1. Definitions & Interpretation
1.1. In this agreement a reference to:
(a) any law will be read as a reference to that law as amended, consolidated, supplemented or replaced and any regulation, rule, ordinance, proclamation, by-law or judgment made under that law;
(b) a document includes any variation or replacement of it;
(c) a person, includes an individual, firm, body corporate, an unincorporated association or an authority; and
(d) the words “include”, “includes” and “including” means “including without limitation”.
(e) if a provision of this agreement is invalid or unenforceable in a Jurisdiction:
(i) it is to be read down or severed in that Jurisdiction to the extent of the invalidity or unenforced ability; and
(ii) it does not affect the validity or enforceability of that provision in any other Jurisdiction or of the remaining provisions.
(f) a waiver by a party of a provision or a right under this agreement is binding on that party only if it is given in writing. A failure by a party to exercise a right, or a delay in exercising a right, does not operate as a waiver of that right or otherwise prevent the party exercising that right.
(g) this agreement may be executed in counterparts. All counterparts together will be taken to constitute one instrument.
(h) this agreement, together with the Schedule(s), and any documents referred to in this agreement, is the entire agreement of the parties about the subject matter of this agreement and supersedes any prior representations, negotiations, arrangements,
(i) understandings or agreements and all other communications.
(j) the Schedule(s) will prevail over these terms and conditions to the extent of any inconsistency.
(k) any words used in this agreement and not otherwise defined will bear their normal meaning in the context they are used.
1.2. In this agreement, unless the context otherwise requires the following words and expressions have the following meanings:
Clean Energy Regulator means the Clean Energy Regulator established under the Clean Energy Regulator Act 2011 (Cth).
Contract Schedule is the schedule contained in this agreement.
Discharge means the exporting of electricity to the Supply Address or the National Electricity Network
Distributor means the third-party responsible for the generation or carriage of energy to the Supply Address as specified in the Contract Schedule.
Electricity Retailer means any person or business who sells energy to another person for use at Supply Address and has a retailer authorisation under the National Energy Retail Law.
Electricity Sale Contract means an agreement between You and an Electricity Retailer for the supply of electricity to the Supply Address.
Eligibility Criteria has the same meanings as stated in clause 4.2.
Initial Test means an initial check conducted by Us to confirm that we can control the Solar Generation Unit remotely.
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.
National Electricity Network means the physical and market infrastructure required to transport and supply electricity in New South Wales, Victoria, Queensland, South Australia and Tasmania.
National Energy Retail Law means the National Electricity (South Australia) Act 1996 and each subsequent act as has been adopted by each of the participating jurisdictions and the Rules.
Network Connection Agreement means the agreement between You and Your electricity
Distributor to allow export of electricity from the Supply Address.
Offer means the written offer to provide VPP Services to You at the Supply Address.
Power Purchase Agreement/ PPA means a Power Purchase Agreement.
Regulatory Requirement means any relevant Commonwealth, State or local government regulation, including all laws, regulations, subordinate legislation, proclamations, orders in council, licence conditions, codes, guidelines or
standards applicable from time to time to the supply or performance of the VPP Services at the Supply Address.
Related Body Corporate has the same meaning as defined in the Corporations Act 2001(Cth).
Rules means the regulatory framework for market operations, power system security, network connections and access, pricing for network services in the national electricity market and national transmission planning.
Solar Generation Unit means the equipment that meets the Specifications and includes the photovoltaic system installed at the Supply Address, including the solar panel, battery, inverter, cable, tilting frame and any accessories.
Special Offer has the same meaning as expressed in the Contract Schedule.
Supply Address has the same meaning as stated in the Contract Schedule
Us means Shine Hub Pty Ltd including our agents and assigns.
Value of Credits has the same meaning as stated in the Contract Schedule
VPP Event means a period of time typically less than an hour but which may be longer in duration, during which We directly or indirectly modify Your Solar Generation Unit’s control settings to perform a VPP Service.
VPP Service/s means:
VPP Services Term has the same meaning as nominated in the Contract Schedule.
You means the Customer nominated in the Contract Schedule.
2.1. This agreement will commence on the date You accept the Offer.
2.2. The VPP Services Term shall commence after all of the following conditions are satisfied:
(a) Your Supply Address is located within the State of South Australia, Victoria, Queensland, ACT, Tasmania or New South Wales;
(b) You provide Us with evidence, document and information showing that the Solar Generation Unit is installed and configured to our satisfaction and we are satisfied that the Solar Generation Unit is compatible with the VPP Services; and,
(c) we install and test any VPP Services enabling software on Your Solar Generation Unit and we are satisfied that the VPP Services are properly functioning.
