Legal
Formbay Terms and Conditions
Welcome
to Formbay! We provide a cloud-based platform
available on desktop or mobile applications for job management and trading (Trading
Account) and Installer Verification (Installer App) (collectively referred
to here as Platform) within the Australian Renewable Energy Target (RET)
framework, specifically focusing on the Small-scale Renewable Energy Scheme (SRES).
Formbay acts as a Small-scale Technology Certificate
(STC) agent, facilitating the creation, validation, and trading of STCs.
These certificates are generated when eligible renewable energy systems, such
as solar photovoltaic installations, are installed. For battery installations,
in NSW, our Platform facilitates compliance assessment and audit reporting in
collaboration with Accredited Certificate Providers (ACPs), who are
responsible for creating and issuing Peak Demand Reduction Certificates (PRCs).
In
these Terms, when we say you or your, we mean users with a
Trading Account or an Installer Verification Account and any entity you are
authorised to represent (such as your employer). When we say we, us, or our,
we mean Formbay Trading Pty Ltd (ACN 146 464 995).
These Terms form our contract with you, and set out our obligations as a service provider and
your obligations as a customer. You cannot use our Services unless you agree to
these Terms.
Some capitalised words in these Terms have defined
meanings, and each time that word is used in these Terms it has the same
meaning. You can find a list of the defined words and their meaning at the end
of these Terms.
For questions about these Terms, or to get in touch
with us, please email: support@formbay.com.au.
These Terms were last updated on 1 October 2024.
OUR DISCLOSURES
Please read these Terms carefully
before you accept. We draw your attention to:
●
clause 11 (Liability) which sets out exclusions and limitations to our
liability under these Terms.
●
Clause 4 (Potential
Breach, Suspension and Termination) which sets out circumstances where we may
suspend or terminate your access to the Platform;
●
Clause 5.9 (Price
Selection) which sets out that once you have selected an Offer Price for
an STC Application it is irrevocable and cannot be changed; and
●
Clause 5.12 (Payment
of Invalid STCs) which sets out when you may be required to refund a STC
Payment to us and when we are entitled to withhold or set off or withhold money
payable to you.
These Terms do not intend to limit your rights
and remedies at law, including any of your Consumer Law Rights.
1.
Engagement and
Term
1.1
These Terms apply from when you sign up for an Account, until the date on
which your Account is terminated in accordance with these Terms. We grant you a
right to use our Services for this period of time
only.
1.2
You must be at least 18 years old to use our Platform.
1.3
Variations:
We may amend these Terms at any
time, by providing written notice to you. By clicking “I accept” or continuing
to use our Platform after the notice or 30 days after notification (whichever
date is earlier), you agree to the amended Terms. If you do not agree to the
amendment, you may close your Account with effect from the date of the change
in these Terms by providing written notice to us. If you close your Account, you
will no longer be able to access our Services (including our Platform) on and
from the date of cancellation.
2.
Accounts
Installer Account
2.1
You must sign
up for an Account in order to access and use our Platform.
To sign up for an Installer Account you must submit an Online Registration Form
that includes:
(a)
your name and
address detail
(b)
your electrical
or plumbing license number and any other relevant credential information and
(c)
a photograph of
your driver’s license (front and back).
(a)
are over 18
years old;
(b)
are an
accredited Installer or licensed electrician or plumber in Australia;
(c)
upload visual
evidence of your accreditation or license; and
(d)
provide
proof-of-identity to corroborate the visual evidence in clause 2.2(c).
2.3
You must not
share the password of or permit any other person to access your Installer
Account.
2.4
Any use of the Installer
App by any person other than the registered installer is a breach of this Agreement.
Trading Account
2.5
To sign up for
a Trading Account you must submit an Online Registration Form that includes:
(a)
2FA;
(b)
the signature
of at least 1 director;
(c)
Director
Identification Numbers;
(d)
an executed personal
guarantee;
(e)
your bank
details to facilitate payment; and
(f)
any other
documentation we may reasonably require as indicated in the Online Registration
Form.
2.6
You will not be
able to use your Trading Account until we have received and verified all
documentation required as part of the Online Registration Form.
2.7
We may at our
discretion accept or deny your application to create an Account.
2.8
You may invite Authorised
Users to access and use our Services under your Account. Each of your
Authorised Users will require a login (which is linked to your Account), in order to access and use our Platform. You are responsible
for ensuring that your Authorised Users comply with these Terms. You may change
who your Authorised Users are at any time through your Account, and what access
rights or permissions they have when using our Platform. Any limitations on the
number of Authorised Users you can have will be set out in your Account or on our
Platform.
2.9
While you have
an Account with us, you agree to (and to ensure your Authorised Users agree
to):
(a)
keep your
information up-to-date (and ensure it remains true,
accurate and complete);
(b)
keep usernames
and passwords secure and confidential, and protect them from misuse or being
stolen; and
(c)
notify us if
you become aware of, or have reason to suspect, any unauthorised access to your
Account or any logins linked to your Account.
