1st Energy Rebates Installer Agreement Standard Terms

Introduction
A. Understanding this Agreement.
a) The meanings of capitalised terms in this document and the rules for interpreting this Agreement are set out in Clauses 41 and 42 below.
b) This Agreement is constituted by the Contract Form and these Standard Terms.
B. Background.
a) The Installer. The Installer installs Eligible Systems for Energy Consumers.
b) 1ERV. 1ERV is authorised to create Environmental Certificates in respect of Eligible Systems, and it facilitates the monetisation of those certificates using the Software.
c) Purpose of this document. This document sets out the terms of a binding legal agreement between 1ERV and the Installer for the use of the Software and the creation and dealing with the Environmental Certificates.
C. Consent.
a) The Installer signifies its consent to be bound by the terms set out in this document by signing the Contract Form.
b) No rights or obligations are created between the Parties until the Contract Form is signed by both Parties.
Assignment of Relevant Tradeable Rights by the Installer
1. Main Provision. If –
a) the Installer upgrades an Eligible System for an Energy Consumer; and
b) the upgrade of that Eligible System entitles the Energy Consumer to create one or more Environmental Certificates;
then –
c) the Installer has the right to arrange for the assignment of the Relevant Tradeable Rights from the Energy Consumer to 1ERV; and
d) 1ERV accepts the assignment of the Relevant Tradeable Rights;
subject to, and on the terms set out in, this Agreement.
2. Method of submission. Unless 1ERV agrees otherwise in writing, the Installer must:
a) use the Software to enter and submit all evidence and information required to complete the Application, including the Assignment Form nominated by 1ERV;
b) make, or procure the making of, any declaration required by the relevant Regulator using the Software as part of an Assignment Form or otherwise; and
c) sign, or procure the signing of, the Assignment Form electronically using the functionality made available within the Software.3. Effect of submission of the Assignment Form.
a) Assignment and processing. By executing and submitting the Assignment Form in accordance with this Agreement, the Installer:
i) submits an offer to create a binding, tripartite, contract between 1ERV, the Installer, and the Energy Consumer which includes the assignment of the Relevant Tradeable Rights to 1ERV;
ii) agrees to be bound by the obligations set out in Clauses 4 to 6 with respect to dealings with the relevant Energy Consumer, the upgrading of the Eligible System, and dealings with the Relevant Tradeable Rights; and
iii) makes the representations and warranties to 1ERV set out in Clause 7.
b) Non-withdrawal or cancellation. The Installer acknowledges that:
i) 1ERV must perform a significant amount of work to assess whether or not to accept the Application; and
ii) except as provided in Clause 14 below, the Installer has no right to withdraw or cancel the Application prior to its acceptance by 1ERV.

4. The Installer’s obligations when dealing with Energy Consumers.
a) Advertising restrictions. The Installer must not –
i) generate any sales or marketing leads; using telemarketing or door knocking techniques, whether directly or indirectly[1].
or
ii) otherwise attempt to promote or sell the goods and services associated with upgrading the Eligible Systems; using telemarketing or door knocking techniques, whether directly or indirectly[1].
b) Relationship with 1ERV. The Installer may represent to Energy Consumers that it –
i) has a contractual relationship with 1ERV; and
ii) uses 1ERV as its accredited provider;
but the Installer must not represent that:
iii) it is part of 1ERV; or
iv) 1ERV has any role in the physical upgrade to the Eligible System.
c) Provision of benefits to Energy Consumers. The Installer must clearly communicate the benefit that it will confer upon the Energy Consumer in return for the assignment of the Relevant Tradeable Rights to 1ERV (whether in the form of a discount, cash, maintenance services, or otherwise), and then deliver that benefit to the Energy Consumer.
