Powertracer Terms and Conditions – Momentum Energy Virtual Energy Network

When accessing the Powertracer platform and services you will be agreeing to the terms and conditions of our terms of use agreement.

01. The Powertracer Platform and Services

The Powertracer Platform is comprised of the Powertracer application and user display and any additional features offered by Enosi Australia.

Enosi Australia agrees to supply and You agree to access and pay for the Powertracer Platform and Services based on these Terms and Conditions.

02. Definitions

“Commencement Date” is the date when You first access to the Powertracer Platform.

“Confidential Information” means any information, in any format, oral or written, whether or not marked ‘confidential' and whether or not proprietary which is disclosed by either party as a result of Your access to the Powertracer Platform or Your business dealings with Enosi Australia, which would reasonably be considered information that is confidential to that party.

“Data” means information including metering and site details and trade pricing and settings data which is collected, submitted, entered or posted onto the Powertracer Platform or otherwise communicated. Data excludes any Personal Information.

“Enosi Australia” means Enosi Australia Pty Ltd (ABN 69 624 405 143) of Level 4, 11 York St Sydney NSW 2000.

“Intellectual Property” means wherever in the world arising, present or future, whether registered or unregistered (and including any application) including copyright, know-how, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, circuit layouts and all proprietary rights in confidential information, trade secrets, business and domain names, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

“Momentum Energy” means Your electricity retailer, Momentum Energy Pty Limited (ABN 42 100 569 159), of Level 10, 4 Elizabeth Street, Hobart TAS 7000.

“Order” means an agreement to purchase, by You or Momentum Energy on Your behalf, the Powertracer Platform and Services on the terms described in these Terms and Conditions.

“Personal Information” means information which can be linked to You such as name, email, telephone number.

“Platform Access Charge” means the monthly charges billed to Momentum Energy for Your use of the Powertracer Platform.

“Powertracer Platform” means Enosi Australia’s software that supports energy traceability, trading and settlement.

“Quote” means the offer provided by Enosi Australia for the supply of the Powertracer Platform and Services.

“Services” means the services that support the performance of the Powertracer Platform including, but not limited to, user configuration and metering data collection, user trading rules and preferences, trade execution, metering and trade monitoring, settlement and administrator functions.

“Subscription” means the period for which you will have access to the Powertracer Platform and the Services.

“You/Your” means You, the customer nominated for the Subscription.

“We/Us/Our(s)” means and refers to Enosi Australia.

03. Customer License

Enosi Australia grants You a limited licence to use the Powertracer Platform and Services as follows:

a) to access the Powertracer Platform including data recordings and electricity metering information which You are authorised to access; or

b) to permit access to the Powertracer Platform by other authorised parties, including representatives of Momentum Energy.

This licence does not cover, and therefore You may not do, the following:

a) sell or grant additional licences, sub-licences, or any other access to the Powertracer Platform not specifically covered by these Terms and Conditions;

b) sell Confidential Information to third parties or otherwise distribute or reveal Enosi Australia's Confidential Information, unless expressly agreed in writing by Enosi Australia; and

c) publicise or otherwise share Enosi Australia's Confidential Information with anyone, unless expressly agreed in writing by Enosi Australia.

04. Subscription

Enosi Australia’s products and services require a subscription to access and operate the full functionality of the Powertracer Platform and the Services.

a) Unless otherwise specified, the Subscription will start on the Commencement Date.

b) Subscriptions expire at the end of the duration described in the Quote and selected at time of Order.

c) Subscriptions are renewed when You agree to an Order either online or in writing.

d) Subscriptions are restricted to the original site address and metered electricity service for which the Powertracer Platform is initially established and to the person(s) named as the site owner(s).

e) Subscriptions are non-transferrable to new site addresses or metered electricity services, and non-transferrable to new site owners.

f) You are required to notify Enosi Australia and Momentum Energy if You are no longer the primary resident at the site address or responsible for the metered electricity service.

05. Installation

Enosi Australia is not responsible for the installation of electricity metering or monitoring hardware.

Momentum Energy, or its agents or sub-contractors, will install any hardware in accordance with applicable standards, regulations, technical installation guidelines and in a manner that allows the hardware to adequately and safely function.

06. Cancellation

Either party may cancel the Subscription at any time by notice in writing to the other party if the other party commits a breach of any material provision of these Terms and Conditions and that breach is not capable of remedy or, if able to be remedied, is not remedied within 10 days from the date of receipt of notice in writing calling upon the party in breach to remedy such breach.

You may cancel your Subscription at any time by providing notice to Us and Momentum Energy in writing. You will continue to have access to the Powertracer Platform and Services until the end of your Subscription. Enosi Australia will provide access to the Powertracer Platform and Services until the earlier of:

A) the metering data is no longer being provided to Us or is specifically requested to be blocked; or

B) expiry of the 30 days period after termination of service.