2.10
If you require
changes to your bank details, you must contact us directly to make this change.
2.11
You agree to
provide evidence as required by us to confirm your identity, to ensure that the
registered account owner is also the owner of the nominated bank account.
3.1
Subject to your compliance with these Terms, we will provide you with
access to our Platform which enables some or all of the
following features, depending on your use requirements (our Services):
3.2
For solar:
(a)
Solar Installer
Verification: The electronic
documentation of installation and verification of panel serial numbers;
(b)
Creation
of STCs: The creation,
processing and selling of Small Scale Technology
Certificates (STCs); and
(c) STC Trading: The processing and assignment of all STC rights to your own REC Registry Agent account to trade the STCs on the market yourself
3.3
For battery:
(a)
NSW Battery
Installation Verification: Facilitating compliance assessment and audit reporting in collaboration
with ACPs;
(b)
Creation
of PRCs: The creation,
processing and approval or rejection of PRCs by the ACP; and
(c)
PRC Trading: If the PRC is approved,
facilitating the sale of the PRC on the Platform at a price set by the ACP.
3.4
Our Services do not constitute, and are not a
substitute for regulatory advice.
3.5
We will not be responsible for any other services unless expressly set
out on in these Terms or on our Platform.
3.6 Battery Installer Verification
(a)
You represent
and warrant that:
(1)
you (or your
nominated Installer as the case may be) will only use the Installer App for the
permitted purpose; and
(2)
you (or your
nominated Installer as the case may be) must be trained and accredited by a
recognised ACP.
(b)
You acknowledge
and agree that:
(1)
while we
provide the Platform to facilitate compliance assessment and audit reporting,
the Installer is solely responsible for ensuring compliance with all relevant
standards, regulations and ACP requirements. The ACP is responsible for
verifying compliance and approving the battery Installation. Our role is
limited to providing the technological means through the Platform to facilitate
this process. We do not make any determinations regarding compliance or
approval of battery installations;
(2)
you acknowledge
that while our Platform facilitates data collection and verification for
battery installations, the creation and issuance of PRCs is solely the
responsibility of the ACP
(3)
you and the ACP must enter into a separate contractual relationship to
set out the rights and responsibilities of the parties outside of your use of
our Platform;
(4)
the pricing of PRCs and payments
to you for the PRC is entirely the responsibility of the ACP
(5)
By selecting and registering with an Accredited Certificate Provider
(ACP) through the Formbay platform, you expressly
authorize Formbay to transmit and share all relevant
information, data, and evidence necessary for your registration with the ACP.
Furthermore, you consent to Formbay sharing your
payment and banking details with the ACP to facilitate payments to you in
connection with the processing and issuance of Peak Demand Reduction
Certificates (PRCs).
(6)
You acknowledge and agree that Formbay will
issue a Recipient Created Tax Invoice (RCTI) on behalf of your ACP for payments
made to you by the ACP in respect of PRCs created on the Formbay
platform. However, Formbay bears no responsibility
for making any payments associated with the PRCs; this
obligation rests entirely with the ACP. By registering with the ACP, you accept
and agree to this arrangement.
3.7
Solar Installer
Verification
(a)
You represent
and warrant that on each occasion your Installer Account is accessed, and in
relation to each STC Application uploaded to the Formbay
Installer App:
(1)
you are using
the Installer Account;
(2)
each piece of data
is true and correct;
(3)
you scanned any
product identifying barcodes properly; and
(4)
the system
eligible for verification (Eligible System) was installed in compliance with the RET Legislation.
(b)
an accredited
Installer either:
(1)
installed the
Eligible System; or
(2)
attended the
installation of the Eligible System at the beginning, middle, and end of the
installation, and you have verifiable photographic proof of this happening.
(c)
You represent
and warrant that in relation to every STC Application uploaded from your
Installer Account, that:
(1)
you, or your nominated
Installer, complied with all relevant Australian Standards when installing the
Eligible System;
(2)
you, or your nominated
Installer, complied with the CEC or Solar Accreditation Australia (SAA) Code of
Conduct;
(3)
you, or your nominated
Installer, followed the CEC or SAA Compliance Procedure; and
(4) you, or your nominated Installer, followed the CEC or SAA Accreditation Guidelines.
Installation Inspection:
(d)
You acknowledge
and agree that:
(1)
we may, at our
sole discretion, conduct Inspections of Eligible Systems at the Installation Address;
(2)
we may
communicate with the Owner of the Eligible System installed by You (or your
agents/contractors/employees);
(3)
you will
indemnify us for any direct or indirect loss (whether in contract, tort,
statute or otherwise) due to any defective Installations.