5. The Installer’s obligations regarding the upgrading of Eligible Systems.
a) SWMS. The Installer must maintain and follow a Safe Work Method Statement (SWMS) for High-Risk Construction Work which is compliant with broadly accepted Occupational Health and Safety Standards, and which addresses any applicable risks of working in restricted spaces, working with water at high temperatures, and working with refrigerant gas.
b) PI Insurance.
i) If the Installer participates in either or both of the following –
A) Activity 45 – Home Energy Rating Assessments; or
B) Activity 44 – Commercial and Industrial Heat Pump Water Heater (other than business installations);
then the Installer must secure and maintain a professional indemnity insurance policy which covers claims of up to $5 million.
ii) The Installer must provide 1ERV with a copy of the insurance certificate secured and maintained under Clause 5(b)(i) above –
A) within five Business Days of the Execution Date; and
B) within five Business Days after a request for the certificate by 1ERV at any other time during the period of this Agreement.
6. The Installer’s obligations to 1ERV regarding the assignment of the Relevant Tradeable Rights.
a) Requirements of the Regulator. The Installer must do all things necessary to –
i) comply; or
ii) enable the Installer and 1ERV to comply;
with the lawful directions of the Regulator relating to any Eligible System, including performing follow-up work on the relevant Eligible System as required by the Regulator.
b) Co-operation and assistance.
i) The Installer must do all things requested by 1ERV that are reasonably within the Installer’s power or control which are necessary to:
A) assist or enable the creation of the Relevant Environmental Certificates;
B) effect or perfect the assignment of the Relevant Tradeable Rights to 1ERV; and
C) establish or prove the validity of the Relevant Environmental Certificates;
including:
D) providing information, evidence, or assistance to 1ERV;
E) liaising with the Energy Consumer to obtain required information and evidence;
F) conducting, or assisting us to conduct, inspections of the Eligible System;
G) appropriately amending the information contained in any Assignment Form after performing any follow-up work on any Eligible System and re-submitting that Assignment Form to 1ERV.
ii) To avoid doubt, unless the Parties agree otherwise in writing, the Installer must comply with requests made by 1ERV:
A) as soon as is reasonably practicable after the relevant request is made by 1ERV; and
B) in any event within five Business Days of any request being made by 1ERV.
iii) The Installer assigns any interest it may have in respect of the Relevant Tradeable Rights to 1ERV.
iv) The Installer must not interfere with 1ERV’s rights to deal with the Relevant Tradeable Rights in any way.
v) The Installer must not do anything to cancel, impugn, or encumber the Relevant Tradeable Rights,
c) Payments made in error. The installer must refund any payment (or part-payment) made by us in error, whether the error stemmed from a mistake, oversight, an act or omission by the Energy Consumer, the Installer, 1ERV, the Regulator, any financial institution or otherwise.
7. Installer’s representations to 1ERV.
a) By submitting an Application to 1ERV, the Installer warrants and represents to 1ERV that:
i) the Installer has taken all reasonable steps to verify that the Energy Consumer has not dealt with its rights to create the Relevant Environmental Certificates other than by executing the Assignment Form;
ii) the Installer has not previously created, or assisted in the creation or, the Relevant Environmental Certificates;
iii) the information and evidence entered by the Installer in respect of the relevant Application is complete, true, and accurate in every particular; and
iv) the relevant Installer’s Representative has the capacity and authority to use the Software to:
(A) sign the Assignment Form personally; or
(B) apply the saved signature of another person associated with the Installer to the Assignment Form; and
v) all conditions precedent required for the execution of the Assignment Form have been satisfied.
b) The Installer’s warranties and representations to 1ERV in Clause 7(a) are ongoing, and the Installer must immediately inform 1ERV of any information that it obtains which indicates that any representation or warranty previously made may not be true or correct.
8. Compliance with Laws.
a) General obligation. Without limiting any of the above provisions, the Installer must comply with all applicable laws, regulations, specifications, and codes that relate in any way to the Installer:
i) interacting with the Energy Consumers;
ii) upgrading Eligible Systems; and
iii) creating and dealing with the Relevant Environmental Certificates.
