CLOSE | X

Terms of Service

Terms of Service

The Users are contracting with Matter Australia Pty Ltd (ACN 130 473 595) (Matter, us, we or our). We will provide the Services to the Users on the terms of this Agreement.

Last updated on 1st November 2016.

 

1.   Formation

1.1  If we assist the Landlord to install solar equipment on the Premises, the Users acknowledge and agree:

(a) the Tenant and the Landlord each agreed to the binding terms set out in the Application;

(b) the commencement of this Agreement is conditional on the Landlord installing solar and the Matter Hardware at the Premises; and

(c) we will notify each User when the Matter Service will commence.

1.2   If the Landlord already has solar equipment installed on the Premises, the Users acknowledge and agree:

(a)  we will issue the Landlord with a proposal setting out all the terms applicable and the fees payable to obtain the Matter Services; and

(b) the commencement of this Agreement is conditional on the Landlord installing the Matter Hardware at the Premises; and

(c) we will notify each User when the Matter Service will commence.

1.3   This Agreement:

(a)  is formed when all the Users have clicked on the “I agree” box or signed the Application (Start Date); and

(b) will continue (unless terminated earlier) until the end of the tenancy agreement for the Premises between the Landlord and the Tenant as renewed or extended from time to time (including any holding over or continued occupation of the Premises) (Lease).

 

2.   Matter Services

2.1   Matter:

(a)   provides the Users with access to an online platform that connects Landlords, Property Managers and Tenants to enable the sharing of solar power;

(b) monitors solar production and energy consumption on the premises nominated by the Landlord (Premises) using the Matter Hardware;

(c) provides online access to solar production and energy consumption data for the Premises; and

issues Invoices for the Tenant’s solar consumption and, if applicable, energy consumption on behalf of Landlords, (Matter Services).

2.2  The Matter Services are accessible on http://www.matter.solar and any other websites through which Matter makes the Matter Services available and on Matter applications for mobile devices (Dashboards).

2.3 Matter will provide the Matter Services and will remit payments from the Tenant to the Landlord or Property Manager (as nominated by the Landlord) in accordance with the terms of this Agreement.

2.4 Each User understands and agrees that we are not:

(a)  a party to any Lease;

(b) a solar installer or maintenance provider;

(c)  a real estate manager, property manager or insurer;

(d)  a licensed energy retailer;

(e)  responsible for the performance of the solar systems; or

(f)  responsible for the failure of the Tenants to pay the Solar Charges and, if applicable the Grid Energy Charges owed.

 

3.   Modifications

3.1  We reserve the right, in its sole discretion, to modify (on notice to each User):

(a) the Dashboard or the Matter Services; or

(b) this Agreement.

3.2  If we modify this Agreement, we will post the modification on the Dashboard and each User must indicate its acceptance of the amended Agreement by clicking on the “I agree” box.

3.3  If the modified Agreement has a material adverse impact on a User, that User must notify us within 30 days of receiving notice of the modification. If we consider that the modification does have a material adverse impact on that User (determined in our sole discretion) either:

(a) that User will remain governed by the Agreement in effect immediately prior to the change; or

(b) we may terminate this Agreement.

 

4.   Account Registration

4.1   In order to access the Matter Services, login details will be sent to each User in order to access the Dashboard.

4.2  Each User is solely responsible for:

(a)   ensuring that its login details and passwords are not disclosed to anyone and are not used by anyone else;

(b)  maintaining the confidentiality and security of the accounts; and

(c)  all activities in connection with the use of the Matter Services.

4.3  A User must notify us immediately if it becomes aware of any unauthorised use of its account, the Dashboard or the Matter Services.

5.  Matter Services and Grid Energy Services

5.1  We will remotely monitor and read the Matter Hardware at the Premises and generate an Invoice using the Solar Rate and, if applicable, the Grid Energy Tariff.

5.2  Either the Tenant or the Landlord (as applicable) must retain a separate contract with a licensed energy retailer.

5.3  The Users acknowledge and agree that we are not a party to, and do not exercise any control over, the contractual agreements that a Tenant or Landlord enters with its licensed energy retailer.

