1. Parts of this Agreement
These General Terms form part of Our Agreement with You for Products and Services. This Agreement also includes the Confirmed Order Form.
2. Definitions used in these General Terms
In this Agreement, capitalised words have the following meanings:
AGL means AGL Energy Services Pty Limited ABN 57 074 821 720, and Us, Our and We have corresponding meanings.
AGL Credit means an amount credited to Your AGL Electricity account in accordance with clause 15.
AGL Electricity Sale Contract means the contract (if any) between You and Us or one of Our Related Bodies Corporate and for the supply of electricity to You at the Premises.
Agreement means this contract for Products and Services, and includes the Confirmed Order Form and these General Terms and any attachments and annexures.
API Plan means a plan for Us to use an "Application Programming Interface" to enable communication and transmission of standardised data sets between Your electric vehicle, electric vehicle charging station and other systems or Software and provide You with Orchestration Services.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time.
Australian Energy Market Operator means the Australian Energy Market Operator Ltd ABN 94 072 010 327.
Business Day means any day other than a Saturday, Sunday or a public holiday in the state in which the Premises are located.
Carbon Neutral means the Carbon Neutral product which delivers Climate Active Carbon Neutral certified electricity to Your Premises.
Charges means the Non-Standard Installation Charge and any other charges (if any) referred to in these General Terms.
Commencement Date means the date that You have accepted this Agreement in accordance with clause 3.1(a).
Confidential Information has the meaning given in clause 24.
Confirmed Order Form means the schedule of contract information with that name forming part of this Agreement, which reflects the form We have confirmed with You during a phone call with one of Our sales agents for You and Us to enter into this Agreement.
Data means any data or information collected, captured, generated or processed in relation to, or in connection with, the Products and Services, Your generation and consumption of energy, and any other data that may be transmitted to Us in connection with Our provision of the Services to You (which may include Your Personal Information).
Discharge means the discharge of electricity from the EV Charger.
Distributor means the entity or person who owns, controls, or operates the distribution system to which the Premises are connected.
Draw means the drawing of electricity into the EV Charger.
Eligibility Criteria means the criteria set out in the Confirmed Order Form that You must meet as a prerequisite for entering into this Agreement.
EV Charger means:
(a) the electric vehicle charging station to charge Your electric vehicle, provided to You (for free) and installed at the Premises by Us under this Agreement; or
(b) the Vehicle to Grid charging station, provided to You (for a partially subsidised fee) and installed at the Premises by Us under this Agreement, as set out in the Confirmed Order Form (unless you are on an API Plan, in which case supply and installation of an EV Charger is not included).
EV Charger Plan: means a plan for Us to provide an EV Charger as defined in these General Terms and as specified in the Confirmed Order Form.
Force Majeure means an event outside Our or Your reasonable control including an act of nature, war or terrorism, national emergency, epidemic and act or inaction of government agency.
General Terms means these general terms and conditions.
Grid Connection Application means an application to the Distributor to allow, or to make any changes in relation to, the import or export of electricity in respect of the Premises (whether temporary or not), and any related applications for the purposes of this Agreement.
GST has the meaning given in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time.
Hold means to cease Drawing into the EV Charger.
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time, and includes common law and the principles of equity and any legally binding industry codes of conduct applicable to You or Us.
Metering Works means any installation of a meter or meter upgrade that may be required or desirable for the effective installation or operation of the Products or for connection of the Products to the electricity grid.
National Electricity Grid means the physical and market infrastructure required to transport and supply electricity in New South Wales, Victoria, Queensland, South Australia and Tasmania.
Non-Standard Installation Charge means the amount for all installation costs and works that are not a Standard Installation as specified in the Confirmed Order Form and payable by You to Us.
Orchestration Event means an event that You may participate in whereby We modify the EV Charger's settings to cause the EV Charger to Draw, Hold or Discharge at a particular point in time.
Orchestration Services means the services provided by Us to monitor, control and communicate with one or more of the EV Chargers, including:
(a) Our modifying the EV Charger's settings in Our absolute discretion, including to cause (such as by signal to) the EV Charger to Draw, Hold or Discharge; and
(b) associated necessary energy and load shift management, monitoring and surveillance of the EV Charger using devices and software.
Our Consumer Obligations means any of Your rights or remedies, and any conditions, warranties or liabilities imposed on Us, whether under the Australian Consumer Law or any other Laws that cannot be excluded, restricted or modified by agreement.
Party means a party to this Agreement, being either You or Us.
Personal Information has the meaning set out in the Privacy Act.
Premises means Your premises on which the Products and Services are to be supplied or performed, as set out in the Confirmed Order Form.
Privacy Act means the Privacy Act 1988 (Cth), as amended from time to time.
Privacy Laws means the Privacy Act and any other legislation, principles, industry codes and policies relating to the handling of Personal Information by Us.
Products means the EV Charger and any other products (including all component parts of them) supplied by Us to You, as described in the Confirmed Order Form.
Product Delivery Date means the date on which the relevant Product is delivered to You at the Premises.
