1.1 The Customer appoints SolarTrak Pty Ltd ABN 53 644 079 247 (‘Company’), and the Company accepts the appointment, as the Relevant Agent in respect of the Solar Generation Plant, and to provide the Servicesin accordance with the terms contained in these Service Terms and the Appointment Form.
1.2 The Company’s appointment is governed by this Agreement which includes these Service Terms and the signed Appointment Form.
2.1 The initial term of the of this Agreement shall be for a period of 12 months commencing on the Commencement Date (‘Initial Term’), unless terminated earlier pursuant to clause 14 or 15.
2.2 This Agreement shall automatically renew for an additional 12 month period (‘Subsequent Term’) on the expiration date of the Initial Term and each Subsequent Term (as relevant) (‘Expiration Date’) unless either party gives written notice to the other party at least 14 days prior to any Expiration Date that the Agreement is not being renewed and shall terminate on that Expiration Date.
3.1 The Services will be provided for such hours either during weekdays or on weekends as are necessary for the proper performance of the Services.
3.2 During the Term, the Company may update or modify the Services or provide alternative Services to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use. Any updates or modifications to the Services will not materially reduce the level of performance, functionality, security, or availability of the Services during the Term.
3.3 The Company must, where possible, provide the Customer 14 days’ notice in writing of any anticipated interruption to the Services, except where it is affected by a Force Majeure Event.
3.4 The Company must obtain and maintain all licences, permits and documentation necessary for, and must comply with all laws and regulations governing, the supply of the Services.
3.5 Subject to these Service Terms, the terms of the Appointment Form or any requirement imposed by law or any direction by the Technical Regulator, the Company has absolute discretion about the manner and method of provision of the Services to the Customer, and is under no obligation to provide the Customer any other goods, services or advice.
4.1 The Company must ensure and, where relevant, must ensure that its Personnel perform the Services:
4.1.1 in a proper, professional and workmanlike manner; and
4.1.2 utilising the standard of care and skills of duly qualified and experienced persons engaged to provide comparable work.
5.1 The Customer agrees to pay the Fee to the Company in accordance with these Service Terms and the Appointment Form, in consideration for the Services.
5.2 The Fee is fixed for the Initial Term and will continue to apply to any Subsequent Term unless varied in accordance with the clause 5.3 or clause 5.4.
5.3 For any Subsequent Term, the Fee will be the relevant fee specified on the Company’s website (www.solartrak.com.au), provided that the fee is displayed on the website at least 14 days’ prior to the Expiration Date in respect of the Initial Term or Subsequent Term (as the case may be).
5.4 The Company may change the Fee applicable to any current Term at any time to reflect any change in the costs of the Services to be provided by the Company as a result of any introduction of, or change in, any taxes (including GST), duties, imposts, levies, regulatory charges, law, regulations or orders of a regulatory or semi-regulatory authority or network provider. The Company must provide the Customer 14 days’ notice in writing prior to increasing the Fee under this clause 5.4.
6.1 Unless specified otherwise, the Customer must pay the Company the Fee without demand, deduction, withholding, set-off or counterclaim within 14 days of the Commencement Date or within 14 days of the commencement of any Subsequent Term, as applicable.
6.2 All payments must be made in Australian currency and unless stated otherwise, to the Company using Bpay or any other payment method specified in an invoice for the relevant amount.
7.1 For the purposes of Regulation 55B of the Regulations, as the Relevant Agent of the Customer in relation to the Solar Generation Plant, the Company:
7.2 The Customer acknowledges that if a Disconnection occurs there may be an unknown period of time before the Solar Generation Plant is reconnected to the Distribution Network. The Customer acknowledges and agrees that the Company will not be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for any loss (including any special, indirect or consequential loss) suffered by the Customer as a result of any Disconnection for any reason including accident, malfunction of the SolarTrak Control Technology or any default or negligence on the part of the Company or its Personnel.
7.3 If the Customer ceases to be the owner/operator of the Solar Generation Plant, the Customer must advise the Company as soon as practicable and in any case no later than 7 days after the Customer ceases to be the owner/operator of the Solar Generation Plant.
