BROKER AGREEMENT

TERMS AND CONDITIONS

BACKGROUND

  1. We analyse businesses’ and individual’s energy usage and requirements to connect them with Energy Providers.
  2. In order to connect businesses and individuals to Energy Providers, we maintain a network of individuals and organisations, from whom we may receive, or charge, a commission.

1 Acceptance

1.1 You accept this Agreement by the earlier of:

(a) confirming by email that you accept this Agreement;

(b) signing an agreement with an Energy Provider that we have Introduced to you; and

(c) making payment to an Energy Provider that we have Introduced to you.

2 Services

2.1 In consideration for the Services being provided by us, you agree to pay us $1, which will be deemed immediately paid on acceptance of this Agreement.

2.2 In the provision of the Services, an Energy Provider will be deemed to be Introduced by us to you, upon signing an agreement with the Energy Provider.

3 Acknowledgement

3.1 You acknowledge and agree that:

(a) our provision of the Services (including any Introduction of an Energy Provider) will be based on the information you provide to us, and we will rely on this information in order to provide the Services;

(b) this Agreement does not constitute a retail electricity supply contract or Energy Service Agreement;

(c) we will not be a party to any agreement between you and any Energy Provider or you and any metering provider;

(d) you have the absolute discretion to enter contractual relationships with any Energy Provider, including any Energy Provider we Introduce to you;

(e) if you select an Energy Provider Introduced by us to you, any contract start date with that Energy Provider is an estimate only and you accept that you cannot become a customer of your chosen Energy Provider until you have completed any steps required by that chosen Energy Provider;

(f) if you select an Energy Provider Introduced by us to you, we will assist you with the transfer of your energy account, however you will be responsible for the transfer of your energy account;

(g) we will not have any Liability for delays or failures to transfer your energy account; and

(h) we make best endeavours to verify whether you are currently in another Energy Services Agreement, but ultimately accept no Liability, in the case of any transfer to a new Energy Provider that results in you paying an exit fee.

4 Your obligations

4.1 You consent to:

(a) and if requested by us, you will facilitate, your Energy Providers and Metering Providers providing us with any relevant information including, but not limited to, meter details, electricity account information, meter data and energy usage details;

(b) your information regarding your energy use to be used by us for the provision of the Services;

(c) us, or our Personnel, exchanging your information and details to third parties (including Energy Providers) solely for the purpose of providing the Services.

4.2 You agree to provide all assistance, information, documentation, access, facilities, authorities, consents, licence and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at law.

5 Future Prices of Electricity

5.1 You acknowledge and agree that:

(a) any information, documentation, referral, recommendation, Introduction, and our provision of the Services, will be based on the energy prices at the date of providing our Services and that there may be fluctuations in energy prices;

(b) any information, documentation, referral, recommendation, Introduction, and our provision of the Services, will be based on the energy prices at the date of providing our Services and that there may be fluctuations in energy prices;

(c) we take best endeavours to educate you about the risk of rising and falling energy prices in the future, however we are unable to guarantee or warrant any future energy prices beyond the terms of the retail energy supply agreement that you choose to sign with an Energy Provider.

6 Confidentiality and Privacy

6.1 Subject to clause 6.2, a Receiving Party agrees to (and agrees to ensure that its Personnel do) keep confidential; and not use or permit any unauthorised use of, all Confidential Information of a Disclosing Party.

6.2 Clause 6.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Receiving Party ensures the adviser complies with the terms of clause 6.1.

6.3 You agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (as if you were an “APP entity” as defined in the Privacy Act 1988 (Cth)) and any other applicable legislation or privacy guidelines that may apply to you.

6.4 This clause 6 will survive the termination or expiry of this Agreement.

7 Intellectual Property

7.1 We own all Intellectual Property Rights in the reports, information, documentation, analysis and advice and other Intellectual Property, provided by us to you under this Agreement, including in the provision of the Services (Materials). Nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in our Materials to you.

7.2 We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use the Materials, solely for the purposes for which it was developed, and for you to obtain the benefit of the Services, as contemplated by this Agreement.

7.3 This clause 7 will survive termination or expiry of this Agreement.

8 Warranties and representations

You represent, warrant and agree that:

(a) you have not relied upon any warranty, representation, statement or documentation made or provided by or on behalf of us, except as expressly provided in this Agreement;

(b) it is your sole responsibility to assess the suitability of any Materials we provide to you; and

(c) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete.

9 Liability

9.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

(a) any transaction entered into with an Energy Provider or metering provider, or other written or verbal agreement or interaction, between you and the Energy Provider or metering provider;

(b) any event or circumstance beyond our reasonable control;

(c) any Consequential Loss, including, but not limited to, Consequential Loss arising from:

(1) any fluctuation in energy prices, government regulated price or any other market price that may be available in the future; or

(2) any downtime in energy such as transmission and distribution losses in the energy; and

(c) any acts or omissions of you (or your Personnel), or any Energy Provider or metering provider.

9.2 Despite anything to the contrary, to the maximum extent permitted by law:

(a) our liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or any of your Personnel); and

(b) our aggregate Liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you.

9.3 This clause 9 will survive the termination or expiry of this Agreement.

10 Termination

10.1 This Agreement will apply for the Term.

10.2 Upon expiry or termination of this Agreement:

(a) we will stop providing the Services;

(b) each Party will immediately return to the other Party all property, including Confidential Information and Intellectual Property, belonging to the other Party or its Personnel, in its (or its Personnel’s) possession; and

(c) each Party will not use any Intellectual Property or Confidential Information belonging to the other Party or its Personnel.

11 General

11.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.

11.2 Assignment: A Party agrees not to assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party.

11.3 Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

11.4 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

11.5 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

11.6 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

12 Definitions

In this Agreement, unless the context otherwise requires:

Agreement means this Broker Agreement.

Confidential Information includes information which:

(a) is disclosed to the Receiving Party in connection with this Agreement at any time;

(b) is prepared or produced under or in connection with this Agreement at any time;

(c) relates to the Disclosing Party’s business, assets or affairs; or

(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

Effective Date means the date on which this Agreement is accepted as per clause 1.

Energy Provider means a service provider that provides energy services including, but not limited, electricity services.

Energy Service Agreement means an agreement entered into between a customer and Energy Provider for the provision of energy services.

Intellectual Property means any copyright, registered or unregistered designs or trade marks, domain names; know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Introduce means the process whereby we provide you the details of Energy Providers, in our report by email, or any other form of communication including where we procure the services for you in any other manner.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Metering Provider means a service provider that provides metering services in accordance with the National Electricity Rules and the AEMO service level requirements for accredited metering providers.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Services means our brokering services, whereby we will review your energy usage and energy requirements and Introduce Energy Providers you could engage for your energy requirements, and as required, assist with setting up your account with a new Energy Provider.

Term means the period commencing on the Effective Date and ending on the date we have completed the Services, as reasonably determined by us.