b) Specific Laws. To avoid doubt, and without limitation, Clause 8(a) requires the Installer to comply with the following laws where applicable:
i) with respect to VEETs:
A) the Victorian Energy Efficiency Target Act 2007 (Vic), the VEET Amendment Act 2022, and the Victorian Energy Efficiency Target Regulations 2018 (Vic);
B) the VEU Code of Conduct;
ii) with respect to RETs, the Renewable Energy (Electricity) Act 2000 (Cth) and the Renewable Energy (Electricity) Regulations 2001 (Cth);
iii) safety-related laws and regulations, including:
A) the Building Act 1993 (Vic);
B) the Electrical Safety Act 1998 (Vic);
C) the Gas Safety Act 1997 (Vic);
D) the Occupational Health and Safety Act 2004 (Vic); and
E) the associated regulations.
iv) technical specifications applicable to the removal and installation of Eligible Systems, including the Victorian Energy Upgrades Specifications (with respect to VEETs);
v) the Australian Consumer Law;
vi) the Privacy Act 1988 (Cth) and the Australian Privacy Principles; and
vii) the GST Law.
Dealings with the Relevant Environmental Certificates by 1ERV
9. Representation by 1ERV to the Installer. 1ERV represents and warrants to the Installer that 1ERV holds the legal right to create the Relevant Environmental Certificates.
10. Information provided by 1ERV. The Installer:
a) acknowledges that 1ERV relies upon the truth, accuracy, and completeness information provided by the Installer as part of any Application submitted by the Installer; and
b) agrees that 1ERV has the right to make statements to third parties based on that information.
11. Use of signatures.
a) Unless the Contract Form is signed electronically using an electronic signature technology such as DocuSign or Adobe Acrobat Sign, the Installer’s Representative who signs the Contract Form personally consents to 1ERV:
i) capturing a digital copy of the signature from the Contract Form;
ii) storing the digital copy of the signature in the Software’s database; and
iii) applying the digital copy of the signature to Assignment Forms in accordance with this Agreement.
b) If –
i) the Contract Form is signed electronically using an electronic signature technology such as DocuSign or Adobe Acrobat Sign; or
ii) the Parties agree to appoint any Installer’s Representative other than the person who signs the Contract Form;
then the Installer must promptly provide the following to 1ERV upon request by 1ERV:
i) a digital copy of the physical signature of the relevant Installer’s Representative; and
ii) written confirmation from the relevant Installer’s Representative that they.
A) have been provided with a copy of this Agreement; and
B) consent to their signature being stored and applied in accordance with this Clause 11.
c) The Installer and each Installer’s Representative acknowledge and agree that:
i) the digital copy of the relevant Installer’s Representative is applied by the Software to the relevant Assignment Form when an Installer’s Representative signifies an intention to do so using the method provided by the Software;
ii) each Installer’s Representative has the right to apply the signature belonging to any other Installer’s Representative to any Assignment Form, providing that the Signing Conditions are met; and
iii) 1ERV has the right to apply the digital copy of the relevant Installer’s Representative to any Assignment Form if the Installer directs 1ERV to do so either orally or in writing; and
d) the application of the digital copy of the relevant Installer’s Representative is equivalent to the Installer’s Representative physically signing a hard copy of the Assignment Form.to avoid doubt, the Installer must not –
i) apply the digital copy of any Installer’s Representative to any Assignment Form if the Signing Conditions have not been met; or
ii) direct 1ERV to apply the digital copy of any Installer’s Representative:
A) if the Signing Conditions have not been met; or
B) the Installer’s Representative has not confirmed to the Installer (whether orally or in writing) that they consent to their signature being applied to the relevant Assignment Form.
e) 1ERV must not:
i) use the signature of any Installer’s Representative on any document other than an Assignment Form;
ii) apply the signature (or allow, or enable, the application of the signature) of any Installer’s Representative to an Assignment Form without that Installer’s Representative signifying an intention to apply the signature in accordance with the procedure referred to in Clause 11(c)(ii) above.
f) If any person, organisation, or institution (including any Regulator and any Energy Consumer –
i) questions whether any signature applied to an Assignment Form was applied with the permission of the relevant Installer’s Representative; or
ii) disputes or challenges the mechanism for signing the Assignment Form as being invalid or ineffective;
then the Installer must do all things reasonably necessary to assist 1ERV to:
iii) answer the questions;
iv) defend the disputes or challenges; or
v) remove the grounds for the dispute or challenge, including by arranging for the relevant Installer’s Representative to re-sign any relevant Assignment Form.
