Under the SRES, Owners may install Eligible Installations on eligible property and create STCs. As a service provider in the renewable energy industry, You and Owners may agree on certain arrangements with respect to the provision of certain goods and services by or on behalf of You to the Owners about Eligible Installations, and the registration and trading of the STCs created by such Eligible Installations using the Software and Services.
1.Definitions and interpretation
In this Agreement the following expressions have the following meanings:
Approved STC Application means an Uploaded STC Application that has been approved by the CER, the registration fee has been paid to the CER by FormBay, with the STCs from that Approved STC Application listed in Your Account but always subject to FormBay's final approval.
Authorised Person means You and/or your nominated authorised user of the Software and Services.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday in Sydney, New South Wales.
Buyer means a third-party buyer that purchases from FormBay the Pending STCs and/or Created STCs which are in Your Account.
CEC means the Clean Energy Council of Australia.
CER means the Australian Government's Clean Energy Regulator, an independent FMA Agency that administers and enforces the RET Legislation.
Contact Details true, correct and active mobile phone, email, postal, DX; Post Box and banking details of the Authorised Person provide in FormBay in writing.
Created STC(s) following the submission/uploading by FormBay of an Uploaded STC Application to the REC Registry, it means a STC in Your Account where:
(a) FormBay has paid the registration fee to the CER; and
(b) Then the Uploaded STC Application is approved and registered by the CER as an Approved STC Application that creates and registers STCs; and
(c) Then FormBay has verified and approved the STCs and the Approved STC Application as being created in accordance with the RET Legislation;
Data means all data, photos, documents, certificate of compliance that has the true and correct date of installation supplied and other information/documentation required by FormBay, uploaded using the Device Application or otherwise by or on behalf of You onto the Software.
Defective Installations means any installation of a SGU/SWH at the Installation Address by You (agents/contractors/employees) that is:
(a) not manufactured, designed and/or installed in accordance with the RET Legislation, OH&S Laws and/or Industry Guidance;
(c) associated with or specifically related to a Potential Breach.
Device Application means an application that enables the submission/upload of Data in respect of STC Applications by or on behalf of You to the Software, known as “FormBay Solar PV Installer App”, or any other application specified by FormBay and notified to You from time to time.
Documentation means the technical, operating, user videos and manuals supplied by FormBay to you, including the documentation provided with any Updates.
Draft STC Application means a STC Application that You (agent/contractor/employee/Installer) is working on and providing Data to FormBay using the Device Application, Software and Services but is not yet a Submitted STC Application.
Eligible Installation(s) means installations of SGUs and/or SWHs in accordance with the RET Legislation and all foreseeable laws including laws relating to misleading and deceptive conduct, fair trading and consumer protection.
Eligible Premises means any of the following:
(a) a house (including the land on which the house is located and any outbuildings on the land);
(b) a townhouse;
(c) a residential apartment;
(d) a shop (including the land on which the shop is located and any outbuildings on the land);
(e) premises, other than premises mentioned in paragraphs (a) to (d), that are located at an address.
Financing Statement has the same meaning as provided for in the Personal Property Securities Act 2009 (Cth).
Force Majeure means an act of God, fire, lightning, explosions, flood, subsidence, network failures, act of terrorism, Malware use/impact on Your and/or FormBay's Software/hardware, insurrection or civil disorder or military operations, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected party's control.
GST means the goods and services tax payable under or imposed by the GST Law.
GST Law has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Industry Guidance means information, data and materials that the clean energy industry commonly uses to assess materials, contractors and/or products, such any list in relation to installers, approved makes and models, products, inverters that is published by a reputable industry body such as the CER, CEC or other such body.
Installation Address means the physical address of the Eligible Premises where the SGU/SWH has been installed by You as noted in the STC Assignment Form.
Installer means a CEC accredited designer, installer and/or electrician responsible for the design and/or installation of a SGU and/or SWU.
Licence Fee means the fees payable to FormBay by You from time to time for each Pending STC or Created STC in Your Account, as published on FormBay's then current price list or otherwise notified to You including any deductions and/or set-offs.
Malware includes but is not limited to hacking, defects, worms, Trojan horses, spyware, adware, corrupted files, hoaxes, viruses, blended threats and/or unauthorised access, denial of service events or other items of a destructive/deceptive nature;
Offered Price means the applicable price published on the Website/Software from time to time, for a Pending STC and/or Created STC (including by reference to the time elapsed from the date of submission of the Uploaded STC Application until You select the Offered Price in accordance with clause 3.3(a)) less the Licence Fee.
OH&S Laws means 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.
Owner(s) means the legal owner or legal occupier of the Installation Address upon which You (agent/contractor/employee) have installed a SGU and/or SWH in accordance with the RET Legislation.
Pending STC means, following FormBay uploading to the REC Registry Your Submitted STC Application (which then becomes an Uploaded STC Application), a STC which is listed by the CER as a STC that is pending approval and registration by the CER.
PMSI means a purchase money security interest under the Personal Property Securities Act 2009 (Cth).
Potential Breach means instances where FormBay is notified by the CER, CEC, ASC and/or RAA that:
(a) a STC Application (and/or You) is under investigation; and/or
(b) a STC Application (and/or You) maybe in breach of the RET Legislation, OH&S Laws and/or Industry Guidance; and/or
PPSR means the personal property securities register;
Pre-Created STC means that a STC has previously been created for a SGU/SWH at the Installation Address prior to FormBay (or an Enterprise User) uploading an Uploaded STC Application for the same Installation Address and is therefore an invalid STC.
