1 Definitions and interpretation
1.1 In this Agreement:
Acceptance Date means, the date You:
(a) call Us to record Your acceptance;
(b) indicate Your acceptance by electronic means provided by Us; or
(c) indicate Your acceptance by any other method offered by Us,
provided that it is before 5pm on any expiry date set out in any Offer to You.
Access if requested, you must provide Us with adequate access to Your solar photovoltaic System at a time agreed between Us to enable Us to perform Our obligations under this Agreement.
Additional Services means any additional product or service as specified in Annexure A to this Agreement or in any Offer.
Clean Energy Regulator means the Clean Energy Regulator established under the Clean Energy Regulator Act 2011 (Cth).
Force Majeure Event has the meaning given in clause 8.1.
Installation Address means the address at which the System is installed.
Intellectual Property means all intellectual property rights (including rights in confidential information and data) throughout the world, whether present or future, registered or unregistered, including the right to apply for registration of any such rights.
Loss means any damage, loss, liability, cost, charge, expense, penalty, outgoing or payment (whether direct or indirect, consequential or incidental) and includes any economic loss or damage; loss of reputation; loss in connection with any claim against Us by any person; loss of revenue or actual or potential profits; any costs of repair; lost opportunity, including the opportunity to enter into or complete an arrangement with a third party; and legal costs and expenses on a full indemnity basis.
Monitoring Services means the monitoring of Your System and the provision of information, tools and alerts regarding the production and performance of Your System.
Offer means any offer or invitation document relating to the Products (including any Services) to be provided pursuant to this Agreement provided to You either in paper or electronic form.
Payments has the meaning given in clause 6.1.
Payment Processing Fee means the fee (if any) specified as such in an Offer.
Payment Terms mean the payment terms as specified in an Offer.
Personal Information means information or opinion about You from which Your identity is apparent or can reasonably be ascertained.
Price means the price of the Products (including GST) specified in an Offer.
Products means the Solar Command monitoring product which includes, the Device(s) (if required) to be supplied to You and installed on Our behalf by a licensed electrician, the Services to be supplied by Us to You and any other products specified in an Offer or Annexure A to this Agreement (as relevant).
Services means the Monitoring Service and any Additional Services as specified in an Offer.
Supply Commencement Date has the meaning given in clause 3.1
System means the solar photovoltaic system for which any Device is installed at the Installation Address.
Term means the period of time for which We will sell You Products (including any Services) under this Agreement, which starts on the Supply Commencement Date and continues on a month to month basis until the Agreement is terminated in accordance with its terms.
Us/We/Our/AGL means AGL Energy Services Pty Limited ABN 57 074 821 720 unless otherwise defined in an Offer.
You/Your means you, the customer.
1.2 Specifying anything after the words “including” or similar expressions does not limit what else is included, unless there is express wording to the contrary.
1.3 In this Agreement, unless the context otherwise requires, to the extent of any inconsistency, documents or parts making up these Products and Services Specific Terms take precedence in the following order:
(a) an Offer;
(b) these terms and conditions; and
(c) any other document or part thereof incorporated by reference in these terms and conditions.
1.4 You acknowledge and agree that this Agreement will become legally binding:
(a) when You give Your consent to its terms by voice recording that consent in a phone call with Us;
(b) by You indicating Your acceptance to these terms and conditions by electronic means, including by checking a box or completing any required acceptance steps which are set out on Our online portal page or in any Offer We provide You with; or
(c) by You indicating Your acceptance by any other method offered by Us.
2 Install and Supply
2.1 We agree to:
(a) supply the Products to You during the Term; and
(b) if Your meter is not configured to provide the required data, arrange for a licensed electrician to install the Device(s) at the Installation Address which may be at the same time as Your electricity meter upgrade to a digital meter or as otherwise agreed,
and You consent and agree to receive the Device(s) and the Services, in each case on the terms and conditions set out in this Agreement.
2.2 We will supply the Monitoring Service to You via Our Web portal and You acknowledge that an Internet connection is required to access the Monitoring Service. We may modify the functionality of the Products (including the Monitoring Service) from time to time in Our absolute discretion. You acknowledge and agree that We are not responsible in any way for Your Internet network, including its set-up, maintenance and cost (including data usage costs) associated with Your use of the Products.
