any inaccurate or misleading information provided in the Eligibility Requirements and these Terms and Conditions or otherwise by Solar Victoria during the Application Process. In preparing and submitting its Application, the Applicant agrees that no warranty or guarantee is given by Solar Victoria and that the Applicant has satisfied itself as to the accuracy and completeness of the information provided and has prepared and submitted its Application accordingly.

The information in the Eligibility Requirements and these Terms and Conditions has been compiled by Solar Victoria for the purpose of inviting Applications for the Program and must not be relied on for any other purpose.

The Eligibility Requirements and these Terms and Conditions do not contain all the information that Applicants may require in reaching decisions in relation to submitting an Application. Applicants must form their own views as to what information is relevant to such decisions and make their own independent investigations in relation to any such information.

No representation made by or on behalf of Solar Victoria in relation to the Eligibility Requirements and these Terms and Conditions or their subject matter, including in connection with any meetings conducted, will be binding on Solar Victoria unless that representation is in writing and is expressly incorporated into a Funding Agreement.

4. Termination or Alteration of the Application Process

Solar Victoria may for its convenience at any time and in its absolute discretion terminate the Application Process, alter the Application Process (including amending the key dates) or alter the scope of the Program.

Solar Victoria will endeavour to notify Applicants of material changes to the Application Process or scope of the Program, or the termination of the Application Process, but is under no obligation to do so.

5. Status of Terms and Conditions

The Eligibility Requirements and these Terms and Conditions are not an offer. They are a formal invitation for Applicants to submit an Application to participate in the Solar for Apartments program in response to Solar Victoria’s requirements. While the Applicant’s compliance with the Eligibility Requirements and these Terms and Conditions is required, no contract is formed between Solar Victoria and any person by reason of the Eligibility Requirements and these Terms and Conditions, an Application or its submission, any part of the Application Process, or the lodgement of an Application, other than through the execution of a Funding Agreement.

6. Ownership

All documents submitted by the Applicant in connection with the Application Process become the property of Solar Victoria on submission.

The State does not seek any ownership rights in any Intellectual Property owned or developed by Applicants or third parties (such as technology providers) during the Application Process. Each Applicant grants free of charge a worldwide, perpetual, irrevocable, royalty free licence to the State to reproduce, communicate, adapt or modify the whole or any portion of its Application for any State purpose in connection with the Application Process. If an Applicant is successful, any further Intellectual Property rights and obligations will be included in the Funding Agreement.

The Eligibility Requirements and these Terms and Conditions and any supporting material provided by or on behalf of Solar Victoria are, and will remain, the property of Solar Victoria.

7. Communication about the Application Process or Application

Applicants may contact Solar Victoria with questions regarding submitting an Application, the Eligibility Requirements, these Terms and Conditions or the Application Process by emailing Solar Victoria at apartments@team.solar.vic.gov.au. The Applicant agrees that any questions and / or the answers provided by Solar Victoria may be made publicly available by Solar Victoria as part of the Application Process. Solar Victoria is not obliged to respond to any question or request for clarification or further information.

Applicants must not contact, communicate or discuss the Eligibility Requirements, these Terms and Conditions, the Application Process or their proposed Application with:

  • any employee, contractor or other personnel of a Victorian Government department or agency except as expressly permitted by the Eligibility Requirements or these Terms and Conditions;
  • any of the State’s advisers in relation to the Program; or
  • members of Victorian Parliament or their staff.

Any obligations on Applicants not to contact, communicate or discuss the Eligibility Requirements, these Terms and Conditions, the Application Process or their proposed Application will not be taken to have been breached to the extent that the contact, communication or discussion occurs:

  • to, and in response to a request by, a house or a committee of the Parliament of Victoria; or
  • with the Victorian Auditor-General, Ombudsman or an Information Commissioner.

Applicants may contact other agencies, such as Distribution Network Service Providers and relevant energy bodies, in order to complete the due diligence element of their Application. Unauthorised contact, communication or discussion by Applicants will be grounds for the rejection of their Application.

8. Confidentiality, Privacy and Publicity

Applicants must keep confidential any Confidential Information concerning Solar Victoria, received as a result of, or in connection with the Application Process, including:

  • preparing or submitting an Application; or
  • any discussions between itself and Solar Victoria.