5.4  The Tenant acknowledges that:

(a) the supply of solar power to the Premises is not its primary source of energy;

(b) the solar power offsets part of the energy supplied by the licensed energy retailer and the remainder of the energy is supplied by the Tenant’s or the Landlord’s licensed energy retailer (as applicable);

(c) there may be interruptions to the Tenant’s supply of energy that are outside of our control, such as where the licensed energy distributor cannot maintain energy supply to the Tenant;

(d) interruptions of supply as described in subclause (c) are distinct from the disconnection of a Tenant’s supply of solar power in accordance with this Agreement;

(e) we and the Landlord cannot guarantee continuous energy supply to the Premises; and

(f)  this Agreement is in addition to a supply arrangement with a licensed energy retailer and loss of solar power supply will not interfere with your access to grid electricity.

6.  Remote System Access and Physical Access

Invoices

6.1  For us to provide the Matter Services the Tenant must ensure the Premises has internet access and constant power to the Matter Hardware. Remote access may be required for problem analyses, error correction, User support and to check whether corrections to errors were successful.

6.2  Where we do not have access to Matter Hardware due to a Tenant not having internet access and/or power to the Matter Hardware, we do not guarantee the performance of, or the integration of the Matter Hardware with the Matter Services.

6.3   The Tenant must provide the Landlord and/or their nominated representative (including the solar installer) with physical access to the Premises on request. We are not liable for the Tenant’s failure to provide the Landlord and/or their nominated representative with access to the Premises.

7.   Fees and Charges

Tenants

7.1  The Tenant agrees:

(a)   to pay the Fees set out in an Invoice in full to us on behalf of the Landlord by the Due Date;

(b)  where solar power is exported to the power network, the Landlord is entitled to charge the Tenant the Export Fee. The Tenant is entitled to retain any amount it receives from its licensed energy retailer in excess of the Export Fee.

7.2   The Tenant acknowledges and agrees that where the Landlord on-sells grid electricity to the Tenant for the Grid Energy Charges we will create the Invoice using the Estimated Fees.

Landlords

7.3  The Landlord agrees to pay us:

(a)  a monthly non-refundable Subscription Fee; and

(b)  any other fees set out in the Application and/or a proposal issued to you by us.

7.4  We will set-off against, or deduct from any payment to the Landlord under this Agreement any amount which the Landlord may be liable to pay us under this Agreement (including the Subscription Fee) or any other agreement between us and the Landlord.

Review of Fees and Subscription Fees

7.5  We reserve the right to review and vary the Fees and/or the Subscription Fees on notice to the Users:

(a)  on the anniversary of the Start Date; and/or

(b)  on the renewal of a lease.

7.6  Clause 3 will apply to any increase in the Fees.

Financial difficulties encountered by the Tenant

7.7  The Tenant may request financial assistance from the Landlord and the Landlord may (at its discretion):

(a)  waive interest on overdue amounts;

(b)  identify appropriate government concession programs and appropriate financial counselling services; or

(c)  request that we review this Agreement to determine whether it suits the Tenant’s needs.

7.8  On disconnection of the solar system the Tenant will be charged the full amount of electricity from the Tenant’s licensed energy retailer and the Tenant acknowledges that we and the Landlord are not liable for any increases in the Tenant’s bills.

7.9  Notwithstanding any other provision in this Agreement, the Property Manager will not disconnect the Tenant’s solar power if:

(a)  the Premises are registered as a life support site or if a User has previously advised us that someone living at the Premises has a medical condition necessitating a continuous supply of electricity;

(b)  a Tenant has made a complaint in accordance with clause 15.1 and that complaint remains unresolved; or

(c)  a Tenant has an outstanding application for a utility relief grant or similar.

7.10  On disconnection of the solar system, the Tenant has a right to be reconnected if the Tenant can remedy the breach causing the disconnection. On rectification of the breach, we will endeavour to reconnect the Tenant as soon as possible.

Estimated Fees

7.11  Where we have provided a Tenant with an invoice for Estimated Fees:

(a)  the Estimated Fees are mere estimates of the likely charge;

(b)  not withstanding the Estimated Fees, the Tenant must pay the actual charges;

(c)  we will periodically review the Estimated Fees against the Tenant’s actual usage;

(d)  we will either credit or debit the Tenant (as applicable) the difference between the Estimated Fees and the Tenant’s actual usage on the next Invoice; and

(e)  if relevant, the Tenant can request a copy of the Landlord’s energy bill used to calculate the Tenant’s actual usage.