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
Security Interest has the same meaning as provide for in the Personal Property Securities Act 2009 (Cth).
Services means the services provided by FormBay to You which facilitates the creation and trading of a STC under the RET Legislation.
SGU means an eligible small-generation unit under the RET Legislation.
(a) the computer software program known as "FormBay Trading" or generally known as FormBay;
(b) the .php file that enables You to access the “FormBay Trading” software via the Website;
(c) the Device Application;
(d) any Updates; and
(e) the Documentation,
and for the avoidance of doubt, the Software does not include any third-party software.
SRES means the small-scale renewable energy scheme under the RET Legislation.
STC means a small-scale technology certificate under the RET Legislation and includes a Pending STC and a Created STC derived from a Uploaded STC Application.
STC Amount means a sum paid by FormBay to You in respect of a Pending STC or a Created STC calculated based on the applicable Offered Price for the Pending STC or Created STC selected by You in accordance with clause 3.3 less the applicable Licence Fee.
STC Applications means either a Draft STC Application, Submitted STC Application, Uploaded STC Application and/or an Approved STC Application.
STC Assignment Form means the FormBay STC assignment form (including all required required/supporting Data) whereby the Owner(s) assign to FormBay all rights to/in the creation and ownership of the STCs in accordance with the RET Legislation.
Submitted means the pressing of the “submit” button using the Software and/or Website to submit a Draft STC Application for verification to FormBay (or an Enterprise User) prior to it becoming an Uploaded STC Application.
Submitted STC Application means a Draft STC Application that is in final form and includes all required all Data that is Submitted by You to FormBay including a complete and correct STC Assignment Form using the Software for verification by FormBay of Data required to create STCs with ownership of all legal/equitable rights in the STC(s) transferring to FormBay immediately on Submission.
SWH means an eligible solar water heater under the RET Legislation.
Taxes 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.
Territory means Australia.
Updates means any patches and minor modifications, adaptations, enhancements, improvements, revisions and substitute products of the Software that enables You to access the Software made available by FormBay to You at its sole discretion from time to time.
Uploaded STC Application means a Submitted STC Application and all required Data that has been verified by FormBay and uploaded onto the REC Registry by FormBay for the CER to either approve or fail.
Website means the FormBay website at http://trading.formbay.com.au or such other URL as notified by FormBay to You from time to time.
Your Account means Your personal FormBay account accessible only by the Authorised Person using the Software by entering Your user name and password on the Website.
Your Bank Account means the bank account you nominate for the purposes of payment by FormBay to You.
(a) A reference to a person includes any other entity recognised by law and vice versa.
(b) Headings, underlinings, marginal notes and indexes are only included for ease of reference and do not affect interpretation.
(c) A reference to any legislation or legislative provision includes any modifying, consolidating or replacing legislation or legislative provisions from time to time, and includes all regulations, rules and other statutory instruments issued under the legislation.
(f) References to months and years mean calendar months and years.
(g) Words denoting the singular number include the plural, and vice versa.
(h) Where any word or phrase is given a defined meaning any other grammatical form of that word or phrase has a corresponding meaning.
2. The FormBay Account
2.1 To create a FormBay Account
To utilise the Services, You will need to create an Account with FormBay by completing an online registration form made available by FormBay at the Website. To be eligible for an Account, You must:
(a) be over 18 years old;
(b) Have one/two director(s) sign the online registration form to comply with execution of documents under the Corporations Act 2001 (Cth) and in addition, if in the sole opinion of FormBay, FormBay requires You to provide a personal guarantee to FormBay guaranteeing Your performance of all obligations owing to FormBay, sign the guarantee document with such document to be presented in a form satisfactory to FormBay; and
(c) accurately complete all required information on the online registration form, including the full name of the legal entity of the applicant of the Account.
You must not use a false identity to create an Account, or falsely state, impersonate or otherwise misrepresent your identity when creating the Account.
2.2 Acceptance of Your Account
(a) sell, lease, license, rent, loan, trade ,share, timeshare or otherwise transfer or deal with Your Account to another party unless you receive written confirmation from FormBay's CEO; or
(b) allow any third party to access Your Account, save an Authorised Person.
2.3 Change of Authorised Person
(a) You must notify FormBay in writing within 24 hours of a change in Authorised Person.
(b) You represent and warrant that only the Authorised Person will use Your Account and You indemnify FormBay for any direct and/or indirect loss and/or any damage caused by any unauthorised person or access to Your Account.
3. The Services
3.1 Assignment of STCs
You represent and warrant that all legal/equitable rights and title in and to the Pending STCs and/or Created STCs (including all Submitted STC Applications) are legally assigned to FormBay by the Owner (or otherwise) immediately on submission of a Submitted STC Application.
