User Terms and Conditions
This Agreement was last modified on 17th August 2021.
These User Terms and Conditions describes the terms and conditions which you accept by using the OpenSolar Site or the OpenSolar Services. We have incorporated by reference some linked information. The capitalised words in these User Terms and Conditions have the meanings set out in Schedule 1 of these User Terms and Conditions.
Before using the OpenSolar Site and the OpenSolar Services, you must read and accept all of the terms in, and linked to, these User Terms and Conditions and should review all OpenSolar Site policies, as amended from time to time.
By accepting these User Terms and Conditions as you access our OpenSolar Site, you agree that these User Terms and Conditions will apply whenever you use the OpenSolar Site, or when you use the tools we make available to interact with the OpenSolar Site. Some OpenSolar Sites and OpenSolar Services may have additional or other terms that we provide to you when you use those services. If you do not want to agree to these User Terms and Conditions, you must not access or use our OpenSolar Site.
The OpenSolar Site is an online venue where Users can share information, products and services primarily related to distributed energy. Users may include professional installers of distributed energy systems, providers of services to those installers and distributed energy customers.
By accessing the OpenSolar Site, you agree to the terms set out in the Agreement. We may amend these User Terms and Conditions and any linked information from time to time by posting amended terms on the OpenSolar Site. We will use reasonable endeavours to notify you if there amendments that may have a material adverse effect on your use of the OpenSolar Site or the OpenSolar Services, however for completeness we encourage you to check our website periodically to ensure you are aware of our current User Terms and Conditions. Any changes to the dispute resolution provisions set out in clause 28 (Law and Forum for Legal Disputes) will not apply to any disputes for which the parties have actual notice of on or before the date the change is posted on the OpenSolar Site. Your continued use of the OpenSolar Site following the posting of revised User Terms and Conditions means that you accept and agree to the changes.
We are not a party to any contractual agreements between Users of the OpenSolar Site, we merely facilitate connections, and the provision of goods, services and solutions between Users.
We may, from time to time, and without notice, change or add to the OpenSolar Services or the OpenSolar Site or the information, products or services described in it. We may seek feedback, comments and suggestions from Users and third parties in relation to the OpenSolar Site and the OpenSolar Services and we may modify or change certain features of the OpenSolar Site and the OpenSolar Services based on that feedback.
Our goal is to improve the OpenSolar Site and the OpenSolar Services through User feedback and comments, however, we do not undertake to keep the OpenSolar Site updated. We are not liable to you or anyone else if any error occurs in the information on the OpenSolar Site or if that information is not current.
You will not use the OpenSolar Site if you:
are not able to form legally binding contracts (for example, if you are under the age of consent under the laws of Australia or in your jurisdiction);
a person barred from receiving and rendering services under the laws of Australia or other applicable jurisdiction; or
are suspended from using the OpenSolar Site.
Users must have an Account. All User Accounts are associated with individuals. First time users will be required to create their login credentials. A User must not share their login credentials and any relevant passwords with any other person (including any other User). The individual associated with the Account will be held responsible for all actions taken by the Account, without limitation.
All Users may be subject to the user verification procedures.
Users may be affiliated to or connected with a business or company on the OpenSolar Site, and may provide business or company details which are associated with the User’s Account. This business or company will be treated as an Associated Business associated with that User for the purposes of managing customer information. Users acknowledge and agree that where a business or company details are associated with their Account as an Associated Business, this Agreement is a contract with the User as an individual (not the business or company) and Users remain solely responsible for all activity undertaken in respect of their Account.
Where a User enters customer information and any data connected with that customer onto the OpenSolar Site, and that User is engaged as an employee or contractor with an Associated Business, that User will need to comply with its existing contractual obligations between it and its employer or client which is the Associated Business (including any obligations with respect to maintaining the confidentiality of customer lists and customer details and complying with the Associated Business' obligations as a data controller of that customer information (where applicable)).
We may, at our absolute discretion, refuse to register or cancel the registration of any person or entity as a User.
You cannot transfer or assign any rights or obligations you have under this agreement without prior written consent.
We may designate certain User Accounts as ‘administrator’ accounts for a business account where Users provide business or a company details. The ‘administrator’ accounts are set up to assist with administration only, and we do not accept any responsibility or liability for verifying that ‘administrator’ accounts are granted to Users with the legal right to make decisions on behalf of a business or company. We may ask for additional information where a User requests an ‘administrator’ account.
Only an ‘administrator’ account may release or disclose any customer details or information to another User in accordance with the relevant contractual terms between such Users.
4. Using OpenSolar
As a User, you may communicate with and share information with other Users of the OpenSolar Site. You control how you share your information and communicate with other Users and OpenSolar shall facilitate the sharing of such information and communications but shall not be responsible for the content of any such communications or transmissions.
While using the OpenSolar Site, you will not attempt to or otherwise do any of the following:
post content or items in inappropriate categories or areas on our OpenSolar Sites and services;
infringe any laws, third party rights or our policies,
fail to deliver payment for services delivered to you;
fail to deliver User Services purchased from you;
undertake or facilitate or assist any other person to undertake any Robotic Process Automation with respect to any of the information set out on the OpenSolar Site (including any User Content);
circumvent or manipulate our fee structure, the billing process, or fees owed to OpenSolar;
post false, inaccurate, misleading, deceptive, defamatory or offensive content (including personal information);
take any action that may undermine the feedback or reputation systems (such as displaying, importing or exporting feedback information or using it for purposes unrelated to the OpenSolar Site);
transfer your OpenSolar Account (including feedback) and any login credentials to another party without our consent;
distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes;
distribute viruses or any other technologies that may harm OpenSolar, the OpenSolar Site, or the interests or property of OpenSolar Users (including their Intellectual Property Rights, privacy and publicity rights) or is unlawful, threatening, abusive, defamatory, invasive of privacy, vulgar, obscene, profane or which may harass or cause distress or inconvenience to, or incite hatred of, any person;
download and aggregate content from our website without our express written permission, “frame”, “mirror” or otherwise incorporate any part of the OpenSolar Site into any other without our prior written authorisation;
attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by us in connection with the OpenSolar Site;
copy, modify or distribute rights or content from the OpenSolar Site or OpenSolar’s copyrights and trademarks; or
harvest or otherwise collect information about Users, including email addresses, without their consent.
