Purchase Terms & Conditions
1. Definitions and Interpretation
1.1 In this agreement, terms used in the Order have the meaning given to them in the Order and the following definitions apply, unless the context otherwise requires:
Account means any account through which the Customer accesses and uses any Software.
Australian Consumer Law means the provisions of Order 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory.
Authorised Distributor means a third-party distributor authorised by SwitchDin to sell the Hardware.
Authorised Payment has the meaning given to it clause 4.3.
Consequential Loss means indirect loss or damage resulting from or arising out of the performance of the Services, including, without limitation, loss of use, loss of profit, contract loss of data, loss of investment funds, loss of income or revenue, loss of business reputation, business interruption of any nature, loss of opportunity, loss of goodwill, loss of anticipated savings or wasted overheads, exemplary or punitive damages, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
Customer Access Platform means SwitchDin’s application programming interface, as provided to access the Software.
Customer Data has the meaning given to the term in clause 9.1.
Documentation means documentation made available to the Customer by SwitchDin and/or the Authorised Distributor from time to time.
End User means any user of the Customer’s Hardware, Software Subscription and/or the Customer’s Account.
EULA means SwitchDin’s End User License Agreement governing non fee-paying use of SwitchDin’s software services, as amended from time to time and available on the Website.
Fees means the fees payable by the Customer to SwitchDin for any goods and/or services provided by SwitchDin (including without limitation for Software Subscriptions or Hardware, as set out in the Order).
GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hardware means the hardware in the Order and any other hardware manufactured and/or provided by SwitchDin and used by the Customer (whether purchased from SwitchDin or an Authorised Distributor).
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, 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.
Loss means any damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.
National Electricity Rules means the rules of that name made pursuant to the National Electricity Law (as set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA)) and as applied in the jurisdiction in which the Services are being performed.
Order means the order that is placed by the Customer when they accept the Quotation in accordance with clause 2.1.
Personal Information has the meaning given to that term in the Privacy Act and/or any other applicable Privacy Law.
Pre-Existing IP means any Intellectual Property Rights in any materials existing at the date of this agreement, including Intellectual Property Rights in software, hardware or documentation and materials used in either party’s business, and any enhancements, upgrades or amendments to these Intellectual Property Rights.
Privacy Act means the Privacy Act 1998 (Cth) and any other equivalent or similar State or Territory legislation.
Privacy Laws means the Privacy Act and any other applicable laws, codes and/or regulations governing the collection and use of Personal Information.
Purchase Terms means these terms as amended from time to time in accordance with clause 16.1.
Privacy Policy means SwitchDin’s privacy policy as amended from time to time and available on the Website.
Processed Data means all data captured, generated and/or processed by the Software or SwitchDin using the Software’s algorithms including the data that relates to the Customer and any individuals to whom the Customer provides any services, access to the Customer’s Account, and use of the Software, including the Customer’s End Users.
Quotation means the quotation for the provision of Software Subscription and/or Hardware provided to the Customer with these Purchase Terms, setting out the commercial details, including the Software Subscription and/or Hardware, and applicable fees.
Standard Product Warranty means SwitchDin’s standard warranty provided with the Hardware and available on the Website, which governs all use of the Hardware.
Subscription Period means the period in which a subscription is paid for in advance and this payment is not refundable in the event of a cancellation by the Customer.
Software means SwitchDin’s StormcloudTM software.
Software Subscription means SwitchDin’s provision to the Customer of the Software for the Subscription Period.
Subscription Term has the meaning given to it in clause 3.1. SwitchDin IP has the meaning given to that term in clause 13.1
System means any of the Customer’s or the Customer’s End Users’ infrastructure with which the Hardware and Software interacts, including without limitation any battery, inverter, solar PV system, meter, appliance, application program interfaces (or APIs), Third Party Supplier portal and/or software, and/or any other electricity measuring, generating, controlling, storing or consuming devices.
Taxable Supply has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Term means the date of the confirmation of the Order until the Subscription Term is cancelled in accordance with clause 3 of the Purchase Terms.
Third Party Data has the meaning given to the term in clause 12.2.
Third Party Product has the meaning given to that term in clause 12.1 and includes Third Party Data.
Third Party Supplier means a supplier who supplies Third Party Products (other than SwitchDin).