3.2 Creation of STCs
You agree to the following with respect to the creation of a STC under the RET Legislation using the Software:
(b) You must Submit to FormBay all Data necessary with your Submitted STC Application to enable FormBay to create the STCs in consultation with the CER, through FormBay's REC-Registry Account and to enable FormBay to sell the STCs to Buyers and/or bank them;
(c) Draft STC Applications will only become Submitted STC Applications once all Data Submitted by You is received, analysed and verified by FormBay. Any failure to upload correct and complete Data will result in delays to a Submitted STC Application approved by FormBay and being uploaded to the REC-Registry. FormBay takes no responsibility for any direct/indirect losses/damages You may sustain if the Data Submitted/uploaded by You is incorrect and/or incomplete;
(d) The details of all Uploaded STC Applications uploaded to the CER are summarised in a “STC Form”;
(e) Once an Uploaded STC Application has been approved by the CER so that it is now an Approved STC Application, an automated SMS will be sent to You (if You have provided FormBay with a true, correct and valid Australian mobile phone number) and the Approved STC Application will be displayed on Your Account.
(f) After FormBay has paid the registration fee, FormBay has no control over the period it takes for the CER to confirm that an Uploaded STC Application is now an Approved STC Application.
(g) Once FormBay has paid the registration fee and the STC is registered by the CER and the Uploaded STC Application becomes an Approved STC Application, FormBay will verify the Approved STC Application and approve, accept and create the Approved STC Application as a Created STC, subject to, any Potential Breach.
(h) For the avoidance of doubt, in respect of a Potential Breach, FormBay reserves the right, at its sole discretion to refuse an Approved STC Application and delay, vary and/or terminate payment of the STC Amount to You and may recover its costs (e.g. Licence Fee) in dealing in such STC Applications;
(i) You will be notified in Your Account when a Created STC is listed in Your Account; and
(j) You will respond to any contact made by the CER to you promptly and acknowledge that the CER is likely to contact you by phone and/or other means within 0-12 weeks from the date of the Uploaded STC Application. If the CER leaves You a phone message you represent and warrant that You will respond to the CER's message within 2 business days. You acknowledge that we may cite our written and any recorded verbal correspondence with the CER in establishing noncompliance with this clause.
3.3 STC Amount
In consideration of the assignment (or the procurement of assignment) of STCs by the Owner/You to FormBay in accordance with clause 3.1, You acknowledge that FormBay will pay to you the STC Amount in accordance with this clause:
(a) the STC Amount is calculated based on the applicable Offered Price for a Pending STC(s) or a Created STC(s) selected by You from time to time using the Software;
(b) Offered Prices are different for Pending STCs and Created STCs and within Uploaded STC Applications (depending on the age of the Submitted STC Application(s);
(c) Subject to clauses 3.3(f) & 3.3(g), You may, between the hours of 9am and 5pm on Business Days, select an Offered Price for a Pending STC or a Created STC in Your Account at Your discretion, if you have selected an Offered Price for a Pending STC, you may not select an Offered Price for a Created STC arising from that Uploaded STC Application;
(d) Your selection of the Offered Price for a Pending STC or Created STC pursuant to an Uploaded Application is always subject to approval by FormBay.
(f) for Pending STCs or Created STCs pursuant to the Uploaded STC Application(s) for which You have selected an applicable Offered Price before 3pm on a Business Day, subject always to this clause 3.3, and which have been approved by FormBay, FormBay will pay to You the STC Amount on the same Business Day by direct deposit of the STC Amount into Your Bank Account less any applicable Licence Fee and Taxes
(g) for Pending STCs or Created STCs pursuant to those Uploaded STC Applications for which You have selected an applicable Offered Price after 3pm on a Business Day, subject always to clauses 3.3(d), 3.3(n) & 3.3(o) and which have been approved by FormBay, FormBay will pay to You the STC Amount on the following Business Day by direct deposit of the STC Amount into Your Bank Account less any applicable Licence Fee and Taxes;
(h) FormBay takes no responsibility for any delay in You receiving such funds from FormBay, after the funds have left FormBay's bank account;
(i) for the avoidance of doubt, once You have selected an applicable Offered Price for a Pending STC and/or Created STC pursuant to an Uploaded STC Application such selection is irrevocable by You and, except for your right to receive payment of the STC Amount under this clause, you will have no further rights in or with respect to that Uploaded STC Application relating to those Pending STCs and/or Created STCs. FormBay will be entitled to deal in or sell those Pending STCs and/or Created STCs (including the Uploaded STC Application) entirely in its discretion, and retain all amounts received in relation to it. Accordingly, those Pending STCs and/or Created STCs pursuant to that Uploaded STC Application will no longer be available for selection of an Offered Price using the Software;
(j) If an Uploaded STC Application is received by FormBay eleven (11) or more months after the installation date of the Eligible Installation, FormBay will use its reasonable endeavors to process such Uploaded STC Application but You acknowledge that it is the CER's role to formally approve and register any STC following payment by FormBay of the registration fee. In such instances, FormBay may pay a reduced STC Amount (or hold/vary any such payment of the STC Amount) for any Pending STCs and/or Created STC or may only agree to pay the STC Amount for Created STCs. If such Uploaded STC Application and/or STC is not approved and/or registered by the CER for any reason and is failed by the CER/FormBay, FormBay has no liability to You and You agree to indemnify FormBay against any direct/indirect loss (whether in contract, tort, statute or otherwise) You may incur due to the CER not approving and registering such STCs. FormBay reserves the right to charge its Licence Fee and you agree to pay such fee on demand and/or set-off such amounts against future Uploaded STC Application;
(k) in consideration for FormBay agreeing to pay the STC Amount to You under this clause, FormBay may require You to procure the execution of a personal guarantee from a person nominated by FormBay (e.g. a director of You), using a template personal guarantee provided by FormBay, together with a certificate regarding legal advice in a form acceptable to FormBay;
(l) FormBay has no liability to you for any decision, judgment and/or perceived error claimed against the CER and/or in instances where FormBay deems/verifies Your STC Application against the RET Legislation and/or Industry Guidance and such RET Legislation and/or Industry Guidance or FormBay's interpretation of such RET Legislation and/or Industry Guidance is incorrect; and
(m) You represent and warrant that if an Uploaded STC Application is not approved and/or is failed by the CER and/or FormBay, then the Licence Fee is to be paid by You and/or offset from monies owed by You to FormBay and You may direct FormBay to transfer the STC Application to another agent/aggregator.