Product Supplier means the manufacturer or supplier of the Products.
Regulatory Requirements means any Commonwealth, State or Territory or local regulation, including any Laws and regulatory and administrative documents, orders, licence conditions, codes, guidelines or standards that are applicable to the supply of the Products and performance of the Services at the Premises from time to time.
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
SaaS means the provision of the Software in the form of "Software as a Service" to be provided by or on behalf of Us to You, as set out in the Confirmed Order Form.
Services means the services (including any parts of them) supplied by Us to You as described in the Confirmed Order Form.
Site Issues means issues relating to the Premises and the installation or location of the relevant Product including, as applicable:
(a) failure of any switchboard, wiring, existing system or its installation or condition to meet applicable standards and requirements, including electrical safety, testing and earthing standards or the Distributor's or Our requirements;
(b) You request that the existing system, inverter or other equipment or plant is removed from the Premises;
(c) You request changes to the Standard Installation arrangements;
(d) You fail to provide or ensure adequate access to the Premises and the installation site of the Products; or
(e) the installation is not a Standard Installation.
Software means the object code of any computer software or firmware provided to You using the SaaS platform and the Orchestration Services platform pursuant to this Agreement, and includes any update or new release.
Software Term has the meaning given in the Confirmed Order Form.
Standard Installation means an installation which has the following features and meets the following requirements:
(a) No groundworks or other civil works are required to safely install the EV Charger;
(b) Your EV Charger can be safely installed within 20 metres of Your switchboard;
(c) no Switchboard Works are required to safely install the EV Charger;
(d) no underfloor work (other than easy under house access) or work over two storeys is required to safely install the EV Charger;
(e) Your nominated location to install the EV Charger is structurally sound and suitable for mounting the EV Charger in accordance with the EV Charger Supplier’s installation guidelines;
(f) Your electricity meter can, where required by Us, be replaced with a smart meter;
(g) no electrical remedial work are required to ensure the Premises meets current wiring regulations;
(h) Your Premises supply cable will accommodate the EV Charger within acceptable voltage rise limits;
(i) the Premises comply with current standards, regulations, and requirements of the Distributor and will continue to do so after the Products are installed and operated; and
(j) the installation location is deemed suitable by Us, acting reasonably.
Switchboard Works means any switchboard replacement or upgrade and associated works that may be required or desirable for the effective installation or operation of the Products or for connection of the Products to the electricity grid.
Term means the period stated in the Confirmed Order Form.
You means the person who enters into this Agreement with Us, and Your has a corresponding meaning.
3. Commencement of this Agreement
3.1. How this Agreement starts
(a) You may accept this Agreement by accepting the terms and conditions read to You over the phone by Our sales agent, or as otherwise agreed by You and Us.
(b) The Agreement starts once You have accepted it in accordance with clause 3.1(a).
3.2. When We provide Products and Services
We will provide the Products and Services to You in accordance with this Agreement, at the times set out in this Agreement, provided that You meet all of the Eligibility Criteria.
3.3. Eligibility Criteria
(a) If You fail to meet the Eligibility Criteria within 90 Business Days after the Commencement Date, then this Agreement will be treated as automatically ended and will have no force or effect.
(b) If You notify Us in accordance with clause 20.1(b) that You no longer meet any of the Eligibility Criteria at any time during the Term, then We may immediately end this Agreement and remove the EV Charger from the Premises.
(c) If clause 3.3(b) applies, You must grant permission to Us to access the Premises, and ensure that We have sufficient access to the Premises at reasonable times, to safely uninstall and remove the EV Charger.
3.4. The impact of this Agreement
You will make Your own enquiries to find out how the Products and Services may impact on any:
(a) agreement between You and the Distributor; and
(b) structure, equipment or infrastructure at the Premises, including any manufacturer’s warranties,
and subject to Our Consumer Obligations, You agree that We are not liable for any loss, damage or liability You suffer as a result of the impact of the Products and Services on any of the above.
4. Ownership and Risk in the Products
(a) You will become the owner of the Products on the date the Products are installed at the Premises.
(b) Until title to the Products passes to You, We reserve the right to:
(i) enter the Premises to retake possession of all or any part of the Products; and
(ii) keep or resell all or any part of the Products in those circumstances.
(c) Risk in the Products passes to You on the Product Delivery Date.
5.1. Information and approvals
(a) Unless you are on an API Plan, You must own the Premises.
(b) You warrant that all information You have provided to Us in relation to the Premises is accurate and correct.
(c) If You provide Us with inaccurate or incorrect information about the Premises, then You agree to pay Us on demand any reasonable additional costs that We incur because of that inaccurate or incorrect information.
5.2. Access to Premises
(a) You must grant permission to Us to access the Premises, and ensure that We can access the Premises at a reasonable time, to safely:
(i) conduct any preliminary works accepted under clause 6;
(ii) install the EV Charger (if applicable), including to carry out any testing; and
(iii) maintain, diagnose faults and repair the EV Charger as reasonably determined by Us to comply with Our obligations under this Agreement.