2.3 You acknowledge and agree that use of the Web portal may be subject to additional reasonable terms and conditions that will be notified to you, via the Web portal, from time to time. We are not obliged to provide the Monitoring Services to You if You do not agree to the Web portal terms, and You may terminate the Agreement in accordance with clause 9.
2.4 You agree to otherwise provide Us with adequate access to Your System at a time agreed between Us to enable Us to perform Our obligations under this Agreement. If You do not provide Us with such access, We are under no obligation to arrange for a licensed electrician to install any Device or otherwise perform Our obligations under this Agreement.
2.5 We will supply the Additional Services (if any) as set out and on the terms in the Annexure A to this Agreement or as otherwise agreed.
2.6 From time to time We may vary the Agreement or offer to add Additional Services to this Agreement by prior written notice to You. This written notice will set out the terms of the variation or Additional Service. You may provide Us with a notice rejecting the variation or Additional Services, in which case this Agreement will be deemed to be terminated from the date of receipt of the rejection notice.
2.7 If You accept the terms of the notice or fail to provide Us with a rejection notice within any reasonable required time period under any notice, the content of the notice will be incorporated into this Agreement automatically from the date of acceptance or when the period for rejection has lapsed.
2.8 Notwithstanding anything in this Agreement to the contrary, where You are participating in a trial of the Products (and Services) We may, in Our absolute discretion, withdraw or amend any part of the Products or Services at any time. For the avoidance of doubt this may include the withdrawal of the entirety of the Products and Services.
3 Cooling-off Period and Commencement
3.1 This Agreement begins on the Acceptance Date, however where We must install a Device to enable the provision of the Services, Our obligation to supply You with and Your obligation to receive the Services begins on the date on which any Device has been installed and connected to the Internet (the Supply Commencement Date).
4.1 You agree and acknowledge that the Products (including the Services) may capture data related to Your energy generation and consumption, net export of electricity and any other data that may be transmitted via any digital meter including Your energy use and will send this data to us. If a Device is installed at Your premises to enable the Monitoring Service (or any related services) You agree that AGL may receive data relating to Your solar PV system and Your energy usage transmitted through that Device. You agree and acknowledge that, where We are permitted by law, We may access and use information relating to Your energy generation, storage and consumption that is collected or recorded prior to the Acceptance Date.
4.2 By using the Products (including any Services), You consent to:
(a) the transmission of the information described in clause 4.1 (Data) to us;
(b) our ownership of this Data; and
(c) our use and sharing of this Data with third parties. We acknowledge that this Data will not be used for, or interfere with, Your retail electricity account.
4.3 You consent to Us contacting You regarding the Data We receive in order to alert You of issues or problems associated with any of the Data, the supply of energy to Your supply address, or Your solar PV system, including to recommend products or services to address these issues. In particular, you:
(a) consent to the Clean Energy Regulator providing AGL with details regarding Your solar installation and configuration;
(b) agree that the above consents for Us to receive Data about the supply address continue even if We (including through Our related companies) cease to be Your electricity retailer, the Responsible Person for Your supply address for metering purposes, the metering provider or the metering data provider for Your premises; and
(c) agree that We may notify third parties of Your consent to allow AGL to continue receiving this Data as required to continue supplying You with goods and services and You agree to complete or sign documents provided to You confirming Your consent.
4.4 You are responsible for all hardware, systems and software applications that You download, install and/or operate to use the Services (including, but not limited to, any hardware, systems and/or software necessary to access the internet).
4.5 You acknowledge and agree that the information and data You receive via the Services may be incomplete or vary from the data and information recorded by other metering devices, including any network electricity meter at the premises.
4.6 To the extent permitted by law, We will not be liable for any loss which You pay, suffer, incur or are liable for any reason, including any errors, viruses or bugs present in or arising from Your use of the Services or any incompatibility of the Services with any other software or hardware.
4.7 You may withdraw the consents contained in this clause 4 at any time by notifying AGL, but doing so may prevent AGL from providing You with Products (and by withdrawing consent You agree to suspend any of AGL’s obligations to supply You with Products that rely on such consent).