8.   Payment

Late payment

8.1  The Users acknowledge and agree if the Tenant fails to pay any undisputed amounts properly due and payable under an Invoice within 21 Business Days after receipt of a notice requiring payment and expressed to be given under this clause:

(a)  the Property Manager (or Landlord if a property is self-managed) is responsible for procuring payment and the parties agree we are not required to request payment of the Fees from the Tenant (other than issuing the Invoice and the notice of late payment referred to in this clause);

(b)  the Landlord must continue to pay us the Subscription Fee whether or not it receives payment from the Tenant. We will issue an invoice and the Landlord must make payment within 14 days of the date of the invoice;

(c)  the Tenant may be charged $25; or

(d)  we may refer the Tenant’s bill for collection by a debt collection agency.

8.2  If a Tenant fails to pay the account for 3 consecutive months:

(a)  the solar power may be disconnected (by us or the Landlord) and will not be reconnected until the debt is discharged in full;

(b)  the Landlord may request that the Tenant pay in advance on future Invoices and clause 7.2 will apply to such payment;

(c)  the Landlord may terminate this Agreement if the Tenant does not make payment in full within 21 Business Days of a notice from the Landlord requiring the Tenant to do so; and

We may charge the Tenant fair and reasonable disconnection and reconnection costs at the Tenant’s expense.

Invoices

8.3  The Landlord authorises Matter to:

(a)  issue the Tenant with a monthly Invoice email; and

(b)  collect payment for the Invoice from the Tenant.

Payments to be remitted via Property Managers

8.4  If there is a Property Manager, the Landlord authorises us to remit the amounts collected from the Tenant (less the Subscription Fee) to the Property Manager at the end of each month. Payments not cleared by the end of the month will be remitted in the subsequent month.

8.5  The Property Manager must remit the amounts received from us in connection with this Agreement to the Landlord and we disclaim all liability for any failure by the Property Manager to do so.

8.6  Any fee paid by the Landlord to a Property Manager must be set out in a separate agreement between the Landlord and Property Manager, to be agreed by the Landlord and Property Manager and we are not a party to that agreement.

8.7  The Property Manager may be replaced from time to time on notice to us. The new property manager must agree to the terms of this Agreement.

Payments to be remitted directly to Landlords

8.8  At the Landlord’s election we will remit amounts collected from the Tenant (less the Subscription Fee) to a bank account nominated by the Landlord via PayPal, direct deposit or other payment methods, as described on the Dashboard. We will remit such amounts at the end of each month for each property. Payments not cleared by the end of the month will be remitted in the subsequent month.

Payment of processing errors

8.9  If any test indicates there has been an error, we will take steps to rectify any known payment processing errors in accordance with clauses 10 and 8.11.

8.10 We will notify the Tenant within 10 Business Days of becoming aware of any overcharging and:

(a) if the amount overcharged is $25 or more, we will either:

(i)      credit the amount to the Tenant’s next Invoice; or

(ii)      refund the amount if requested by the Tenant or if this Agreement has been  terminated;

(b)  if the amount overcharged is less than $25, we will credit the Tenant’s next Invoice; and

(c)  if the overcharging is a result of the Tenant’s fault or unlawful act or omission, we will repay the amount overcharged within 12 months of the date on which the error was discovered.

 

8.11  If a Tenant is undercharged, we will recover the amount undercharged and:

(a)  if the undercharging is a result of the Tenant’s fault or unlawful act or omission, we may recover the amount undercharged within 9 months of the date on which the Tenant is notified of the undercharging; and

(b)  on the Tenant’s request, the Tenant may pay the undercharged amount by installments, over a period nominated by the Tenant (up to 12 months, but no longer than the period of the undercharging).

Internet Connection

8.12 The Users acknowledge and agree that:

(a)  Invoices are calculated using Data gathered remotely from the Matter Hardware;

(b)  if Tenants fail to provide access to the internet, we will be unable to measure the Tenant’s usage; and

(c)  if the internet is offline, we will notify the Tenant and the Landlord (including by email) until the Internet is reconnected.