(n) In instances where no STC Amount has yet been paid to You by FormBay, if FormBay is informed by the CER of a Potential Breach or the STC Application is a failed by the CER/FormBay, then, in order for FormBay to try to resolve the problem and/or re-submit the STC Application to the CER:
(ii) You will work with FormBay and communicate within 1 Business Day when responding to any queries raised by FormBay to You;
(iii) if the matters are not able to be resolved by FormBay, FormBay will follow the CER's guidance on such matters;
(iv) then FormBay will liaise with the CER to attempt to resolve such matters;
(v) You must provide true and correct Data and Contact Details and proactively check Your emails (including Your junk mail) and mobile phone for messages from FormBay; and
(vi) FormBay may inspect and/or investigate any such matters.
(o) In instances where no STC Amount has yet been paid to you by FormBay, if following FormBay completing to its sole satisfaction the process in clause 3.3(n) in respect of any Potential Breach or STC Application is failed by the CER/FormBay and in FormBay's sole opinion such matters cannot be resolved and the Potential Breach and/or failed STC Application persists, then FormBay may (without any liability whatsoever to You):
(i) Hold, vary and/or cancel any Offered Price for any Pending STC(s) and/or Created STC(s); and/or
(ii) Hold, vary and/or cancel any STC Applications.
(q) You represent and warrant that You have no claim for any direct/indirect loss, damage and/or liability due to FormBay implementing the procedures and actions in clauses 3.3(n), 3.3(o) & 3.3(p) and You indemnify FormBay in respect of any such claim and/or losses.
(r) Notwithstanding the above, in the event of a system malfunction or a Force Majeure event, FormBay reserves the right to hold the day's payments for any Pending STCs and/or Created STCs in respect of the Uploaded STC Applications until the issue has been resolved.
In consideration of using the Software and the Services, You must, subject to clause 3.6, pay a Licence Fee (GST exclusive) per Pending STC and/or Created STC pursuant to an Uploaded STC Application in Your Account.The Licence Fee includes the registration fee imposed per STC by the CER. The Licence Fee and applicable Taxes will be deducted from the STC Amount payable by FormBay to You under clause 3.3.
You are responsible for all Taxes about the provision of Services by FormBay to You. The parties agree as follows in respect of GST:
3.6 Additional fees and rights of FormBay
You agree to select an Offered Price for each Created STC within thirty (30) days from the date the Pending STC becomes a Created STC (the date the Created STC appears in the REC Registry) unless otherwise directed or deemed in appropriate by FormBay. If You fail to do so:
(a) FormBay will be entitled to invoice, and if invoiced You must pay an amount of the difference between the Licence Fee and the then current CER registration fee, (GST exclusive) per Created STC that remains in Your Account after such thirty (30) day period;
(b) if You pay the above invoiced amount per Created STC You will be charged a reduced Licence Fee per Created STC at the time you select a STC Amount for such Created STC, such reduced Licence Fee being the then current Licence Fee less the amount paid under this clause with respect to the Created STC;
(c) if You do not select an Offered Price for a Created STC within twelve (12) months from the date that the Created STC is listed in the REC Registry, you agree that FormBay may sell any Created STC to a Buyer without further notice to you and FormBay will pay to You a STC Amount with respect to such Created STC calculated based on the then current Offered Price for such Created STC published on the Software less any applicable unpaid Licence Fee. FormBay will send You an automated email reminder after eleven (11) months from the date that the Created STC is listed in the REC Registry.
3.7 Invalid STCs & STC Amount Paid to You
If for any reason a Pending STC, Created STC and/or Uploaded STC Application for which a STC Amount has been paid to You by FormBay is found to be invalid and/or is failed by the CER/FormBay and/or is affected by a Potential Breach and/or results from a Defective Installation and/or is not able to properly form the basis or part of an Uploaded STC Application, because it was a Pre-Created STC, then in FormBay's sole opinion and without notice to you or without limiting FormBay's rights and remedies:
(a) You grant to FormBay a Security Interest and PMSI (which FormBay may register a Financing Statement on the PPSR) over any STC Amounts (plus any associated Licence Fee) paid to you by FormBay in respect of such invalid STCs, Pre-Created STCs and all STC Applications (however created by fraud, negligence or otherwise);
(b) You grant to FormBay a Security Interest and PMSI (which FormBay may register a Financing Statement on the PPSR) over any current/future STC Amounts (plus any associated Licence Fee) paid and/or owed or that maybe owed in the future including all STC Applications;
(c) You must, on request by FormBay, immediately refund to FormBay any STC Amount received by You for such Pending STC, Created STC and/or Uploaded STC Application without any deductions;
(d) the Licence Fees or other amounts paid or deducted with respect to such Pending STCs, Created STCs and/or Uploaded STC Applications are not refundable to You;
(e) FormBay will be entitled to charge You interest on the total amount paid to You (including STC Amounts and associated Licence Fees owing under this clause 3.7) at the rate of the then current cash rate of the Reserve Bank of Australia plus 4%, calculated daily from the date the amount was paid to You, which amount is payable as a debt immediately due and owing;
(f) You are solely responsible to claim a refund or rebate of any Taxes (if applicable) from relevant taxation authorities;
(h) If the CER conducts and/or authorises a third party to conduct an audit in accordance with the RET Legislation and/or Industry Guidance in respect of any of Your STC Applications, You will be solely responsible for such audit costs and indemnify FormBay from any/all such direct/indirect costs and/or general/special liability.