8.1 The Customer must ensure that the SolarTrak Control Technology remains connected to the internet by Ethernet cable or Wi-Fi or a telecommunications network at all times 24 hours a day, 7 days a week (‘Connectivity Requirement’).
8.2 If the Company discovers that the SolarTrak Control Technology is not connected to the internet by Ethernet cable or Wi-Fi or a telecommunications network, the Company may, using email, phone call or SMS message, direct the Customer to reconnect the SolarTrak Control Technology to the internet by Ethernet cable or Wi-Fi or a telecommunication network (‘Reconnection Request’).
8.3 If the Company issues a Reconnection Request to the Customer, the Customer must reconnect the SolarTrak Control Technology to the internet by Ethernet cable or WiFi or a telecommunications network within 24 hours.
8.4 If the Customer fails to comply with the Connectivity Requirement, the Company may do any one or more of the following:
9.1 The Customer acknowledges that the Company may from time to time test the functionality of the SolarTrak Control Technology (‘Test’) and may collect information in relation to the results of a Test.
9.2 The Customer acknowledges that during a Test, a Disconnection may occur.
9.3 If the Company anticipates that a Test is likely to cause a Disconnection, the Company will use reasonable endeavors to provide the Customer with notice of the Company’s intention to run a Test at least 2 days prior to the Test.
The Company must notify the Customer within 2 days’ if it becomes aware:
10.1 that the SolarTrak Control Technology or the Services supplied to the Customer do not comply with the Regulations or otherwise are, or may be, defective; or
10.2 of any other issue relating to the safety or fitness for the purpose of the Solartrak Control Technology or the Services.
11.1 The Company warrants that:
12.1 The Company will not be liable for and the Customer releases the Company against any lossthe Customer suffers as a result of the Customer not complying with any of its responsibilities under this Agreement.
12.2 The Customer must indemnify and keep indemnified the Company against all claims and all losses, costs, liability and expenses incurred by the Company arising wholly or in part from the supply of Services under this Agreement (whether directly or indirectly) from:
except to the extent caused or contributed to by the Company.
12.3 In no circumstance whatsoever will the Company be liable to the Customer or to any third party for any Consequential Loss arising out of the supply of the or Services or failure to perform or observe the Company’s obligations under the this Agreement or any implied terms that are not excluded by the Agreement.
12.4 The aggregate liability of the Company and its affiliates, directors, employees, and agents, and the sole remedy available to the Customer arising out of or relating to this Agreement, the Services, software, or any products or services provided hereunder shall be limited to termination of the Agreement and any damages will not to exceed the total amount payable or paid to the Company under the Agreement during the twelve months prior to termination.
13.1 The Customer may direct the Company to suspend the provision of the Services in whole or part at any time and for any reason (‘Suspension’). Upon receipt of such a direction, the Company must:
13.2 The Company must recommence performance of any suspended work as soon as practicable after receiving notice from the Customer to recommence.
13.3 The Customer acknowledges that a Suspension will amount to a withdrawal of the Customer’s authorisation for the Company to act as the Customer’s Relevant Agent for the purposes of the Regulations (‘Withdrawal of Authorisation’). If a Withdrawal of Authorisation occurs, the Customer is responsible for authorising another Relevant Agent to remotely disconnect and reconnect the Solar Generation Plant from the Distribution Network. The Customer acknowledges and agrees that the Company will not be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for any loss (including any special, indirect or consequential loss suffered by the Customer in connection with the withdrawal of the Authorisation.
14.1 The Company may, by notice to the Customer (‘Company’s Default Notice’), suspend or terminate this Agreement where:
14.2 The Customer must give immediate notice to the Company of an Insolvency Event if one occurs, or if one is likely to or may occur.
15.1 The Customer may, on 7 days’ notice to the Company, terminate this Agreement in the Customers’ absolute discretion.
15.2 The Customer acknowledges that if it elects to terminate this Agreement under this clause 15, the termination will be a Withdrawal of Authorisation to which clause 13.3 applies.