(e)
In addition to
the above, you agree that:
(1)
we or our
authorised representatives may collect and monitor Energy Production Data from
Eligible Systems;
(2)
for Eligible
Systems including battery installations, you will provide evidence that the
system is operational and connected to the grid as required by applicable RET Legislation;
(3)
these
monitoring and Inspection activities are necessary to comply with RET
Legislation, including but not limited to the CER's inspection program.
(f)
You agree to
cooperate fully with any Inspection, monitoring, or verification requests from
us or the CER. Failure to comply may
result in us exercising our rights under clause 4 (Potential Breach, Suspension and Termination) of these
Terms.
(g)
You acknowledge
and agree that we may change the requirements to verify installation from time
to time, by providing notice to you on the Platform.
(h)
All personal
and sensitive information collected while using the Platform, will be treated
in accordance with our Privacy Policy, available on our website.
3.8
Creation
of STCs
(a)
To create an
STC on our Platform, the installer must, , use the
Platform to get the Owner to complete a form that assigns all rights to and
title in the creation and ownership of the STCs to us in accordance with the
RET Legislation (STC Assignment Form).
(b)
You must then submit
the Assignment Form and all other relevant Data to us for review (STC
Application).
(c)
When you submit
an STC Application you have the option to either sell the STC rights:
(1)
before they
have been created (Pre-Created Trade); or
(2)
after the STC
Application has been approved by the CER (Created
Trade).
(d)
You acknowledge
and agree that it is your responsibility to ensure the STC Application is
correct and compliant. Any failure to upload correct and complete Data will
result in delays or failure to the STC approval process.
(e)
If we receive
or you submit an STC Application 11 or more months after the installation date
of the eligible installation, we will use best endeavours to process such STC Application but you acknowledge that it is the CER’s role to
formally approve and register any STC following payment by us of the
registration fee. In such instances, we may pay a reduced STC Payment or
hold/vary any such STC Payment. If such
delayed STC Application is not approved by the CER for any reason and is failed
by the CER or us, we have no liability to you.
(f)
You agree to
indemnify and hold us harmless against any direct or indirect loss (whether in
contract, tort, statute or otherwise) you may incur for:
(1)
your application being incorrect or incomplete;
(2)
the CER not approving and registering such STCs;
(3)
the CER retroactively
rejecting an approved STC;
(4)
expiry; or
(5) your access to the Platform or Installation App being suspended or terminated for any reason.
(g)
By creating an
STC Application on the Platform, you legally assign to us all right and title
in the STCs.
(h) Holding of STCs: You agree that we may choose, in our sole discretion, to hold the value of all STCs created on the Platform, as a combination of STCs in our REC-Registry Account and cash in an Authorised Deposit Taking Institution as defined in the Banking Act 1959 (Cth), the Reserve Bank or a State Bank.
3.9
STC Application Approval
(a)
We will review
the STC Application to make sure it will meet the CER requirements. We will
then lodge the STC Application with the CER for approval.
(b)
We may conduct
Inspections, monitor Energy Production Data, and verify battery installations
for any Approved STC Application. You agree to cooperate fully with such
activities and provide necessary access and information
(c)
You acknowledge
and agree that while we use reasonable best efforts to ensure the STC
Application is approved quickly, we have no control over how long it may take
for the CER to approve the STC Application.
(d)
Once an STC
Application has been approved (Approved STC) by CER you will receive an automated SMS and notification
within the Platform.
(e)
You are
responsible for promptly responding to any contact the CER makes directly with
you.
3.10
STC Application Rejection
(a)
The CER may
reject the STC Application for errors or on suspicion of fraud, as set out in
the RET Legislation.
(b)
If an
Inspection, Energy Production Data monitoring, or battery installation
verification reveals non-compliance with RET Legislation or these Terms, we may
reject the STC Application or revoke an Approved STC Application.
(c)
If the CER
rejects the STC Application due to it containing an error, you may, with our
assistance, re-create the STC Application with corrections and re-submit it for
review.
(d)
If the CER
conducts or authorises a third party to conduct an audit in accordance with the
RET Legislation in respect of any of your STC Application we may supply
supporting documentation such as photos, the Signed STC Assignment Form and
barcode panels to the CER.
(e)
If the STC
Application is rejected for a Potential Breach, refer to clause 4.1 below.
4.
Potential Breach,
Suspension and Termination
4.1
Solar Potential Breach
(a)
Any of the
following instances will be considered a Potential
Breach:
(1)
where we are
notified by the CER or RET Scheme Accreditation Provider that you or an
Installer, your retailer (where you are an installer), a manufacturer of
products used or for use in your installation, or a related party has breached or
is under investigation for potentially breaching the RET Legislation, OH&S
Laws, or Industry Guidance; or
(2)
where we
reasonably believe you have breached the RET Legislation, OH&S Laws,
Industry Guidance or these Terms.
(b)
If a Potential
Breach occurs, and in our reasonable opinion cannot be resolved (Actual
Beach), then we may
(1)
hold, vary
and/or cancel any Offered Price or the submission of any STC Application to the
CER and
(2)
suspend your
access to your account and apply as required our rights to refund and or
off-set.