Enosi Australia reserves the right, in its sole discretion, to terminate Your access to the Powertracer Platform and Services or any portion of the Powertracer Platform and Services at any time. In cases where Your access has not been terminated due to Your breach of these Terms and Conditions, Enosi Australia will refund the portion of the Platform Access Charge for Services not yet rendered. Enosi Australia will provide access for You to obtain your Data for 30 days after the termination, or otherwise transmit the Data to You if requested.

Enosi Australia retains the perpetual right to use the Data according to these Terms and Conditions and our Privacy Policy.

07. Platform Access Charge

Enosi Australia applies a Platform Access Charge at the following rates:

Platform Access Charges (excl GST)

Software-as-a-Service Licence Charges – Per End Users’ Trading Points

Enosi Australia will invoice Momentum Energy as Your agent for the Platform Access Charge and any applicable taxes. Momentum Energy will collect the Platform Access Charge from You by adding it to Your electricity bill and then pay us on Your behalf. The billing arrangements between you and Momentum Energy will be governed by the terms and conditions under Your retail electricity contract with Momentum Energy.

08. Metering and Connectivity

The Powertracer Platform is a web-based portal made available to You using the internet.

Enosi Australia will endeavour to maintain Our service but We cannot guarantee a consistent or uninterrupted communication connectivity. Any communication breakdown arising from Wi-Fi connectivity, 3G/4G disruption of service, the unavailability or the discontinuation of network service and/or withdrawal of support for technology from a telecommunication provider, electricity retailer, electricity meter data provider, electricity grid operator, electricity market operator or any other acts or omissions of any third-party providers are beyond the control of Enosi Australia and Enosi Australia accepts no responsibility for any impact or consequences they have on the provision of service.

09. Warranties

The information and materials contained on the Powertracer Platform, including text, graphics, links or other items – are provided "as is" and "as available". While Enosi Australia makes best efforts to ensure the accuracy of all its information and employs multiple layers of redundancy to this purpose, Enosi Australia does not warrant the accuracy, adequacy, or completeness of the information and materials and expressly disclaims liability for errors or omissions in this information and materials. No warranty of any kind, implied or statutory, is given in conjunction with the information and materials.

Enosi Australia makes no representation whatsoever that the information You obtain by using the Powertracer Platform, Our website or other on-line services is free from faults, defects, computer viruses or malware, and its liability in respect of such events is excluded to the fullest extent permitted under applicable law.

10. Enosi Australia Disclosure and Your Acknowledgement

Enosi Australia expressly disclose and You acknowledge that the Powertracer Platform service may be discontinued or terminated by Enosi Australia at its absolute discretion for any or no reason (“Discontinuance”), and Enosi Australia is not in any way liable to You for any compensation or claim including but not limited to damage and loss of any kind caused by or arising from the Discontinuance except for a pro-rata refund of the Platform Access Charge for the unused period if applicable.

11. Privacy

Enosi Australia may collect, use and disclose your Personal Information in accordance with Our Privacy Policy which is available at https://enosi.energy/ or on request.

12. Personal Information

Enosi Australia needs to use Your Personal Information to run Your electricity traceability and trading service.

Your Personal Information will not be made available by Enosi Australia to third parties for the purpose of marketing or data profiling.

13. Confidentiality

Enosi Australia agrees to keep all Personally Identifiable Information confidential. While this Personally Identifiable Information will be kept strictly confidential, Enosi Australia reserves the right to maintain/analyse/aggregate/use other posted or submitted Data, so long as no Personally Identifiable Information is disclosed. By posting, uploading, inputting, providing or submitting Data, You warrant and represent that You own or otherwise control all of the rights to Data submitted, including, without limitation, all the rights necessary for You to provide, post, upload, input or submit the Data. Additionally, Enosi Australia will distribute, and report data as required by federal, state, and local laws and ordinances.

You agree that You have the obligation to keep confidential all Enosi Australia’s Confidential Information.

14. Data Collection and Usage

The Powertracer Platform collects directly or from Momentum Energy or other parties, site details, metering details, energy production, energy consumption, energy import and energy export data from Your electrical installation to deliver the Service. Data collection will begin at the Commencement Date and will be available to You as part of Your Subscription.

15. Intellectual Property

Except as otherwise set out in these Terms and Conditions, and subject to Enosi Australia’s express written licence grant to You as set out in clause 3, Enosi Australia owns or is the authorised licensee of all rights in the Intellectual Property in the software, hardware or any work product or code contained or used within the Powertracer Platform.