Applicants must not disclose such information to a third party (including any other Applicant) except:

  • as may be required by law;
  • to its consultants and advisers on a need-to-know basis and subject to obligations of confidentiality the same as or more stringent than the obligations under the Eligibility Requirements and these Terms and Conditions; or
  • with the prior written permission of Solar Victoria.

Solar Victoria uses the Application and other reasonable means to collect information from the Applicant that Solar Victoria requires to administer the Program. Solar Victoria may also collect information from regulators and other third parties such as the Essential Services Commission, the Australian Energy Market Operator, the Clean Energy Council, WorkSafe Victoria, Consumer Affairs Victoria, Energy Safe Victoria, Valuer-General Victoria, the Victorian Building Authority and Authorised Solar Retailers. The Applicant consents to any person (including those listed in this clause 8) providing information of or about the Applicant or the Application to Solar Victoria for the purpose of Solar Victoria validating representations made, or information provided, by the Applicant or for the purpose of Solar Victoria administering the Program.

Each Applicant agrees that Solar Victoria may disclose their Application, along with any other information disclosed by the Applicant to Solar Victoria during the Application Process, to the State and its departments, employees, consultants and advisers or otherwise and if required by law to do so.

Any personal information collected as part of the Application Process will be handled by Solar Victoria in accordance with the Privacy and Data Protection Act 2014 (Vic).

Each Applicant warrants and represents to Solar Victoria that in relation to any personal information that the Applicant discloses to Solar Victoria in connection with the Application:

  • all individuals to whom the personal information relates have provided all necessary consents required under the Privacy and Data Protection Act 2014 (Vic);
  • all individuals to whom the personal information relates have been made aware of the identity of Solar Victoria and of the other matters that the Applicant is required under the Privacy Laws to take reasonable steps to ensure that the individuals are aware of; and
  • the disclosure of the personal information to, and its use by, Solar Victoria is authorised under the Privacy Laws.

Applicants must not make any public statements or communications, or publish any media releases, in relation to the Application or Application Process, other than disclosures that the Applicant is required to make under the rules of any applicable stock exchange, without first providing a copy of the statement, communication or media release to Solar Victoria and obtaining the prior written approval of Solar Victoria.

Applicants must not, in connection with the Application Process, do or omit to do anything which:

  • damages, brings into disrepute or ridicules Solar Victoria or the State’s, name, messages, programs or reputation; or
  • attracts public or media attention which may be prejudicial or otherwise detrimental to Solar Victoria or the State’s name, messages, programs or reputation.

9. Applicant acknowledgements

By submitting an Application, the Applicant:

  • acknowledges that the Applicant is solely responsible for selecting an Authorised Solar Retailer and for satisfying itself that the Eligible Property is suitable for installation of the relevant Eligible System, and neither Solar Victoria nor its contractors warrant as to the standard of care or process that will be undertaken by the Authorised Solar Retailer,
  • acknowledges that Solar Victoria is not liable or responsible for the safe installation and satisfactory performance of the Eligible System,
  • subject to the next point, on reasonable notice, consents to providing Solar Victoria, its contractors and relevant third parties with access to the Eligible Property during business hours to carry out inspection or audits of the Eligible System and
  • consents to providing WorkSafe Victoria and Energy Safe Victoria with access to the Eligible Property during business hours without prior notice to carry out inspections or audits of the Eligible System.

10. Proprietary Information

Proprietary information will be dealt with in accordance with the Privacy and Data Protection Act 2014 and other applicable laws as well as Solar Victoria’s privacy policy which can be found at https://www.solar.vic.gov.au/privacy.

If an Applicant wishes to provide information in respect of Solar Victoria’s Program which the Applicant regards as proprietary, that Applicant/potential Applicant must notify Solar Victoria in writing of its intention to do so, outlining the type of information involved and its reasons for believing it to be proprietary. Solar Victoria will respond to the Applicant indicating if the State also regards that information as proprietary information.

The Applicant/potential Applicant will then be able to decide, in the light of Solar Victoria’s response, whether to share the relevant information with the State, and, if so, on what terms.