Website means https://www.switchdin.com/.
1.2 In this agreement, the following rules of interpretation apply, unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(d) references to statutes include all statutes amending, consolidating or replacing such statutes;
(e) $ means the lawful currency of Australia;
(f) any reference to a party to this document includes its successors and permitted assigns;
(g) the use of the word "includes" or "including" is not to be taken as limiting the meaning of the words preceding it; and
(h) a reference to a clause or Order is a reference to a clause of, or an Order of this agreement.
2. Formation and Orders
2.1 When the Customer accepts and returns the signed Quotation to SwitchDin (or by accepting the Quotation through any online system which is used to generate and send the Quotation to the Customer), an agreement is formed between the Customer and SwitchDin Pty Limited (ACN 154 893 857) of Suite 101, Level 1, 426 King Street, Newcastle West, NSW 2302 (SwitchDin) consisting of the Order, these Purchase Terms and any applicable Annexures (agreement).
2.2 To the extent of any inconsistency between:
(a) any Order;
(b) an Annexure to an Order; and
(c) these Purchase Terms,
the inconsistency will be resolved in accordance with the above order of precedence.
3. Subscription cancellation and termination
3.1 The Customer agrees to purchase the Software Subscription on an auto-renewing basis for an indefinite period until cancelled by the Customer or SwitchDin in accordance with this clause 3 (Subscription Term).
3.2 Subject to clauses 3.3 and 3.4, the Customer may cancel its Software Subscription by giving SwitchDin at least 30 days’ written notice.
3.3 If the Customer’s cancellation request is received prior to the end Initial Subscription Term, it will be effective at the end of the Initial Subscription Term and the Software will remain available to the Customer until the end of the Initial Subscription Term that the Customer has already paid the Fees for.
3.4 If the Customer’s cancellation request is received after the Customer’s payment of the Fees for the next Subscription Period has been processed the cancellation will take effect at the end of that Subscription Period and the Software will remain accessible by the Customer until the end of that Subscription Period.
3.5 SwitchDin reserves the right to, in its reasonable discretion and without giving any reasons for its decision, to cancel the Customer’s Software Subscription on 30 days’ written notice, and
such cancellation will either, at SwitchDin’s sole discretion, be effective from:
(i) the end of the then Subscription Period, after which the Customer will no longer be required to pay any Fees (subject to clause 3.6); or
(ii) immediately, and SwitchDin will refund to the Customer any pre-paid Fees, pro-rated based on the remaining months left on the Subscription Period.
3.6 Upon cancellation of the Customer’s Software Subscription in accordance with clauses 3.2, 3.3, 3.4, and/or 3.5:
(a) this agreement will terminate in accordance with the applicable termination clause;
(b) unless otherwise agreed, the Customer must download all Customer Data from the Software prior to the end of the Subscription Period;
(c) SwitchDin will deactivate the Customer’s Account and its access to the Software at the end of Subscription Period;
(d) the Customer must cease using the Software at the end of the Subscription Period; and
(e) the Customer must pay to SwitchDin all outstanding fees owed within 14 days.
3.7 If the Customer fails to abide by these Purchase Terms, or does not pay any applicable Fees on time, SwitchDin reserves the right to suspend the Customer’s access to the Software and/or permanently cancel the Customer’s Software Subscription.
3.8 If SwitchDin cancels the Customer’s Software Subscription because these Purchase Terms have been breached, in accordance with clause 3.7, the Customer’s access to the Software will be withdrawn immediately, no refund will be payable by SwitchDin, and the Customer must immediately pay to SwitchDin all outstanding fees owed as at the date of cancellation.
3.9 Provision of access to any of the Customer Data that the Customer has not downloaded off the Software as at the date of any cancellation or termination will be at SwitchDin’s sole discretion.
4. Fees
4.1 The Customer will pay the applicable Fees in accordance with this clause 4.
4.2 Fees will be payable in advance and the following terms apply:
(a) The Customer must pay the Fees within 14 days of receipt of invoice.
(b) Where Hardware is being purchased, the Customer must pay the invoice before delivery of the Hardware. Unless otherwise specified the Fee does not include any shipping and delivery costs which will be additional and at the Customer’s expense.