(b) You must comply with, and must ensure any owner of or person present at the Premises complies with, any reasonable direction given by Us in relation to health and safety while We are at the Premises.
6. Proposed changes to installation
(a) Unless expressly stated in the Confirmed Order Form, any installation works We provide are based on a Standard Installation. If specified in the Confirmed Order Form that Your installation is not a Standard Installation, You will be required to pay a Non-Standard Installation Charge.
(b) We may become aware that the Premises has particular Site Issues or complexities that could not have been reasonably foreseen by Us prior to completion of the installation If this occurs, or if We otherwise demonstrate that any of the costs associated with the supply and installation of the EV Charger have increased after the Commencement Date but before completion of the installation, then We will inform You of the extra costs and any other variations required to this Agreement, as soon as practicable, by sending You a written notice describing the proposed variation. That notice will include:
(i) the cost of the additional or omitted work required (if applicable);
(ii) the Non-Standard Installation Charge; and
(iii) any change to the completion period.
(c) If You do not accept a proposed variation under clause 6(b) within 14 days of the date of Our notice to You, then either We or You may end this Agreement under clause 19.1 or 19.4 respectively. If this occurs, You will be entitled to a refund in accordance with clause 19.5.
7. Switchboard Works and Metering Works
(a) Your Distributor may require You to complete Switchboard Works. Switchboard Works are not included in this Agreement, and You are responsible for Switchboard Works (including costs and delays).
(b) Metering Works are not included in this Agreement, and You are responsible for Metering Works (including costs and delays).
8. Quality of installation
(a) All work done under this Agreement will comply with:
(i) the Building Code of Australia to the extent required by Law;
(ii) all other relevant codes, standards and specifications that the work is required to comply with under any Law or Regulatory Requirements; and
(iii) the conditions of any relevant building permit, development consent or complying development certificate provided to Us.
(b) Any plans and specifications for work to be done under this Agreement in relation to the EV Charger (including any variations to them) are taken to form part of this Agreement.
9. Supplying and installing the EV Charger
(a) We will take every reasonable precaution when installing the EV Charger at the Premises. However, minor property damage may arise with installation of the EV Charger (such as nail holes and paint scuffs). Subject to any of Our Consumer Obligations, We are not liable in respect of such minor property damage.
(b) In addition, We did not build the Premises, have not undertaken any structural assessments, and cannot assess:
(i) the integrity or ventilation of the roof, building or other enclosure, surface, or structure where the EV Charger is to be installed and stored; or
(ii) the safety, structural integrity or working order of the systems or other infrastructure at the Premises with which the Products will integrate. Subject to any of Our Consumer Obligations, We are not liable in respect of such issues.
(c) You acknowledge and agree that during the installation of the EV Charger, We may require all electrical equipment or power at the Premises be switched off.
10. Time for installation
(a)Time is not of the essence under this Agreement.
(b) Any dates quoted for any supply and installation of the EV Charger are estimates only (and may be altered or delayed by reasons outside of Our control, including due to Distributor approvals, Metering Works, Switchboard Works, Site Issues, approvals such as building or council approvals, and unavailability of the Products or installers).
(c) However, if We fail to meet the date for delivery and installation of the EV Charger specified in the Confirmed Order Form and that failure did not arise (directly or indirectly) because of any of the reasons specified in clause 10(b) or Force Majeure, then You may end this Agreement under clause 19.4. If this occurs, You will be entitled to a refund in accordance with clause 19.5.
(d) You will use Your best endeavours to attend the Premises for the installation of the EV Charger. If You cannot attend, You will ensure a nominated representative attends on Your behalf. You will have no recourse against Us for any decisions made by Your nominated representative on Your behalf during the installation.
11. Time for providing Software
(a) We will provide You with SaaS and Orchestration Services for the Software Term.
(b) At the end of the Software Term, You will no longer have access to Our AGL functionality on any third party service provider Software application.
(c) You and the third party service provider may agree to continue Your agreement for use of that third party service provider's Software application beyond the end of the Software Term.
(d) If clause 11(c) applies to You:
(ii) except where expressly provided otherwise, this Agreement will no longer have any force or effect.
12. Software as a Service (SaaS)
(a) We will provide You with the right to access and use the Software for the Software Term, in the form of a SaaS platform.
(b) We may alter the SaaS platform and the underlying Software, including the tools, features or functions of the Software and the platform on which the SaaS is provided, at any time and at such times as We consider (or our third party service provider considers) appropriate.
(c) The SaaS platform and underlying Software may be provided by the Product Supplier and subject to the Product Supplier's terms and conditions.
(d) The use of the SaaS platform may be subject to additional reasonable terms and conditions that will be notified to You, from time to time. We are not obliged to provide the SaaS platform in connection with this Agreement if You do not agree to any additional reasonable terms and conditions. If You continue to use the SaaS platform after such notification, You will be taken to have agreed to those additional reasonable terms and conditions.