12. Acceptance of Applications.
a) If 1ERV wishes to accept any Application, it must signify its acceptance by issuing a Recipient-created Tax Invoice to the Installer in accordance with Clause 15(b) below.
b) If 1ERV accepts an Application in accordance with Clause 12(a), this creates a binding tripartite Agreement between 1ERV, the Installer, and the Energy Consumer which includes the assignment of the Relevant Tradeable Rights to 1ERV.
13. 1ERV’s Right to Reject Applications.
a) 1ERV has the right to refuse any Application that – in its reasonable held opinion – does not comply with this Agreement.
b) To avoid doubt, 1ERV is under no obligation to accept or process any Application that:
i) is not submitted through the Software;
ii) is incomplete, or contains inaccurate, or untrue information; or
iii) does not include a signed copy of the Assignment Form.
Financial
14. Pricing.
a) 1ERV must display the prices for the Environmental Certificates in the Software (the “Official Pricing”).
b) If 1ERV wishes to vary the Official Pricing, it must provide Notice to the Installer (a “Pricing Notice”) which:
i) nominates the new proposed price; and
ii) specifies a proposed effective date for the price change, with this date not being earlier than five Business Days from the date that the Pricing Notice is deemed to have been delivered under this Agreement; then
the new proposed price becomes the Official Pricing from the date nominated in the Pricing Notice onwards.
c) Each Application is subject to the Official Pricing in place at the time when it is accepted by 1ERV.
d) To avoid doubt, if –
i) the Installer submits an Application which is incomplete; and
ii) the Official Pricing is varied in accordance with Clause 14(b) prior to the Installer accepting the Application; then
iii) the Installer is under no obligation to continue with the Application; but
iv) if the Installer provides the missing information after the variation to the Official Pricing; and
v) 1ERV accepts the Application; then
the Official Pricing in place at the time of the acceptance of the Application applies to the resulting Environmental Certificates.
15. Invoices and GST.
a) The Parties agree that the assignment of the Relevant Tradeable Rights constitutes a Taxable Supply to 1ERV.
b) Upon receipt of a complete, valid Application from the Installer, 1ERV must issue a Recipient-created Tax Invoice to the Installer.
c) The invoice issued under Clause 15(b) must show the amount due to the Installer, which must be based on the Official Pricing.
d) If 1ERV is unable to create the relevant Environment Certificate, 1ERV must issue Recipient-created Adjustment Note for the amount specified in the related Recipient-created Tax Invoice.
16. Payments and Credits.
a) 1ERV must pay the amount shown in the Recipient-created Tax Invoice issued under Clause 15(b) to the Installer within 10 Business Days of receiving a complete, valid, Application from the Installer.
b) 1ERV must pay the Installer in accordance with Clause 16(a) by making an electronic funds transfer to the Bank Account.
c) If 1ERV issues a Recipient-created Adjustment Note pursuant to Clause 15(d) above, then the Installer must (at 1ERV’s option):
i) promptly refund any amount paid by 1ERV to the Installer pursuant to Clause 16(a); or
ii) allow 1ERV to issue a credit note, and apply the amount paid against future Applications submitted to 1ERV by the Installer.
Rights in, and use of, the Software
17. EULA. The Installer and any of the Installer’s Personnel must separately agree to be bound by the EULA before using that Software.
18. The Installer’s Personnel. The Installer must do everything reasonably necessary to ensure that:
a) the only people who access the Software through the Installer’s account are the Installer’s Personnel;
b) the Installer’s Personnel only use the Software for the Installer’s internal purposes, and in a manner that is otherwise consistent with this Agreement;
c) any of the Installer’s Personnel who use the Software cease to have access to the Software through the Installer if –
i) the relevant person ceases to be employed or otherwise engaged by the Installer;
ii) the relevant person’s role changes in such a way as that person no longer requires access to the Software for the purposes of their engagement with the Installer; or
iii) this Agreement terminates.