3.8 Suspension and termination of Services to You
FormBay reserves the right to modify, restrict, suspend, discontinue, terminate or close Your Account or any part of the Services without notice at any time and without any liability to You, including the right to:
(a) suspend the feature for You to select an Offered Price for a Pending STC, Created STC and/or any Uploaded STC Applications offered by the Services;
(c) suspend or cancel a transaction or Your Account in the event of, in FormBay's sole opinion, a Potential Breach has occurred or You have made derogatory or defamatory statements about FormBay on/by any media; and
(d) In the event Your Account is terminated,
(i) all STC Applications that are not Uploaded STC Applications will be deleted from Your Account; and
(j) You must nominate within thirty (30) days of termination, a REC-Registry Account to transfer all Created STCs and/or Uploaded STC Applications in Your Account for which you have not selected an Offered Price which has been approved by FormBay. Subject to the payment of the Licence Fee per Created STC per any Uploaded STC Application, FormBay will transfer such Created STCs and/or Uploaded STC Applications to your nominated REC-Registry Account within a reasonable time.
3.9 Suspension & termination of Installer Account
If You and/or FormBay become aware of any Defective Installations or in You or FormBay's opinion any suspicious behaviour by an Installer that may result in any direct/indirect economic/legal/reputational damage, loss and/or liability to FormBay, then:
(a) You and/or FormBay will notify the other party of such Defective Installations or suspicious behaviour within 15 Business Days of becoming aware of such behaviour;
(b) After 14 Business days (or otherwise agreed), FormBay may agree in writing with you to allow You to process specific existing STC Applications from the suspect Installer subject to You suspending and/or restricting access to the Installer's Accounts an/or Your account and/or restricting their (i.e. the Installer and/or You, customer/end user) access to the Device Application, Software/Services, so that no new STC Applications can be Submitted by that Installer (e.g. Your customer/end-user) and once the agree STC Applications have been processed, terminate the Installer's Account unless otherwise directed by FormBay;
(e) You will suspend or terminate the Installer's Account and/or access to the Software/Services immediately upon receipt of FormBay's direction;
(g) If an Installer's Account and/or access to the Software/Services is suspended, halted, dealt with and/or terminated in accordance with this Agreement, then You indemnify FormBay from any direct/indirect loss, damage and/or liability flowing directly/indirectly from such action and from any claims (whether in contract, tort, legislative or otherwise) whatsoever from You and/or the Installer or You against FormBay in respect of such liability in respect of such action (or related) action.
3.10 Obligation to Keep Up to Date with RET Legislation & OH&S
(a) You must keep up to date with any changes to the RET Legislation and all relevant laws (including OH&S Laws) and implement any reasonable changes to Your processes and systems in respect of You or Your customers and/or Installers use of the Software and/or Services.
(b) FormBay will use its reasonable endeavours to keep you up to date of changes to the RET Legislation but You must rely on Your own investigations and not rely on such information from FormBay for which FormBay excludes any liability to you for any loss and/or damage sustained by You and/or Your customers/Installers.
3.11 Holding of STCs
You agree that FormBay may choose, in its sole discretion, to hold the value of all Pending STCs, Created STCs and/or Uploaded STC Applications in all valid FormBay Accounts as a combination of STCs in FormBay's 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.
4. Accessing and using the Software
4.1 Licence of Software
4.2 Access to the Software
4.3 FormBay Solar PV Installer App
4.4 Use of the Software and Services
You agree always to access and use the Software and/or the Services:
(b) making Your own enquiries into the laws applying in each jurisdiction in which You use the Software and the Software/Services and ensure Your access and use of the Software and the Services comply with all applicable laws and all relevant regulatory requirements including the RET Legislation & OH&S Laws;
(c) professionally and not do anything that will or is likely to, in FormBay's sole opinion, bring FormBay into disrepute or make defamatory and/or derogatory comments about FormBay on any media platform (including for the avoidance of doubt, social media platforms); and
4.6 Restrictions on Use
5. Your data
5.2 Obtaining the Data
(a) take photographs of the products installed at the Installation Address;
(b) take photographs of the Owner for witnessing purposes, recording the owner's signature assigning his or her their rights in the potential STC; or
(c) electronically record the signature of the Owner,
You must obtain or ensure You and/or Your employee, agent or contractor obtains the Owner's written consent with respect to the taking or recording of such Data or signature prior to using such Data or signature in the Software or otherwise for the Services.