5 End of Agreement
5.1. This agreement will automatically renew on a month to month basis and be deemed to be automatically extended until either party terminates it in accordance with its terms. All terms and conditions will continue to apply during any extended period of the Term.
5.2 If You intend to move out of, or stop residing at, the Installation Address You must notify AGL of Your intention at least 14 days before you leave the Installation Address. AGL may then elect to terminate this Agreement on the day You vacate the Installation Address
5.3 For a reasonable time following the termination of this Agreement, You agree that We may contact You regarding Our proposed terms and conditions for supplying the Products and Services or similar products and services.
6 Payment and GST
6.1 You must pay for the Products (including any Services) in accordance with the Payment Terms set out in an Offer.
6.2 If You have not paid in full by the due date, We may, without limiting any other rights, charge You interest on the overdue moneys at the cash rate (displayed at 11.00 am Sydney time on the Reserve Bank of Australia Website on the date of delivery) plus 2%, from the due date until paid in full, and take action against You for the Price for which payment has not been made.
6.3 If You pay a bill using a payment method that results in Us incurring a merchant services fee (including payment by credit card), We may charge You the Payment Processing Fee if such a fee is listed in an Offer.
6.4 Where GST applies, if any amounts payable or other consideration provided in respect of supplies made under this Agreement (Payments) are expressed to be exclusive of GST, the Payment for that supply (or deemed supply) will be increased by the amount necessary to ensure that the Payment net of GST is the same as it would have been prior to the imposition of GST.
6.5 Where any amount is payable to You or Us AGL as a reimbursement, indemnification or similar payment calculated by reference to a loss, cost, expense or other amount incurred, that amount will be reduced by the amount of any input tax credit available and, if a taxable supply, will be increased by an additional amount equal to the GST payable in relation to the supply.
6.6 Words defined in the A New Tax System (Goods and Services Tax) Act 1999 will have the same meaning when used in this clause 6.
6.7 If any amount is expressed to be inclusive of GST, the GST inclusive price assumes a GST rate of 10%. If the rate of GST changes, the GST inclusive price will be adjusted to reflect that change.
7.1 If required, We will arrange for the installation of any Device at the Installation Address by a licensed electrician, at the time and date agreed between You and us. Any time which We quote for installation of the Device is an estimate only.
7.2 You acknowledge and agree that:
(a) the Device must be properly functioning and connected to an Internet network in order for the Monitoring Service to function correctly and the other Services to be provided; and
(b) We are not responsible in any way for Your Internet network, including its set-up, maintenance and cost (including data usage costs).
(c) if you, or You allow another person to, interfere with or displace a Device installed under this Agreement causing the Device not to function properly, AGL will not be responsible for providing Services for the duration of the period that the interference prevents the proper function of the Device.
7.3 If a Device installed under this Agreement is displaced by a party other than AGL, for example but without limitation if You move to a different retailer who arranges for the installation of different metering equipment, AGL may in its absolute discretion elect to install a replacement or substitute Device. We will contact You to inform You of this and to arrange for the installation of that replacement or substitute Device and You acknowledge and consent to this.
8 Force Majeure
8.1 If an event outside Our or Your reasonable control (Force Majeure Event) prevents a party from complying with any of its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event (other than any obligation to pay money).
8.2 The party affected by the Force Majeure Event must use its best endeavours to:
(a) give the other party prompt notice of, and full details about, the Force Majeure Event; and
(b) minimise, overcome or remove the Force Majeure Event as quickly as practicable (however, this will not require either party to settle any industrial dispute).
8.3 For the purposes of clause 8.2(a), and only if the Force Majeure Event is widespread, Our requirement to give You prompt notice is satisfied if We make the necessary information available by way of providing a 24 hour telephone service within 30 minutes of being advised of the Force Majeure Event, or otherwise as soon as practicable.
9 Right of Termination
9.1 If You in Our opinion, fail to perform Your obligations in a satisfactory manner, engage in unlawful or dishonest activity or fraud, have a conflict of interest or any other misconduct We may, without affecting Our accrued rights and obligations immediately withhold or suspend performance of this Agreement.