Hardware Failures

8.13  Where there is a failure (whether arising from a failure relating to the internet, gateway or the Matter Hardware) and an Invoice is due, we will Invoice based on Estimated Fees in accordance with clause 11:

8.14  Where the Matter Hardware ceases to work, we will organise replacements and will continue to Invoice the Tenant based on the Tenant’s usage in the previous month.

8.15  Where there is evidence that a gateway has been tampered with on more than two occasions, and we suspect that the Tenant is obtaining a financial advantage we may (at our sole discretion) terminate this Agreement and charge the Tenant a call out fee at our then current rates.

9.   Taxes

Amounts payable to us

9.1   The parties agree that all amounts payable under this Agreement are exclusive of GST. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement. In this clause, the terms “GST”, “Taxable Supply” and “Input Tax Credit” have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 and related tax imposition Acts of the Commonwealth of Australia

Amounts payable to the Landlord

9.2  The Landlord must:

(a)  obtain independent professional advice to determine whether the solar power supply is taxed; and

(b)  indicate by ticking a box whether the Solar Charges should be taxed.

Reports

9.3  We will provide the Landlord with annual reports setting out:

(a)  Invoices issued and Fees received from the Tenant;

(b)  Subscription Fees due, payable and paid; and

(c)  disbursements made and funds remitted to the Landlord or the Property Manager.

10.  Confidentiality and Privacy

10.1  The parties acknowledge that the Data (other than Personal Information) is owned by the Landlord and Tenant jointly. The Landlord and Tenant each consent to the other using the Data without restriction, as if the Data was owned solely.

10.2  The parties (other than the Tenant) will only use the Data in accordance with this Agreement.

10.3  We will use commercially reasonable safeguards and security procedures so that the confidentiality, integrity and privacy of the Data is maintained and protected.

10.4  Each party will:

(a)  keep confidential each other party’s Confidential Information;

(b)  only use or reproduce each other party’s Confidential Information for the sole purpose of performing its obligations under this Agreement;

(c)  not disclose the Confidential Information except as permitted by this clause; and

(d)  take all steps reasonably necessary to secure each other party’s Confidential Information against theft, loss or unauthorised disclosure.

10.5  A party may disclose Confidential Information of another party:

(a)  to related bodies corporate and professional advisors who need to know the Confidential Information for the sole purposes of this Agreement;

(b)  which is required to be disclosed by law; and

(c)   in respect of which the other party has given its consent to disclosure.

10.6  Each User must return or destroy our Confidential Information on our request.

10.7  Each party agrees to comply with all Privacy Laws in relation to Personal Information.

10.8  Each User acknowledges that Tenants, Landlords and Property Managers are able to see outstanding balances, accounts and the Invoices through the Dashboard.

11.  Intellectual Property

11.1   The parties agree that we or our licensors own all Intellectual Property Rights in the Dashboard, Matter Services, and Contract Materials.

11.2   The Tenant will not remove, alter or obscure any copyright, trade mark, service mark or other proprietary rights notices incorporated in or accompanying the Dashboard, Matter Services, or Contract Materials.

11.3   Subject to each User’s compliance with this Agreement, we grant each User a limited non-exclusive, non-transferable licence to download and install a copy of the Dashboard and run such copy of the Dashboard solely for the User’s own personal use.

11.4   The Users each grant us a royalty-free, worldwide, irrevocable, perpetual licence to:

(a)  use and incorporate into the Matter Services any suggestions, enhancement requests, recommendations or other feedback provided to us relating to the operation and functionality of the Matter Services; and

(b)  use the Data, and share the Data with Matter Partners, for the purpose of our, and Matter Partners’, internal research and development.

12.  User Warranties

12.1   The Users each warrant, as at the date of this Agreement and on each day of the term of this Agreement, that it will:

(a)  promptly provide all decisions and any information reasonably required by us to assist us in providing the Matter Services;

(b)  not knowingly upload or make available any material that is illegal, that contains viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of the Matter Services or the Matter Hardware (and the Users acknowledge that, to the extent to which such material is uploaded or made available, there may be an impact on the performance of the Matter Services);

(c)  use commercially reasonable efforts to prevent unauthorised access to, or use of, the Matter Services, and to promptly notify us of any such access;

(d)  not alter or remove a notice of ownership of Intellectual Property Rights accompanying the Matter Services;

(e)  obtain all necessary consents and licences or exemptions from licences (including any building or development consents that may be required); and

(f)  comply with our directions and all relevant laws in connection with the use of the Matter Services.