2.3. By entering into this agreement, You allow Us to:
(a) configure and install necessary software on the Solar Generation Unit;
(b) monitor, control and manage the Solar Generation Unit;
(c) obtain, use and share data or system information from the Solar Generation Unit with relevant parties for the purpose of provision of the VPP Services; and
(d) carry out necessary diagnosis and trouble-shooting on the Solar Generation Unit;
either remotely or, where reasonable notice is given, attend the Supply Address, to enable the ongoing provision of the VPP Services.
2.4. You acknowledge and agree that the provision of VPP Services will involve charging and discharging electricity in or from Your battery within the limit as prescribed in the Offer. Where no limit is prescribed by the Offer, we may operate and configure the battery at Our sole discretion.
3.1. Subject to any Special Offer applicable to this agreement, we will pay You for the power we discharge from the battery at the Value of Credits in accordance with the monitoring system of the Solar Generation Unit for the power we send from Your battery to the National Electricity Network.
3.2. Any electricity consumed from the National Electricity Network, or sent back to the National Electricity Network is billed and/or credited by Your Electricity Retailer and is separate to the VPP agreement.
3.3. Where You have entered into a contract with one of our Related Body Corporates for the provision of other services, such as a PPA, we may credit those accounts with any benefits payable to You under this agreement.
3.4. Payments will be made to You in accordance with the Contract Schedule or at such other reasonable interval notified to You by Us from time to time.
3.5. Any consideration to be paid or provided for a supply made under or in connection with this agreement, does not include an amount on account of GST. If GST is payable on a taxable supply made in connection with this agreement, the party making the supply may recover the amount of that GST in addition to amounts otherwise payable, subject to providing a valid tax invoice.
4.1. You will make Your own enquiries to find out how the VPP Services may impact:
(a) any Electricity Sale Contract You are a party to;
(b) any existing warranties that apply to Your Solar Generation Unit;
(c) Your Network Connection Agreement;
(d) any feed-in tariff You receive,
and You agree that We are not liable for any loss, damage or liability You suffer as a result of the impact of the VPP Services on any of the above.
4.2. You acknowledge and agree that during the term of this agreement You must:
(a) have authority and capacity to enter into this agreement;
(b) not procure other VPP Services for the Supply Address;
(c) not allow any third-party to have control of the operation of the inverter and/or battery, unless required by law;
(d) have a Solar Generation Unit installed at the Supply Address that meets the Specifications;
(e) own or have the right to use the Solar Generation Unit or You have entered into a PPA to which the Solar Generation Unit is connected at the Supply Address;
(f) own or occupy the Supply Address, or if You are not the owner of the Supply Address, have obtained written consent from the owner in relation to the entry into and performance of this agreement;
(g) have all necessary approvals, consents or authorities from any owner, residents, owner’s corporation or local authorities;
(h) have entered into an Electricity Sale Contract from an Electricity Retailer in relation to the Supply Address;
(i) ensure each Solar Generation Unit is properly functioning and maintained and that You are connected to the internet on a continuous basis;
(j) comply with all Regulatory Requirements in relation to the Supply Address and the Solar Generation Unit;
(k) maintain a Network Connection Agreement with Your Distributor in relation to the Supply Address, the Solar Generation Unit and the solar photovoltaic system and not be in breach of any Network Connection Agreement;
(l) meet any other criteria specified by Us from time to time; and
(m) provide us with the details of your nominated bank account and continually verify that those details are correct and complete. You must notify us immediately of any changes to your nominated bank account.
4.3. You acknowledge that You are responsible for all energy charges under Your Electricity Sale Contract associated with the use and operation of the Solar Generation Unit and that You are responsible for all hardware, internet enabled device, internet connection, systems and software applications that You use to download, install and/or operate to access the VPP Services.
4.4. You agree to co-operate with Us and Your manufacturer if a software upgrade to Your Solar Generation Unit is required in order for Us to provide You with the VPP Services.
4.5. You must not, and must not allow, any other person to (unless otherwise authorised in writing by Us) control, move, remove, tamper with, disable, displace or damage any Solar Generation Unit (including disconnecting its internet connectivity).
4.6. Despite any other clause of this agreement, You acknowledge and agree that if the terms and conditions of Your Electricity Sale Contract change (including any change to any charge, benefit or tariff), that any benefits, including financial benefits, arising under this agreement or stated in the Contract Schedule or any estimate of system performance or other representations may be impacted, and We are not liable to You for any loss, damage or liability You suffer as a result of or in connection with any such impacts.