16.1 If this Agreement is terminated for any reason, the Company may immediately elect to cease to be the Relevant Agent of the Customer for all purposes, including those set out in clause 7.
16.2 To the extent permitted by law, the Customer will not be entitled to any compensation or to make any claim against the Company arising from a termination of this Agreement or the Company ceasing to be the Relevant Agent of the Customer under clause 16.1.
16.3 The Customer acknowledges and agrees that the termination of the Customer’s engagement under this Agreement does not affect any accrued rights or remedies the Company may have.
16.4 The Customer will not be entitled to recover, and the Company is not liable for any loss (including any indirect or consequential loss) incurred by the Customer, including loss of profits or revenue, loss of reputation, loss of opportunity, or loss under any third party arrangement, arising as a result of any termination of this Agreement.
17.1 The ownership of the Intellectual Property Rights of a party which exist before this Agreement, will not be altered, transferred or assigned merely by virtue of using that item for the purposes of this Agreement, unless expressly agreed to the contrary.
17.2 The Customer must not use any Intellectual Property Rights of the Company or its related bodies corporate for any purpose without the prior written consent of the Company and subject to any conditions the Company may impose.
The Fee and any other amounts payable under this Agreement are exclusive of any GST (unless sated otherwise) and will for each taxable supply be increased at the rate of GST applying from time to time.
19.1 Notice may be given in writing to a person:
19.2 Notice given shall be deemed effective on the date delivered, if by hand, on the date deposited in the official postal system in its jurisdiction properly addressed, if by mail, or on the date of transmission, if by facsimile or email. If two or more people comprise the Customer, notice to one is effective notice to all.
20.1 The Customer authorises and acknowledges that:
20.2 The Company represents and warrants that:
21.1 All personal information collected by the Company relating to the Customer is collected for the purposes of providing the Services in accordance with the Regulations, account establishment, payment and administration. That personal information may also be disclosed to the Technical Regulator as may be required under the Regulations. Personal information may also be used by the Company for account servicing and direct marketing purposes. The personal information is not otherwise to be disclosed to any third party, except for the Company’s agents and advisors involved in the provision of the Services.
21.2 The Company Privacy Policy contains information setting how the Customer may access the personal information collected about them and seek correction of any error in such information and sets out the process by which the Customer may complain of a breach of the Privacy Act by the Company. The Privacy Policy is available to be viewed online at www.solartrak.com.au.
21.3 By signing the Appointment Form, the Customer consents to the use of their personal information for the various purposes described above. The Customer acknowledges that the Term and the provision of the Services may not be initiated if their personal information is not provided.
Neither party is liable to the other for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances (each being a ‘Force Majeure Event’).
23.1 This Agreement constitutes the entire agreement between the parties for the Services.
23.2 To the extent of any inconsistency between these Service Terms and the Appointment Form, these Service Terms will prevail to the extent of that inconsistency.
23.3 The parties agree that these Services Terms may be updated by the Company from time to time by publishing a copy of the updated Service Terms on its website (www.solartrak.com.au). Any updated Service Terms will, from the time of publishing, replace these Services Terms.
23.4 Except as set out elsewhere in these Service Terms, the terms of the Agreement cannot be varied, waived, discharged or released except as agreed between the parties.
23.5 The Customer acknowledges and accepts that the Company may at any time assign all or any part of its rights or liabilities under this Agreement without the prior consent of the Customer.
23.6 Each party must pay its own costs of negotiating, preparing and executing this Agreement and any document required by these Service Terms.
23.7 Each of the documents comprising this Agreement that are required to be executed by the parties, may be executed in counterparts and each executed counterpart is deemed an original of this Agreement. All executed counterparts constitute one document. Electronic Delivery of an executed counterpart will be deemed effective delivery of the original executed counterpart, from the date and time of receipt by the other party. Execution is permitted by electronic means.
23.8 Clauses intended to survive the termination or expiry of the this Agreement by their nature (including clause 6, 13, 16, 17, this clause 23 and any other warranty or indemnity) will continue after expiry or termination of this Agreement.