19. IP in the Software: All IP Rights in or to –
c) the Software (including copyright in the source and object code);
d) any improvements to the Software (including improvements suggested by the Installer); and
e) any manuals and specifications associated with the Software;
are owned by 1ERV and its licensors, and nothing in this Agreement transfers these rights to the Installer or any End User.
Confidentiality
20. Confidentiality.
a) Neither Party may disclose the other’s Confidential Information to any third person except where the disclosure is made:
i) to a Regulator as part of a dealing in the Relevant Environmental Certificates;
ii) on a confidential basis to the Party’s auditors, legal or financial advisors for the purposes of obtaining relevant advice or services;
iii) pursuant to a binding order of a court, or governmental authority with coercive powers;
iv) where the disclosure is made to a purchaser or potential purchaser of the business of the Party, providing that the purchaser or potential purchaser agrees to keep the information confidential; or
v) with the written permission of the other Party.
b) Either Party may use the Confidential Information of the other where reasonably necessary or desirable to enable it to exercise or enforce its rights under this Agreement.
c) Without limiting Clause 20(b), 1ERV has the right to use the Confidential Information (including Confidential Information in the Data) to assess or verify the Installer’s compliance with this Agreement.
Data
21. Right to disclose, access and use Data. The Installer must ensure that it has the legal right (including by obtaining and maintaining appropriate consents to use and disclose personal and Confidential Information to 1ERV) to upload the Data into the Software as required, permitted, or otherwise contemplated by this Agreement.
22. Licence to use the Data.
a) The Installer grants a non-exclusive, irrevocable, royalty-free, worldwide licence to 1ERV to copy, retain and use the Data for the following purposes:
i) to carry out its obligations, and to exercise its rights, under this Agreement;
ii) to audit and analyse the Installer’s use of the Software, including to assess whether the Installer has complied, and is complying, with this Agreement;
iii) to assist in the development of the Software and of new products;
iv) to otherwise do things necessary or reasonably desirable to conduct its business.
b) 1ERV has the right to transfer, assign, and sub-licence the licence to use the Data granted in Clause 22(a) above in conjunction with the sale of its business or the Software.
c) Nothing in this Agreement transfers the ownership of any Data from the Installer to 1ERV or otherwise affects the ownership of the Data.
23. Deletion of the Data. 1ERV has the right to delete the Data relating to any particular Eligible System once six years has elapsed from the submission of the Assignment Form for that Eligible System by the Installer.
Guarantees
24. Implied guarantees. The law may imply warranties or guarantees into this Agreement which cannot be excluded. In Australia, these include guarantees that goods and services are –
a) of acceptable quality; and
b) fit for the purpose for which they are intended.
If applicable, these implied guarantees and warranties form part of this Agreement, and nothing here is intended to exclude, restrict or modify those terms.
25. Other guarantees etc. 1ERV –
a) excludes all warranties and guarantees implied by statute which may be excluded; and
b) makes no warranties or guarantees to other than those made or referred to in Clause 9 or Clause 24.
Liability etc
26. Exclusion of liability. Subject to 1ERV’s obligation under any law not to exclude or restrict its liability, 1ERV excludes all liability to the Installer –
a) of whatever nature (whether any indirect, incidental, special or consequential loss or damage or otherwise, including loss of business or other profits);   and
b) however arising (whether through the law of negligence or tort generally, breach of contract, breach of statutory duty or otherwise).
27. Limitation of liability. To the extent that 1ERV’s liability to is not excluded by Clause 26, and to the maximum extent permitted by law, 1ERV’s liability to the Installer under this Agreement is limited to the following:
a) the supplying of the services again; or
b) the payment of the costs of having the services supplied again.
28. Proportionate liability. To avoid doubt, and to the maximum extent permitted by law, 1ERV’s liability to the Installer abates proportionately to the extent that any loss is caused by the Installer’s failure to comply with its obligations under this Agreement.