11. Discussions

Applicants that are short listed, as part of the Application Process or provided conditional approval, may be invited to amend, alter or otherwise change their Application.

In addition, Solar Victoria may, in its absolute discretion, invite or allow an Applicant to amend, alter or otherwise change its Application at any time during the Application Process.

Solar Victoria may discuss with an Applicant any matter in connection with the Application Process in Solar Victoria’s absolute discretion, at any time during the Application Process.

12. Application Documents

By submitting an Application, the Applicant warrants to Solar Victoria:

  • the truth and accuracy of all information contained in its Application;
  • it has made proper allowance for all matters contained in, or capable of inference from, this document and other information made available to it;
  • it has made proper allowance for all matters which might impact on the Applicant’s ability to participate in Solar Victoria’s Program or to do so within any particular time, cost or quality constraints;
  • it has, and will maintain, the necessary skills, qualification and experience to enable it to participate in Solar Victoria’s Program;
  • it has, or will be able to, obtain all the necessary consents, permits or authorities necessary in order for the Applicant to participate in Solar Victoria’s Program; and
  • it is not insolvent within the meaning of the Corporations Act 2001 (Cth), is not trading while insolvent, is not at risk of insolvency, is not at risk of any other steps being taken in respect of the Applicant relating to insolvency (such as any actions by creditors or in respect of any security interests) or otherwise and there is no unfulfilled or unsatisfied judgment or court order outstanding against it.

By submitting an Application, the Applicant:

  • acknowledges and agrees that it is bound by the Eligibility Requirements and these Terms and Conditions; and
  • acknowledges and agrees that it is bound by its Application.

The Applicant’s Application must use the Application Form provided by Solar Victoria and the Applicant must ensure its Application contains information and details required by the Eligibility Requirements, these Terms and Conditions and Application Form for questions and any other information necessary or required by Solar Victoria to make the Application Form complete and enable assessment by Solar Victoria.

If the Application does not conform to the form required by the Application Form, does not respond to each component of the Application Form, does not respond in the timeframes required by Solar Victoria or is incomplete in any way, Solar Victoria may, in its absolute discretion, exclude the Application from consideration or reject the Application. Applications or other presentations that are unnecessarily elaborate or beyond that which is sufficient to present a complete and effective proposal are not desired or required.

If an Applicant identifies an error in their Application (excluding clerical errors which would have no bearing on the evaluation), they must promptly notify Solar Victoria in writing.

13. Timeline and Late Applications

Applicants must comply with the key dates in the Eligibility Requirements or as notified by Solar Victoria from time to time (Timeline). To the extent that the Timeline includes steps or actions to be taken by Solar Victoria, those steps and dates are indicative only and the Applicant acknowledges that Solar Victoria is under no obligation to meet those dates.

Solar Victoria may accept or reject any Application received after the Closing Date in its absolute discretion.

14. Acceptance of Applications

The Applicant’s Application will be assessed by Solar Victoria against the requirements stipulated in these Terms and Conditions, the Eligibility Requirements and other documents provided by Solar Victoria from time to time at https://www.solar.vic.gov.au.

Solar Victoria does not bind itself, and the Applicant agrees that Solar Victoria is not bound, to accept any Application.

Solar Victoria may accept or reject (in whole or in part) any Application. Solar Victoria is not required to give reasons for the acceptance or rejection of any Application.

15. Costs and liability

All costs incurred by the Applicant in the preparation and lodgement of its Application or otherwise and any costs incurred in relation to the evaluation of the Application, negotiation, the selection process and any future process related to Solar Victoria’s Program will be borne by the Applicant.

Solar Victoria is not liable for, and all Applicants and prospective Applicants release Solar Victoria from, any costs, expenses, losses, claims or damages that may be incurred by Applicants or any other person for any reason whatsoever in connection with or as a result of preparing its Application or participating in the Application process.

16. Change in Circumstance

The Applicant must inform Solar Victoria promptly, in writing, of any material change to any of the information contained in its Application, and of any material change in circumstances that affects the truth, completeness or accuracy of any of the information provided in, or in connection with, its Application.

