NEXERGY
Preview Release Customer Agreement

Background

Nexergy Pty Ltd (ABN 49 615 225 771) has developed a peer-to-peer energy trading platform (Nexergy Platform) that enables eligible energy customers of Energy Locals (Buyers) to purchase the surplus solar energy generated from other eligible energy customers of Energy Locals (Sellers). The Nexergy Platform will be available via the Nexergy peer-to-peer energy trading application, which is only available via smartphones iOS and Android (Nexergy App).

These Terms and Conditions (Terms) form the entire agreement between Nexergy (referred to as Nexergy, we or us) and the users of the Nexergy Platform (both Buyers and Sellers, who are collectively referred to as User or you). In these Terms, Nexergy and the Users are collectively referred to as the Parties and each a Party.

These Terms set out the terms and conditions upon which Nexergy has agreed to allow the Users to participate in the preview release of the Nexergy Platform (Preview Release). By using the Nexergy Platform or otherwise indicating that you agree to participate in the Preview Release, you acknowledge and agree that you have read, understood and accept, and have the authority to enter into, these Terms with us.

These Terms apply from the date that you accept these Terms, and will continue for the 6 month duration of the Preview Release, unless earlier terminated by Nexergy in accordance with these Terms (Preview Release Duration).

Nexergy reserves the right to make changes to these Terms at any time, effective upon the posting of modified Terms. Nexergy will make every effort to communicate these changes to the User via email. It is the User’s obligation to ensure that the User has read, understood and agrees to the most recent Terms available on our website (Site) at http://nexergy.co/preview-release-customer-agreement.

These Terms incorporate the Nexergy Privacy Policy on our Site, as may be amended, from time to time.

User Eligibility

You agree to meet the following minimum eligibility requirements in order to participate in the Preview Release, and to immediately notify us if you fail to meet any of the below eligibility requirements during the Preview Release Duration:

  1. you reside in the premises nominated by you to participate in the Preview Release (Premises), such Premises is located in NSW and QLD, and you do not move or relocate from the Premises for the Preview Release Duration;
  2. you have all rights, permissions, consents and authorisations to participate in the Preview Release (including, for the avoidance of doubt, the right to authorise the installation of the Wattwatchers Device on the Premises, even if you are an apartment dweller or renter);
  3. you are a customer of Energy Locals (in that you have an energy retail plan with Energy Locals) and you have made, and will continue to make, all payments necessary to Energy Locals for the supply of energy to your Premises and to maintain your energy retail plan; and
  4. you have provided us with a photograph of your electricity switchboard and Nexergy (or its authorised personnel) has confirmed that the switchboard is compatible or suitable for the purposes of participating in the Preview Release, (together, Eligibility Criteria).

If, during the Preview Release Duration, you fail to meet any of the Eligibility Criteria, we may terminate these Terms in accordance with clause 9.1(b).

During the Preview Release Duration, you agree to notify us immediately if you change any aspect of your energy retail plan with Energy Locals (including, for example, if you switch from a “flat tariff” to a “time of use tariff” or you make any change to your tariff arrangements with Energy Locals).

Wattwatchers Device

Users will be issued with a Wattwatchers device, which will be used by Nexergy to track and analyse the User’s electricity consumption, generation and energy trading activity at their Premises during the Preview Release Duration (Wattwatchers Device).

By accepting these Terms, you grant Nexergy (and its authorised personnel) all permissions, consents and rights of access necessary to enable Nexergy (and its authorised personnel) to install the Wattwatchers Device at the electricity meter box or switchboard at your Premises.

Nexergy agrees to cover all costs associated with the installation of the Wattwatchers Device and any data collection/subscription fees associated with the use of the Wattwatchers Device in connection with the Preview Release for a 6 month period (commencing from the installation of the Wattwatchers Device). If the User wishes to continue using the Wattwatchers Device after this period, the User will be responsible for paying any resultant data collection/subscription fees directly to Wattwatchers Pty Ltd (ABN 47 123 010 588) (Wattwatchers).

The Wattwatchers Device is to be installed by a suitably licensed electrician contracted by Nexergy. While Nexergy may take your preferences into consideration, Nexergy may select the electrician to install the Wattwatchers Device in its sole discretion. The electrician will contact the User to organise a time for installation of the Wattwatchers Device, and the User must ensure that they are available at the Premises to facilitate this installation.

Nexergy (and its authorised personnel) reserves the right to refuse to install the Wattwatchers Device for any reason, including where Nexergy (or its authorised personnel) reasonably considers that:

  1. it would be unsafe to install the Wattwatchers Device at the Premises (for example, where there are hazardous materials or substances in, on or around the Premises); or
  2. the Premises (or any part thereof) is unsuitable for the installation of the Wattwatchers Device (for example, where you have a non-standard or incompatible switchboard or metering arrangements).