29. Indemnities.
a) The Installer indemnifies 1ERV for each and every Claim caused by or arising from:
i) a breach of any obligation owed by the Installer to 1ERV in under Clause 6.
ii) a failure of any warranty given by the Installer to 1ERV under Clause 7;
iii) any representation given by the Installer to 1ERV in Clause 7 being incomplete, false, or misleading in any material respect; and
iv) any breach by the Installer of, or any failure by the Installer to comply with, Clause 11(Error! Reference source not found..
b) Despite Clause 25, 1ERV indemnifies the Installer for each and every Claim arising from the representation given by 1ERV in Clause 9.
Term and termination
30. Period of this Agreement. This Agreement becomes binding on the Execution Date and continues until terminated in accordance with Clause 31.
31. Termination.
a) Termination by Notice. Either Party may terminate this Agreement at any time for any reason (or for no reason) by providing 30 days’ Notice to that effect to the other.
b) Termination upon breach. If –
i. one Party (the “Infringing Party”) breaches any obligation in this Agreement which is capable of being rectified; and
ii. the other Party (the “Innocent Party”) provides Notice to the Infringing Party requiring rectification of the breach; and
iii. the breach is not rectified within 14 days;
then the Innocent Party has the right to terminate this Agreement by providing notice in writing to that effect to the Infringing Party.
c) Termination under the general law. To avoid doubt, the rights of termination given in this Clause 31 are additional to the rights of termination available under statute or the common law.
d) Survival. All rights which have accrued prior to, or upon, the termination of this Agreement survive its termination.
Notice
32. Requirements for Notices. To be validly given, every Notice given under this Agreement must –
a) be in writing and in English; and
b) provided to, or via, the Relevant Address for the Party.
33. Deemed Delivery. A notice is deemed to have been received by the Party to which it is addressed:
a) if sent by pre-paid post, on the third Business Day after posting;
b) if delivered personally, at the time when it is accepted by the recipient; and
c) if sent by email, on the day and at the time it is sent.
34. Non-Delivery. Despite Clause 33(c), an email message is not deemed to be delivered if the sender’s email server reports that the message has not been delivered.
General
35. Electronic Execution.
a) The Parties consent, accept and agree that this Agreement may be executed electronically, providing the execution meets the requirements for electronic execution under law.
b) Without limiting Clause 35(a), the Parties consent, accept and agree that this Agreement may be executed using any one or more of the following methods:
i) through the application of digital signatures that utilise Public Key Infrastructure (PKI) (including DocuSign, Adobe Acrobat Sign, or equivalent products) to the Contract Form;
ii) by the fixing of scanned signatures to the Contract Form;
iii) through the writing of a signature onto a PDF copy of the Contract Form using a finger, stylus, or other implement.
36. Assignment etc.
a) Each Party may assign, assign or novate its rights and obligations under this Agreement with the prior written consent of the other. Such consent may be conditional upon reasonable conditions and must not be withheld unreasonably.
b) The Installer is deemed to consent to an assignment or novation of 1ERV’s rights and obligations under this Agreement as part of the sale of its business (or the part of its business which operates the Software) providing that the purchaser agrees to be bound by an agreement that is at least as favourable to the Installer as this Agreement.
37. Changes to this Agreement.
a) 1ERV has the right to amend the terms of this Agreement by providing the Installer with Notice (an “Amendment Notice”) which:
i) sets out the proposed amendments; and
ii) specifies a proposed effective date for the change to the terms of this Agreement, with this date not being earlier than 15 Business Days from the date that the Amendment Notice is deemed to have been delivered under this Agreement.
b) If the Installer does not wish to accept the changes set out in the Amendment Notice, it may terminate this Agreement by providing Notice to that effect to 1ERV under this Clause 37(b) at any time before the proposed effective date nominated in the Amendment Notice.
c) The Installer is deemed to have accepted the amendments if it does not provide Notice to 1ERV under Clause 37(b) before the proposed effective date nominated in the Amendment Notice.
38. No Waiver. No delay or failure by 1ERV to exercise any right or remedy operates as a waiver unless it is in writing. Each written waiver is valid only to the extent specifically referred to.