5.3 Uploading the Data in the Services
You agree and acknowledge that:
(a) You are solely responsible for the content of any Data that is upload by You or on Your behalf in an Uploaded STC Application or Submitted STC Applications via the Software and FormBay takes no responsibility for the accuracy or the content of the uploaded Data;
(b) If the CER refuses Your Uploaded STC Application because any of the Data Submitted by You is not correct, FormBay shall have no liability to You;
(c) it is Your responsibility to ensure that the Data on Your screen is refreshed and up-to-date and that You have access to a valid/active internet connection;
(d) You will not upload any Data via the Software and/or Device Application that is of a pornographic or unsavoury nature; and
(e) If Data You upload contains any Malware, FormBay will not be responsible for any costs, losses and/or damages sustained by You and/or Your clients and You indemnify FormBay against any such claims. You further indemnify FormBay against an/all direct/indirect/special losses and/or damages that FormBay and/You may sustain indirectly/directly flowing from you breach of this clause;
(f) FormBay expressly assumes no responsibility for, without limitation, backing up Your Data or damage to Your Data. You are responsible for ensuring that you have any necessary back up of all Data and Documentation.
5.4 Using the Data in the Services
You agree that FormBay may access, preserve, store, use, adapt, compile, disclose, share, transfer or deal (Sharing) with Your Data if required to do so by law or by any judicial or regulatory body, or when such Sharing is reasonably necessary in FormBay's sole opinion to:
(a) provide the Software/Services to You (including providing Your Data to the CER, the installer, retailer, wholesaler the Owner or other party (e.g. Enterprise User), and doing all other things necessary for the verification, creation, registration and/or audit of the relevant STC);
(b) analyse and verify the accuracy of the Data;
(d) comply with legal process, including but not limited to civil and criminal subpoenas, court orders or other compulsory and/or non-compulsory disclosures;
(e) comply with required or commercially prudent record keeping practices; or
(f) otherwise fulfil the purpose for which the Data is provided.
You warrant that FormBay's use of the Data pursuant to this clause does not infringe the rights of any third party, and any documents or reports generated by Your use of the Software must only be used by or on behalf of You for the purposes for obtaining the Services. You acknowledge that FormBay may share such Data with the CER, installer, retailer, wholesale, Owner or other party (e.g. Enterprise User) if, in FormBay's sole opinion, such Sharing of Data is necessary.
6. Security and audits
6.1 User name and password
You must create a user name and password only for the Authorised Person to gain access to Your Account. You are responsible for the security of Your password, log-in or access details or other security measures. You are responsible for all activities that occur under Your user name. Where the correct user name and password are provided for the purpose of accessing or using the Software or the Services, FormBay is entitled to assume that the access is by You, or the Authorised Person, and You indemnify FormBay completely against any claim of direct/indirect loss or damage, including trading losses, that results from wrongful, fraudulent or other access (using the correct user name or password) to the Software or the Services.
You must maintain the confidentiality of Your user name and password. You must not disclose any security measures to any other person and must keep those details confidential. To help ensure the security of Your password or Account, You must sign out from Your Account at the end of each session. You must promptly notify FormBay of any actual or suspected breach of security related to the Services, including, but not limited to, unauthorised use of Your password or Account.
6.3 Audits and investigations
FormBay is entitled to contact the Owners and Installers and to undertake relevant internal audits & inspections in order to verify that the installation of SGUs/SWHs has taken place with respect to identified STC Applications or STCs and You will be liable for any costs incurred in the event of any such audit/inspection/investigation carried out for any Potential Breaches. If,it is found that any installation of SGUs/SWHs with respect to identified STC Applications and/or STCs is a Defective Installation, or the STCs are Pre-Created STCs or
(a) You will fully indemnify FormBay for any direct/indirect loss, damage and/or general/special liability caused by You orabout any Defective Installations and/or invalid STCs;
(b) FormBay may hold any Pending STCs, Created STCs and/or Uploaded STC Applications that are within Your Account and delay, vary and/or cancel any payment to you of any/all STC Amounts or other sums until the issue is resolved and may charge the Licence Fee for such STCs
(c) You grant FormBay a Security Interest and PMSI (which FormBay may register a Financing Statement on the PPSR) over any STC Amounts paid to you by FormBay in respect of such invalid STCs (however created by fraud, negligence or otherwise) including all STC Applications and future STC Amounts payable paid; and
7. Intellectual Property Rights
7.3 Ownership/Security Interest
(b) You will not register a Security Interest over the intellectual property or other personal property of FormBay (or another company/trust etc.).
(c) FormBay and/or or a company/trust directly/indirectly related to the directors of FormBay and/or a related party may register a Financing Statement securing their ownership of the intellectual property.
8. Disclosure of information and privacy
You must keep all information obtained from the Software or the Services in strict confidence, unless such information is available in the public domain (other than by unauthorised disclosure), or available to You from a third party who is authorised to disclose such information to You.
8.2 Permitted disclosure
If disclosure of any information provided by You to FormBay, or by FormBay to You, is or may be required by law or regulatory authority, the party under the obligation must immediately notify the other party of that fact. If the other party objects to the disclosure on the basis that it is not required by law, the party must act in accordance with any reasonable written legal opinion provided to it by the other party, or the other party's legal advisors.