(c)
If a Potential
Breach occurs to an STC Application where we have already made the STC Payment,
refer to clause 5.12.
(d)
You acknowledge
and agree that we are not liable for any loss you may suffer as
a result of a Potential Breach or an Actual Breach.
4.2
Solar and Battery Suspension and
Termination
(a)
You acknowledge
and agree that if we reasonably suspect that you, your Authorised Users or an
Installer has breached the RET Legislation, Industry Guidance or these Terms,
we may immediately suspend your access to the Platform.
(b)
You will have
14 days from notification of suspension in clause 4.2(a) to provide satisfactory evidence to us that Your Account
should not be suspended. If you are unable to provide such evidence within this
timeframe, we may terminate these Terms and your access to the Platform.
(c)
We reserve the
right to extend the amount of time required for us to investigate a Potential
Breach.
(d)
We may suspend
your access to our Services where we reasonably believe there has been any
unauthorised access to or use of our Services (such as the unauthorised sharing
of login details for our Platform).
(e)
We may
terminate these Terms (meaning you will lose access to our Services, including
access to your Account) if:
(1)
you or your
Authorised Users breach these Terms and do not remedy that breach within 14
days of us notifying you of that breach;
(2)
you or your
Authorised Users breach these Terms and that breach
cannot be remedied; or
(3)
you experience
an insolvency event (including but not limited to bankruptcy, receivership,
voluntary administration, liquidation, or entering into
creditors’ schemes of arrangement).
(f)
You may
terminate these Terms if:
(1)
we breach these Terms and do not remedy that breach within 14 days of you
notifying us of that breach; or
(2)
we breach these Terms and that breach cannot be
remedied.
(g)
You may also
terminate these Terms at any time by notifying us through your Account or to
our email for notices (as set out in clause 12.8), and
termination will take effect immediately.
(h)
Upon
termination of these Terms, we will
retain Your Data (including copies) as required by law or regulatory
requirements.
(i)
Termination of
these Terms will not affect any other rights or liabilities that we or you may
have.
5.
Payments
Solar Licence Fee
5.1
In
consideration for using the Platform, you must pay us a licence fee, as set out
on the Platform, for each STC Application submitted to us (Licence
Fee). The Licence Fee includes the registration
fee imposed by the CER per STC. The Licence Fee and applicable Taxes will be
deducted from the STC Payment payable by us under clause 5.4.
5.2
Regardless of
the outcome of your STC Application, we reserve the right to charge the Licence
Fee and you agree to pay such fee on demand and/or set
off such amounts against future uploaded STC Applications.
5.3
Taxes: You are responsible for paying any levies or taxes
associated with your use of our Services, for example sales taxes, value-added
taxes or withholding taxes (unless we are required by law to collect these on
your behalf).
STC Payment and Offered Price
5.4
We will make a
payment to you when you submit an STC Application, based on the Offered Price
and the type of trade you select in clause 3.6(c) minus the
applicable Licence Fee (STC
Payment). The STC Payment we make to you will be minus the
applicable Licence Fee owed to us.
5.5
You may,
between the hours of 9 am and 3 pm on business days, select an Offered Price
for an STC Application. The Offered
Price available on the Platform may differ depending on the age of the STC
Application.
5.6
We may at our
sole discretion, accept or reject the Offered Price you select.
5.7
If you have selected
an applicable Offered Price:
(a)
before 3pm on a
business day, we will pay you the STC Payment on the same business day; or
(b)
after 3pm on a business
day, we will pay you the STC Payment the following business day,
by direct deposit into your bank account, less
the applicable Licence Fee and Taxes.
5.8
If you have
selected an applicable Offered Price by direct deposit into your bank account,
less the applicable Licence Fee and Taxes.
5.9
Once you have
selected an Offer Price for an STC Application it is irrevocable and cannot be
changed.
5.10
You acknowledge
and agree that due to the potentially long CER processing times for uploaded
STC Applications in respect of eligible STCs. We may, in preference at our
absolute discretion withhold providing an Offered Price for an STC Application until
a later date.
5.11
If you do not select an Offered Price for an Approved STC within 12
months from the date that the Approved STC is listed in the REC Registry, you
agree that we may sell any Approved STC to a buyer without further notice to
you. We will pay the STC Payment with respect to such Approved STC calculated
based on the then current Offered Price for such Approved STC published on the Platform
less any applicable unpaid Licence Fee. We will send you an automated email
reminder after 11 months from the date that the Approved STC is listed in the
REC Registry.