4.3 If the Customer nominates to pay for the Software Subscription by credit or debit card (Authorised Payment) then the following terms apply:
(a) The Customer’s nominated debit or credit card will be
charged on or by the Start Date and then will be charged at the start of each Subscription Period without further authorisation from the Customer, unless the Customer has cancelled or otherwise modified its Software Subscription in accordance with these Purchase Terms.
(b) It is the Customer’s responsibility to ensure that:
(i) its Authorised Payment details are, at all times, valid and up to date;
(ii) sufficient funds are available;
(iii) the billing address and other necessary information the Customer has provided are, at all times, valid and up to date.
(c) SwitchDin is not liable for any charges the Customer incurs as a result of out of date payment information. If SwitchDin incurs an expense due to incorrect payment information provided by the Customer, SwitchDin reserves the right to seek reimbursement from the Customer for such expense; and
(d) If SwitchDin is unable to debit or process the Customer’s Authorised Payment:
(i) the Customer authorises SwitchDin to reattempt the payment method a maximum of four times in a four-week period;
(ii) if such reattempts are unsuccessful SwitchDin reserves the right to seek payment from the Customer via an alternative payment method and/or seek to recover the debt through alternative means (either directly, or through a third party);
(iii) the Customer may be required to reimburse SwitchDin for any costs it incurs when reattempting payment; and
(iv) SwitchDin may suspend the Customer’s Account and access to the Software until all overdue amounts are paid. The Fees may be increased each year by a percentage equal to the percentage increase in CPI for the same period.
4.4 Unless otherwise specified, all fees, prices or other sums payable or consideration to be provided under this agreement are in Australian dollars and 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.
5. Customer obligations
5.1 The Customer must comply with all applicable laws, these Purchase Terms, and SwitchDin’s reasonable directions.
5.2 The Customer is solely responsible for its relationship with its End Users, including to the maximum extent permitted by law with respect to an End User’s use of the Software Subscription and/or Hardware, and any implications such use may have for the performance of the Software Subscription and/ or Hardware.
5.3 In order for SwitchDin to provide the Customer with access to Services, the Customer may need to:
(a) promptly provide SwitchDin with (as reasonably requested by SwitchDin) relevant, accurate, complete and current information, including information about the Customer and/or End Users’ retailer and/or utility;
(b) provide all necessary consents to allow SwitchDin to access data about the Customer and/or End User (as applicable) from the Customer’s and/or End User’s (as applicable) energy retailer and/or utility, for the purposes of SwitchDin fulfilling its obligations under this agreement.
5.4 At all times, the Customer must retain and display on the Hardware and any SwitchDin data or products derived therefrom, an attribution to SwitchDin.
6. Hardware
6.1 Unless otherwise agreed, where the Customer purchases any Hardware, this clause 6 applies.
6.2 The Customer is responsible for purchasing Hardware suitable for the Customer’s intended purpose including to enable access to the Software Subscription.
6.3 Unless otherwise agreed, the Hardware will be made available Ex-Works from SwitchDin’s warehouse (Incoterms 2020). Any delivery dates are SwitchDin’s best estimates only and SwitchDin will not be responsible for any Loss the Customer incurs in connection with any delay in delivery of the Hardware.
6.4 Where SwitchDin supplies the Hardware to the Customer, risk in the Hardware passes to the Customer on delivery and title passes to the Customer on full payment for the Hardware. The Customer will be deemed to have accepted the Hardware upon delivery of the Hardware (as recorded by SwitchDin or its delivery partner or representatives).
6.5 The Customer must install and operate the Hardware only in accordance with this agreement, the Documentation provided by SwitchDin and/or the Authorised Distributor (as applicable) and SwitchDin and/or the Authorised Distributor’s reasonable directions and instructions (as applicable).
6.6 The Customer agrees and acknowledges that SwitchDin is not responsible for, and does not accept any liability for, the installation of the Hardware and/or its integration with any System if SwitchDin or an Authorised Distributor does not install or integrate the Hardware. Unless otherwise specified in the Order, the Customer must separately procure the services of a qualified installer to install the Hardware.
6.7 The Customer agrees and acknowledges that, in addition to the terms of this agreement, the terms of the EULA govern all use of any software embedded in the Hardware. The Customer must comply, and must ensure all its End Users comply, with the terms of the EULA.