(e) You acknowledge that Your Product may include internal software that is necessary for its functionality and compatibility with the SaaS platform and the underlying Software, the Products and Services. This internal software may update automatically on Your Product once a new version or feature is available.
(f) If You or any other person move, remove, tamper with, disable, displace or damage the Product, this may hinder a software update taking place, impacting the functionality of the Product and/or Services (including the SaaS platform or its underlying Software).
(g) You must not copy, modify, distribute, sell, or attempt to reverse engineer any part of the Products or Services (including the SaaS platform, its underlying Software or any other software associated with the Products and Services).
(h) You must ensure each Product is connected to the internet (if possible through an ethernet connection), on a continuous basis.
(i) We will use commercially reasonable efforts to make the SaaS platform available for use by You during the Term, but We do not guarantee that access to the SaaS platform will be uninterrupted, continuous or fault-free.
(j) You acknowledge that We (or our third party service providers) may be required to perform regular or emergency scheduled maintenance services on the SaaS platform from time to time, during which time the SaaS platform and the Software may not be available. We will use reasonable efforts to provide notice of such maintenance services, to the extent practical.
(k) You (and people that You permit to access the SaaS platform) are only permitted to use the SaaS platform and the underlying Software:
(i) for the purposes of You exercising your rights or performing Your obligations under this Agreement; and
(ii) in accordance with clause 12(l).
(l) You are responsible for compliance with applicable Laws, all material provided to Us using the SaaS platform and for the acts and omissions of anyone that You permit to access the SaaS platform. Accordingly, You must:
(i) comply with all applicable Laws in connection with the use of the SaaS platform and the Software;
(ii) not provide other access to the SaaS platform or the Software to any third party for a purpose other than the purposes set out in clause 12(k);
(iii) not allow the transmission, upload, or installation via the SaaS platform of any virus, malware or other harmful code;
(iv) not use the SaaS platform or the Software for illegal purposes or otherwise display, transmit or make available material using the SaaS platform or Software that is pornographic, obscene, or indecent or is infringing, threatening, harassing, libellous, racially or ethnically objectionable, unlawful, harmful to children, invasive of another’s privacy or violates a third party's privacy rights;
(v) have, and will continue to maintain, all rights and licences to provide the materials that You provide to Us using the SaaS platform and to ensure that such materials do not infringe a third party's rights (including intellectual property rights); and
(vi) ensure that anyone who You permit to access or use the SaaS platform is made aware of, and complies at all times with, the obligations set out in this clause 12(l).
(m) We may immediately, without notice, suspend Your access to the SaaS platform or the Software in the event of a breach of the obligations in clause 12(l) by You or any other person that You allow to access the SaaS platform or the Software. In addition, any breach by You of the obligations in clause 12(l) will be considered a material breach that cannot be remedied, for which We may end this Agreement under clause 19.2(d).
(n) You must not upload to the SaaS platform or supply to Us any Personal Information of an individual, unless You have the consent of that individual to supply that Personal Information to Us under this Agreement. If You upload or supply to Us any such Personal Information, You are responsible for any additional costs arising from any activities necessary to ensure compliance with Privacy Laws, including any notification, removal or de-identification.
(o) You must not, and must not allow any other person to (unless otherwise authorised in writing by Us) provide You with any services similar to or the same as the SaaS provided in relation to the Products during the Software Term.
13. Orchestration Services
(a) You grant Us a right to provide Orchestration Services in respect of the EV Charger at all times during the Software Term.
(b) In providing the Orchestration Services, We may control the EV Charger to Draw, Hold or Discharge in Our absolute discretion.
(c) We may (but are not obliged to) notify You prior to signalling the EV Charger to Draw, Hold or Discharge. After receiving that notice, You may request in writing to Us if You want the signal to be overridden or amended in a specified way. We will use Our reasonable endeavours to comply with that request.
(d) You acknowledge and assume the risk and cost of any defect or damage to Your equipment, Premises, operations or activities or any product as a result of any Draw, Hold or Discharge signal or any override or amendment to that signal.
(e) You acknowledge that the Orchestration Services may impact upon Your electricity usage, including that a Draw from the National Electricity Grid may appear as additional electricity consumption on Your electricity bill under Your AGL Electricity Sale Contract.
(f) You must not allow any person other than Us (or Our Related Bodies Corporate) to provide You with any services similar to or the same as the Orchestration Services for the EV Charger during the Software Term.
(a) You will pay the Charges under this Agreement, by the period for payment specified in the Confirmed Order Form.
(b) You must pay Us the Charges:
(i) within 14 Business Days after We send You an invoice for that amount or any portion of that amount; or
(ii) in accordance with Your Electricity Sale Contract under clause 14.1.
(c) For the purposes of this Agreement, an amount will be considered to have been paid when We or Our agent have received that amount in cleared funds.
(d) We may elect that any amounts payable by You when this Agreement ends are invoiced by Us to You. You must pay those amounts within 14 Business Days after We send You an invoice for them.
15. AGL Credits
(a) You will be entitled to a fixed AGL Credit for each month that You participate in at least one of Our Orchestration Events in that month.