Invalid STCs
5.12
If we pay make
an STC Payment to you at any point, for any stage of STC, and the STC
Application is found to be invalid or is affected by a Potential Breach or an Actual Breach,
then:
(a)
you must
immediately refund to us any STC Payment received by you for such STC Application;
(b)
the Licence
Fees or other amounts paid or deducted with respect to the STC Application is not
refundable to you;
(c)
you are solely
responsible to claim a refund or rebate of any Taxes (if applicable) from
relevant taxation authorities;
5.13
If a Potential
Breach occurs under clause 4.1, you agree that we may set-off or withhold any monies
otherwise payable to you under these Terms until the Potential Breach is
resolved. If the Potential Breach is determined to be an Actual Breach, we may
then deduct from any withheld or future monies payable to you any amounts owed
by you to us under these Terms, including for any invalid STCs paid due to the
Actual Breach. If the Potential Breach is resolved and not an Actual Breach, we
will promptly pay you any monies withheld.
Battery Licence Fee
5.14
For NSW battery installations, we will submit
weekly invoices to the relevant ACP for a percentage of each certificate
processed through our Platform.
6.
Platform
Licence
6.1
While you have an Account, we grant you and your Authorised Users a right
to use our Platform (which may be suspended or revoked in accordance with these
Terms). This right cannot be passed on or transferred to any other person.
6.2
You must not
(and you must ensure that your Authorised Users do not):
(a)
access or use our Platform in any
way that is improper or breaches any laws, infringes any person's rights (for
example, intellectual property rights and privacy rights), or gives rise to any
civil or criminal liability;
(b)
interfere with or interrupt the
supply of our Platform, or any other person’s access to or use of our Platform;
(c)
introduce any viruses or other
malicious software code into our Platform;
(d)
use any unauthorised or modified
version of our Platform, including but not limited to for the purpose of
building similar or competitive software or for the purpose of obtaining
unauthorised access to our Platform;
(e)
attempt to access any data or log into
any server or account that you are not expressly authorised to access;
(f)
use our Platform in any way that
involves service bureau use, outsourcing, renting, reselling, sublicensing,
concurrent use of a single user login, or time-sharing;
(g)
circumvent user authentication or
security of any of our networks, accounts or hosts or those of any third party;
or
(h)
access or use our Platform to
transmit, publish or communicate material that is, defamatory, offensive,
abusive, indecent, menacing, harassing or unwanted.
(i)
use the Platform or Installer App
for any other use other than collection and submission of STC application data
or for internal solar installation planning or project management.
7.
Availability, Disruption
and Downtime
7.1
While we strive to always make our Services available to you, we do not
make any promises that these will be available 100% of the time. Our Services
may be disrupted during certain periods, including, for example, as a result of scheduled or emergency
maintenance.
7.2
Our Services (including our Platform) may
interact with, or be reliant on, products or services provided by third
parties, such as cloud hosting service providers. To the maximum extent
permitted by law, we are not liable for disruptions or downtime caused or
contributed to by these third parties.
7.3
We will try to provide you with reasonable notice, where possible, of any
disruptions to your access to our Services.
8.
Intellectual
Property and Data
8.1
We own all
intellectual property rights in our Services (including our Platform). This
includes how our Platform looks and functions, as well as our copyrighted
works, trademarks, inventions, designs and other intellectual property. You
agree not to copy or otherwise misuse our intellectual property without our
written permission (for example, to reverse engineer or discover the source code of our
intellectual property), and you must not alter or remove any confidentiality,
copyright or other ownership notice placed on our Platform.
8.2
We may use any
feedback or suggestions that you give us in any manner which we see fit (for
example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.
Your Data
8.3
We do not own
any of Your Data, but when you enter or upload any of Your Data into our
Platform, you grant us the right to access, analyse, backup, copy, store,
transmit, and otherwise use Your Data while you have an Account with us (and
for a reasonable period of time afterwards). We may
use Your Data (or disclose it to a third party such as CER) to:
(a)
supply our Services to you and your
Authorised Users (for example, to enable you and your Authorised Users to
access and use our Services), and otherwise perform our obligations under these
Terms;
(b) diagnose problems with our Services;
(c) improve, develop and protect our Services;
(d) send you information we think may be of interest to you based on your marketing preferences;
(e) perform analytics for the purpose of remedying bugs or issues with our Platform; or
(f) perform our obligations under these Terms (as reasonably required).
8.4
You acknowledge
and agree that because of the nature of the internet, the processing and
transmission of Your Data by us may occur over various networks.
8.5
You are
responsible for (meaning we are not liable for):
(a)
the integrity
of Your Data on your systems, networks or any device controlled by you or your
Authorised Users; and
(b)
backing up Your
Data.
8.6
When you use
our Services, we may create anonymised statistical data from Your Data and
usage of our Services (for example, through aggregation). Once anonymised, we
own that data and may use it for our own purposes, such as to provide and
improve our Services, to develop new services or product offerings, to identify
business trends, and for other uses we communicate to you. This may include making
such anonymised data publicly available, provided it is not compiled using a
sample size small enough to make underlying portions of Your Data identifiable.
8.7
If you do not
provide Your Data to us, it may impact your ability to receive our Services.