You undertake that You will not:

a) breach any of Enosi Australia’s rights in the Intellectual Property; or

b) use or seek to use any information, whether or not proprietary or whether or not expressly marked confidential, gained in the course of Your business dealings with Enosi Australia without the prior written consent of Enosi Australia.

Intellectual Property owned by either party at the commencement of the Subscription remains the property of that party. Any Intellectual Property developed or created during the Subscription vests in Enosi Australia immediately upon creation and You assign all right, title and interest in such Intellectual Property to Us.

16. Limitation of Liability

Notwithstanding any other provision of these Terms and Conditions, in no event will Enosi Australia, its agents, employees, subsidiaries, affiliates, or parent companies be liable to You (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) for any damages, claims or costs whatsoever including commercial losses, or any direct, indirect, incidental, consequential, special or punitive or exemplary damages (including loss of profits, revenue, contract or anticipated benefit or savings, business, goodwill, data or use or for any delay or increase in operating costs), whether in contract or tort, by statute or otherwise, arising directly or indirectly and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known, even if advised of the possibility of such damages, even if the non-breaching party has been advised of the possibility of such damages. The foregoing limitations and exclusions apply to the extent permitted by applicable law in Your jurisdiction.

Otherwise, You agree to limit Enosi Australia’s maximum aggregate liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to You as follows. If a court of competent jurisdiction determines that Enosi Australia or any of its, subsidiaries, affiliates, or parent companies is directly responsible for damages arising from the services that Enosi Australia performs or the systems it provides under these Terms and Conditions, such damages shall be limited to the sum of the yearly service charges actually paid by you under these Terms and Conditions during the year in which the event giving rise to such damages occurred. Except as expressly provided elsewhere in these Terms and Conditions, these agreed upon damages are Your sole and exclusive remedy no matter the cause of any loss, damage, injury, or other consequence, whether caused by negligence, gross negligence, tort, failure to perform duties under these Terms and Conditions, breach of warranty, strict liability, failure to comply with any applicable law, or other default by Enosi Australia on any of its obligations in these Terms and Conditions.

THE FOLLOWING STATEMENT APPLIES TO CUSTOMERS THAT ARE ‘CONSUMERS'

WITHIN THE MEANING OF THE AUSTRALIAN CONSUMER LAW: The benefits given to the consumers in these Terms and Conditions are in addition to other rights and remedies of the consumer under a law in relation to the goods or services to which these Terms and Conditions relate. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

You must take reasonable steps to mitigate any loss You suffer or incur under or in connection with these Terms and Conditions.

17. Force Majeure

If an event outside Our or Your reasonable control (“Force Majeure Event”) prevents a party from complying with its obligations during the Subscription, those obligations will be suspended for the duration of the Force Majeure Event. The party affected by the Force Majeure Event must use its best endeavours to give the other party prompt notice of and full details about the Force Majeure Event and minimise, overcome or remove the Force Majeure Event as quickly as practicable.

18. Enforceability

In case any provision of these Terms and Conditions shall be invalid or unenforceable, the validity and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

19. Governing Law

If any part of the Subscription is or becomes illegal, void or unenforceable, this does not invalidate the rest of the Subscription. These Terms and Conditions are governed by the law in force in Victoria. Each party submits to the exclusive jurisdiction of Victorian courts.

20. No Unlawful or Prohibited Use

As a condition of Your use of the Powertracer Platform, You warrant to Enosi Australia that You will not use the Powertracer Platform for any purpose that is unlawful or prohibited by these Terms and Conditions.

You may not use the Powertracer Platform in any manner which could damage, disable, overburden, or impair the Powertracer Platform or interfere with any other party's use of the Powertracer Platform.

You further agree that no joint venture, partnership, employment, or other relationship exists between You and Enosi Australia, except as otherwise documented in writing.

You promise that you shall not reverse engineer, decompile, or disassemble any of the Powertracer Platform's components except to the extent permitted by applicable law.

21. Trademark and Copyright Notice

ENOSI AUSTRALIA name and logo and Powertracer logo are trademarks owned and used by Enosi Australia. Use of these marks without the prior express written permission of Enosi Australia is prohibited. All other trademarks referenced in these Terms and Conditions or referenced or used on the Powertracer Platform, or any part of Enosi Australia’s website or in the course of Enosi Australia’s business (such reference or use as may be amended from time to time) are the property of Enosi Australia or their respective third-party owners. Enosi Australia is the owner or authorised licensee of the copyright in its website pages and Powertracer Platform user interface pages (including without limitation all text, graphics and computer code relating thereto or associated therewith) and all other intellectual property and proprietary rights therein, and all rights are reserved. Permission is given for the downloading and temporary storage of one or more of these pages for the sole purpose of viewing them on a stand-alone personal computer or monitor and solely for the purpose of these Terms and Conditions.