4.7. If the Solar Generation Unit or Supply Address is sold, leased, sublet, licensed, transferred or assigned to any other person:
(a) You will notify the relevant person regarding consents in this agreement and obtain their consent;
(b) You will notify Us immediately; and
(c) We may provide Our consent on terms and conditions We deem reasonable, including requiring any lessee, sublessee, licensee, assignee or transferee to enter into an agreement with Us on similar terms to this agreement, which You agree to procure. You agree to pay Us any reasonable costs incurred by Us in doing this.
5.1. You agree that VPP Events will occur during the VPP Services Term and, and that We will not notify You of their occurrence.
5.2. You acknowledge that we will conduct an Initial Test and this will not qualify as a VPP Event.
5.3. You acknowledge that a draw from the National Electricity Network may appear as additional electricity consumption on Your electricity bill under Your Electricity Sale Contract and that a Discharge may impact on the amount of electricity You have to use from the Solar Generation Unit.
5.4. If Your Solar Generation Unit has backup power, We agree that We will not allow the level of energy stored in the Solar Generation Unit to drop below the manufacturer’s recommended levels (quoted in the Specification of Offer) as a result of a Discharge from the Solar Generation Unit during a VPP Event.
6.1. We may by written notice to You immediately vary this agreement:
(a) as We consider necessary to accommodate any change in any Regulatory Requirements or where We are permitted to do so by a Regulatory Requirement;
(b) to make a change that You have requested or expressly consented to;
(c) to make an administrative or typographical change; or
(d) to make the terms of this agreement more favourable to You; or
(e) if We can demonstrate that due to a change in Regulatory Requirements a cost associated with the supply of the Services has increased after the commencement of the VPP Services Term, we may decrease the value of the Credits by a reasonable corresponding amount; and such variation will be deemed to be incorporated into this agreement.
6.2. We may by written notice to You request to vary this agreement in circumstances other than set out in clause 6.1(a) above and upon receipt of the notice, You can either:
7.1. Either You or We may terminate this agreement without cause on 30 days written notice to the other party.
7.2. This agreement is deemed to be terminated, if You cease to be the owner of the Supply Address or, in the event that the You are a tenant of the Supply Address, ceases to be the tenant of the Supply Address;
7.3. You may terminate this agreement by written notice if we are in breach of this agreement and the breach is not remedied within seven (7) days upon receiving written notice from You of the breach;
7.4. We may terminate this agreement by providing seven (7) days written notice to You, if
(a) You breach this agreement, and the breach is not remedied within 7 days upon receiving written notice from Us;
(b) any information or document provided by You before the entering of this agreement is found to be inaccurate, misleading or incorrect; and
(c) in our reasonable opinion, the Solar Generation Unit is rendered unsafe or unsuitable for the provision of the VPP Services.
8.1. On expiry or termination of this agreement, We will:
(a) return the Solar Generation Unit to its settings prior to the provision of the VPP Services; and
(b) cease to perform any charging or discharging of Your battery.
8.2. Should this agreement be terminated under clause 7, before the expiry of the VPP Services Term, You shall not be entitled to continue to receive any Special Offer under any Agreement you have with a Related Body Corporate.
9.1. You warrant that You meet all Eligibility Criteria.
9.2. You must immediately notify Us if Your Network Connection Agreement is amended or terminated.
10.1. On expiry or termination of this agreement, We will:
(a) return the Solar Generation Unit to its settings prior to the provision of the VPP Services; and
(b) cease to perform any charging or discharging of Your battery.
11.1. If any condition or warranty is implied into this agreement by law (including by any statute), then Our liability (if any) for breach of that condition or warranty in connection with any goods or services supplied or to be supplied by Us under this agreement (that are not of a kind ordinarily acquired for personal, domestic or household consumption), is limited, as far as the law permits and at Our option, to resupplying the goods or services or paying for their resupply.
11.2. Nothing in this agreement is to be taken to exclude, restrict or modify any condition or warranty that We are prohibited by law from excluding, restricting or modifying. All other conditions and warranties, whether or not implied by law, are excluded
12.1. Intellectual Property owned by either party at the commencement of this agreement remains the property of that party.
12.2. Any Intellectual Property developed or created during the performance of this 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.
12.3. Without limiting any other clause of this agreement, to the extent You provide, submit, send or receive information or content in which You own Intellectual Property to Us under or in connection with this agreement, You provide Us with a perpetual royalty-free worldwide license to use, reproduce, modify, adapt and create derivative works in such Intellectual Property for the purposes of improving and developing our products and services.
