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.
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:
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).
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:
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.
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.
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:
The User’s obligations set out in clause 6.2 do not apply to Confidential Information:
This clause 6 will survive termination of these Terms.
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:
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:
You acknowledge and agree that Nexergy may Use the User Information:
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.
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.
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.
You acknowledge and agree that we may terminate these Terms immediately, in our sole discretion:
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:
This clause 9 will survive termination of these Terms.
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:
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:
This clause 10 will survive termination of these Terms.
You represent and warrant that:
Any notice required or permitted to be given under these Terms to:
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.
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.
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.
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.
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.
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.
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).
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.
These Terms may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same agreement.
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.
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
Last updated: 26 Mar 2018