Terms & Conditions
The Company provides the Powerpal device and mobile application to enable customers to track their power usage in real-time. Use of Powerpal is subject to these Terms of Service.
The following terms are used regularly throughout this Terms of Service and have a particular meaning:
- ABN means Australian Business Number.
- Account means a registered Customer Account within Powerpal.
- Agreement means the agreement formed between the Customers and the Company under, and on the terms of these Terms of Service.
- Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
- Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.
- Company means PowerPal Pty Ltd ABN 46 623 173 099.
- Confidential Information means any written or verbal information that:
- Is deemed as confidential under these Terms of Service;
- A party informs the other party that it considers it confidential and/or proprietary;
- A party would reasonably consider to be confidential in the circumstances; and
- Is personal information within the meaning of the Privacy Act and GDPR;
but does not include information that a party can establish:
- Was in the public domain at the time it was given to that party;
- Became part of the public domain, without that party’s involvement in any way, after being given to the party;
- Was in party’s possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
- Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
- Customer means the customer that Powerpal is licensed to under this Terms of Service (which if in doubt shall be the named Account holder).
- Customer Data means all Personal Information, power Customer Data, and other such data that is transmitted into Powerpal through use of the Device or the Powerpal App.
- Device means the Powerpal hardware device available for purchase via the Site or any other licensed Reseller.
- Device Code means the numerical provided on the packaging of each Device used for the purposes of creating an Account and pairing the Device with that Account.
- Electricity Meter means the electricity meter at the address where the Device is installed.
- GDPR means the EU General Data Protection Regulation 2016/679.
- Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, Device formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
- Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
- Moral Rights means:
- Moral rights pursuant to the Copyright Act 1968 (Cth);
- Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
- Order means an order for one or more Devices placed by a Customer with the Company.
- Powerpal means together the Device, the Powerpal App and the Site, plus any other of the Company’s suite of hardware, tools, applications and services, known together as “Powerpal”, licensed to the Customer under these Device Terms and the Terms of Service.
- Powerpal App means the Powerpal App developed by the Company and downloadable from mobile application marketplaces from time-to-time.
- Personal Information shall have the same meaning as the Privacy Act.
- Pricing means the pricing published on the Site by the Company from time-to-time.
- Privacy Act means the Privacy Act 1989 (Cth).
- Reseller means any third-party authorised by the Company to resell Powerpal.
- Sales Tax means any tax payable on Devices that may be charged by the relevant authority in the jurisdiction the Device is being shipped to.
- Special Conditions means any special conditions agreed to by the parties that shall apply to these Terms of Service.
- Site means the website found at https://www.powerpal.net as updated from time-to-time, or such other URL where the Company provides Powerpal.
- Third Party Services means any third party service account connected to and/or integrated with Powerpal.
- Tracking Information means any information provided by the Company to a Customer in order to track a shipped Order.
- Usage Data means all power usage information and other such data that is transmitted into Powerpal through use of the Device.
- Warranty Statement means the warranty policy of the Company as advertised on the Site and separately provided to the Customer.
- The licence granted under these Terms of Service shall be ongoing until terminated in accordance with the terms of this Terms of Service.
- The Customer agrees that:
- All use of Powerpal is subject to these Terms of Service;
- The terms of this Terms of Service may be modified from time to time;
- It is responsible for the installation of the Device; and
- It is responsible for registering and maintaining their Account.
- The Company may suspend the account or restrict the access of any User that breaches the terms of this Agreement
- To use and access Powerpal:
- The Customer must the install the Device on their Electricity Meter in accordance with the instructions provided by the Company.
- The Customer must download the Powerpal App and set up an Account; and
- The Customer must pair the Device with their Account.
- The Customer agrees to use Powerpal in accordance with any instructional documentation provided by the Company within Powerpal. This documentation shall be updated from time-to-time.
- The Company may also assist Customers with technical support services.
- Powerpal may allow a Customer to:
- Download the Powerpal App;
- Create an Account;
- View and participate in promotions from third parties; and
- View comparisons with other energy suppliers.
- To use Powerpal, it is necessary that the Customer has access to the Powerpal App in order to create an Account.
- The Account contains the Customer Data, which is uploaded into the Powerpal App through the pairing of the Device and provides the Customer with the ability to track their power usage in real-time.
- The Customer acknowledges that the accuracy of the Customer Data will depend on the positioning and placement of the Device on the Electric Meter, which shall be within the exclusive control and responsibility of the Customer.
- The Company is not liable to the Customer if any of the information supplied through the Device is incorrect or not up to date.
