Spark Plan Check Installer Agreement

This agreement is between ClarityIntel Pty Ltd (ABN 54 697 254 596), trading as Spark Plan Check (we, us), and the business named on the Order Form (you). It starts when you accept it online or sign it, and the Order Form is part of it.

Key terms at a glance

1. Meanings

In this agreement:

• Account means your business's account on Spark.
• Customer means a homeowner or other person you run a plan check for.
• Customer Information means personal information about a Customer that you enter in Spark or that Spark produces about them, including their name, contact details, address, meter number (NMI), retailer, electricity use and the system you're installing.
• Data Laws means the Privacy Act 1988 (Cth), including the Australian Privacy Principles (APPs), the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth), and any other law about personal information or contacting people that applies.
• Energy Rules means the National Energy Retail Law and Rules, Victoria's Energy Retail Code of Practice, and any other energy law, rule, code or guideline that applies to marketing or arranging electricity contracts.
• Plan Check means one run of the service for one Customer at one address, and Result means what it produces, on screen, through the Customer's link, or as a download.
• Order Form means the details of your Account shown on your Billing page in Spark: your plan and its price, monthly or annual billing, the start date, how many of Your People can sign in, where invoices and notices go, and any Territory with its fee, minimum and dates. They're shown to you before you accept this agreement and emailed to you with your copy; when they change (for example, when you move up a plan), the Billing page shows the new details.
• Your People means your employees and contractors who sign in to your Account.
• Business Day means a day that isn't a Saturday, Sunday or public holiday in Sydney.

Headings are for convenience. "Including" doesn't limit what comes before it. If this agreement and the Order Form disagree, the Order Form wins, then the schedules, then these clauses.

2. The agreement

2.1 This agreement is a licence to use software as a service. It isn't a partnership, agency, franchise or employment, and neither of us can bind the other.

2.2 You confirm the person accepting it has authority to bind your business, and that you're acquiring the service for your business, not for personal, domestic or household use.

3. The service

3.1 We'll provide the service described in Schedule 1 for your plan, from the start date on your Order Form, with due care and skill.

3.2 We may improve or change how the service works, as long as the change doesn't materially reduce what's in Schedule 1. If a change would, clause 15 applies.

3.3 Plan data comes from retailers' published plan information. We check it with due care, but we don't control it, and a retailer can change or withdraw a plan at any time. Results are estimates on the information entered and the assumptions they show.

3.4 We aim to keep the service available at all times except for planned maintenance, which we'll try to do outside 8am–6pm Sydney time on Business Days. We don't promise any particular level of availability.

3.5 Support is by email on Business Days. We aim to reply within one Business Day.

4. Your Account and Your People

4.1 You can add Your People, up to the number on your plan. Each person signs in with their own email address. You must keep the list up to date and remove anyone who leaves.

4.2 You're responsible for what Your People do in your Account, as if you did it.

4.3 Tell us straight away if you think someone has got into your Account who shouldn't have.

5. How you use the service

5.1 You may use the service and Results to advise your own Customers in the ordinary course of your business, including sending a Customer their link and giving them a printout or download of their Result.

5.2 You must: (a) enter information that is accurate to the best of your knowledge, from the Customer's own bill and the system you're quoting; (b) only enter information about a Customer you're dealing with, with the notice in Schedule 2 given to them; (c) follow the presentation rules in Schedule 3; (d) comply with the Data Laws and Energy Rules that apply to you, including when you contact Customers.

5.3 You must not: (a) resell, sublicense or provide the service to anyone other than your own Customers; (b) run Plan Checks for another installer, or let another business use your Account; (c) copy the plan data in bulk, scrape the service, or use it to build a competing product; (d) try to get around security, or test it without our written agreement; (e) upload anything unlawful, or any logo or material you don't have the right to use.

5.4 We may suspend access for a person, or your Account, if we reasonably believe it's needed to stop a security risk, unlawful use, or harm to Customers. We'll tell you why straight away and restore access as soon as the reason is gone. We won't suspend for an unpaid invoice without first giving you 14 days' written notice.