9.
Confidential
Information and Personal Information
9.1
While using our
Services, you may share confidential information with us, and you may become
aware of confidential information about us. You agree not to use our
confidential information, and to take reasonable steps to protect our
confidential information from being disclosed without our permission, and we
agree to do the same for your confidential information. This also means making
sure that any Authorised Users, employees, contractors, professional advisors
or agents of ours or yours only have access to confidential information on a
‘need-to-know basis’ (in other words, the disclosure
is absolutely necessary), and that they also agree to
not misuse or disclose such confidential information.
9.2
However, either
you or we may share confidential information with legal or regulatory
authorities if required by law to do so.
9.3
We collect, hold and disclose and use any Personal Information you
provide to us in accordance with our privacy policy, available on our website, and applicable privacy laws.
9.4
You must only disclose
Personal Information to us if you have the right to do so (such as having the
individual’s express consent).
9.5
We may need to
disclose Personal Information to third parties, such as our related companies
or our service providers (for example, IT and administrative service providers
and our professional advisors).
9.6
Where we are
required by law to report on our activities, you acknowledge that from time to
time we may request certain information from you in order to meet our
requirements, and you agree to provide us with such information within the
timeframes reasonably requested by us.
10.
Consumer Law
Rights
10.1
In some jurisdictions, you may have guarantees, rights or other remedies
provided by law (Consumer
Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only
be bound by your Consumer Law Rights and the express wording of these Terms.
10.2
If you accept these Terms in Australia, nothing in these Terms should be
interpreted to exclude, restrict or modify the application of, or any rights or
remedies you may have under, any part of the Australian Consumer Law (as set
out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). If our Platform is not ordinarily
used for personal, household or domestic use, our liability for a breach of
your Consumer Law Rights is limited to either resupplying our Services, or paying the cost of having our Services
resupplied.
11.1
To the maximum extent permitted by law, we will not be liable for, and
you release us from liability for, any Liability caused or contributed to by,
arising from or in connection with:
(a)
your computing environment (for
example, your hardware, software, information technology and telecommunications
services and systems); or
(b)
any use of our Services by a
person or entity other than you or your Authorised Users.
11.2
Regardless of whatever else is stated in these Terms, to the maximum
extent permitted by law:
(a)
neither we or
you are liable for any Consequential Loss;
(b)
a party’s liability for any
Liability under these Terms will be reduced proportionately to the extent the
relevant Liability was caused or contributed to by the actions (or inactions) of
the other party, including any failure by the other party to mitigate its loss;
(c)
(where
our Services are not ordinarily acquired for personal, domestic or household
use or consumption) in respect of any failure by us to comply with
relevant Consumer Law Rights, our Liability is limited (at our discretion) to
supplying the Services again or paying the cost of having the Services supplied
again; and
(d)
our aggregate liability to you for
any Liability arising from or in connection with these Terms will be limited to
at our option
i.
a maximum value of AU$1,000; or
ii.
resupply of the Services
12.1
Assignment: You may not transfer or assign these Terms (including any benefits or
obligations you have under these Terms) to any third party without our prior
written consent. We may assign or transfer these Terms to a third party, or
transfer any debt owed by you to us to a debt collector or other third party.
12.2
Disputes: Neither we or you may commence court proceedings relating to any
dispute, controversy or claim arising from, or in connection with, these Terms (including
any question regarding its existence, validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute.
Nothing in this clause will operate to prevent us or you from seeking urgent
injunctive or equitable relief from a court of appropriate jurisdiction.
If the Dispute is not resolved at
that initial meeting:
(a)
where you are
resident or incorporated in Australia, refer the matter to mediation,
administered by the Australian Disputes Centre in accordance with Australian
Disputes Centre Guidelines for Commercial Mediation; or
(b)
where you are
not resident or incorporated in Australia, refer the matter to arbitration
administered by the Australian Centre for International Commercial Arbitration,
with such arbitration to be conducted in Sydney, NSW, before one arbitrator, in English and in accordance
with the ACICA Arbitration Rules.
12.3
Events
Outside Our Control: We will not be liable for any
delay or failure to perform our obligations (including our Services), if such
delay or failure is caused or contributed to by an event or circumstance beyond
our reasonable control.
12.4
Governing law: These Terms are governed by the laws of NSW, and any matter relating to
these Terms is to be determined exclusively by the courts in NSW and any courts
entitled to hear appeals from those courts.
12.5
Illegal Requests: We reserve the right to refuse any request for or in relation to our Services
that we deem inappropriate, unethical, unreasonable, illegal or otherwise
non-compliant with these Terms.
12.6
Marketing: You agree
that we may send you electronic communications about our products and services.
You may opt-out at any time by using the unsubscribe function in our electronic
communications.
12.7
Nature of Legal
Relationship: These Terms do not create, and should not be
interpreted so as to create, a partnership, joint
venture, employment or agency relationship between us and you.
