A. Green Energy Trading (GET) provides a range of services to participants in environmental markets, including product accreditation and Environmental Certificate creation and monetisation.
B. Solution Provider operates a business that is involved in the manufacture, supply and/or installation of Systems for System Owners.
C. Solution Provider wishes to work with GET on an ongoing basis in respect of a range of business activities, including its transactions with System Owners.
D. From time to time, Solution Provider may: Offer System Owners a discount in return for the System Owner entering into an Assignment Agreement with GET; Utilise Green Energy Online (GEO), GET’s online transaction portal; Seek support from GET in arranging finance for System Owners; and Request that GET fix the price of Environmental Certificates for an agreed period.
E. This document specifies the terms on which GET and Solution Provider have agreed to work together, and additional agreements may be entered into in respect of individual transactions and other things.
Definitions and Interpretation 1.1. Definitions: For the purposes of this Agreement: Accept means, in respect of a Submitted Assignment Agreement, the process by which GET becomes bound by that Assignment Agreement. Administrator includes a liquidator, receiver or receiver and manager (whether provisional or otherwise). Agreement means this agreement. Assignment Agreement means an agreement between GET and a System Owner, in which the System Owner assigns its rights to create a Parcel of Environmental Certificates to GET. CER means the Clean Energy Regulator. Code of Conduct means any set of rules or other obligations that are a condition of membership of an industry association to which a Party belongs. Commitment Date in respect of a particular Price Lock-In Request, means the commitment date specified in that document. Data means information contained within GEO, including Form Data and Solution Data. Defaulting Party has the meaning given in clause 11. Delivered Volume means the volume of Environmental Certificates to be created under an Assignment Agreement. Energy Saving Certificate has the meaning given in the Electricity Supply Act 1995 (NSW). Environmental Certificate means a tradeable certificate that can be created to represent the environmental improvement created through the deployment of a System, and includes Small-scale Technology Certificates, Large Generation Certificates, Victorian Energy Efficiency Certificates, and Energy Saving Certificates. Equivalent System means, in respect of a particular System, a different System which will generate the same Parcel Volume as the original System. Equivalent System Owner means the owner of an Equivalent System. ESC means Essential Services Commission. Expected Volume means the amount specified in the Price Lock In Request. Finance Accreditation Requirements has the meaning given in clause 3.5. Finance Panel means the collection of finance providers GET has a relationship with and whom GET may introduce to Solution Provider for the purpose of providing finance to System Owners. Financier means a member of GET’s Finance Panel. Form Data means Data that is presented to Solution Provider by GEO to assist in the entry of Solution Data. GET has the meaning given at the commencement of this document. GEO has the meaning given in recital D. GST means Goods and Services Tax, as that phrase is in defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Injured Party has the meaning given in clause 11. Insolvent means the occurrence of any one or more of the following events in respect of a person: a) An application is made that it be wound up, declared bankrupt or that an Administrator be appointed; b) An Administrator is appointed to any of its assets; c) It enters into an arrangement with its creditors (or proposes to do so); d) It makes an assignment to benefit one or more creditors (or proposes to do so); e) It is insolvent, states that it is insolvent or it is presumed to be insolvent under an applicable law; f) It becomes an insolvent under administration or action is taken which could result in that event; g) A writ of execution is levied against it or its property; h) It ceases to carry on business or threatens to do so; or i) Anything occurs under the law of any applicable jurisdiction which has a substantially similar effect to paragraphs a) - h) above. IPART means Independent Pricing and Regulatory Tribunal. Large scale Generation Certificate has the meaning given in the Renewable Energy (Electricity) Act 2000 (Cth). Lock-In Price has the meaning given in a Price Lock-In Request. Offer Price means, on any given day and in respect of a particular type of Environmental Certificate, the price specified on GET’s website for that particular type of Environmental Certificate on that day. Parcel of Environmental Certificates means, in respect of a specific System, the Environmental Certificates that may be created as a result of the installation or operation of that System. Parcel Volume means, in respect of a particular Parcel of Environmental Certificates, the number of Environmental Certificates contained in that parcel. Parties means GET and Solution Provider and their transferees, assigns and successors in title. Penalty Interest Rate means the rate specified in the Penalty Interest Rates Act 1983 (Vic). Price Lock-In Request means a document in the form set out in the Schedule. Privacy Act means the Privacy Act 1988 (Cth). Private Area means the part of GEO in which Solution Data is owned by Solution Provider to the exclusion of GET Regulator means a government department or agency that has responsibility for the administration of programs involving or associated with Environmental Certificates, and includes the CER, the ESC and IPART. Settlement Date means the day specified in a Price Lock In Request. Shared Area means the part of GEO in which Solution Data is owned by GET and licenced to Solution Provider. Small-scale Technology Certificate has the meaning given in the Renewable Energy (Electricity) Act 2000 (Cth). Solution Data means Data entered into GEO by the Solution Provider that is not Form Data. Solution Provider has the meaning given at the commencement of this document. Submit means, in respect of an Assignment Agreement, delivery to GET for Acceptance and processing by either physical or electronic means. System means equipment which can be installed or removed to enable the creation of Environmental Certificates. System Administration Purposes means activities directed at maintaining and enhancing the effective operations of GEO. System Owner, in respect of a specific System, means the owner of that System or other person entitled to create the Environmental Certificates associated with the System. Victorian Energy Efficiency Certificate has the meaning given in the Victorian Energy Efficiency Target Act 2007 (Vic). 1.2. Interpretation: For the purposes of this agreement: Plural and Singular: Words importing the singular number include the plural and vice versa. Persons: References to persons include references to individuals, companies, corporations, firms, partnerships, joint ventures, associations, organisations, trusts, states or agencies of state, government departments and local and municipal authorities, whether or not having separate legal personality. Headings: Clause and other headings are for ease of reference only and do not form any part of the context or to affect the interpretation of this Agreement. Background and Schedules: The background and schedules to this Agreement form part of the Agreement.