12.2  The Tenant must not tamper with the Matter Hardware.

13.  Our Warranties

13.1  To the extent permitted by law, the Matter Services (and any associated third party software) are provided “as is” and we (and any third party software supplier) disclaim any and all warranties, whether express or implied, including any implied warranties of merchantability or fitness for a particular purpose other than those warranties which cannot be excluded under any law.

13.2  We make no representations about the accuracy of the Data. The Users acknowledge that the accuracy of the Data will depend upon the correct installation of the Matter Hardware and we will not be liable for any errors in the Invoice arising from faulty installation.

13.3  Where a mandatory term or consumer guarantee is implied by law, our liability for breach of such a term or consumer guarantee is limited, at our option, to:

(a) if the breach relates to goods:

(i)      the replacement of the goods or the supply of equivalent goods;

(ii)      the repair of the goods;

(iii)     the payment of the cost of replacing the goods; or

(iv)      the payment of the cost of having the goods repaired.

(b)  if the breach relates to services:

(i)       the supplying of the services again; or

(ii)      the payment of the cost of having the services supplied again.

14.  Termination

When we can terminate

14.1  We may automatically disable or suspend a User’s access to the Matter Services in the event of an emergency as determined in our sole discretion, acting in good faith, including a threat to the security of the Matter Services.

14.2  We may terminate this Agreement on 30 days notice to each User.

Termination for cause

14.3  The Landlord and/or the Tenant may terminate this Agreement:

(a)  on notice if the Landlord or the Tenant (as applicable) fail to remedy a breach that can be remedied (other than for non-payment), within 21 Business Days of a notice from the other party requiring the Landlord or Tenant (as applicable) to do so; or

(b)  on 21 Business Days’ notice if the Landlord or the Tenant (as applicable) breach this Agreement which is not capable of remedy; or

(c)  if a Force Majeure Event continues for 60 days.

Consequences of termination

14.4  If the Agreement is terminated:

(a)  we will immediately calculate a final Invoice on the date of termination; and

(b)  the Landlord must pay us all amounts owing to us up to the date of termination.

Untenanted properties

14.5   If a Lease is terminated by the Tenant, the Landlord assumes responsibility for all Fees until we are notified of such termination. We will issue an invoice and the Landlord must make payment within 14 days of the date of the invoice.

14.6  From the date we are notified that a Lease has been terminated, this Agreement (as between the Landlord and us) will be suspended and the Landlord will not be liable to pay us the Fees or the Subscription Fee.

14.7  If a new tenant moves into the Premises, that tenant, the Landlord and the Property Manager must each agree to the terms of this Agreement to obtain the Matter Services and the Landlord will be charged a Set-Up Fee to connect the new tenant to the Matter Services.

15.  Complaints and Dispute Handling

15.1   If a User has a complaint with any aspect of the Matter Services, a service ticket can be raised through our online Help Centre.

15.2  We endeavour to resolve a User’s concerns within 28 days of the User’s original service ticket. During this time if we need further information we will contact the User.

15.3  If a User is not happy at any stage with the way we are investigating a complaint, the User may request that the complaint be handled at a higher level by the relevant The User may request this at any time by calling or writing to us.

15.4  After attempting to resolve the complaint with us, if the User is not satisfied with our efforts, the User may access the energy Ombudsman scheme.

15.5  Any dispute arising out of this Agreement that cannot be settled in accordance with this clause, will be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration will be Sydney, Australia. The language of the arbitration will be English.

16.  Liability

16.1  We will not be liable to the Users for:

(a)  total or partial destruction, distortion, erasure, corruption, alteration, misinterpretation or misappropriation of data (including the Data) that is caused by power outages at the Premises);

(b)  error in creating, amending, entering, deleting or using data (including the Data) that is caused by any of the Users; and

(c)  total or partial inability or failure to receive, send, access or use data (including the Data) for any time or at all that is caused by the Matter Hardware or by power outages.