(b) The AGL Credit is provided to You on the condition that the Products or Services associated with that AGL Credit (as identified in the Confirmed Order Form) continue for the full quarter to which that AGL Credit relates.
(c) We will provide You with any AGL Credit in the method specified in the Confirmed Order Form or as otherwise notified to You by Us.
(d) Where You are entitled to an AGL Credit, We may provide You with that AGL Credit either by:
(i) Us reducing the amount payable by You to Us under this Agreement by the amount of the AGL Credit; or
(ii) one of Our Related Bodies Corporate (acting as Our agent) crediting the amount payable on the relevant AGL electricity bill in the amount of the AGL Credit.
16. Carbon Neutral
We will at Our cost apply the Carbon Neutral product to Your Premises for the Term. The Carbon Neutral product delivers Climate Active Carbon Neutral certified electricity to Your Premises in accordance with Our Carbon Neutral Terms (available online at: https://www.agl.com.au/terms-conditions/carbon-neutral). Our Carbon Neutral Terms will apply to You, except that You will not be charged for the Carbon Neutral product at Your Premises during the Term.
(a) All amounts payable or the value of other consideration provided in respect of supplies made in relation to this Agreement are exclusive of GST (if any). If a GST is levied or imposed on any supply made (or deemed to have been made) under or in accordance with this Agreement, the amounts payable or the value of the consideration provided for that supply (or deemed supply) must be increased by the amount of GST payable in relation to the supply.
(b) Where any amount is payable to a Party as a reimbursement, indemnification or similar payment calculated by reference to a loss, cost, expense or other amount incurred, then such amount will be reduced by the amount of any input tax credit available to that Party and, if a taxable supply, will be increased by the GST payable in relation to that supply.
(c) All GST payable will be payable at the time any payment to which it relates is payable. Where any GST payable is not referable to an actual payment then it will be payable within 10 days of a tax invoice being issued by the Party making the supply.
(d) Where in relation to this Agreement a Party makes a taxable supply, that Party will provide a tax invoice in respect of that supply before the GST payable in respect of that supply becomes due.
18. Making changes to this Agreement
(a) We may make changes to this Agreement by giving You notice in writing in any of the following situations, with the change to take effect immediately from that notice:
(i) as We consider necessary to accommodate or comply with any change in Regulatory Requirements, including where We are permitted to do so by a Regulatory Requirement;
(ii) to make a change that You requested and We agree to;
(iii) to make an administrative or typographical change;
(iv) to make the terms of this Agreement more favourable to You.
(b) The Products and Services, including the associated costs and charges for them, can also be changed as set out in these General Terms.
(c) Any other change of this Agreement must be agreed by You and Us in writing. We may notify You of a request to change this Agreement in accordance with this clause, in which case You can either:
(i) accept the proposed change to the Agreement, and the Agreement will then be changed;
(ii) if You do not accept the proposed change of the Agreement, end the Agreement by giving Us not less than 30 days’ notice, in accordance with clause 19.4; or
(iii) if You do not accept the proposed change of the Agreement, the Agreement will continue in effect unless and until ended in accordance with clause 19.
19. Ending this Agreement
19.1. We may end this Agreement, for any reason
We may end this Agreement at any time by providing You with not less than 30 days’ written notice, for any reason.
19.2. We may end this Agreement, for cause
We may end this Agreement by providing You with at least 30 days’ written notice, if:
(a) at any time prior to the completion of installation of the Products, We reasonably determine that it is not technically or operationally feasible for Us to supply the Products or Services to You, due to Site Issues, health or safety reasons or the installation not being a Standard Installation as defined in the Confirmed Order Form;
(b) Your AGL Electricity Sale Contract or Your agreement with the Distributor associated with the use and operation of the Products or Services ends or expires at any time before the end of the Term, for reasons within your control;
(c) You notify us, or We become aware, that the property at the Premises has been sold, leased, hired, sublet, licensed, transferred or assigned to a third party in circumstances where We cannot agree (acting reasonably) that You may novate this Agreement to that third party;
(d) You commit a material breach of this Agreement and You do not remedy that breach within 60 days from the date of a written breach notice from Us or that breach is not able to be remedied; or
(e) We become aware of any fraudulent conduct by You.
19.3. You may end this Agreement for any reason
You may end this Agreement by providing Us with at least 30 days’ written notice, for any other reason.
19.4. You may end this Agreement, for cause
You may end this Agreement by providing Us with at least 30 days’ written notice, if:
(a) We fail to meet the timeframe specified in this Agreement for delivery and installation of the Products (as applicable) or commencing to provide any Services, and no exceptions in the General Terms applies; or
(b) We commit a material breach of this Agreement and We do not remedy that breach within 60 days from the date of a written breach notice from You or that breach is not able to be remedied.
19.5. Other costs when this Agreement ends
(a) If You choose to end this Agreement under clause 19.3 before the end of the Term, except if You are on an API Plan, You must pay Us an amount equal to the value of the EV Charger as at the time you entered this agreement (as described on Our website, available at https://www.agl.com.au/smart-charging-trial ) on a pro-rata basis over the remainder of the Term.
