PeakSmart Retailer Incentive Agreement - Terms and Conditions

In consideration for Energex accepting you as a Participant in the PeakSmart Retailer Incentive Scheme ('the Scheme'), you acknowledge and agree to the following terms and conditions:

1. Nature of Participation in the Scheme

(a) Energex has invited you to participate in the Scheme to promote air-conditioning units fitted with PeakSmart technology and the Energex PeakSmart Compatible Air-Conditioner Project ('the Project') to retail customers ('the Services'). For each customer that Energex accepts as a participant in the Project as a result of your participation in the Scheme, Energex will pay you a PeakSmart Retailer Incentive in accordance with the terms of this Agreement.

(b) Nothing in this Agreement shall be construed as constituting an agency, partnership, joint venture, or any other form of association between the Parties in which one party may be liable for the acts or omissions of the other Party. No Party has the authority to incur any obligation or make any representation or warranty on behalf of, or to pledge the credit of, the other Party.

(c) By participating in the Scheme, you agree that:

(i) you will provide the Services to Energex; and

(ii) you will not give the impression to any person that you are an agent, partner or representative of Energex.

2. Duration of Scheme and Agreement

(a) Energex may, in its sole discretion, vary or extend the scheme at any time and will provide you with written notice of such variation or extension.

(b) Subject to clause 3 below, this Agreement will commence on the date indicated on the Agreement Form and will expire on the last day of the Term (as varied or extended under clause 2(a) above).

3. Termination of Scheme and Agreement

(a) Energex may, in its sole discretion, terminate the Scheme at any time and will provide you with written notice in the event of such termination. This Agreement will be terminated if the Scheme is terminated in accordance with this clause.

(b) Either Party may terminate this Agreement at any time by providing written notice to the other Party.

4. Use of Promotional Material

Energex may supply you with promotional, marketing and advertising material related to the Project (the 'Energex Promotional Material'). You agree that:

(a) you must not make any representation about the Project or Energex that is inconsistent with the Energex Promotional Material to any customer ; and

(b) following the termination or expiry of the Scheme, the Term or this Agreement, you will return any Energex promotional materials to Energex upon its request.

5. Payment of PeakSmart Retailer Incentive

(a) Subject to clauses (b) - (g) below, Energex will credit you a PeakSmart Retailer Incentive for each Customer Application Form, accepted by Energex, that identifies you as the 'appliance retailer'.

(b) Notwithstanding clause (a) above, a PeakSmart Retailer Incentive will only be credited to you:

(i) after a completed Customer Application Form has been received, processed and accepted by Energex (Note that for identification purposes a legible copy of a valid receipt which clearly identifies the retail outlet must be attached to the Customer Application Form. Energex reserves the right to refuse crediting you with a PeakSmart Retailer Incentive if a customer does not attach such copy of a receipt to the Customer Application Form); and

(ii) if the sale of the air-conditioning unit(s) to which the Customer Application Form relates is or was made during the Term (as evidenced by the copy of the receipt attached to the Customer Application Form).

(c) A limit of one PeakSmart Retailer Incentive per PeakSmart Compatible Air-Conditioner will be credited to you up to the maximum number of eligible air-conditioners for each customer who participates in the Project.

(d) Energex will seek to notify you quarterly of the PeakSmart Retailer Incentives for which you are eligible for the quarter preceding the applicable notice ('Eligibility Notice'). You have 60 days from the date of the applicable Eligibility Notice to claim the PeakSmart Retailer Incentives the subject of that Eligibility Notice.

(e) In order to claim the relevant PeakSmart Retailer Incentives, you must issue to Energex a valid tax invoice for some or all of the PeakSmart Retailer Incentives for which you are eligible for the relevant quarter (as specified in the relevant Eligibility Notice) within 60 days from the date of the relevant Eligibility Notice.  Invoices not complying with this clause 5(e) will not be accepted nor paid in subsequent quarters.

(f) Energex will then seek to issue the PeakSmart Retailer Incentive payment to you within 28 days of acceptance of the invoice.

(g) If this Agreement or the Scheme is terminated in accordance with clause 3, Energex's sole liability to you will be any credit that has accrued between the start of the Term and the date of termination of either the Scheme, your participation in the Scheme, or this Agreement.

6. Liability of Energex

(a) To the full extent permitted by law and subject to clause 5(g), Energex excludes any and all liability in connection with this Agreement.

(b) Where the above exclusion does not apply for any reason (including where a court of competent jurisdiction indicates it is invalid), to the full extent permitted by law, Energex's liability to you for any direct damages you incur in connection with this Agreement is limited to the amount of any credit that has accrued in accordance with clause 5(b).

(c) To the fullest extent permitted by law, Energex is not liable for any indirect, special, incidental or consequential damage, or loss of profits or loss of earnings, suffered by you due to any breach of this Agreement by Energex.