17. Anti-competitive conduct

Applicants must not engage in any anti-competitive conduct, including, but not limited to, collusion, coercion, abuse of marketplace power or breach of any provision of the Competition and Consumer Act 2010 (Cth) in respect of the Eligibility Requirements, these Terms and Conditions or the Application process.

The Applicant warrants and agrees that it is in all respects independent and that no anti-competitive conduct has taken place or will take place between the Applicant and any other Applicant or interested party in connection with the Application Process, including the preparation of any part of the Applicant’s Application.

In addition to any other remedies available to it under law or contract, Solar Victoria may immediately disqualify an Applicant that it believes has engaged in anti-competitive conduct in respect of any Application.

In addition, it may result in the Applicant being barred from further application processes or contracts with Solar Victoria for a period to be determined by Solar Victoria.

18. Conflict of Interest

Any Applicant with a real or perceived conflict of interest must declare that interest to Solar Victoria as soon as the conflict is identified. Where a conflict of interest arises, it must be assessed and be resolved to Solar Victoria’s satisfaction.

All Applicants are required to ensure that their performance in respect of identifying, declaring and resolving any conflict of interest is consistent with all laws, demonstrably consistent with community expectations and beyond reproach. Any Applicant who states that they have an actual or perceived conflict of interest in their online Application Form must contact Solar Victoria and complete and submit a conflict of interest declaration stating the nature of the conflict and the management strategy. Solar Victoria will consider the conflict of interest declaration and make a decision in writing whether the Application can be considered (including on a conditional basis) or not.

19. Eligibility requirements

Any Applicant who believes the eligibility requirements associated with the Eligibility Requirements and these Terms and Conditions to be discriminatory, restrictive or biased in favour of a specific product or service must inform Solar Victoria in writing as early as possible but in any event before the Closing Date.

20. Probity for Application Procedures

The Applicant, its personnel and any of its associates must not offer any incentive to, or otherwise attempt to influence any of the persons who are either directly or indirectly involved in the Program or Application Process, or in awarding any subsequent agreement. If Solar Victoria determines that the Applicant or any of its personnel or associates have violated this condition, the Applicant may be disqualified from further consideration, in Solar Victoria’s absolute discretion.

By submitting an Application, the Applicant consents to Solar Victoria, or a third party engaged by Solar Victoria, performing probity and financial investigations and procedures in relation to the Applicant or any of its associates. The Applicant agrees, if requested by Solar Victoria, to seek consents from individuals to allow such probity checks.

21. Complaints

If any Applicant wishes to make a complaint or considers that the Application Process has failed to accord it a fair right to be considered a successful Applicant, the Applicant must provide immediate notice (prior to the Closing Date) to the Program contact nominated by Solar Victoria from time to time, of the alleged failure or breach so that the matter may be considered and remedied where possible. Notification under this clause must set out the issues, any relevant background information and the outcome desired. Solar Victoria will take any actions it considers necessary in relation to any complaints or communications received in connections with this clause.

In addition, Applicants must note that under section 13 of the Ombudsman Act 1973 (Vic), the Victorian Ombudsman is able to enquire into or investigate any administrative action taken by any government department.

22. Rights and discretions of Solar Victoria

Each Applicant agrees that wherever Solar Victoria is entitled to take action, form an opinion or make decisions of any kind, it may do so, or decline to do so, in its absolute discretion and is under no obligation to provide justification or reasons.

Solar Victoria may in its absolute discretion reject an Application from an Applicant or determine that an Applicant can no longer participate in the Application Process, if that Applicant fails to comply with any requirements of the Eligibility Requirements and these Terms and Conditions or any other direction of Solar Victoria.

Solar Victoria may waive any requirement or obligation under the Eligibility Requirements and these Terms and Conditions or under the Application Process. Any such waiver must be express and in writing and will not affect any other obligations nor is Solar Victoria required to advise other Applicants.

Solar Victoria may recover a Grant as a debt due and payable if the Applicant has been found to be in breach of these Terms and Conditions or the Eligibility Requirements (or any fraudulent conduct of the Applicant in connection with this Program).

23. Governing Law

The Eligibility Requirements and these Terms and Conditions are governed by the laws of the State of Victoria. The Applicant irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria, Australia.

Solar Victoria

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