Assignment Agreements 2.1. Solution Provider may contract with a System Owner for the supply, deployment and/or removal of a System on terms including a benefit conditional on System Owner entering into an Assignment Agreement with GET. When an Assignment Agreement executed by the System Owner is Submitted to and Accepted by GET, the Parties make the representations and warranties set out below. 2.2. On Submission of an Assignment Agreement executed by a System Owner, Solution Provider represents and warrants to GET that it: a) Is unaware of System Owner dealing with its Environmental Certificate creation rights except through the Assignment Agreement. b) Has no claim over and will not interfere with GET’s rights under the Assignment Agreement. c) Consents to GET making statements to third parties in reliance on the information provided under this Agreement by Solution Provider, its associates and customers. d) Considers the information contained in any Assignment Agreement submitted to GET to be true and correct in every particular. e) Will inform GET of any new information it obtains in respect of a System that indicates that previously supplied information in respect of that System is misleading, incorrect or inaccurate. f) Indemnifies GET for any and all losses that GET may suffer if information described in 2.2 f) is misleading, incorrect or inaccurate. g) Will provide GET any information or assistance required to create Environmental Certificates or comply with Regulator requirements. h) Will assist GET to conduct an inspection of the System the subject of the Assignment Agreement if requested by GET. i) Has supplied a System that is fit for purpose and in compliance with all regulatory requirements (not just those relating to Environmental Certificates). j) Will refund to GET erroneous payments, or payments made where the Parcel of Environmental Certificates for a System is less than that specified in the Assignment Agreement. 2.3. On Acceptance of an Assignment Agreement, GET represents and warrants to Solution Provider that it will: a) Pay the amount specified in the Assignment Agreement by electronic transfer to the Solution Provider’s account within the timeframe specified on GET’s website (or other agreed timeframe). b) Comply with usual Regulator requirements associated with the creation of the Parcel of Environmental Certificates. c) Make an additional payment to Solution Provider in the event that more Environmental Certificates are created in respect of a System than specified in the Assignment Agreement. This payment will equal the number of extra Environmental Certificates multiplied by the Offer Price at the time of creation.