7. Remote Access
7.1 The Customer authorises SwitchDin to remotely access and control the Customer’s System through the Hardware and/or the Software, including SwitchDin performing remote disconnection and reconnection (powering off and on) of the System, only to the extent required to:
(a) fulfil its obligations in these Purchase Terms;
(b) comply with a lawful direction from an appropriately authorised body.
7.2 The Customer agrees SwitchDin will have no liability for any Loss the Customer incurs as a result of any unavailability of the System in the circumstances contemplated by clause 7.1.
7.3 The Customer agrees it is the Customer’s responsibility to ensure at all times a stable and sufficient internet connection is maintained to the System and the Hardware to enable SwitchDin to perform the remote access and control.
8. Integration
8.1 The Customer acknowledges any Software purchased separately will only integrate with Hardware and/or Systems specified by SwitchDin in the Documentation and/or an Order.
8.2 SwitchDin cannot guarantee the Hardware will integrate with a System where the Customer or the manufacturer and/or the supplier of the System (or any part thereof), changes the System (or any part thereof).
8.3 SwitchDin will not be responsible or liable for any failure of the Hardware to integrate with a System, or any inaccessibility of the Software where the System is changed as contemplated by clause 8.2.
9. Data
9.1 SwitchDin does not own any data:
(a) relating to the Customer or an End User; or
(b) which is otherwise captured by the Software and/or
Hardware and accessed through the Customer Access Platform any Services.
(together, Customer Data).
9.2 To the extent applicable and where required for SwitchDin to perform the Services, the Customer appoints SwitchDin as its and its End Users’ Customer Authorised Representative to enable SwitchDin to request, receive and access metering data and other relevant data (including from the Customer or an End Users’ Electricity Retailer) as contemplated by Chapter 7 of the National Electricity Rules. Where the National Electricity Rules do not apply, the Customer appoints SwitchDin as an authorised representative for equivalent purposes in their jurisdiction.
9.3 The Customer agrees that, during the Term, SwitchDin may collect, store, use, disclose and otherwise handle Customer Data for the purpose of performing its obligations under this agreement and complying with law. To the extent that SwitchDin handles or stores any Personal Information, SwitchDin will do so in accordance with Privacy Laws and its Privacy Policy.
9.4 The Customer grants to SwitchDin a non-exclusive, worldwide, royalty free, assignable, perpetual and irrevocable licence to copy, use and analyse Processed Data (to the extent it contains Customer Data) for the purposes of fulfilling its obligations under this agreement and for any purposes related to SwitchDin’s business, including benchmarking and analytics to improve and understand product usage and customer needs, provided that where Processed Data consists of Personal Information SwitchDin must de-identify and anonymise such Personal Information before copying, using or analysing it.
10. Privacy and compliance with laws
10.1 The Customer is solely responsible for it’s compliance with all:
(a) Privacy Laws, including obtaining all necessary consents in relation to the use, disclosure, storage and processing of any Personal Information;
(b) any other applicable laws, codes and/or regulations.
10.2 To the extent that SwitchDin handles or stores any Personal Information, SwitchDin will do so in accordance with its Privacy Policy.
11. Liability and Indemnity
11.1 The Customer is solely responsible for determining whether the Software and/or Hardware are suitable for the Customer’s needs.
11.2 To the maximum extent permitted by law SwitchDin excludes all warranties (including implied warranties) about the Hardware, Software and/or Customer Access Platform. The Customer agrees and acknowledges its remedies for any defects are limited to those remedies set out in clause 11.3, or in the case of Hardware, the Standard Product Warranty.
11.3 If any supply by SwitchDin pursuant to this agreement comprises a supply to a ‘consumer’ as defined in the Australian Consumer Law, then nothing contained in this agreement restricts or modifies any guarantee, right or remedy which pursuant to the Australian Consumer Law applies to this agreement or is conferred on the Customer, provided that to the extent that the Australian Consumer Law permits SwitchDin to limit its liability for breach of guarantee imposed by the Australian Consumer Law, then to the extent permitted by the Australian Consumer Law, SwitchDin’s liability for such breach is limited to:
(a) in the case of goods, any one or more of the following acts as determined by SwitchDin:
(i) the replacement of the goods or the supply of equivalent goods; or
(ii) the repair of the goods.