12.8
Notices: Any notice you send to us must
be sent to the email set out at the beginning of these Terms. Any notice we
send to you will be sent to the email address registered against your Account.
12.9
Survival: Clauses 8 to 4 will survive the termination or
expiry of these Terms.
12.10 Third Party
Sites: Our Platform may contain links
to websites operated by third parties. Unless we tell you otherwise, we do not
control, endorse or approve, and are not responsible for, the content on those
websites. We recommend that you make your own investigations in relation to the
suitability of those websites. If you purchase goods or services from a third party website linked from our Platform, those goods or
services are being provided by that third party, not us. We may receive a
benefit (which may include a referral fee or a commission) should you visit
certain third party websites through a link on our
Platform, or for featuring certain goods or services on our Platform. We will
make it clear by notice to you which (if any) goods or services, or website
links, we receive a benefit from by featuring them on our Platform.
13.
Definitions
13.1
In these
Terms:
Account means an account accessible to the individual or entity who signed up to
our Services, under which Authorised Users may be granted with access.
ACP means an Accredited Certificate Provider approved by the Independent
Pricing and Regulatory Tribunal of NSW (IPART).
Authorised User means a user that you have invited to use the Platform through your
Account and may include an Installer.
CEC means
the Clear Energy Council.
CER means
the Australian Government's Clean Energy Regulator, an independent FMA Agency
that administers and enforces the RET Legislation.
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) or otherwise. However, your obligation to pay us any amounts for
access to or use of our Services (including our Platform) will not constitute
“Consequential Loss”.
Energy Production Data means data relating to the energy generated by an
Eligible System.
Industry Guidance means information, data and materials that the clean energy industry
commonly uses to assess materials, contractors and/or products, such as any
list in relation to installers, approved makes and models, products, and
inverters that is published by a reputable industry body such as the CER, CEC
or other such body.
Inspection means a physical examination of an Eligible System at the Installation
Address by us or our authorised representatives.
Installer means CEC accredited designer, installer and/or electrician responsible
for the design and/or installation of an eligible small-generation unit (SGU) under the RET Legislation.
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 us or you or otherwise.
Online
Registration Form means
the form that you must complete to create an Account on the Platform.
Offered
Price means the applicable price published on
the Platform from time to time, for an STC Application less the Licence Fee.
Owner means the owner or legal occupier of the installation address where you
or the Installer has installed an SGU in accordance with RET Legislation.
PRCs or Peak
Reduction Certificates means the tradeable
certificate created for battery installations by the ACP as defined under the Electricity
Supply Act 1995 (NSW).
Personal
Information means any information or opinion about
an identified individual, or an individual who is reasonably identifiable,
whether the information or opinion is true or not, and whether the information
or opinion is recorded in a tangible form or not.
OH&S Laws mean all federal and
state laws in respect of work health and safety, such as the Work Health and
Safety Act 2011 (NSW); Work Health and Safety Regulation 2011 (NSW); and codes
of practice and other corresponding laws in the state where the SGU/SWH is installed
by You.
Platform means our
cloud-based platform that we provide you with access to as part of the Services.
REC-Registry
means the CER’s internet-based registry
system that is required by the RET Legislation.
REC-Registry
Account means an account with the CER under the
RET Legislation for the submission, registration, creation and trading of STCs.
RET
Legislation means
the Renewable Energy (Electricity) Act 2000 (Cth),
Renewable Energy (Electricity) Regulations 2001 (Cth),
CER, CEC; Australian solar council; and/or REC Agents Association guidance.
Services means the services we provide to you, as detailed
in clause 3.STC means a small-scale technology certificate under the
RET Legislation and includes an STC Application.
STC Application means either a draft STC Application, submitted STC Application, an uploaded
STC Application and/or an Approved STC Application.
Taxes
means all
applicable taxes, levies, duties, charges, deductions and withholdings and
similar imposts imposed by law or by any government agency or statutory body
including income tax, valued added tax, GST, sales tax, business tax,
withholding tax, fringe benefits tax, undistributed profits tax, financial
institutions duty, stamp duties and any interest or penalty imposed about any
of the preceding items.
Your Data means the information, materials,
logos, documents, qualifications and other intellectual property or data supplied
by you and your Authorised Users when receiving our Services or stored by or
generated by your use of our Services, including any Personal Information
collected, used, disclosed, stored or otherwise handled in connection with our
Services. Your Data does not include any data or information that is generated
as a result of your usage of our Services that is a back-end
or internal output or an output otherwise generally not available to users of our
Services.
- Identity Data including your name, age, profession, photographic identification, and gender.
- Contact Data including your telephone number, address and email.
- Financial Data including bank account and payment card details (where applicable), through our third party payment processor, who stores such information and we do not have access to that information).