7. Responsibility of Retailer

(a) You are responsible for any representation, act or omission made by you to any customer regarding the Project or Energex that results in a breach of any law including the Australian Consumer Law (as contained in Schedule 2 of the Competition and Consumer Act 2010)

(b) You indemnify Energex against any claim, loss, damage, liability, cost and expense that may be incurred or sustained by Energex arising directly or indirectly out of any representation, act, matter or thing done, permitted or omitted to be done by you in a manner that is inconsistent with this Agreement or the Energex Promotional Material.

8. GST

(a) Goods and Services Tax

Any Consideration to be paid or provided for any supply made under or in connection with this Agreement, unless expressly described in this Agreement as including GST, does not include an amount on account of GST. Despite any other provision in this Agreement, if a party ('Supplier') makes a Taxable Supply under or in connection with this Agreement on which GST is imposed:

(i) the GST exclusive Consideration otherwise payable or to be provided for that Taxable Supply under this Agreement but for the application of this clause is increased by, and the recipient of the supply ('Recipient') must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that Taxable Supply; and

(ii) the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided. However, the Recipient need not pay any amount referable to GST unless they have received a valid Tax Invoice (or a valid Adjustment Note) for that Taxable Supply.

(b) Reimbursements

If a payment to a party under or in connection with this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment must be reduced by the amount of any Input Tax Credit to which that party is entitled for that loss, cost or expense. That party is assumed to be entitled to a full Input Tax Credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.

(c) Adjustment Events

If, at any time, an Adjustment Event arises in respect of any Taxable Supply made by a Supplier under the Agreement, a corresponding adjustment must be made between the parties in respect of any amount paid pursuant to clause (a). Payments to give effect to the adjustment must be made between the parties and the Supplier must issue a valid Adjustment Note in relation to the Adjustment Event.

(d) GST Group

If a party is a member of a GST Group, references to GST which the party must pay and to Input Tax Credits to which the party is entitled, include GST which the representative member of the GST Group must pay and Input Tax Credits to which the representative member of the group is entitled.

(e) Non Monetary Consideration

If a supply made under this Agreement is a Taxable Supply made for non-monetary consideration then:

(i) the Supplier must provide the Recipient with a valid Tax Invoice which states the GST inclusive market value of the non-monetary consideration; and

(ii) for the avoidance of doubt any non-monetary consideration payable under or in connection with this Agreement is GST inclusive.

(f) Definitions

Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related imposition and amending Acts have the same meaning in this clause.

(g) Survival

This clause will continue to apply after expiration or termination of this Agreement.

9. Notices

Notices given under this Agreement must be done so in writing via post or email and will be taken to be duly given or made:

(a) in the case of delivery by post, 5 Business Days after the date of posting; and

(b) in the case of email, the time that the notice is first opened or read by an employee or officer of the recipient,

10. Survival of Terms

Clauses 4(b), 5(e)-(g), 6, 7, 8 and 12 shall survive termination of this Agreement.

11. Assignment

You may not assign, charge, encumber or otherwise deal with any of your rights or obligations under this Agreement, or attempt or purport to do so, without the prior written consent of Energex.

12. Governing Law and Jurisdiction

This Agreement is governed by the laws of Queensland. In relation to it and related non contractual matters each party irrevocably submits to the non exclusive jurisdiction of courts with jurisdiction there, and waives any right to object to the venue on any ground.

13. Definitions

"Agreement" means these Terms and Conditions and the Agreement Form;

"Agreement Form" means the Agreement and information about the Scheme;

"Customer Application Form" means the PeakSmart Reward Agreement Form that is submitted by the customer to Energex in order to participate in the Project;

"Energex", "We", "Us", "Our" means Energex Limited, its employees, contractors and agents;

"law" means any statute, regulation, order, rule, subordinate legislation or other document enforceable under any statute, regulation, rule or subordinate legislation;

"Party", "Parties" means, respectively, each or both of Energex and the supplier of airconditioning units whose details are set out in the Agreement Form;

"PeakSmart Compatible Air-conditioner" means an air-conditioning unit with PeakSmart capability, meaning the unit is AS4755 demand response enabled and has DRM1, DRM2 and DRM3 capability;

"PeakSmart Retailer Incentive" means the reward based on the cooling capacity of the PeakSmart Compatible Air-conditioner(s) sold to a customer, payable in accordance with clause 5, calculated as follows:

(a)   $20 for each PeakSmart Compatible Air-conditioner(s) with a cooling capacity of less than 4kW;

(b)   $40 for each PeakSmart Compatible Air-conditioner(s) with a cooling capacity of 4kW or more, but less than 10kW; and

(c)   $80 for each PeakSmart Compatible Air-conditioner(s) with a cooling capacity of 10kW or more.

"Project" means the Energex PeakSmart Compatible Air-Conditioner Project;

"Retailer", "you", "your" means the supplier of air-conditioning units to retail customers whose details are set out in the Agreement Form, including its employees, contractors and agents;

"Services" means the promotion of PeakSmart Compatible Air-conditioners and the Project.