If Nexergy (or its authorised personnel) determines that the Wattwatchers Device is unable to be installed at the Premises, we may terminate these Terms in accordance with clause 9.2(b).

Risk and title in the Wattwatchers Device passes to the User upon installation of the Wattwatchers Device at the User’s residential premises. Until title to the Wattwatchers Device passes, Nexergy has authority to sell or otherwise deal with and/or dispose of all or any part of the Wattwatchers Device as it wishes.

If, on the expiry of the Preview Release Duration or these Terms, or where you elect to end your participation in the Preview Release (whichever occurs first), the User wishes to uninstall/return the Wattwatchers Device to Nexergy, you must do so at your own expense.

Nexergy app, trading activity and bill adjustments

In order to participate in the Preview Release, Users will receive access to the Nexergy App for the purposes of engaging in energy trading activity and viewing information relating to their electricity consumption.

Users are responsible for all content posted and activity that occurs on their account via the Nexergy App, including any energy trading activity, and Nexergy excludes all Liability arising from, or connected with, the User’s use or activity on the Nexergy App.

Once you have signed up to the Nexergy App, you will need to set up your preferences as to who you want to trade with and how, in accordance with the instructions set out in the Nexergy App. You will be able to change your preferences at any time via the Nexergy App.

If you are a Seller, you can use the Nexergy App to set the price (i.e., at a premium price or at a discounted price) at which you will sell your excess solar generation to those Buyers on the platform who elect to purchase such excess generation (Selling Price). If you are a Buyer, you can use the Nexergy App to choose which Sellers you wish to purchase energy from (accepting the Selling Price set by those Sellers).

Using the data derived from the Nexergy Platform (including your trading activity on the Nexergy App and your energy consumption usage on the Wattwatchers Device), Nexergy will assess an adjustment (whether an increase or credit) to your Energy Locals energy bill, based on your trading activities/preferences, and such bill adjustment will be indicated on your next Energy Locals bill (Bill Adjustment).

Users acknowledge and agree that their trading activity and preferences (including, without limitation, their decision to either sell energy at a particular Selling Price, or to purchase energy at a particular Selling Price) is final and binding. Users agree to pay any invoice issued to them by Energy Locals where the invoice (and the relevant Bill Adjustment) is consistent with their trading activity and preferences.

Confidential information

For the purposes of these Terms, “Confidential Information” includes all information connected with these Terms, including confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information related to, arising from or connected with these Terms, whether or not such information is reduced to a tangible form or marked in writing as “confidential”.

The User agrees:

  1. not to disclose the Confidential Information to any third party at any time (including, without limitation, taking any screenshots of the user interface of the Nexergy Platform and distributing that screenshot to any third party);
  2. to use its best endeavours to protect the Confidential Information from any unauthorised disclosure; and
  3. only to use the Confidential Information for the purpose for which it was disclosed by Nexergy and not for any other purpose.

The User’s obligations set out in clause 6.2 do not apply to Confidential Information:

  1. that is already in the public domain, except as a result of the actions of the User in breach of any of these Terms;
  2. received from a third party, except where there has been a breach of confidence leading to its disclosure; or
  3. that must be disclosed by law, provided that the User reveals only so much of the Confidential Information as the User is required by law to disclose and gives sufficient notice to Nexergy in order to allow Nexergy to object to, or otherwise prevent, the Confidential Information from being disclosed.

This clause 6 will survive termination of these Terms.

User information and privacy policy

By accepting these Terms, you grant Nexergy (and its personnel) all permissions, consents and rights necessary to access, collect, disclose, hold, analyse and use (Use) any and all data and information derived from the User arising from, or in connection with, these Terms, including, without limitation, all User data or information:

  1. held by Energy Locals, the Australian Energy Market Operator or any other third party; and
  2. collected via the Wattwatchers Device, through the Nexergy Platform or otherwise as part of the Preview Release,
(User Information).

Where any User Information is collected or held by a third party (including, for example, Wattwatchers, Energy Locals or the Australian Energy Market Operator), you acknowledge and agree that:

  1. Nexergy will not be held responsible for the Use of that User Information by that third party (or any of its respective personnel);
  2. any request by you to access, correct or request the deletion of, any User Information held by a third party must be made directly with the relevant third party by you (and Nexergy will have no responsibility or Liability in this regard);
  3. the Use of that User Information, and your right to access, correct or request the deletion of, that User Information, will be subject to the relevant privacy policy of that third party; and
  4. despite any provision to the contrary, to the maximum extent permitted by law, you agree to indemnify Nexergy from and against any Liability suffered or incurred by you or any third party arising from, or connected with, the Use of your User Information by any third party.