23.9 Each party must do, at its own expense, everything reasonably necessary (including executing and delivering documents) to give full effect to this Agreement and any transaction contemplated by it.
23.10 A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
23.11 Except where this Agreement expressly states otherwise, no party is authorised to bind another party and nothing in this Agreement is to be construed as creating a relationship of employment, trust agency, fiduciary, joint venture or partnership between the parties.
23.12 This Agreement is governed by the laws of South Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in South Australia and the South Australian division of the Federal Court of Australia (Adelaide Registry).
23.13 If the Customer enters into this Agreement as trustee of a trust, the Customer is bound by this Agreement both as trustee and in its personal capacity and warrants that:
In this Agreement, unless the contrary intention appears:
‘Act’ means the Electricity Act 1996 (SA) and including the Regulations.
‘Agreement’ this agreement consisting of these Services Terms (as updated from time to time) and the Appointment Form.
‘Appointment Form’ means the ‘Relevant Agent Appointment and Agreement for the Supply of Services’ document signed by the Customer.
‘Commencement date’ means the later of the date of installation of the Solar Generation Plant or the date of issue of the Electronic Certificate of Compliance.
‘Customer’ means the person identified as the ‘Customer’ on the Appointment Form.
‘Designated Electricity Generating Plant’ means an electricity generating plant designated by the Minister as a designated electricity generating plant for the purposes of the Regulations.
‘Distribution Network’ has the same meaning as defined in section 4 of the Act.
‘Electronic Certificate of Compliance’ means the electronic certificate of compliance issued under the Act to the Customer in respect of the Solar Generation Plant.
‘Insolvency Event’ means in relation to a party any of the following events:
24.1 where the party is a company – if there is appointed or if steps are taken to appoint a liquidator, receiver, manager, controller or an administrator over the whole or any part of its affairs;
24.2 where the party is an individual – if it enters into a scheme of arrangement with its creditors, commits any act of bankruptcy or becomes bankrupt, or becomes incapable of managing its own affairs.
‘Intellectual Property Rights’ means all intellectual property rights including:
24.3 patents, trade marks, service marks, rights in designs, trade names and copyrights (including future copyright), business names, designs, in each case whether registered or not, and any applications prepared for registration, lodgement or pending, of any of them;
24.4 rights under licences, authorities and consents in relation to any of them;
24.5 trade secrets and confidential information; or
24.6 all forms of protection of a similar nature or having equivalent or similar effect to any of them which may subsist anywhere in the world;
‘Fee’ means the fees payable for the Services (which may be updated form time to time in accordance with this Agreement), with the initial fee specified in the Appointment Form.
‘GST’ means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
‘Personnel’ of a party means officers, employees, third party agents and third-party contractors of that party, and includes an officer, employee or agent of a related body corporate of that party;
‘Regulations’ means the Electricity (General) Regulations 2012 (SA);
‘Relevant Agent’ has the same meaning as defined in the Regulations;
‘Services’ means the services required to be undertaken by the Company to carry out its role as Relevant Agent of the Customer pursuant to the Regulations and associated requirements;
‘Solar Generating Plant’ means the solar electricity generating plant located at the Property over which the Customer has granted the Authorisation and to which the Services relate.
‘SolarTrak Control Technology’ means the control technology (or any replacement thereof) that is connected to the Solar Generating Plant;
‘Technical Regulator’ means the South Australian Office of the Technical Regulator (or any replacement authority).
In these Service Terms, unless the context otherwise requires:
25.1 a reference to time is a reference to Adelaide, South Australia time;
25.2 a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, the Service Terms, and a reference to the Service Terms includes any schedule or annexure;
25.3 a reference to a party is to a party to this Agreement, and includes the party’s executors, administrators, successors and permitted assigns and substitutes;
25.4 reference to two or more people means each of them individually and all of them jointly;
25.5 if the Customer comprises two or more people:
25.6 a provision must not be construed against the Company only because the Company prepared it;
25.7 a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed;
25.8 the meaning of general words or provisions shall not be limited by references to specific matters that follow them (for example, introduced by words such as “including” or “in particular”) or precede them or are included elsewhere in these Service Terms.
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