39. Joint and separate liability. Where the Installer is comprised of more than one entity, this Agreement binds each of those entities both jointly and separately.
40. Governing law. This Agreement is governed by the laws in force in Victoria, Australia and the Parties submit to the jurisdiction of the courts in that State, and courts outside of Victoria which hear appeals from Victorian courts.
Defined terms
41. In this Agreement, italicised words have the following meanings, unless the context requires otherwise:
a) Amendment Notice has the meaning defined in Clause 37(a).
b) Application means an application to create one or more Relevant Environmental Certificates, being all of the required documentation and supporting evidence, including the Assignment Form.
c) Assignment Form means a document approved by the relevant Regulator from time to time for the assignment of the right to create Environmental Certificates in respect of an Eligible System installed by a qualified installer.
d) Bank Account means the Australian bank account specified in Item 2 of the Contract Form, or any other Australian Bank Account nominated by the Installer in writing to 1ERV.
e) Benefit means a thing of a value provided to a Consumer, including a gift card, cash-back, discount, or a support service.
f) Business Day means any day other than a Saturday or a Sunday or a public holiday in Melbourne, Victoria.
g) Claim means a claim for any cost (including legal cost), loss (including loss of profits), damage, or liability.
h) Confidential Information means information of a confidential nature relating to –
i) the business of either Party;
ii) the commercial terms of this Agreement;
iii) the source code or object code in the Software;
iv) any Data that is of a personal or sensitive nature; and
v) any other information of a confidential nature designated by the Parties as being confidential;
but it does not include:
vi) any information in the public domain other than through:
A) the unauthorised action of either Party; or
B) the tendering of any document in Court; or
vii) any information which the disclosing Party can show was in its possession at the time of the disclosure, and which was not acquired directly or indirectly from the other Party.
i) Contract Form means the form entitled “1st Energy Rebates Contract Form” which is signed by the Parties.
j) Data means the information entered into the 1ERV Database by the Installer that relates to, or is associated with:
i) the Installer’s business (including the personal details of the Installer’s Personnel);
ii) each Energy Consumer;
iii) each Application submitted by the Installer.
k) Energy Consumer means, in respect of a specific Eligible System, the person who is entitled to create the Relevant Environmental Certificate.
l) Eligible System means, depending upon the context –
i) legacy equipment which can be removed; or
ii) new equipment which can be installed;
to enable the creation of an Environment Certificate, or both the legacy equipment and the new equipment.
m) Environmental Certificate means, depending upon the context:
i) an STC;
ii) a VEEC; or
iii) both an STC and a VEEC;
n) Execution Date means:
i) if the Contract Form is executed by both Parties on the same date, the date of execution; and
ii) if the Contract Form is executed by the Parties on different dates, the date that the second Party executes the Contract Form.
o) EULA means the agreement between 1ERV and each user of the Software entitled “rebateM8™ Software End User Licence Agreement” as amended from time to time.
p) GST Law means the law set out in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and the associated regulations.
q) Infringing Party has the meaning defined in Clause 31(b)(i).
r) Innocent Party has the meaning defined in Clause 31(b)(ii).
s) Installer’s Personnel means any director, officer, employee, or contractor of the Installer, and may include the Installer’s Representative.
t) Installer’s Representative means –
i) the person who signs the Contract Form; and
ii) any other person who is accepted in writing by the Parties as being the Installer’s Representative (whether in addition to, or as a substitute for the person who signs the Contract Form); and
to avoid doubt, the Parties accept that there may be more than one Installer’s Representative.
u) IP Rights means all industrial and intellectual and industrial property rights and interests of whatever nature throughout the world, whether conferred under statute, common law or equity, including copyright, trade mark rights, domain names, business or company names, designs, patents, confidential information, trade secrets, know-how, and any rights to register such rights, and whether pending, registered, unregistered, or unregistrable, whether existing before or after the date of this Licence.
v) Notice means a notification that meets the requirements set out in Clause 32.
w) Official Pricing has the meaning defined in Clause 14.
x) Pricing Notice has the meaning defined in Clause 14(b).
y) Recipient-created Adjustment Note has the meaning defined in the GST Law.