16.2  No party will have any liability to another party for loss of profit or revenue, loss of business opportunities or indirect, special or consequential loss (such consequential loss to be strictly interpreted as loss not arising naturally according to the usual course of things) arising in connection with this Agreement (however arising, including for negligence).

16.3  Each User indemnifies us and our related bodies corporate against all claims (including claims brought by third parties), damages, costs, expenses (including legal fees), losses or liabilities that are suffered or incurred by those indemnified arising from, or in connection with:

(a)  any negligent, wrongful or unlawful act or omission by a User; or

(b)  use of the Matter Services in a manner that is contrary to this Agreement.

16.4  To the extent permitted by law, our total aggregate liability in connection with this Agreement and whether based upon any indemnity, warranty, contract, statute, tort (including negligence) will be limited (at our election, acting reasonably) to the re-supply of the Matter Services or payment of the total of all Subscription Fees paid to us for the supply of the Matter Services by the relevant Landlord in the preceding 12 months.

16.5  Each party’s liability to another (including under any indemnity) is reduced to the extent that the other party’s negligent, wrongful or unlawful act or omission or breach of this Agreement contributed to the claims, damages, costs, expenses (including legal fees), losses or liabilities.

16.6  No party will be liable to another for failing to comply with this Agreement to the extent such failure resulted from a Force Majeure Event.

16.7  Each party will bear their own costs and risks suffered from a Force Majeure Event.

16.8  To the extent permitted by law, the rights and remedies specified in this Agreement are the sole and exclusive rights and remedies available to the parties in connection with this Agreement.

17.  Notices

17.1  All notices and consents (other than email notices sent by email) must be in writing.

17.2  A notice sent by email:

(a)  must be sent to the email address of the recipient’s contact person; and

(b)  must state the name and title of the sender’s contact person.

17.3  Notices sent:

 

(a)  by hand are taken to be received when delivered;

(b)  by post to an address in Australia are taken to be received by the third Business Day after posting;

(c)  by post to an address outside Australia are taken to be received by the seventh Business Day after posting;

(d)  by fax are taken to be received when the sender’s fax machine issues a successful transmission report;

(e)  by email are taken to be received on the earlier of:

            (i)    the time that the sender receives an automated message that the email was delivered; or

(ii)    6 hours after being sent unless the sender receives an automated message that the email was undeliverable or that the recipient is out of office or the sender knows or reasonably should know that there is a network failure and accordingly knows or suspects that the email was not delivered, in which cases the email is taken not to be delivered and the sender should resend the notice by hand, post or fax.

 

18.  General

18.1  Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.

18.2  Subject to clause 3, neither party may assign this Agreement, or any payment or any other right, benefit or interest under it to another person without the other party’s prior written approval (which may not be unreasonably withheld but which may be given subject to reasonable conditions).

18.3  Despite any provision to the contrary in this Agreement, the parties agree that the Landlord may novate its rights and obligations under this Agreement to any new property owner purchasing the Premises by notice to each other party and each other party must immediately execute any documents provided to it necessary to give effect to this clause.

18.4  We may, in our sole discretion, sub-contract the performance of any part of the Matter Services to any third party. We remain liable as head contractor for the performance of sub-contractors as if performing that part of the Matter Services ourselves.

18.5  This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.

18.6  Except as specified otherwise, this Agreement cannot be amended or varied except in writing and signed or electronically accepted by the parties.

18.7  If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.

18.8  This Agreement is governed by and construed in accordance with the laws of Victoria and the parties agree to submit to the non-exclusive jurisdiction of the courts of Victoria.

18.9  The following clauses in this Agreement impose continuing rights and obligations on the relevant parties and survive termination or expiry of this Agreement: clauses 10 (Confidentiality and Privacy), 11 (Intellectual Property), 2 (Tampering with Matter Hardware), 14.4 (Effect of Termination and Expiry), 16 (Liability), 18.8 (Governing law) and this clause 18.9 (Survival).

19.  Definitions

19.1  In this Agreement:

Application means the application, quote or proposal the Users submitted to us.