- The Company does not accept liability for any faulty installation of a Customer’s Device.
- The Device must be purchased from the Site in accordance with the Device Terms or purchased through licensed Resellers.
- The Customer authorises Powerpal to use Customer Data provide benchmarking analysis and provide the Customer with relevant offers from third parties.
- Any offers or recommendations made through Powerpal are personal to the Customer may not be transferred to, or relied upon, by any other person.
- To the maximum extent permitted under law, the Company is not liable to the Customer if the Customer does not achieve any actual savings or rewards after participating in a promotion or signing up to an energy supplier recommended by Powerpal.
- The Company is not liable for the performance by any third party introduced to the Customer via Powerpal.
- Unless otherwise agreed in writing between the parties, where the Customer enters a licence agreement with a Reseller for the sale of Devices and access to Powerpal, the Customer must pay the Reseller directly for use of Powerpal.
- The Company shall not be liable to a Customer that is authorised to use Powerpal via a Reseller, except as provided for under this Terms of Service.
- The Customer must contact the Reseller directly if it requires any sales support, or in relation to any dispute under their agreement with the Reseller.
- Fees may apply to the Reseller for access and use of Powerpal and are as agreed between the Company and the Reseller in writing.
Third party Dependencies
- The Customer agrees and acknowledges that:
- Powerpal has third party dependencies which may affect its availability, including without limitation:
- Third Party Services;
- Infrastructure providers;
- Telecommunications and internet service providers;
- Hosting services;
- Email service providers; and
- The Company has no means of controlling the availability of such dependencies, although each of those services has a robust operating standard suitable for commercial dependency.
- The Customer shall have the right to permanently delete and remove their Customer Data generated through the Device by resetting the Device.
- The Customer authorises the Company to use and transmit the Customer Data within Powerpal to any third party energy provider or Reseller for the limited purposes of managing and monitoring the Customer’s energy usage.
- The Company agrees that it shall not do anything to prejudice the security or privacy of the Customer’s systems or information.
- The Company agrees to treat all Customer Data as Confidential Information under these Terms of Service, however the Customer agrees that the Company is not responsible for the maintaining the confidentiality of any Customer Data.
- The Company accepts no liability for the content of Customer Data.
- The Customer agrees that Company shall be entitled to receive, store and use all Usage Data (which for the purposes of this clause does not include any personal information) for the purposes of providing Powerpal, both during and after the term of this Agreement.
- To the extent permitted at law, the Customer grants the Company an irrevocable, worldwide, royalty-free, transferable licence to the Usage Data.
- The Customer shall have the right to permanently delete and remove their Usage Data generated through the Device by resetting the Device.
- The Company agrees that it shall not do anything to prejudice the security or privacy of the Customer’s systems or information.
- The Customer acknowledges that use of the Device in conjunction with the Powerpal App is subject to the Customer’s ongoing acceptance and adherence to the Terms of Service.
- The Customer warrants that:
- They have read and agrees to these Device Terms; and
- They are 18 years of age or older.
Use of online store
Online Store Terms
- A Customer may purchase available Devices online from Powerpal.
- The Customer’s ability to purchase the Devices from Powerpal is subject to availability. The Company will endeavour to ensure that Devices listed on Powerpal are in stock but reserves the right to cancel any Orders it is unable to fulfil.
- The Company may have arrangements in place with licensed Resellers in accordance with the Terms of Service.
- In the event of a conflict between any Reseller’s terms and this Device Terms, the Device Terms shall prevail.
- The Device is offered as described on the Site, including features and specifications, however, to the maximum extent possible under law, the Company is not liable for any errors or omissions in its description of the Device.
- Pricing for each Device shall be as advertised by the Company on the Site, updated from time-to-time, or as otherwise agreed in writing with the Customer.
- Unless stated otherwise in writing, the Company is under no obligation to maintain Pricing for any Device prior to confirmation of an Order.
- Pricing shall be confirmed at the time that the Customer completes payment and, upon completing an Order, may not be varied unless:
- The parties mutually agree in writing; or
- The Pricing has been mistakenly represented to the Customer in accordance with (a) above.
Purchase, Payment & Order
- An Order is confirmed when the Customer completes payment for the Device(s) and for shipping in accordance with the instructions on the Site and is sent a confirmation email to the Customer’s provided email address.
- Payment for Orders will be processed immediately upon the Customer confirming their Order on the Site and may be handled by third-party payment platforms.