Finance Broking 3.1. At any time, Solution Provider may approach GET for assistance with arranging finance for one or more System Owners. 3.2. If Solution Provider approaches GET under this clause, GET may accept or decline to provide assistance in its absolute discretion. 3.3. If GET introduces Solution Provider to one or more Financiers then Solution Provider agrees that: a) GET may be paid a commission by the Financier; b) The Financier may be a related company to GET; c) GET acts only as an introducer, not as a financier itself; d) GET makes no representation or warranty in relation to any Financier or the services that they provide; e) It will comply with all Financiers’ requirements and inform GET if these requirements are breached; f) GET may make statements to Financiers and other third parties in reliance on the information under this Agreement; g) Only refer to the availability of finance in marketing materials that have been approved by GET and the relevant Financiers; h) It will indemnify GET for any and all losses that GET may suffer if information provided under this Agreement is misleading, incorrect or inaccurate; i) During the course of this Agreement, and for a period of 1 year after it concludes, Solution Provider will not engage with Financiers (directly or through a third party), other than in accordance with this Agreement; j) It will not engage in misleading or deceptive conduct or make any representation to System Owners as to the likelihood of the success of any finance application; k) It will not attempt to pressure or induce a System Owner to enter into a financing arrangement a contract or transaction; and l) It will keep full and accurate records relating to all transactions involving a financier. 3.4. Each time that Solution Provider approaches GET or a Financier in accordance with this clause, Solution Provider represents and warrants to GET that: a) All information provided to GET and any Financier is and/or will be complete, true, correct and not misleading; and b) It currently satisfies all of GET’s Finance Accreditation Requirements (or is in the process of doing so). 3.5. The Finance Accreditation Requirements are that Solution Provider (and all its relevant staff) must: a) Successfully complete all training programs required by GET and relevant Financiers; b) Hold all necessary licences and authorisations to operate its business and to introduce finance to System Owners, c) Be of good financial standing and have good business conduct; and d) Comply with all terms of this Agreement and any agreement with any Financier. 3.6 Each time that Solution Provider approaches GET or a Financier in accordance with this clause in relation to provision of a commercial rental product, Solution Provider agrees that: a) Whilst the risk in the equipment passes from Solution Provider to the system operator (customer) once installation has been completed, title and property in the equipment (including full beneficial and legal ownership) does not pass to the financier (eventual System Owner) until settlement of the financial contract (i.e. payment is received by Solution Provider). b) For the avoidance of doubt, in these instances the Solution Provider is also deemed the System Owner for environmental certificate creation purposes.
Price Lock-In 5.1. At any time, Solution Provider may seek to agree the value of Environmental Certificates under future Assignment Agreements by submitting a Price Lock-In Request. 5.2. If Solution Provider submits a Price Lock-In Request then GET may accept or decline the request in its absolute discretion. 5.3. If GET accepts a Price Lock-In Request, then by no later than the Settlement Date, Solution Provider must procure System Owner to enter into an Assignment Agreement regarding the System described in the Price Lock-In Request (or an Equivalent System Owner and Equivalent System). 5.4. If Solution Provider complies with clause 5.3 then in respect of the Assignment Agreement concerned, GET will make a payment on the terms specified in Price Lock-in Request, and the Relationship Agreement and the Assignment Agreements. 5.5. If Solution Provider does not comply with clause 5.3 then it must pay GET damages calculated in accordance with the formula in the Price Lock In Request. 5.6. GET imposes limits on the volume of certificates to which Price Lock-In Requests can apply Solution Provider agrees not to submit a Price Lock-In Request in excess of the appropriate limit. 5.7. If Solution Provider submits a Price Lock-In Request that exceed the appropriate limit and GET accepts it, then at any time prior to Acceptance of the relevant Assignment Agreement GET may decline the Price Lock In Request (notwithstanding GET’s prior acceptance) by notice in writing. If an Assignment Agreement is Submitted after GET has declined the Price Lock-In Request the amount paid will be determined by the Offer Price at the time the Assignment Agreement is Accepted by GET.
General obligations 6.1. During the course of this agreement, Solution Provider must: a) Comply with directions and advice issued by GET and its Associates; b) Ensure that its employees, agents and independent contractors comply with this Agreement and any Associated Agreements; c) Promptly advise GET if its becomes aware of any action that a third party is taking or may take that could result in a claim being made against Solution Provider or result in a requirement for Solution Provider to notify its insurer; d) Not represent that it can bind GET or its Associates in any way; e) Comply with all applicable privacy and confidentiality laws. f) Submit Assignment Agreements to GET promptly and at least 1 month prior to any relevant regulatory deadline.
Payments 7.1. At any time the Parties may have payment obligations to each other under this or any other agreements. 7.2. Where this is the case, GET may in its sole and absolute discretion, deduct amounts owed by Solution Provider from amounts owed to Solution Provider, and pay a net amount as a final settlement. 7.3. For the avoidance of doubt, this netting provision is applicable to any amounts owed to / claimed by GET, including amounts resulting from: a) The terms of this Agreement; b) A breach of this Agreement; c) The invalidity of any Environmental Certificates; d) The operation of the common law or applicable statutes; or e) Any other actions taken by Solution Provider. 7.4. Where GET has previously been directed by Solution Provider to make a payment in a particular manner, GET is entitled to assume that future payments may be made in the same manner until Solution Provider informs GET otherwise.
Third party requests and directions 8.1. In the course of running its business GET may interact with third parties including Regulators and Financiers. 8.2. As a result of the interactions described in clause 8.1, or otherwise, a third party may: a) Make requests of and issue directions to GET; b) Bring proceedings against GET; or c) Otherwise impose costs on GET. 8.3. Where the actions described in clause 8.2 relate to Solution Provider’s actions (or failure to act) or those of its subcontractors, customers or associates, Solution Provider must: a) Provide any assistance that GET may require in order to respond to or comply with the Regulators’ requests and directions; b) Indemnify GET for all its costs (both direct and indirect) associated with responding to and complying with the requests and directions (for the avoidance of doubt, these costs may include costs associated with the procurement of professional services including consulting, legal, tax, accounting and engineering).