6. Your Customers and their information

6.1 Schedule 2 sets out how each of us handles Customer Information. It's part of this agreement.

6.2 You own your relationship with your Customers. We don't contact your Customers to sell them anything, and we don't use Customer Information to market to anyone.

7. Our independence

7.1 We don't accept, and won't accept while this agreement is in force, any commission, referral fee, payment or other benefit from an electricity retailer, or anyone acting for one, in connection with Spark's recommendations.

7.2 The way Spark ranks plans doesn't take into account any payment to anyone.

7.3 If you receive any payment or benefit from a retailer in connection with a Customer's switch, you must tell that Customer before they sign up (Schedule 3, rule 5). Our independence is a statement about us, not about you.

8. Fees, invoices and GST

8.1 You'll pay the fees on your Order Form. Unless it says otherwise, we invoice on the 1st of each month for the month before: your plan's fee (for the days you had it, in your first month), Plan Checks over those included, any Territory fee and any yearly re-checks. Annual plans are invoiced up front, on their start date and each anniversary. If you've saved a direct-debit or card authority with us, we take payment from it when we invoice.

8.2 Invoices are due within 14 days. If an invoice is unpaid 14 days after we've sent a written reminder, we may suspend your Account until it's paid.

8.3 Fees exclude GST. We'll add GST where it applies and give you a tax invoice.

8.4 If you dispute an invoice in good faith, tell us within 30 days and pay the part that isn't disputed. We'll work through it with you under clause 18.

8.5 We don't charge interest on late payments or recovery costs beyond what a court awards.

9. Territory (only if on your Order Form)

9.1 For the term shown on your Order Form, we won't license Spark to another installer to provide residential plan advice to homes in the postcodes listed (the Territory).

9.2 This doesn't apply to: (a) homeowners using a self-serve Spark product themselves; (b) SMEInspect's business clients; (c) retailers, councils, community energy groups or government programs offering it to their own customers; (d) another installer running a Plan Check for its existing customer in the Territory.

9.3 The Territory fee and minimum on your Order Form are worked out from the Clean Energy Regulator's published battery installations in the Territory for the 12 months ending three months before the order: A$1 a month for each battery installed a month (at least A$100), and one Plan Check a month for every 10 batteries (at least 10). They're fixed for the Territory's term.

9.4 You'll aim to run at least the minimum number of Plan Checks for Customers in the Territory shown on the Order Form, averaged over each quarter. If you're under it for two quarters in a row, we may end the exclusivity (not the rest of this agreement) with 30 days' written notice, and the Territory fee stops.

9.5 The Territory term doesn't renew automatically. We'll ask you at least 30 days before it ends whether you want to renew, with the fee and minimum worked out again from the latest figures.

9.6 Nothing in this clause limits what you may do, or who a homeowner can deal with.

10. Your logo and name

10.1 You give us a non-exclusive, royalty-free licence to show your business name and logo in the service, on your Customers' Results and links, while this agreement is in force.

10.2 You may also allow us, by approving the wording in writing, to name you as a Spark user or publish a case study.

10.3 You confirm you have the right to use the logo and name you give us.

11. Intellectual property

11.1 We (or our licensors) own the service, the software, the method and the format of Results. Nothing in this agreement transfers that ownership to you.

11.2 While this agreement is in force, you have a non-exclusive, non-transferable licence to use the service and to give Results to your Customers. Your Customers may keep and use their own Results for their own purposes, during and after this agreement.

11.3 You own your logo, your name and the information you enter.

11.4 If you give us suggestions or feedback, we can use them without paying you, but we won't identify you without your consent.

11.5 We'll defend you against any claim that your use of the service in line with this agreement infringes someone's intellectual property rights in Australia, and pay any amount awarded or agreed in settlement, as long as you tell us promptly, let us control the defence and help us reasonably (at our cost). We may instead change the service so it doesn't infringe, or end the affected part and refund fees paid for the time after it ends.

12. Confidentiality

12.1 Each of us will keep the other's confidential information confidential, use it only for this agreement, and only share it with people who need to know it for this agreement and are bound to keep it confidential.