- The Company reserves the right to cancel an Order at any time prior to dispatch of the Device in its complete discretion, in which case a full refund will be provided to the Customer with respect to the cancelled Order.
- All payments shall be made via the online payment gateway on Powerpal or in such other manner as the Company may direct from time-to-time
- Unless expressed otherwise, the pricing for each Device shall be deemed inclusive of Sales Tax and delivery costs. As the importer of goods, the Customer agrees that they are solely responsible for determining whether any Sales Tax applies and, if so, the payment of such Sales Tax to the relevant authority, unless agreed otherwise by the Company.
- The Company will provide the Customer with an invoice for each Order.
Shipping & Delivery
- The Company shall advise the Customer of any shipping fees prior to payment of any Device if not included in the Device purchase price.
- The Company may not ship to all locations and will advise the Customer if a delivery address is not in a location to where the Company ships.
- The Customer must provide the Company with accurate shipping information. Where the Customer provides an incorrect or incomplete delivery address, the Company may charge a redelivery fee for each subsequent redelivery attempt.
- The Customer agrees that any representation regarding delivery dates or times are best estimates only, and the Company is not liable for any Deliveries not made at the represented date or time.
- The Customer (or their representative) may be required to present a proof of identification to the courier at the point of delivery.
- The Customer authorises the Company to instruct its shipping agent to leave the Devices at the delivery address if the premises is unattended at the time of delivery.
- The Customer agrees that risk in the Devices transfers to the Customer upon delivery.
- After taking delivery of the Order, the Customer agrees to examine the Devices and notify the Company if there is any damage to the Devices within 2 Business Days of delivery.
- Under no circumstances will the Company be liable for any cost, loss or damage caused by a delay in shipping after it has been despatched by the Company including incorrect shipping details provided by the Customer.
- The Company will ordinarily provide the Customer with tracking information for each shipped Device (Tracking Information).
Where the Company provides Tracking Information, it does so as a courtesy only and takes no responsibility as to the accuracy of any Tracking Information. The Customer agrees that Tracking Information will be provided by a third-party shipping agent.
- The Customer acknowledges that any tracking information is sourced from a third-party shipping company and that the Company shall not be liable under any circumstance in relation to that tracking information.
- The Company does not provide refunds or accept returns, except where required by law (including the Australian Consumer Law), or as otherwise provided for under these Device Terms and/or Warranty Statement.
- The Customer may notify the Company if:
- An Order is not received;
- The Device arrives damaged or faulty; and/or
- The Customer otherwise believes that they are entitled to refund or exchange under any applicable law.
- If the Device is found to be damaged, defective or otherwise not usable within 14 days of delivery, then the Customer shall notify the Company of the issue in writing within 1 Business Day, in which case the Customer shall be eligible for a replacement device at no cost to the Customer. If notice is not received within the required timeframe, then the defective Device shall be governed by the Warranty Statement.
- Where the Customer is provided with a replacement or refund, the Company will provide instructions on how to return the Device(s). The Customer may then dispatch the Device(s) for exchange or refund back to the Company in accordance with those instructions. The Customer shall be responsible for shipping costs to return the item, which if the Device is found to be defective will be compensated by the Company.
Installation and usage
- The Customer agrees to install and use the Device in accordance with the instructions provided by the Company.
- The Company is not liable for the performance (including non-performance) Powerpal due to incorrect installation or misuse.
- The Customer acknowledges that the Device is designed to be used in conjunction with the Powerpal App, and that without the Powerpal App the Device may not provide any utility to the Customer.
- The Customer is solely responsible for determining that its electrical devices meet the required specifications for use with Powerpal.
- By accepting the terms and conditions of this Terms of Service, the Customer grants the Company a non-exclusive, worldwide, royalty-free license to use the Customer Data for the duration of this Agreement.
- The Company may revoke or suspend the Customer’s licence(s) for breach of the terms of this Agreement by the Customer.
Modification of Terms
- The terms of this Licence may be updated by the Company from time-to-time.
- Where the Company modifies the terms, it will provide the Customer with written notice, and the Customer will be required to accept the modified terms in order to continue using Powerpal.
- The Company provides customer support for Powerpal via the email address email@example.com.
- The Company shall endeavour to respond to all support requests within 2 Business Days.
Use & Availability
- The Customer agrees that it shall only use Powerpal for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
- The Customer is solely responsible for the security of its customer name and password for access to Powerpal. The Customer shall notify the Company as soon as it becomes aware of any unauthorised access of its Powerpal account.
