Terms & Conditions
These VPP Offer Terms and Conditions provide the option for you to be presented with energy retailer virtual power plant offers. These Terms and Conditions are between you (the individual) and Pacific 2022 Bidco C Pty Ltd (ABN 75 662 385 346) (trading as Evergen and referred to in these Terms as “Evergen”).
You represents and warrants that:
- You have full legal authority to be bound to these Terms and Conditions;
- You have read and understand these Terms and Conditions; and
- Evergen has the right to amend these Terms and Conditions at any time. Evergen will inform you of any significant changes by email.
By accepting an offer, You accept these Terms and Conditions.
1. Interpretation and Definitions
1.1. Interpretation: In this Agreement, unless the contrary intention appears:
1.1.1. the singular includes the plural and vice versa and words importing a gender include other genders;
1.1.2. a reference to this Agreement is a reference to this Agreement, its schedules, attachments and annexures (and any other document incorporated into such documents), and a reference to a clause is a reference to a clause of this Agreement;
1.1.3. a reference to a document or agreement, including this Agreement, its schedules, attachments and annexures, includes a reference to that document or agreement as novated, altered, replaced or renewed from time to time;
1.1.4. a reference to a person includes a partnership or a body whether corporate or otherwise;
1.1.5. a reference to a person includes the person’s executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
1.1.6. the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind; and
1.1.7. a reference to an amount of money is a reference to the Australian dollar.
2. Definitions:
2.1. Confidential Information means the confidential information of a party which relates to the subject matter of this Agreement and includes:
2.1.1 confidential information, trade secrets, know-how, methodologies, templates, scientific, technical, product, market, pricing and customer information relating to the technology, design, functionality and deployment of the Evergen services;
2.1.2. information relating to the Personnel, policies, clientele or business strategies of a party;
2.1.3 any pricing guides, operations manuals, codes of conduct and partner information made available to the Partner, including via any partner portal made available;
2.1.4 information relating to the terms upon which Evergen Services are to be marketed, distributed, provisioned and sold pursuant to this Agreement, including the terms of this Agreement; and
2.1.5. Evergen’ Intellectual Property Rights.
2.2. Device means solar battery, battery storage system or smart inverter or any other energy resources or devices.
2.3. Disclosing Party means the party disclosing the Confidential Information.
2.4. Force Majeure means a circumstance beyond the reasonable control of the parties and which results in a party being unable to observe or perform on time an obligation under this Agreement (excluding the obligation to make payments). Such circumstances include:
2.4.1. acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster;
2.4.2. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
2.4.3. interruptions or outages to utilities, including blackouts, brown outs, failures of or interruptions to electricity or communications networks or facilities.
2.5. Receiving Party means a Party that receives Confidential Information from a Disclosing Party under this Agreement.
2.6. VPP means virtual power plant.
2.7. VPP Offer means the offer to join a VPP program provided by a VPP Partner.
2.8. VPP Partner means an energy retailer who has a VPP offer available.
3. Participation in Virtual Power Plant
3.1. Evergen will present you with VPP Offers by VPP Partners.
3.2. Participation in the VPP Offer is open to You who meet the eligibility criteria specified by the VPP Partner.
3.3. You must have compatible Devices and grant Evergen and the VPP Partner access to control these Devices as necessary for the VPP Offer (where necessary).
4. Enrolment
4.1. You will have the option to join VPP Offers through the VPP Partner and by completing the registration process through the VPP Partner.
4.2. You will be asked to review and accept terms and conditions, as presented by the VPP Partner.
4.3. You acknowledge and agree that these VPP Offers are not affiliated with or connected to Evergen. Instead, you acknowledge and agree that Evergen is facilitating the connection between You and the VPP Partner.
5. Obligations
5.1. You must ensure that your Device are operational and accessible for the VPP Offer.
5.2. You acknowledge and agree that upon accepting a VPP Offer, a VPP Partner will be able to control your Device as needed to provide the VPP Offer.
6. Data and Privacy
6.1. You acknowledge that you have previously provided consent for Evergen to contact you and use your Personal Information in accordance with the Evergen Privacy Policy available here: https://evergen.energy/privacy-policy/.
6.2. Information collected may include Personal Information as defined under the Privacy Act 1988 (Cth).
6.3. Evergen will contact You by email to let you know about VPP Offers from VPP Partners.
6.4. VPP Partners will have their own terms and conditions and privacy policy for you to review and consent to for the provision of services and any VPP Offers provided.
7. Confidentiality
7.1. The Parties must keep the Confidential Information of a party confidential and must not use the Confidential Information of the other party except for the purpose of performing its obligations or exercising its rights under this Agreement and must not disclose that Confidential Information except to those of its Personnel (and the Personnel of its subcontractors) who:7.1.1. have a need to receive it (and only to the extent that such person has a need to receive it); and
7.1.2. have been made aware of its confidential nature and agreed to maintain its strict confidence.
7.2. The obligations of confidentiality under this clause 7 do not apply to the extent that information is (whether before or after the Commencement Date):
7.2.1. rightfully known to, or in the possession or control of the Receiving Party and there is no obligation of confidentiality on the Receiving Party;
7.2.2. generally, and publicly available otherwise than as a result of a breach by the Receiving Party of this Agreement;
7.2.3. required to be disclosed by Law;
7.2.4. developed independently by the Receiving Party; or
7.2.5. obtained by the Receiving Party from a third party without the obligation of confidentiality.
8. Liability
8.1. You acknowledge and agree that Evergen is not liable for any VPP Offers or anything that may occur as a result of selecting a VPP Offer. Evergen is facilitating the relationship between You and VPP Partners.
8.2. Evergen will not be liable for any indirect, incidental or consequential damages arising from participation in any VPP Program.
8.3. To the extent permitted by law, you agree that:
8.3.1. You join any VPP Offer at your own risk;
8.3.2. Any VPP Offer is the responsibility of each VPP Partner;
8.3.3. Evergen has no additional responsibility other than as set out in these Terms and Conditions.
9. Independent advice
9.1. You acknowledge that you will seek your own independent advice and judgement to determine if a VPP Offer is appropriate for you and will conduct your own research to make the determination. Evergen does not and cannot guarantee any results from participation in any VPP Program.
9.2. Participation in a VPP Program is at your own risk.
10. General
10.1. Non-solicitation. Subject to applicable law, during the term of the Agreement and for a period of three months after its expiration or termination, neither party will actively solicit any officer or employee of the other party.
10.2. Governing law and jurisdiction: These Terms and Conditions are governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
10.3. Entire agreement: In relation to the subject matter of this Agreement, this Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous agreements, understandings, whether written or oral.
10.4. Assignment. Partner may not assign or transfer any of the rights or responsibilities in the Agreement without the express written consent of Evergen. Evergen may assign this Agreement or novate it to any third party (acting reasonably) and Partner consents to such action and will execute any documentation reasonably required to give effect to that action.
10.5. No reliance or representation: The Parties each respectively acknowledge and agree that they have entered into this Agreement voluntarily and without relying on any representation by any other Party or by any agent or representative of that other Party.
10.6. Force majeure: Neither Party is liable to the other Party for any failure to perform due to Force Majeure, provided that the affected party promptly gives written notice to the other party of the occurrence of the Force Majeure providing details of the Force Majeure and its anticipated likely duration and effect.