(b) in the case of services any cost of the following as determined by SwitchDin:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11.4 Notwithstanding any other provision of this agreement and to the fullest extent permitted by law in no circumstance will SwitchDin, its directors, officers, employees, affiliates, agents, contractors, principals, or licensors be liable in connection with this agreement, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise, for any:
(a) Consequential Loss; or
(b) Loss exceeding the Fees paid to SwitchDin by the Customer in the twelve months preceding the date on which the relevant cause of action.
11.5 The Customer indemnifies and holds SwitchDin harmless from and against any and all Loss incurred by or in connection with:
(a) any End Users (as applicable);
(b) any third party claims relating to Customer Data; and
(c) the Customer’s breach of this agreement.
12. Third party products
12.1 SwitchDin may use third party products and services in supplying the Customer with access to the Software (including without limitation incorporating such products and services into the Software) (Third Party Product). The Customer acknowledges that:
(a) its use of, and access to, the Third Party Products may be subject to additional fees and separate terms issued by the Third Party Supplier, which will form a separate agreement between the Customer and the relevant Third Party Supplier;
(b) SwitchDin makes no representations or warranties in relation to, and does not accept liability for, any Third Party Products; and
(c) SwitchDin may suspend the Customer’s use of, or access to, the Third Party Products at any time, including on request from the Third Party Supplier of such Third Party Products where the Customer has not complied with the Third Party Terms.
12.2 Specifically, from time to time SwitchDin may use third party data to provide functionalities on the Software (Third Party Data). Third Party Data is for informational purposes only. The Customer acknowledges and agree that:
(a) its use of Third Party Data may be subject to additional Third Party Terms, which SwitchDin shall arrange to be provided to the Customer; and
(b) to the maximum extent permitted by law, SwitchDin makes no representations about, and accepts no liability for, Third Party Data or any other information on or linked to the Software, including without limitation warranties of accuracy, currency, completeness or reliability
13. Intellectual property rights
13.1 The Customer acknowledges that SwitchDin owns all rights (including Intellectual Property Rights), title and interests in and to the Software, Software Subscription, Customer Access Platform and/or Hardware, and that the Intellectual Property Rights therein (including any source code, translations, compilations, partial copies and derivative works) (SwitchDin IP) contain confidential and proprietary information belonging exclusively to SwitchDin (or a Third Party Product supplier).
13.2 Nothing in this agreement transfers ownership of SwitchDin IP to the Customer and/or any Pre-Existing IP to the other party or any other person.
13.3 SwitchDin grants a limited, world-wide, royalty-free licence to the Customer and its End Users (pursuant to the EULA) to use the Software for the Subscription Period.
14. Security
SwitchDin does not represent or warrant that the Software is entirely secure, uninterrupted or error-free. The Customer acknowledges that the software in general and the public internet in particular is an inherently unsecure environment and that SwitchDin has no control over the privacy of any communications or the security of any data outside of its internal systems. SwitchDin does not represent or warrant that the any software embedded in the Hardware is entirely secure, uninterrupted or error-free.
15. Notices
15.1 A notice or other communication under this agreement is only effective if it is in writing and it is received in full and legible form at the addressee’s email address.
15.2 The Customer must send any notices or other communication to SwitchDin under this agreement to legal@switchdin.com.
15.3 A notice will be deemed to be received the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message), unless the sender receives an automated message that the email has not been delivered.
16. General
16.1 Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
16.2 SwitchDin may sub-contract the performance of any part of its obligations and/or services to any third party.
16.3 This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
16.4 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.
16.5 If any term or provision (or part thereof) of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision (or part thereof) will be severed from this agreement and the remaining terms and conditions will be unaffected.
16.6 This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
16.7 SwitchDin may amend these Purchase Terms from time to on 30 days’ notice to the Customer. The Customer will have 30 days following receipt of the notice to terminate the agreement should the Customer not wish to accept the amended Purchase Terms. Where the Customer does not terminate this agreement in accordance with this clause the Customer will be deemed to have accepted the amended Purchase Terms.
16.8 Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of the other party, which must not be unreasonably withheld.
16.9 Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.
16.10 This agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.