12.2 This doesn't apply to information that is public (other than through a breach of this agreement), that the recipient already had or developed independently, or that law or a regulator requires to be disclosed (with notice to the other where allowed).

12.3 Your fees and the terms of your Order Form are confidential to both of us.

13. The Australian Consumer Law, and what each of us promises

13.1 Your rights aren't affected. The services under this agreement come with guarantees under the Australian Consumer Law that can't be excluded. Nothing in this agreement excludes, restricts or changes them, or any other right that law gives you which can't be excluded.

13.2 Our remedy for a failure. Because the service isn't of a kind ordinarily acquired for personal, domestic or household use, to the extent the law allows, our liability for failing to comply with a consumer guarantee is limited, at our choice, to supplying the services again or paying the cost of having them supplied again (section 64A of the Australian Consumer Law).

13.3 What we promise. We'll provide the service with due care and skill, keep it reasonably secure, and comply with the Data Laws that apply to us.

13.4 What we don't promise. Beyond what the law guarantees and clause 13.3, we don't promise that: (a) a Customer will save the amount a Result shows: savings depend on their real use, their system, the retailer's terms and price changes; (b) a retailer will accept a Customer or keep a plan available; (c) the service will be uninterrupted or error-free.

13.5 What you promise. You'll use the service in line with this agreement and the laws that apply to you, and the information you enter will be accurate to the best of your knowledge.

14. Liability

14.1 The cap. Each party's total liability to the other under or in connection with this agreement, however it arises (including negligence), is limited to the greater of: (a) the fees you paid (or were due to pay) under this agreement in the 12 months before the event giving rise to the claim; and (b) A$1,000.

14.2 Indirect loss. Neither of us is liable to the other for loss of profit, revenue or goodwill, or for loss that doesn't arise naturally from the breach in the usual course of things, unless it was reasonably foreseeable as a likely result when this agreement was made.

14.3 Exceptions. The cap in 14.1 and the exclusion in 14.2 don't apply to: (a) your obligation to pay fees; (b) a party's fraud or wilful misconduct; (c) a party's breach of clause 12 or Schedule 2, but that liability is capped at the greater of A$50,000 and three times the cap in 14.1; (d) our obligation under clause 11.5; (e) your obligation under clause 14.4; (f) any liability that can't be limited by law.

14.4 Your representations to Customers. You're responsible for, and will compensate us for loss we suffer from, a claim by a Customer or a regulator that arises because you or Your People: (a) changed a Result, presented it in breach of Schedule 3, or made a statement about it or about us that isn't in the Result; or (b) contacted a Customer in breach of the Data Laws or Energy Rules.

This doesn't apply to the extent the loss was caused by our own error, negligence or breach.

14.5 Reducing loss. Each of us must take reasonable steps to reduce loss we suffer from something the other has done, and neither of us is liable to the extent the other caused or contributed to the loss.

15. Changes to the service, this agreement or your price

15.1 We may change this agreement, Schedule 1 or the price of your plan only by giving you at least 60 days' written notice, explaining the change.

15.2 If the change is to your disadvantage, you may end this agreement by written notice before the change starts, without paying any early-exit cost, and we'll refund any fees you've paid in advance for the time after it ends.

15.3 We won't change the price of an annual plan or a Territory during its term.

15.4 We may make a change sooner than 60 days if a law, regulator or security risk requires it, with as much notice as we reasonably can. Clause 15.2 still applies.

15.5 Changes that are only to your benefit (for example a new feature at no charge, or a lower price) can take effect straight away.

16. Term and ending

16.1 Monthly plans continue until either of us ends this agreement with 30 days' written notice.

16.2 Annual plans run for 12 months from the start date. At least 30 days before the end, we'll remind you and ask whether you want another year or a monthly plan. If you don't reply, your plan becomes a monthly plan at the price on your Order Form at the end of the year, which you can end with 30 days' notice.

16.3 For a serious breach. Either of us may end this agreement by written notice if the other: (a) commits a material breach and doesn't fix it within 14 days of being told about it in writing; or (b) becomes insolvent, or has an administrator, receiver or liquidator appointed (to the extent the law allows this right to be used).