9.2 Either party may terminate this Agreement at any time for convenience by giving no less than 30 days’ notice in writing, or if a Force Majeure Event continues for 30 days or more, on immediate notice.
9.3 Either party has the right to terminate this Agreement at any time by notice in writing to the other party if the other party commits a breach of any material provision of this Agreement and that breach is not capable of remedy or, if able to be remedied, is not remedied within a period of 14 days from the date of receipt of notice in writing calling upon the party in breach to remedy such breach.
9.4 We may, at Our absolute discretion, terminate this Agreement or immediately suspend any obligation to supply You with the Device or the Services (or both) if:
(a) an Internet connection is not available which is capable of being accessed by the Device (including if the internet connection does not reach the intended or actual installation location of the Device at the Installation Address); or
(b) You vacate the Installation Address without notice.
9.5 The termination rights in this clause 9 are in addition to any rights to terminate or cancel which may be set out elsewhere in this Agreement.
10 Privacy and Intellectual Property
10.1 We may:
(a) use Your Personal Information to promote and market services to You on an ongoing basis, including through telephone and electronic means, unless You opt out;
(i) they may not always comply with those obligations or those obligations may differ from Australian privacy laws;
(ii) We will not be accountable for the third party under the Privacy Act 1988;
(iii) You may not be able to seek redress under the Privacy Act 1988; and (iv) the third party may be subject to foreign laws which might compel further disclosures of Personal Information (e.g. to government authorities); and
10.2 Intellectual Property owned by either party at the commencement of the Agreement remains the property of that party. Any Intellectual Property developed or created during the performance of the Agreement vests in Us immediately upon its creation and You assign all right, title and interest in such Intellectual Property to Us and will do any further acts or execute any documents required by Us to effect such assignment.
11 Our Liability
11.1 Title and risk of loss or damage to any Device installed under this Agreement passes to You on installation.
11.2 You may have certain rights under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth), including consumer guarantees that the Products We provide to You will be of acceptable quality, fit for the purpose disclosed and carried out by Us with due care and skill. This Agreement does not exclude or limit these guarantees or any other statutory rights that You may have under applicable laws. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are 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.
11.3 Without limiting clause 11.2 and except as provided for in clause 12 and to the extent permitted by law:
(a) all guarantees, conditions and warranties, express or implied, by law, custom or otherwise are excluded; and
(b) our liability for any Loss arising from a breach of such guarantees, conditions and warranties, or this Agreement, is limited to:
(i) in the case of any goods supplied by Us to you, either replacement of such goods, the supply of products equivalent to such goods, the repair of such goods, or the cost of replacing such goods or acquiring products equivalent to such goods, or the payment of the cost of having such goods repaired; and
(ii) in the case of any services supplied by Us to you, the supply of such services again or the payment of the cost of having such services supplied again.
11.4 Without limiting clause 11.2, to the extent permitted by law, We will not be liable for any Loss which You pay, suffer, incur or are liable for any reason, including as a result of delay, negligence or any act, advice, matter or thing done or permitted or omitted to be done by us, Our employees or agents in any way connected with or arising out of this Agreement.
11.5 You indemnify Us against any Loss which We pay, suffer, incur or are liable for in connection with any breach of this Agreement, or negligence, by You or as a result of Us exercising Our rights under this Agreement.
12 Complaint handling and dispute resolution
12.1 If You have a query or complaint, You may contact AGL in writing or by telephone. AGL will address any complaints in accordance with AGL’s complaints handling and dispute resolution procedure, which can be located at agl.com.au, or is available on request.
12.2 AGL 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 Your Installation Address are located.
13.1 If any part of this Agreement is or becomes illegal, void or unenforceable, this does not invalidate the rest of the Agreement.
13.2 This Agreement is governed by and construed in accordance with the laws of New South Wales and each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales.
13.3 Clauses 4 (Data), 10 (Privacy and Intellectual Property) and 11 (Our Liability) survive the expiry or termination of this Agreement.
13.4 We may assign or novate this deed to a Related Body Corporate on written notice to You without any requirement to obtain Your prior consent and You shall provide all assistance requested by AGL to effect the assignment or novation.
13.5 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.