(b) If We end this Agreement under clause 19.1 (for any reason) or You end this Agreement under clause 19.4 (for cause), then We will refund You any amounts already paid by You to Us. We may deduct any reasonable costs incurred by Us from that refund, except where the Agreement was ended because of clause 19.4 or clause 19.4(a).
(c) If this Agreement is ended in any circumstances other than by Us under clause 19.1 (for any reason) or by You under clause 19.4 (for cause):
(i) You will not be entitled to any refund of any amounts paid by You to Us; and
(ii) You must transfer all right, title and interest in those Products to Us.
19.6. Other consequences of ending this Agreement
(a) Ending this Agreement will not affect any rights that We or You may have accrued before that time, including Your obligation to pay Us any amount due at the date of this Agreement ending.
(b) For clarity, if this Agreement is ended in accordance with this clause 19 before the Product Delivery Date, then We will not be required to provide You with the Products or Services.
20. Use of the Products and Services
20.1. Your responsibilities
(a) You warrant that, at the date of this Agreement and at all times during the Term, You meet and will continue to meet the Eligibility Criteria.
(b) You must notify Us as soon as possible if You no longer meet any of the Eligibility Criteria at any time. If this happens, clause 3.3(b) will apply.
(c) You must:
(i) unless You are on an API Plan, maintain ownership and occupation (as applicable) of the Premises, or, if You are not the owner, maintain the consent of the owner in relation to this Agreement;
(ii) comply with all Regulatory Requirements and the Distributor’s requirements in relation to the Premises; and
(iii) obtain all necessary approvals, consents or authorities from any owner, residents, owner’s corporation or local authorities in connection with the Products and Services;
(iv) maintain Your AGL Electricity Sale Contract; and
(v) maintain an agreement with Your Distributor in relation to the Premises and not be in breach of any such agreement.
(d) You are responsible (and We are not liable) for:
(i) all charges under Your AGL Electricity Sale Contract, Your Grid Connection Application and contract with the Distributor, associated with the use or operation of the Products; and
(ii) providing and ensuring the compatibility of all hardware, devices, internet connections and systems that You use, download, install or operate to access and use the Products and Services.
(e) If any part of the Premises is sold, leased, hired, sublet, licensed, transferred or assigned to any other person:
(i) You will notify the relevant person regarding consents (including Data and information consents under clause 26) in this Agreement and obtain their consents;
(ii) You will notify Us immediately; and
(iii) We will not be responsible for providing the Products and Services (unless We consent to the arrangement) and You acknowledge that the functionality of the Products and Services may be impacted.
20.2. Distributor approvals
(a) The approval of the Distributor may be required to connect or maintain the connection of the EV Charger to the Distributor’s distribution system. If We ask, You agree to:
(i) appoint Us as Your representative to deal with the Distributor on Your behalf to obtain this approval, including by making a Grid Connection Application; and
(ii) authorise Us to accept any terms and conditions (including variations) specified by the Distributor on Your behalf.
(b) You must immediately notify Us if the agreement between You and the Distributor is changed or ends.
(c) We may need to seek additional information from You or a third party to provide the Products or Services to You. You authorise Us to seek this information on Your behalf.
(d) You may withdraw the authorisation under this clause 20.2 by notifying Us in writing, but this may delay or disrupt Our provision of the Products and Services to You. If this occurs, You agree that We may suspend or stop providing Products or Services under clause 19.2 (we may terminate for cause) (or both), acting reasonably.
21. Product Warranties
(a) You acknowledge and agree that:
(i) a third party has manufactured and supplied the Products to Us; and
(ii) the Products are covered by the third-party manufacturer's or supplier's standard warranty and We do not warrant the overall performance of the Products.
(b) You must immediately notify Us if You:
(i) are contacted by an Authority in connection with credible allegations or concerns;
(ii) receive a credible complaint from any person; or
(iii) otherwise become aware or suspect, other than by way of a notification by Us, that any of the Products, or products supplied by the Product Supplier of the same type or kind as the Products, have or may have any defect. You must comply with any directions that We, acting reasonably, provide You with in response to such notification.
(c) You agree to make all necessary enquiries, examinations and inspections and to take all necessary precautions for the safe collection, and safe and proper subsequent use of the Products by You or any other person.
22. Liability and Our Consumer Obligations
(a) If You are a consumer under the Australian Consumer Law, You will be entitled to certain guarantees, rights and remedies under the Australian Consumer Law that cannot be excluded, restricted or modified by agreement. These include consumer guarantee rights that the Products and Services We provide to You will be of acceptable quality, fit for the purpose disclosed, and carried out by Us with due care and skill.