13.1. You consent to:
(a) the transmission of the Data to Us;
(c) Our use and sharing of the Data with third parties, including any contractor providing the VPP Services, the relevant manufacturer, the Australian Energy Market Operator, the Clean Energy Regulator, a Distributor, a government agency or any person as required under the Regulatory Requirements or any person involved in the supply chain of a virtual power plant with which Your VPP Services are associated and to these third parties using and sharing this Data for any purpose they see fit (subject to privacy laws);
(d) Us and Our Related Bodies Corporate using Your Data for internal assessments, developing new products and services and marketing activities for existing or new products and services;
(e) the above consents for Us to receive Data continuing even if We or any of Our Related Bodies Corporate cease to be Your Electricity Retailer, the metering provider or the metering data provider for Your Supply Address;
(f) Us notifying third parties of Your consent to allow Us to continue receiving this Data as required to continue supplying You with products and services and confirmation of Your consent by completing or signing documents provided to You.
(g) Where We are permitted by Regulatory Requirements, You give consent for Us to access and use information that is recorded prior to the date that You accept the Offer.
(h) You may withdraw the consents contained in this VPP Services Agreement at any time by notifying Us, but doing so may prevent Us from providing You with the VPP Services and may impact the functionality of the Solar Generation Unit and VPP Services (and by withdrawing consent You agree that We may in Our absolute discretion suspend or terminate the supply of VPP Services that We consider are potentially affected by the loss of such consent).
(i) This clause survives termination or expiry of this agreement.
We may also disclose personal information about You where disclosure is required:
(a) to verify Your creditworthiness for the purposes of recovering any amounts owed by You under this agreement; or,
(b) for the Us to carry out Our obligations or exercise Our rights under this agreement.
15.1. Except as otherwise provided for in this agreement, We have no Liability for any loss or damage that You suffer arising as a consequence of, the provision of VPP Services at the Supply Address, unless and to the extent that Your loss or damage is directly caused by a breach of this agreement or by the wilful or negligent act or omission by Us.
15.2. Each party shall mitigate any damages or loss suffered or incurred as a result of any breach of this agreement by any other party.
15.3. We have no Liability to the You for:
(a) any indirect or consequential losses or damages of any kind; or
(b) any Economic Loss.
15.4. So far as the law allows and subject to clauses 29.1 or 29.3, Our Liability to You arising out of or in connection with this agreement is limited to loss, damages, costs, charges and expenses directly sustained or incurred by You as a result of:
(a) personal injury to the You or Your employees or agents; or,
(b) damage to Your property or its employees or agents, caused by Our breach of this agreement or negligent act or omission, up to a maximum of $1,000 per event.
16.1. Where Regulatory Requirements are optional or permit the parties to vary or exclude them by agreement, if a term or condition agreed between the parties in this agreement is inconsistent with a Regulatory Requirement, the term or condition will prevail to the extent permitted.
16.2. If any matter required to be dealt with by a Regulatory Requirement is not, or is only partly, expressly dealt with in this agreement; or any term or condition of this agreement is rendered void for inconsistency with a Regulatory Requirement, the relevant Regulatory Requirement is incorporated into this agreement in whole or in part as required.
17.1. Neither party shall be liable to the other party for any loss caused by any failure to observe the terms and conditions of this agreement, where such failure is occasioned by causes beyond its reasonable control including but not limited to by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities.
18.1. You may only assign Your rights and obligations under this agreement with Our prior written consent.
18.2. You hereby grant Your unconditional consent to the assignment by Us of any or all of Our rights or obligations (including a novation of all of Our rights and obligations) under this agreement. You agree to sign any documentation necessary or convenient to give effect to this transfer or novation.
19.1. A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:
(a) Delivered personally; or
(b) Posted to their address when it will be treated as having been received on the second business day after posting; or
(c) Faxed to their facsimile number when it will be treated as received when it is transmitted; or
(d) Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.
20.1. If a dispute arises between the parties, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause:
20.2. The complainant must inform the respondent by written notice of the following:
(a) The nature of the dispute;
(b) The outcome the complainant desires, and
(c) The action the complainant believes will settle the dispute.
20.3. On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days.
20.4. Any unresolved dispute or difference whatsoever arising out of or in connection with this agreement shall be submitted to mediation under the Mediation Rules of the Resolution Institute.
20.5. This clause survives termination of this agreement.
21.1. Any waiver by any party to a breach of this agreement shall not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
22.1. If anything in this agreement is unenforceable, illegal or void, it is severed and the rest of the agreement remains in force.
23.1. The laws in force in New South Wales govern this agreement and each party submits to the non-exclusive jurisdiction of the courts having jurisdiction in New South Wales.
23.2. The parties acknowledge that the laws of a Jurisdiction may impose certain requirements on the form or content of agreements within the Jurisdiction. To the extent that this agreement is inconsistent with such laws, the terms of this agreement will be deemed amended to the extent necessary to comply with those laws.
24.1. This agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this agreement.