You acknowledge and agree that Nexergy may Use the User Information:

  1. to enable you to access and use our Site and the Nexergy Platform and any associated applications and platforms;
  2. to contact and communicate with you;
  3. for internal record keeping and administrative purposes;
  4. for analytics, market research and business development, including to operate and improve our Site, the Nexergy Platform and any associated applications and platforms;
  5. to run competitions and/or offer additional benefits to you;
  6. for advertising and marketing purposes, including to send you promotional information about our products and services and information about third parties that we consider may be of interest to you, or to advertise or market Nexergy or any of our services or products (both current and future) to the media or general public;
  7. to comply with our legal obligations and resolve any disputes that we may have;
  8. for any purpose that Nexergy considers reasonably connected with, arising from or incidental to the provision of the Site, the Nexergy Platform, the Nexergy App, the Preview Release or Nexergy’s business operations, model, prospects or opportunities.

Nexergy agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines, as amended from time to time, in relation to information collected, used or disclosed by a User in connection with these Terms.

Details on how Nexergy complies with the Privacy Act 1988 (Cth) and how it collects, discloses, holds or uses personal information is available in Nexergy’s Privacy Policy as set out on the Site.

Nexergy reserves the right to amend its Privacy Policy as required from time to time.

Nexergy will take all reasonable steps to notify the User in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information.

By accepting these Terms, you consent to the Use of your User Information by third parties outside Australia (including the storage of your User Information on servers located outside of Australia) and you acknowledge and agree that Nexergy is not required to ensure that such Use or storage is compliant with Australian privacy laws.

Intellectual property

Under these Terms, “Intellectual Property” includes any and all intellectual and property rights throughout the world, whether subsisting now or in the future, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.

As between the Parties, all Intellectual Property developed, adapted, modified or created by or on behalf of Nexergy or its personnel (including in connection with these Terms or the provision of the Nexergy Platform), whether before or after the date of these Terms, will at all times vest, or remain vested, in Nexergy (Nexergy IP).

On and from the date of these Terms, each User grants Nexergy a perpetual, royalty-free, world-wide, unconditional and irrevocable licence to use, develop, adapt and modify all Intellectual Property owned by, or licensed to, the User in order for Nexergy to provide the Nexergy Platform, and the User must ensure that any such use does not infringe any Intellectual Property rights of any person.

If the User has any moral rights in any material provided, used or prepared in connection with these Terms, the User must consent to the use or infringement of those moral rights by Nexergy.

This clause 8 will survive the termination or expiry of these Terms.

Termination

You acknowledge and agree that we may terminate these Terms immediately, in our sole discretion:

  1. after the expiry of the Preview Release Duration; or
  2. for any reason, and at any time, on the giving of written notice to you.

You may terminate these Terms (and, thereby, end your participation in the Preview Release during the Preview Release Duration) on the giving of written notice to us. If you notify us under this clause, you acknowledge and agree that you will pay us on demand, as a debt immediately due and payable, a termination fee of AUD$200 (incl. GST), being a genuine pre-estimate of the loss that will be suffered or incurred by us as a result of your termination (Termination Fee).

Termination of these Terms will not affect any rights or liabilities which a Party has accrued under it.

Upon termination of these Terms, the User agrees that they will:

  1. pay all amounts due and payable to Nexergy (whether under these Terms or otherwise, and including by way of indemnity) and Energy Locals;
  2. where the termination was under clause 8.2, or otherwise due to your breach of these Terms (including, without limitation, your failure to meet the Eligibility Criteria during the Preview Release Duration), you must pay Nexergy the Termination Fee;
  3. not disparage or otherwise make any unfavourable statements or comments regarding Nexergy or its personnel, either directly or by implication, verbally or in writing;
  4. immediately return to Nexergy all property (excluding, for the avoidance of doubt, the Wattwatchers Device), including Confidential Information and Intellectual Property, belonging to Nexergy or its personnel, in its possession; and
  5. not use any Intellectual Property belonging to Nexergy or its personnel.

This clause 9 will survive termination of these Terms.

Limitation of liability and disclaimers

Under these Terms, “Liability” means any expense, cost, liability, loss, damage, claim, demand or proceeding (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.

You acknowledge and agree that you are a voluntarily participant in the Preview Release.