9. Representations, Warranties and indemnity
9.1 Your Representation & Warranty
You represent and warrant to the best of Your knowledge that the materials, information and Data provided to FormBay for the purposes of using the Services:
(a) are true, correct and current;
(b) are able to be disclosed by You;
(c) do not infringe the rights of any third party; and
(d) are able to be legally provided to FormBay and their disclosure does not breach any law or any obligation (whether of confidence or otherwise) owed to any person
You release and indemnify FormBay, its associated entities and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with You and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss and reputational) arising out of or in connection with:
(b) any illegal or wrongful act by You or Your officers, contractors, employees or agents about the use of the Services or the Software;
(d) the use of the Services or the Software by You or on Your behalf; or
(e) breach of intellectual property rights of third parties arising out of the use of the Data,
and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
10. Limitation of Liability
10.1 Non-excludable terms
10.2 No Express Warranty
(a) Your use of the Software will not infringe the intellectual property rights of third parties;
(b) the Software will be error and/or Malware free or that its use or availability will be uninterrupted, continuous or the Software will be accessible always;
(c) the Software will operate in combination with other software or any equipment, or other system; or
(d) the Software will provide any function other than as set out in the Documentation.
10.3 Limitation of Liability
Without limiting the generality of this clause 10 and to the extent permitted by law, in the event FormBay has any liability to You:
(a) for any failure of performance, error, omission, interruption, deletion, defect, Malware or delay in transmission or operation;
(b) for any injury, loss or damage;
(c) for any reliance on the information or materials available via the Software (including Your Data); and/or
(d) otherwise arising out of provision of the Services,
whether at common law, under contract, tort (including negligence), in equity, pursuant to statue or otherwise; Your sole remedy is limited to payment of any STC Amount due and owing to You and You cancelling Your Account with FormBay.
10.4 Permissible Limitation on Non-Excluded Terms
10.5 Consequential Loss
To the fullest extent permissible at law, FormBay is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Services or the Software, or otherwise arising out of the Services using the Software, whether based on contract, tort (including negligence), strict liability or otherwise, even if FormBay has been advised of the possibility of damages.
12.2 In addition to any other method of service provided by law, the Notice may be sent to Your Contact Details as follows:
(a) sent by prepaid ordinary mail to the address for service of the addressee in the Contact Details, if the address is in Australia and the Notice is sent from within Australia;
(b) sent by email to the address stated in the Your Account;
(c) FormBay does not have a facsimile so no Notices shall be sent and/or received by facsimile; or
(d) delivered to the address for service of the addressee in the Your Account.
12.3 If the Notice is sent or delivered in a manner provided by clause 12.2, it must be treated as given to and received by the party to which it is addressed:
(a) if mailed from within Australia to an address in Australia, on the 3rd Business Day (at the address to which it is mailed) after mailing;
(b) if sent by email before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt;
(c) if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
12.4 If a Notice is served by a method which is provided by law but is not provided by clause 12.2, and the service takes place after 5.00pm on a Business Day, or on a day that is not a Business Day, it must be treated as taking place on the next Business Day.
12.5 A Notice sent or delivered in a manner provided by clause 12.2 must be treated as validly given to and received by the party to which it is addressed even if:
(a) the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; and/or
(b) the Notice is returned unclaimed.
12.6 A party may change its address for service by giving Notice of that change to each other party.
12.7 You indemnify FormBay for any Notice is issued by You and/or FormBay but fails to be received by either party if Your Contact Details are not true, correct and/or valid.
13. Dispute Resolution
14. Force Majeure
If the performance of this agreement or any obligations under this agreement, except the making of required payments, is prevented, restricted, or interfered with because of a Force Majeure event, the affected party, upon giving prompt notice to the other party, is excused from such performance to the extent of such prevention, restriction, or interference. The affected party must use its best efforts to avoid or remove the Force Majeure event or to limit the impact of the event on its performance and must continue performance with the utmost dispatch when the Force Majeure event is removed.
16. Governing Law
17. Security Interest
17.1 You grant to FormBay a Security Interest over all Pending STCs, Created STCs and/or STC Applications in Your Account and any debts and/or monies owing by You to FormBay (e.g. monies paid to You in respect of any Pending STCs and/or Created STCs where such Pending STCs and/or Created STCs have been failed by the CER/FormBay and/or were created as a result of a Potential Breach and/or are Pre-Created STCs and/or Licence Fee) and acknowledge that FormBay may register a Financing Statement on the PPSR to protect such interest.
17.2 You grant to FormBay a PMSI in respect of any Pending STCs and/or Submitted STC Applications and any debts and/or monies owing by You to FormBay (e.g. monies paid to You in respect of any Pending STCs and/or Created STCs where such Pending STCs and/or Created STCs have been failed by the CER/FormBay and/or were created as a result of a Potential Breach and/or Pre-Created STCs and/or Licence Fee) and acknowledge that FormBay may register a Financing Statement on the PPSR to protect such interest.
18. FormBay Communication & Inspection of Owners/Users Installation
18.1 You acknowledge that:
(a) FormBay may, at its sole discretion, telephone, email, write to the Owner or user of the SGU/SWH designed and/or installed by You (or your agents/contractors/employees);
(b) FormBay may, at its sole discretion, inspect the Installation Address;
(c) You indemnify FormBay for any direct/indirect losses and/or damages claimed against FormBay due to any Defective Installations installed by You (or your agents/contractors/employees) at an Installation Address; and
(d) FormBay may set-off any direct/indirect losses and/or damages claimed against FormBay in accordance with this clause against any future STC Amounts payable to You.