Breach and termination 9.1. A Party will notify the other if it is in default of this Agreement. 9.2. A Party in default of this Agreement if it: a) Fails to comply with any term of this Agreement; or b) Becomes Insolvent. 9.3. If a Party (Defaulting Party) is in default of this Agreement, the other Party (Injured Party) is entitled to: a) Terminate this Agreement immediately by written notice; or b) Recover damages in respect of its losses; or c) Both a) and b). 9.4. If the Defaulting Party does not pay any damages within 14 days of the Injured Party making a written request for payment, interest will accrue at 10% per annum or the current Penalty Interest Rate (whichever is the greater) on the damages from the date of default until the damages are paid. 9.5. If the Injured Party holds any monies, Environmental Certificates or other property, rights or interests on behalf of the Defaulting Party or is obliged to make payments to the Defaulting Party, then the Injured Party is entitled to utilise these items to satisfy any damages claimed under this Agreement. This right is additional to the rights created elsewhere in this Agreement. 9.6. Either Party may Terminate this Agreement by 30 days written notice. 9.7. If this Agreement is terminated then the Parties’ obligations under clauses 2.2d)–j), 2.3a)-c), 3.3i), 3.4, 5, 7, 8, 10 ,11 and 14 remain in place.
Non-disclosure 10.1. The Parties may not disclose information relating to or shared under this Agreement to any person except: a) To the extent that it is already in the public domain; b) With the written consent of the other Party; c) To its officers, employees and professional advisers; or d) As required by an applicable law or Code of Conduct after first consulting (to the extent lawful and reasonably practical) with the other Party about the form and content of the disclosure. 10.2. Where permitted disclosures are made by a Party on any basis other than clause 10.1.a), they will use reasonable endeavours to ensure the disclosed material is kept confidential by the Party to whom it has been shared.
Representations and warranties 11.1. In respect of this Agreement Solution Provider represents and warrants that: a) All information, documents and material provided to GET are and will be accurate and complete; and b) It will deal with GET in good faith and respond promptly to GETs reasonable requests for additional information or other support that may be required.
Costs 12.1. Each Party is responsible for its own costs and expenses in connection with and incidental to the preparation and execution of this Agreement.
Goods and Services Tax 13.1. To the extent that GST is applicable to the transactions contemplated by this Agreement, the Parties agree to apply it in a manner consistent with any public rulings or other explanatory material published by the Australian Tax Office.
Dispute resolution 14.1. If a dispute arises between the Parties under this Agreement or Other Agreements, the following steps must be taken by the Parties prior to taking any action to commence legal proceedings: a) The aggrieved Party must provide a written notice to the other Party specifying their concerns. b) The Party receiving a notice under clause14.1.a) must provide a written response within 14 days. c) If the aggrieved party is not satisfied with a response provided under clause 14.1.b) then they must provide a further notice in writing to the other Party requesting that a meeting be held between the chief executives of each Party. d) The meeting between the chief executives must be held within 14 days of the other Party receiving a notice under clause 14.1.c). e) If the dispute remains unresolved after the meeting described in clause 14.1.d) then either Party may by notice in writing to the other direct that the matters raised in the documents referred to in clauses 14.1.a) and 14.1.b) be resolved by mediation. f) A party receiving a notice under clause e) must co-operate with the other Party to hold a mediation within 14 days of receipt of the notice. g) If the mediation concludes and the dispute remains unresolved then either Party may bring legal proceedings in respect of the dispute as specified in the documents referred to in clauses 14.1.a) and 14.1.b). h) If a Party does not comply with the requirements of this clause 14 then the other party may bring legal proceedings immediately notwithstanding that all of the steps set out in this clause have not yet been completed.
General 15.1. The invalidity of any part or provision of this Agreement or Other Agreement will not affect the enforceability of any other part or provision of this Agreement. 15.2. The Parties will sign and execute all assurances, documents and deeds and do such deeds, acts and things as are required by the provisions of this Agreement to give effect to it. 15.3. This Agreement is governed by and construed in accordance with the laws applicable in Victoria and the Parties submit to the jurisdiction of the Courts in that State. 15.4. This Agreement is intended to be legally binding upon the parties.
I confirm that I have read and understood this agreement, and that I am authorised to sign this Agreement on behalf of the Company, and that I agree to the terms and conditions detailed above.