Despite any provision to the contrary, to the maximum extent permitted by law, you acknowledge and agree that the Site, the Nexergy Platform and all material and work connected with these Terms and the Preview Release, is provided to you without warranties of any kind, either express or implied; and that Nexergy expressly disclaims all warranties of any kind, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or that you will necessarily save money on your electricity bills during the Preview Release Duration.

Despite anything to the contrary, to the maximum extent permitted by law, Nexergy will have no Liability, and you release and discharge Nexergy from all Liability, arising from or in connection with:

  1. these Terms or the Site or Nexergy Platform (including, without limitation, their unavailability, or any errors, omissions or lack of functionality arising from, or connected with, any of them);
  2. the Wattwatchers Device, including the functionality, use or installation of the Wattwatchers Device;
  3. any Bill Adjustment issued by Nexergy;
  4. any act or omission of third parties (including, without limitation, any third parties engaged to install the Wattwatchers Device at your Premises);
  5. the supply or lack of supply of energy to you or your Premises (noting that Energy Locals is your energy retailer and the relevant “financially responsible market participant”);
  6. any event or circumstance beyond Nexergy’s reasonable control;
  7. any indirect, special or consequential losses arising out of or in connection with these Terms, including, but not limited to, loss of use of property, financial costs, loss of use of money or payments of liquidated sums or damages under any other agreement;

Despite any provision to the contrary, to the maximum extent permitted by law, Nexergy’s maximum aggregate liability to the User for any Liability arising from, or in connection with, these Terms is limited to AUD$1.00.

Despite anything to the contrary, to the maximum extent permitted by law, you will be liable for and you agree to indemnify, defend and hold us harmless for and against any and all Liabilities resulting directly or indirectly from any of your acts or omissions, including, but not limited to:

  1. any breach of these Terms;
  2. your failure to pay any amounts due and payable to third parties (including, without limitation, your failure to pay Energy Locals any amounts for energy supplied by Energy Locals, irrespective of a Bill Adjustment issued by Nexergy);
  3. any information that is inaccurate, outdated, incomplete, misleading or a misrepresentation; and
  4. any misuse of the Nexergy Platform or Wattwatchers Device from or by you.

This clause 10 will survive termination of these Terms.

Representations

You represent and warrant that:

  1. you have full legal capacity and power to enter into these Terms, to perform your obligations under these Terms and to carry out the transactions contemplated by these Terms;
  2. these Terms constitute legal, valid and binding obligations, enforceable in accordance with its terms; and
  3. the execution and performance of your obligations under these Terms and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any instrument binding on it.

Notice

Any notice required or permitted to be given under these Terms to:

  1. the User will be addressed to the relevant email address provided by the User to Nexergy at the time of signing up to the Preview Release; or
  2. Nexergy will be addressed to the relevant email address of Nexergy as set out on the Site.

Relationship of parties

Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party. The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.

Rights of third parties

Any person or entity who is not a Party to these Terms has no right to benefit under or to enforce any of these Terms.

Assignment

The User must not assign or deal with the whole or any part of its rights and/or obligations under these Terms without the prior written consent of Nexergy, and any purported dealing in breach of this clause is of no effect.

Waiver of variation of rights

Any failure or delay by Nexergy in exercising a power or right (either wholly or partially) in relation to these Terms does not operate as a waiver or prevent Nexergy from exercising that power or right or any other power or right. Nexergy is not liable to a User for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.

Powers, rights and remedies

Except as expressly stated to the contrary in these Terms, the powers, rights and/or remedies of Nexergy under these Terms are cumulative and are in addition to any other powers, rights and remedies of Nexergy. Nothing in these Terms merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that Nexergy may have at any time against a User or any other person.

Consents and approvals

Where these Terms provide that Nexergy may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in these Terms, Nexergy may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.

Further assurance and information

Users must, from time to time (and whenever requested by Nexergy), and in a timely manner, do all things reasonably required of it by Nexergy to give effect to these Terms (including, without limitation, provide all information, documentation and assistance reasonably necessary to enable Nexergy to supply the Nexergy Platform).

Enforceability

If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected.

Counterparts

These Terms may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same agreement.

Severence

  1. If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
  2. If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Entire agreement and understanding

The date of these Terms is the date that they are accepted by the User. In respect of the subject matter of these Terms these Terms contain the entire understanding between the Parties and all previous oral and written communications, representations, warranties or commitments are superseded by these Terms and do not affect the interpretation or meaning of these Terms.

Governing law and juisdiction

These Terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.

For any questions or notices, please contact us at:
Nexergy Pty Ltd (ABN 49 615 225 771)
5 Folly Point, Cammeray NSW 2062
info@nexergy.co

Last updated: 26 Mar 2018

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