19. Cash for Stock Option
(a) You direct FormBay in writing to pay the Approved FormBay Partner on Your behalf any STC Amounts from the relevant Uploaded STC Application for the Stock subject to such arrangement with the Approved FormBay Partner;
(b) FormBay will pay the Approved FormBay Partner the relevant STC Amount rather than pay You such STC Amounts;
(c) You must pay to FormBay the Licence Fee before FormBay pays the Approved FormBay Partner; and
(d) You must account for any GST payable in respect of the Stock and/or STCs.
19.3 You will procure the approval of the Approved FormBay Partner for FormBay to be granted, hold and register a Security Interest and/or PMSI over any STC Amounts and/or Licence Fees paid to the Approved FormBay Partner resulting from a Potential Breach and/or Defective Installations and/or Pre-Created STCs.
19.4You indemnify FormBay for any loss, damage and or liability whatsoever in respect of any liability incurred by FormBay in relation to the above transaction.
20. Running Account & Set-Off
Executed as an Agreement in accordance with s.127(1) of the Corporations Act 2000 (Cth) by the below parties on:
FormBay Trading Pty Ltd (ACN: 146 464 995) in accordance with s.127(1)(c) of the Corporations Act 2000 (Cth) of Level 1, 175 Clarence Street Sydney NSW 2000
Director Name: Daniel Sullivan
(a) Take and/or send to a third party any screen shot/print screen of the Software;
(b) sell, lease, license, sub-license, rent, loan, timeshare, encumber, provide, disclose, distribute or otherwise transfer or make available to, or permit use of the Software or any material created by You using the Software or the Services, in whole or in part, to any third party;
(b) sell, lease, license, sub-license, rent, loan, timeshare, encumber, provide, disclose, distribute or otherwise transfer or make available to, or permit use of the Software or any material created by You using the Software or the Services, in whole or in part, to any third party;
(d) use the Software or the Services for (or to promote or encourage) any illegal, fraudulent or inappropriate purpose, or about any violation of the legal rights (such as rights of privacy and publicity) of others;
(e) use the Software or the Services for providing legal or financial services or advice or for any purpose requiring continuous or fail-safe operation or for the avoidance of personal injury, death or illness of any person;
(f) alter, remove or otherwise interfere with any STCs applied by or created in the account of another user;
(g) construct Your own system to access the information on the Software;
(h) send, upload, distribute or disseminate onto or via the Software or the Services or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content;
(i) intentionally distribute Malware via the Software;
(j) transmit content or use the Software or the Services that in the opinion of FormBay acting reasonably may be considered harmful to or inappropriate for minors;
(k) impersonate another person (via the use of an email address, account and/or Contact Details) or otherwise misrepresent yourself or the source of any email or communication when using the Software or the Services;
(l) interfere without cause in the reasonable enjoyment by other FormBay users of the Services;
(m) create multiple user accounts, create user accounts by automated means or otherwise engage in false, fraudulent, deceptive or misleading conduct in respect of user identity;
(n) sell, trade, resell, transfer or otherwise attempt to dispose of, or otherwise exploit any content on the Software (including Your Data) for any unauthorised commercial purpose;
(o) decompile, disassemble, reverse engineer, attempt to derive the source code for, modify, adapt, translate or copy the Software, in whole or in part; or develop any software or create derivative works based upon the Software;
(p) remove, tamper with, seek to override or otherwise interfere with any security or technological protection measure forming part of the Software;
(q) remove any copyright, trade mark or other proprietary rights notices contained in or on the Software or Services;
(r) reformat or frame any portion of any web page that is like the Software or the Webpage;
(s) create a deep-link to the Website for any purpose unless expressly authorised in writing by FormBay;
(t) use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages contained in the Website;
(u) access, via automated or manual means or processes, the Software for purposes of monitoring its availability, performance or functionality or for any competitive purpose;
(v) attempt to or access the Software by any means other than through the interfaces provided by the Website or via the Device Application;
(w) engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on FormBay's infrastructure, including but not limited to unsolicited communications to other users or our personnel, attempts to gain unauthorised access, or transmission or activation of computer viruses/Malware;
(x) interfere with or disrupt the availability of the Software, including but not limited to any servers or networks connected with the Website; or
(y) misrepresent FormBay or the Software or the Services as being associated with content with another website, web service, software service, software or other service without FormBay's prior permission.
You are prohibited from generating or facilitating unsolicited commercial communication (spam). Such activity includes, but is not limited to:
(a) sending communication in violation of Australia's Spam Act 2003 (Cth) or any other applicable anti-spam law;
(b) imitating or impersonating another person or email address or FormBay's account, or creating false accounts and/or Contact Details for the purpose of sending spam;
(c) data mining any web property (including FormBay) to find email addresses, accounts and/or Contact Details;
(d) sending unauthorised mail or communication via open, third-party servers;
(e) sending emails or communication to users who have requested to be removed from a mailing list or Your contact list;
(f) selling, exchanging or distributing to a third party the email addresses of any person without such person's knowing and continued consent to such disclosure; and
(g) sending unsolicited emails or communications to significant numbers of email addresses or accounts belonging to individuals and/or entities with whom You have no pre-existing relationship.