- Background Verification Data including your government-issued identification details, director identification number, or relevant licence numbers requested as part of our verification process to comply with our due diligence obligations, anti-money laundering laws and related ongoing monitoring commitments.
- Location Services Data including your precise or approximate location. We collect this information when you do business with us, including when our mobile application is being used or where an installation is completed on your premises. If you do not want us to use your location for the purposes above, you should turn off the location services in your mobile phone settings. If you do not provide geolocation data to us, it may affect our ability to do business with you.
- Installation Data including details about any system or equipment installed at your premises, and information relating to the monitoring and inspection of such installations.
- Transaction Data including details about payments to you from us and from you to us and other details of products and services you have purchased from us or we have purchased from you.
- Technical and Usage Data when you access any of our websites or platforms, details about your internet protocol (IP) address, login data, browser session and geo-location data, statistics on page views and sessions, device and network information, acquisition sources, search queries and/or browsing behaviour, access and use of our website (including through the use of Internet cookies), and communications with our website.
- Profile Data including your username and password for Formbay, profile picture, applications you’ve logged, and support requests you have made.
- Interaction Data including information you provide to us when you participate in any interactive features, including surveys, contests, promotions, activities or events.
- Marketing and Communications Data including your preferences in receiving marketing from us and our third parties and your communication preferences.
- Professional data including where you are a worker of ours or applying for a role with us, your professional history such as your previous positions and professional experience.
- Sensitive information is a sub-set of personal information that is given a higher level of protection. Sensitive information means information relating to your racial or ethnic origin, political opinions, religion, trade union or other professional associations or memberships, philosophical beliefs, sexual orientation or practices, criminal records, health information or biometric information. In the course of doing business with you, we may collect, or come across such sensitive information in different situations, including collecting biometric data including where we collect a photo of your face for anti-fraud purposes.
- when you provide it directly to us, including face-to-face, over the phone, over email, or online;
- when you complete a form, such as registering for any events or newsletters, or responding to surveys;
- when you use any website we operate (including from any analytics and cookie providers or marketing providers. See the “Cookies” section below for more detail on the use of cookies);
- from third parties; or
- from publicly available sources.
Purpose of use / disclosure | Type of Personal Information |
---|---|
To enable you to access and use our software, including to provide you with a login. |
|
To assess whether to verify you as a new user, including to perform anti-money laundering, fraud and other background checks on you. |
|
To inspect and monitor the system installed at your premises to ensure it is operational and producing power |
|
To do business with you, including to manage and assess the STC applications you log using our platform. |
|
To provide our services to you, including to monitor the progress of an installation, to verify the execution of forms on the platform, to prevent and detect fraud and as permitted by law. |
|
To contact and communicate with you about our business, including in response to any support requests you lodge with us or other enquiries you make with us. |
|
To contact and communicate with you about any enquiries you make with us via any website we operate. |
|
For internal record keeping, administrative, invoicing and billing purposes. |
|
For analytics, market research and business development, including to operate and improve our business, associated applications and associated social media platforms. |
|
For advertising and marketing, including to send you promotional information about our events and experiences and information that we consider may be of interest to you. |
|
To run promotions, competitions and/or offer additional benefits to you. |
|
If you have applied for employment with us, to consider your employment application. |
|
To comply with our legal obligations or if otherwise required or authorised by law. |
|
Sensitive information: We only collect, hold, use and disclose sensitive information for the following purposes:
if otherwise required or authorised by law.
|
|
- our employees, contractors and/or related entities;
- IT service providers, data storage, web-hosting and server providers;
- marketing or advertising providers;
- professional advisors, bankers, auditors, our insurers and insurance brokers;
- payment systems operators or processors;
- our existing or potential agents or business partners;
- sponsors or promoters of any promotions or competition we run;
- if we merge with, or are acquired by, another company, or sell all or a portion of our assets, your personal information may be disclosed to our advisers and any prospective purchaser’s advisers and may be among the assets transferred;
- courts, tribunals and regulatory authorities, in the event you fail to pay for goods or services we have provided to you;
- courts, tribunals, regulatory authorities and law enforcement officers, as required or authorised by law, in connection with any actual or prospective legal proceedings, or in order to establish, exercise or defend our legal rights;
- third parties to collect and process data, such as analytics providers and cookies; and
- any other third parties as required or permitted by law, such as where we receive a subpoena.
Cookie | Purpose |
---|---|
Currency | This cookie stores the currency used for the website (AUD) |
Language | This cookie stores the language used for the website (English) |
PHPSESSIONID | This cookie contains a unique ID to support functions (for example last viewed products) to improve user experience |
newsbcsub | This cookie is stored once the user has completed or closed the Register Pop Up, preventing it from re-appearing until after 7 days |
TLSCookiesEU | This cookie tracks when a user has accepted that the website use cookies preventing the popup from being displayed again during that session |
_ga / _gid / _gat | These cookies are used by our Google Analytics account to track customer traffic through the website to help us understand how our website is being used by our customers |