z) Recipient-created Tax Invoice has the meaning defined in the GST Law.
aa) Regulator means:
i) the Victorian Essential Services Commission with respect to VEET; and
ii) the Clean Energy Regulator with respect to the RET.
bb) Relevant Address means, in respect of a Party:
i) any physical, PO Box, or email address, for that Party that is listed on the Contract Form;
ii) any replacement address nominated by the relevant Party by way of Notice to the other;
iii) the address of the solicitor for that Party.
cc) Relevant Environmental Certificates mean, with respect to a particular Assignment Form, each and every Environmental Certificate that is covered, listed, or referred to in the Assignment Form.
dd) Relevant Tradeable Rights means, with respect to an Eligible System, all rights relating to, or arising from, Relevant Environmental Certificates, including:
i) the right to, create, receive, transfer, retire, surrender, or otherwise deal with the Relevant Environmental Certificates; and
ii) the economic benefit of dealing with the Relevant Environmental Certificates.
ee) RET means the Renewable Energy Target as defined in the Renewable Energy (Electricity) Act 2000 (Cth).
ff) Signing Conditions means that:
i) the Installer has in fact upgraded an Eligible System for the relevant Energy Consumer;
ii) the Installer has entered or uploaded the following details into the Software:
A) the details of the relevant job;
B) the required photos of the installation;
C) the VBA Compliance Certificate; and
D) the Certificates of Electrical Safety (if applicable);
iii) the signature that is applied to the Assignment Form belongs to a person who is eligible to sign the form; and
iv) the Installer or the Installer’s Representative (as the case may be) honestly and reasonably believes that it is appropriate to sign the form given the statements contained in the “Declaration by Installer” section of the Assignment Form.
gg) Software means the rebate lodgment, management and reporting software application developed and marketed by 1ERV under the name “rebateM8” and any modifications, updates or improvements to that application.
hh) Standard Terms means the terms in this document (i.e. the document headed “1st Energy Rebates Installer Agreement Standard Terms”) and excluding any terms in the Contract Form.
ii) STC means a Small-Scale Technology Certificate as defined in the Renewable Energy (Electricity) Act 2000 (Cth).
jj) Taxable Supply has the meaning defined in the GST Law.
kk) VEET means the Victorian Energy Efficiency Target as defined in the Victorian Energy Efficiency Target Act 2007 (Vic).
Interpretation
42. When interpreting this Agreement, unless the context clearly requires otherwise:
a) a reference to this Agreement means the 1st Energy Rebates Contract Form as it is embodied in the Contract Form and these Standard Terms;
b) a reference to “1ERV” is a reference to Seeing Green Balloons Pty Ltd t/as 1st Energy Rebates Victoria (ABN 77 146 116 805);
c) a reference to the “Installer”:
i) is a reference to the person or entity named in Item 1 of the Contract Form; and
ii) includes the Installer’s Personnel;
d) a reference to a “Clause” means a clause of this Agreement;
e) a reference to the “Software” includes the whole Software and any part of it;
f) a reference to any statute or statutory instrument includes the statute or instrument as amended from time to time, and any replacement statute or instrument;
g) a reference to “written notice” or “writing” includes communications by email;
h) a reference to a “Party” means either the Installer or 1ERV;
i) a reference to “the Parties” means both the Installer and 1ERV;
j) headings form part of this Agreement and may be used to aid in its interpretation;
k) footnotes do not form part of this Agreement, but may be used to aid in its interpretation in the event of clear ambiguity.
l) the singular includes the plural and vice versa;
m) If a period is expressed in months and dates from an event, that period ends:
(i) on the day, in the relevant subsequent month, which has the same number as the day of the event; or
(ii) if the relevant subsequent month has no day with the same number, on the last day of the month.
n) a reference to a time or date (or both) is a reference to the official time and date in Melbourne, Victoria, Australia; and
o) all fees are in Australian dollars.

[1] ‘Indirect’ use of telemarketing or door knocking techniques would involve the Installer engaging third parties to use those techniques on behalf of the Installer.