(b) Nothing in this Agreement is intended to exclude, restrict or modify the application of any implied condition or warranty, any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(i) contravene that statute; or
(ii) cause any term of this Agreement to be void,
Our Consumer Obligations
(c) If We breach Our Consumer Obligations, Our liability to You is limited to Us (at Our election):
(i) in the case of Services, supplying the Services again or paying costs of having those Services supplied again; and
(ii) in the case of Products, replacing the Products, supplying equivalent products or having the Products repaired, or payment of costs of having those Products, equivalent products or repaired Products supplied to You, except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (where Our liability is not limited under this Agreement).
(d) Except in relation to Our Consumer Obligations and as otherwise expressly stated in this Agreement, all implied conditions, warranties, guarantees, rights, remedies, liabilities or other terms that would impose any liability or obligation on Us are expressly excluded under this Agreement.
(e) Except in relation to Our Consumer Obligations and as otherwise expressly stated in this Agreement, Our liability to You for any loss, harm, damage, costs, expenses or claims arising under or in connection with this Agreement (regardless of how it arises) is:
(i) excluded to the extent permitted by law; and
(ii) otherwise limited to the amounts paid by You in accordance with this Agreement. In particular, and without limiting the other provisions of this clause 21, You acknowledge that the provision of the Products and Services may be affected by, and We are not liable for:
(iii) any errors, viruses or bugs present in or arising from the Services or causing unavailability of the Services, or any incompatibility of the Services with any other software or hardware;
(iv) hardware or software upgrades initiated by the manufacturer or failure of communications infrastructure out of our reasonable control, such as your internet connection or other telecommunications failure; and
(v) any charge cycling, which may impact on the lifespan of the Product.
(f) Without limiting the other provisions of this clause 21 and to the extent permitted by Law, We are not liable to You for any special, indirect or consequential loss or damage (including, economic loss, increased electricity costs, loss of stored energy, disruption of energy supply or storage, loss of revenue or profit or any reduction in capital value of the Premises, loss or damage to data, loss of contract or loss of opportunity.
23. Intellectual Property
(a) Any material (including any intellectual property rights in that material) owned by You or Us at the Commencement Date will continue to be owned by You or Us respectively.
(b) If any material is developed or created during the performance of this Agreement, We will own all rights in that material, including intellectual property rights. You agree to assign all rights in that material to Us on creation and do anything further that We require to give effect to this assignment.
(c) If You provide, submit, send or receive any content to Us under or in connection with this Agreement, You licence Us to use, reproduce, modify, adapt and develop that content on a perpetual, worldwide and royalty-free basis for Our and Our Related Bodies Corporate’s business purposes, including the purposes of improving and developing Our products and services.
(d) This clause 23 survives the end or termination of this Agreement.
(a) "Confidential Information" is any information (in any form) which is disclosed or made accessible by or on behalf of a Party to another Party during or in connection with the negotiation or performance of this Agreement that:
(i) is Personal Information;
(ii) is the terms and existence of this Agreement;
(iii) is expressly stated to be or marked confidential; or
(iv) could reasonably be expected to be confidential in nature, but excluding information which is:
(v) in the public domain, other than due to a breach of confidentiality; or
(vi) lawfully obtained by the receiving Party from a different source in circumstances which do not impose a duty of confidence.
(b) Subject to clause 24(c), each Party must keep the Confidential Information of the other Party confidential and not directly or indirectly disclose or make available that Confidential Information to any other person.
(c) Subject to clauses 24(d) and 24(e), each Party may disclose Confidential Information of the other Party:
(i) with the prior written consent of that other Party;
(ii) to comply with the Law or the requirements of any recognised stock exchange;
(iii) to the extent necessary to perform this Agreement;
(iv) to its Related Bodies Corporate, its professional advisers, bankers, insurers or auditors; or
(v) to enforce its rights or defend any claim or action arising out of or in connection with this Agreement.
(d) Each Party must ensure that any person that it discloses Confidential Information to under clause 24(c)(iii) to 24(c)(v) (inclusive) complies with the Party’s obligations under this clause 24 as if it were the Party.
(e) Each Party must, if practicable, before disclosing Confidential Information under clause 24(c)(ii), give the other Party prior notice of the disclosure and consult with that other Party regarding the form and content of the disclosure.
(a) You authorise Us to collect, use, disclose and store Your Personal Information for the purpose of providing You with Our Products and Services.
(c) We may exchange Data, including Personal Information, with government agencies and third party providers, which include the manufacturers and suppliers of any Product or Services and who are located in Australia, the USA and other countries. Where We do this, You agree that in the event of a privacy breach relating to Personal Information by an overseas recipient, We will not be accountable for that recipient under the Privacy Act and You may not be able to seek redress under the Privacy Act.
(d) You agree that Our third party providers may collect, store, use and disclose Data, including Personal Information, about You:
(i) as described in their privacy policies or statements;
(ii) to provide Products and Services to You and products and services to Us;
(iii) to communicate product information for safety, maintenance and product improvement purposes to You; and
(iv) to maintain, improve and enhance their products and services.
(a) The Products and Services may capture, create or generate Data which is owned by Us (and is Our Confidential Information).