Business Days means a day on which banks are open for business in Victoria excluding Saturdays, Sundays and public holidays;

Confidential Information of a party means information in any form or media, and whether given by the party or acquired or created directly or indirectly before or after the date of this Agreement by the other party, including:

(a)  the terms of this Agreement;

(b)  all information, know-how, ideas, concepts, technology, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection with or in support of the business of the party which is disclosed, communicated or delivered to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party under or in connection with this Agreement; and

(c)  any information which is designated as being confidential or which the other party ought to know is confidential,

but does not include:

(d)  information which is or becomes generally available in the public domain (other than through any breach of confidence);

(e)  information rightfully received by the other party from a third person who is under no obligation of confidentiality in relation to the information and who has not obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to the first party; or

(f)  information which has been independently developed by the other party;

Contract Materials means all materials created or provided by us in providing the Matter Services;

Data means all data collected in our performance of the Matter Services, including utility usage data and Personal Information in connection with the Matter Services;

Due Date means the date which is 14 days of the date of the Invoice.

Estimated Fees means the estimate of fees payable in any given month for energy or solar consumption based on assumptions of the Tenant’s usage of solar or electricity calculated using our meter data, the Solar Rate and the Grid Energy Tariff (where applicable), and the Tenant’s previous Invoice;

Expenses means the costs incurred by us in providing the Matter Services, including costs associated with transfer of funds, making deposits and merchant fees;

Export Fee means a fee of no more than 6 cents per kWh (as reasonably modified by us from time to time) by us on notice.

Fees means the Solar Charges, the Grid Energy Charges (if applicable), the Expenses and any other fees set out on the Dashboard or Application;

Force Majeure Event means any act, event or cause, including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery or industrial conditions or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, other than a User’s ability to pay any fees under this Agreement, which:

(a)  direct or indirectly results in a party being prevented from or delayed in performing any of its obligations under this Agreement; and

(b)  is beyond the reasonable control of that party;

Grid Energy Charges means the charges for the Tenant’s usage of grid electricity as calculated by the Monitoring Services using the Grid Energy Tariff;

Grid Energy Tariff means the tariff charged by the licensed energy retailer for electricity as passed through by the Landlord with no margin;

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, Confidential Information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable;

Invoice means a tax invoice for the Fees automatically generated using meter data collected with the Monitoring Service, Solar Rate, Solar Charges, contract information and the Grid Energy Tariff (if applicable);

Matter Hardware means the Matter hardware and devices owned by the Landlord that is to be installed to enable the functionality of the Services, including the communications gateways, sensors and meters;

Matter Partners means our partners listed on the Site or introduced to you by us;

Monitoring Services means the integrated Matter Hardware and sensor data management technology;

Personal Information has the meaning given in the Privacy Act;

Privacy Act means the Privacy Act 1988 (Cth);

Privacy Laws means the Privacy Act, the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth) and any other legislation, principles, industry codes and policies relating to the handling of Personal Information;

Property Manager means the person registered on the Site and listed as “Property Manager”;

Landlord means the person registered on the Site and listed as the “Landlord”;

Solar Charges means the charges for the Tenant’s usage of solar power as calculated by the Monitoring Services using the Digital Solar Rate;

Solar Rate means the tariff for the solar power agreed between the Tenant and the Landlord as set out in the Matter business case as increased or decreased from time to time in accordance with this Agreement;

Subscription Fee means the fee of $9.90 per month or 5% of the Invoice amount (including GST), whichever is the greater (as updated from time to time) payable by the Landlord to us for the Matter Services;

Tenant means the person registered on the Site and listed as the “Tenant”; and

User means the Landlord, the Tenant and/or the Property Manager, as applicable.

19.2  In this Agreement, unless the context otherwise requires:

 

(a)  headings will be ignored in construing this Agreement;

(b)  references to statutes include all statutes amending, consolidating or replacing such statutes;

(c)  a reference to a schedule is a reference to a schedule to this Agreement;

but does not include:

(d)  if an example if given of anything (including a right, obligation or concept) such as by saying it includes something else, the example does not limit the scope of that thing;

(e)  “including” and similar words do not imply any limitation;

(f)  $ means the lawful currency of Australia; and

(g)  a related body corporate has the meaning given to that term in the Corporations Act 2001 (Cth).

Version 14_1565737_1_Nov