16.4 If we must stop. We may end this agreement with as much notice as we reasonably can if a law or regulator change makes it unlawful or impractical for us to provide the service. We'll refund any fees paid in advance for the time after it ends.

16.5 On a Territory. Ending the exclusivity under clause 9.4 doesn't end the rest of this agreement.

17. When this agreement ends

17.1 Access to your Account stops. You can download your Customers' Results before the end date, and for 30 days after it on request.

17.2 Your Customers' links keep working for 30 days after the end, then stop, unless you ask us to switch them off sooner.

17.3 We'll delete Customer Information as set out in Schedule 2.

17.4 You'll pay fees for the service up to the end date. If we ended this agreement under clause 15.2 or 16.4, or you ended it for our breach, we'll refund fees paid in advance for the time after it ends.

17.5 Clauses 11, 12, 13, 14, 17, 18 and 19 and Schedule 2 continue after this agreement ends.

18. Disputes

18.1 If there's a dispute, either of us can give the other written notice of it. Senior people from each side will try in good faith to resolve it within 20 Business Days.

18.2 If it isn't resolved, either of us may refer it to mediation through the Resolution Institute, or the Australian Small Business and Family Enterprise Ombudsman, with the cost shared equally.

18.3 Nothing stops either of us seeking urgent relief from a court.

19. General

19.1 Notices must be in writing and sent by email to the address on the Order Form (yours) or to hello@sparkplancheck.com (ours), or another address given by notice. An email notice is received when it enters the recipient's system, or the next Business Day if that's after 5pm Sydney time.

19.2 Accepting online. You may accept this agreement online. We'll record who accepted it, the version and the time, and email you a copy.

19.3 Assignment. You may not transfer this agreement without our written consent, which we won't unreasonably withhold. We may transfer it to a related company, or to a buyer of the Spark business, with written notice, as long as the new party takes on all our obligations to you. If you reasonably object, you may end this agreement without cost before the transfer takes effect.

19.4 Subcontractors. We may use service providers to provide the service (listed in Schedule 2). We're responsible for them as if they were us.

19.5 Force majeure. Neither of us is liable for a delay or failure caused by something beyond our reasonable control (other than paying money), if we tell the other promptly and do what we reasonably can to reduce its effect. If it lasts more than 30 days, either of us can end this agreement by notice.

19.6 Whole agreement. This agreement is everything agreed about its subject. It replaces earlier discussions and proposals, but doesn't exclude liability for anything said before it that was misleading.

19.7 Waiver and severance. Not enforcing a right isn't giving it up. If a provision is unenforceable, it's read down or severed and the rest continues.

19.8 Governing law. The law of New South Wales applies. Each of us submits to the courts of New South Wales and the federal courts sitting there.

Schedule 1: The service

Included today, on every plan:

1. Plan Checks. You upload the Customer's bill for Spark to read (a photo or PDF, which isn't kept), or enter its figures yourself (days, use by time band or in total, solar exported, the total), and check them, and the system you're quoting (battery size and charge rate, EV distance and charger, solar size, inverter). Spark prices every published retail electricity plan available at the Customer's address and recommends the one that suits.
2. The Result: the recommended plan against what the Customer pays now, the yearly saving, the top three plans side by side, why it's recommended, what you give up, and what the prices assume.
3. The top 100 plans for that home as a spreadsheet.
4. The Customer's private link, showing the Result, your name and logo, and step by step help with the recommended retailer's own sign-up form where we have a guide for that retailer (otherwise, a link to the retailer's page). The Customer signs up with the retailer directly.
5. The proposal PDF: the Result as a PDF with your logo, for you and the Customer.
6. Your Account: Your People, your logo, your Plan Checks by month, all your Plan Checks as a spreadsheet, and your invoices.
7. Yearly re-checks, if you switch them on (A$3 a Customer a year): a year after each Plan Check, and each year after, Spark prices the Customer's plans again on the same use and system and emails you which Customers would save at least A$100 by moving. Spark doesn't contact the Customer.