(b) You acknowledge that any information and data or reports You receive in connection with the Products and/or the Services may be incomplete or vary from the data and information recorded by other metering devices, including any grid electricity meter at the Premises. For clarity, in the event of any discrepancy, the grid electricity meter will take precedence.
(c) Subject to clause 25 of this Agreement and the Privacy Act, by using the Products and Services You consent and agree to:
(i) the transmission of the Data to Us;
(ii) Our access to, use and sharing of Data for any purpose that We see fit, including:
a. with third parties, such as a Product Supplier, installer (as applicable), the Australian Energy Market Operator, the Distributor, a government agency or any person as required under the Regulatory Requirements; and
b. Our Related Bodies Corporate, for internal assessments, developing new products and services and marketing activities for existing or new products and services; and
(iii)Our access to, and use of, Data continuing even if We cease to be Your electricity retailer, the metering provider or the metering data provider for the Premises.
(d) You acknowledge that a government agency may make Data available to the public in connection with any agreements or funding arrangement between Us and that government agency.
(e) You may withdraw the consents contained in this clause 26 at any time by notifying Us, but You acknowledge that doing so may prevent Us from providing You with Products and Services and may also impact the functionality of the Product and Services.
(f) You acknowledge that, when this Agreement ends, You will not have access to information or data that was available on the SaaS platform during the Term, unless otherwise agreed in accordance with clause 11(c).
(g) We, or our third party suppliers, may retain certain information and data as permitted in accordance with clause 25 and this clause 26.
(h) This clause 26 continues after the this Agreement ends.
27. Force Majeure
Our obligations under this Agreement are suspended where an event of Force Majeure prevents or delays their performance.
28. Regulatory Requirements
(a) We are bound by, and undertake to comply with, the New Energy Tech Consumer Code authorised by the Australian Competition and Consumer Commission, as amended from time to time. This Agreement complies with the Regulatory Requirements, including that New Energy Tech Consumer Code, as amended from time to time.
(b) Some Regulatory Requirements are optional or permit the parties to vary or exclude them by agreement. If a term or condition of this Agreement is not consistent with a Regulatory Requirement, then this Agreement will prevail except to the extent that the Regulatory Requirement does not permit this.
(c) If any matter required to be dealt with by a Regulatory Requirement is not, or is only partly, expressly dealt with in this Agreement, then that matter is incorporated into this Agreement.
(d) If any term or condition of this Agreement is rendered void for inconsistency with a Regulatory Requirement, then the relevant Regulatory Requirement is incorporated into this Agreement as required.
29. Complaint handling and dispute resolution
(a) If You have a query or complaint, You may contact Us in writing or by telephone.
(b) We will address any complaints in accordance with Our complaints handling and dispute resolution procedure, which can be located at www.agl.com.au, or is available on request.
(c) We will inform You of the outcome of Your complaint. If You are not satisfied with Our response to Your complaint, You may refer Your complaint to the energy ombudsman in the State in which the Premises are located.
30. Administering this Agreement
(a) Except where otherwise stated in this Agreement or required under any Regulatory Requirements, any communication between You and Us under this Agreement may be in person, in writing, by telephone or by electronic communication.
(b) An electronic communication can include, among other types of communications, email, short message service or multi-media message service, and may consist of a notice with a link to learn more about the details of that notice on Our website. Any communication may be made by electronic communication unless You have provided Us with notice that You would prefer to receive communications by mail.
(c) Any written communication by You or Us is deemed to have been received:
(i) if sent by mail, at the estimated delivery time of ordinary post as published by Australia Post; or
(ii) if sent by electronic communication, on the earlier of receipt of delivery confirmation or the day of transmission (unless otherwise notified that delivery of the communication was unsuccessful or delayed).
30.2. Transferring this Agreement
(a) We may assign, transfer or novate Our rights and obligations under this Agreement to another person at any time by notice to You, if:
(i) that person is a Related Body Corporate of Us; or
(ii) it forms part of the transfer of all or a substantial part of Our electric vehicle business to that other person.
(b) You agree to execute any documentation We reasonably require to give effect to an assignment, transfer or novation of Our rights and obligations under clause 30.2(a).
(c) Unless otherwise agreed under this Agreement, You cannot assign, transfer or novate Your rights and obligations under this Agreement to any third party.
30.3. Subcontracting by Us
We may subcontract any of Our obligations, including to install the Products (as applicable) or provide any Services (or any part of them), under this Agreement to one of Our Related Bodies Corporate or any third party. The subcontractors will perform all work to the standard set out in this Agreement.
30.4. Applicable law
This Agreement is governed by the laws in force in the State in which the Premises are located. The Parties submit to the non-exclusive jurisdiction of the courts in that State.
Except as otherwise provided in this Agreement, a right created under this Agreement may only be waived in writing signed by the Party granting the waiver.
If any part of this Agreement is or becomes illegal, void or unenforceable, this does not invalidate the rest of the Agreement, which will remain in full force and effect.
The provisions of this Agreement that are intended or capable of having effect after the expiry or termination of this Agreement (including regarding warranties, indemnities, liabilities) will each continue until their respective end or fulfilment.