- Should the Customer lose access to their Account, the Customer can use the Device Code provided on the packaging of the Device to create a new Account and upload the existing Customer Data to that Account.
- The Customer agrees that the Company shall provide access to Powerpal to the best of its abilities, however:
- Access to Powerpal may be prevented by issues outside of its control; and
- It accepts no responsibility for ongoing access to Powerpal.
- Security. The Company takes the security of Powerpal and the privacy of its Customers very seriously. The Customer agrees that the Customer shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
- Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the Customer to ensure that any transmission standards meet the Customer’s operating and legal requirements.
- Storage. Data that is stored by the Company shall be stored according to accepted industry standards.
- Backup. The Company shall perform backups of its entire systems in such manner, at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific Customer Data from any period of time unless so stated in writing by the Company.
- Data. The Company may use de-identified, aggregate data or other statistical information generated by Powerpal to further improve Powerpal or for research purposes. Such data shall not qualify as Confidential Information for the purposes of this Agreement.
- Trademarks. The Company has moral & registered rights in its trade marks and the Customer shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
- Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Customer warrants that it shall not infringe on any Third Party rights through the use of Powerpal.
- Powerpal. The Customer agrees and accepts that Powerpal is the Intellectual Property of the Company and the Customer further warrants that by using Powerpal the Customer will not:
- Copy Powerpal or the services that it provides for the Customer’s own commercial purposes; and
- Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Powerpal or any documentation associated with it.
- Content. All content (excluding personal information) submitted to the Company, whether via Powerpal or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the Customer or any other party with respect to Powerpal.
Disclaimer of Third Party Services & Information
- The Customer agrees that the Company shall not be responsible or liable in any way for:
- Interruptions to the availability of Powerpal due to Third Party Services; or
- Information contained on any linked third party website.
- A party shall not:
- Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
- Disclose any of the Confidential Information except in accordance with clause (b).
- Subject to clause (c), a Party may disclose Confidential Information that a Party is required to disclose:
- By law or by order of any court or tribunal of competent jurisdiction; or
- By any Government Agency, stock exchange or other regulatory body.
- If a party is required to make a disclosure under clause (b), that party must:
- To the extent possible, notify the other party immediately after it anticipates that it may be required to disclose any of the Confidential Information; and
- Only disclose Confidential Information to the extent necessary to comply.
- Each party must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.
Liability & Indemnity
- The Customer agrees that it uses Powerpal at its own risk.
- The Customer acknowledges that the Company is not responsible for the conduct or activities of any Customer and that the Company is not liable for such under any circumstances.
- The Customer agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the Customer’s use of or conduct in connection with Powerpal, including any breach by the Customer of these Terms.
- In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Customer’s access to, or use of, or inability to use Powerpal, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
- Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
- The re-supply of services or payment of the cost of re-supply of services; or
- The replacement or repair of goods or payment of the cost of replacement or repair.
- To the extent permitted by law, the Company’s liability to the Customer shall be limited to the amount paid by the Customer in connection with Powerpal.
- Either party may terminate these Terms of Service by giving the other party written notice.
- Termination of this Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Terms of Service up to the date of expiry or termination.
- If any dispute arises between the parties in connection with this Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
- Includes or is accompanied by full and detailed particulars of the Dispute; and
- Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
- Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
- Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
- Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
- Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
Electronic Communication, Amendment & Assignment
- The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
- The Customer can direct notices, enquiries, complaints and so forth to the Company as set out in this Terms of Service. The Company will notify the Customer of a change of details from time-to-time.
- The Company will send the Customer notices and other correspondence to the details that the Customer submits to the Company, or that the Customer notifies the Company of from time-to-time. It is the Customer’s responsibility to update its contact details as they change.
- A consent, notice or communication under this Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
- Notices must be sent to the parties’ most recent known contact details.
- The Customer may not assign or otherwise create an interest in this Terms of Service.
- The Company may assign or otherwise create an interest in its rights under this Terms of Service by giving written notice to the Customer.
- Special Conditions. The parties may agree to any Special Conditions to this Terms of Service in writing.
- Prevalence. To the extent this Licence is in conflict with, or inconsistent with, the terms of a Proposal, or any Special Conditions made under this Terms of Service, as relevant, the terms of the Proposal or Special Conditions shall prevail (as the case may be).
- Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Licence.
- Relationship. The relationship of the parties to this Terms of Service does not form a joint venture or partnership.
- Waiver. No clause of this Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
- Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Terms of Service and the transaction facilitated by it.
- Governing Law. This Terms of Service is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
- Severability. Any clause of this Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Terms of Service.