What the service doesn't do:

• It doesn't sign anyone up to a plan, contact retailers, or act for a Customer or a retailer.
• It doesn't take any account of payments to anyone.
• It doesn't give financial, tax or product advice about solar, batteries or EVs, or about the system you're selling.
• It doesn't contact your Customers.

Not included yet (we'll tell you before any is added, and any price): design-tool or inverter data import; an API.

Schedule 2: Customer Information and privacy

1. Both of us follow the APPs. We've chosen to be treated as an organisation bound by the APPs (section 6EA of the Privacy Act), whether or not the small business exemption would otherwise apply to us. You'll comply with the Data Laws that apply to you.

2. Collection. You collect Customer Information from your Customers. Before or when you enter a Customer's information in Spark, you'll give them the collection notice in 04-privacy.md (or one with the same effect), which tells them their information goes to Spark Plan Check and links to our privacy policy.

3. What we use it for. We use Customer Information only to: (a) provide the service to you and the Customer's link to them; (b) keep the service secure, fix faults and keep records the law requires; and (c) improve the service, using it only in de-identified form.

We don't sell Customer Information, use it to market to anyone, or give it to retailers.

4. Who we share it with. Only the service providers listed in our privacy policy, to provide the service. Some are overseas (for example, address completion by Google in the United States). Each is bound to protect it, and we're responsible for them as if they were us. We'll give you 30 days' notice of a new service provider that receives Customer Information, and you may end this agreement without cost if you reasonably object.

5. Security. We protect Customer Information with reasonable steps, including encryption in transit and at rest, access limited to people who need it, sign-in by a one-time code or link sent by email (with a second step for our own staff), and each installer seeing only its own Customers.

6. Breaches. If either of us becomes aware of a suspected unauthorised access to, disclosure of, or loss of Customer Information held for this agreement, we'll tell the other within 2 Business Days, cooperate on assessing it under the Notifiable Data Breaches scheme, and agree who notifies affected Customers and the Office of the Australian Information Commissioner.

7. Requests and complaints. If a Customer asks either of us to access, correct or delete their information, or complains, we'll help each other respond within the times the APPs require.

8. Keeping and deleting. We keep each Plan Check for 2 years from when it was last run or re-checked, then delete it, unless you delete it sooner. When this agreement ends, we delete your Customer Information within 60 days after the 30-day download period, except where the law requires us to keep it. Backups are overwritten in the ordinary course within a further 35 days.

9. The Customer's link is a long random address that can't be guessed, but anyone who has it can open it. You'll send it only to the Customer (or someone they ask you to send it to), and tell them to keep it private. Either of you can ask us to switch a link off.

10. Where it's stored. Our main database is hosted by Cloudflare with its primary location in the Oceania region; copies may be processed elsewhere in Cloudflare's network to deliver the service.

Schedule 3: How you present Results

These rules protect your Customers, and you and us from claims of misleading conduct under the Australian Consumer Law.

1. Whole, with the assumptions. Show a Result as Spark produces it. If you quote a figure from it, say it's an estimate and give the Customer their link or the full Result.
2. Don't change it. Don't edit, recalculate, crop out or re-label figures, plans or assumptions, or present a different plan as Spark's recommendation.
3. No guarantees. Don't describe a saving as guaranteed, certain or "up to" an amount the Result doesn't show. Say it's an estimate based on the bill and the system.
4. Say who we are. Don't present Spark as a retailer, a government service or Energy Made Easy, or as independent of you when you're the one presenting it. You may say the plan was worked out by Spark Plan Check, which takes no payment from retailers.
5. Disclose your own payments. If you receive any payment or benefit from a retailer in connection with a Customer's switch, tell the Customer before they sign up.
6. Don't sign them up. Don't complete a retailer's sign-up for a Customer, or give consent on their behalf. The retailer must get the Customer's consent itself.
7. Battery and system claims are yours. Results price electricity plans for the system you enter. Any claim about the system's performance, payback or rebates is yours, not Spark's.
8. Contacting Customers. Only send a Customer their link, or contact them about their Result, in line with the Data Laws, including the Spam Act and the Do Not Call Register.