You acknowledge and agree that the OpenSolar Site is only an online venue where Users can share information, products and services. Where Users use the OpenSolar Site’s tools to assist in any of the design, review, acceptance and use of any and all User Services, Users must rely on their own skill, knowledge and qualifications to design, review, accept or use any of these User Services as required in accordance with the User Contract (or any other agreement between those persons buying the products or services and those persons selling the products or services), as well as all laws and regulations in the jurisdiction in which the User is providing or performing the User Services.
You acknowledge and agree that any tools, calculators, design platforms, results and output produced by the OpenSolar Site are estimates only, and that we do not guarantee that these estimates will match actual measurements taken at a given site. Visualisations of systems and components on the OpenSolar Site are indicative only. We do not guarantee the accuracy or suitability of any engineering designs or plan-sets or customer proposals produced by the OpenSolar Sites.
We make no representation, promise, guarantee, condition, warranty or other term about any financial forecasts, cost savings or energy consumption savings of any engineering designs or plan-sets or customer proposals produced by the OpenSolar Site.
You agree and acknowledge that the OpenSolar Site and the OpenSolar Services are provided on an “as is” and “as available” basis at any given time without any warranties or conditions of any kind, whether express, implied, statutory or otherwise, and may be substantially modified, withdrawn limited or restricted at any time. Although we may use commercially reasonable efforts to do so, we are under no obligation to provide technical support with regards to the OpenSolar Site or the OpenSolar Services, and we provide no assurance that any specific errors or performance issues in the OpenSolar Site or the OpenSolar Services will be corrected.
We provide no assurance, condition, warranty or other term in relation to the availability or ability to store any data or information (including User Content) which you may upload to the OpenSolar Site, or to the amount of data that you may store on any User Account on the OpenSolar Site. You acknowledge that the services which we offer as part of the OpenSolar Services may change from time to time and agree that we will not be liable to you for any damage, loss or liability arising from such a change in the OpenSolar Services. In no event will we be liable to you for any damage whatsoever arising out of the use of or inability to use the OpenSolar Site or the OpenSolar Services.
A User may not be directly or indirectly engaged or be concerned or interested in any business which could reasonably be regarded as a market competitor of OpenSolar. This applies to a User acting:
(a) either alone or in partnership or association with another person;
(b) as a principal, agent, representative, director, officer or employee;
(c) as a member, shareholder or holder of any other security;
(d) as a trustee of or as a consultant or adviser to any person; or
(e) in any other capacity.
Each User acknowledges and agrees that OpenSolar has considerable and recognised goodwill in the conduct of its business and developing the OpenSolar Site, and the restraints imposed in this clause is fair and reasonable and no more than is reasonably necessary to protect this goodwill.
OpenSolar may at any time suspend or cancel a User’s account if it suspects that a User might be in breach of this clause.
5. Additional Services and Fees
You may from time to time during the term of these User Terms and Conditions elect to acquire Additional Services from us. We may charge fees for these Additional Services which we offer to you and you elect to acquire.
For any Additional Services, a Service Agreement will set out:
the services and deliverables (including any specifications for the services and deliverables) to be supplied by us to you;
the start date for the Service Agreement and any applicable term during which the services will be provided;
the fees payable for any services and the payment terms for those fees (set out in the respective Fee Schedule); and
any additional terms or conditions applicable to the services and deliverables.
You will have an opportunity to review and accept the Service Agreement and the Fees Schedule, and by agreeing to the Service Agreement and the Fees Schedule, you agree to pay the fees set out in those documents. When you click ‘agree’ or otherwise accept a Service Agreement and a Fees Schedule it will be incorporated into and governed by the terms of these User Terms and Conditions.
Each Service Agreement will commence at the time that you click ‘agree’ or otherwise accept a Service Agreement and will continue for the term set out in that Service Agreement. To avoid doubt, a Service Agreement cannot exceed the term of these User Terms and Conditions.
You may terminate the Additional Services as set out in the terms of the respective Service Agreement, and you will be liable for Fees due and owing, as set out in the respective Service Agreement.
You are responsible for paying any taxes, including any goods and services or value added taxes, which may be applicable depending on the jurisdiction of the User Services provided. OpenSolar does not bear any responsibility for the correct calculation, presentation or payment, of any taxes related to User Services or any other transactions for goods or services undertaken between Users. We may be required, under the laws of the jurisdiction of the services provided, to retain certain amounts in relation to taxes payable under the laws of that jurisdiction.
Certain Users who are either registered or required to be registered for GST may be required to charge GST to Australian consumers on certain User Services. You acknowledge that you must comply with your taxation obligations in your jurisdiction.
If as a User are using the site for commercial purposes and you upload Company Description Information about your company, for example business name, logo, images or other generally available media to the OpenSolar Site, we may display this to other Users on the OpenSolar Site and in other marketing materials, in relation to the provision of the OpenSolar Services and the OpenSolar Site. To the extent required by applicable law we will obtain your consent to share this information. When you upload Company Description Information to the OpenSolar Site, that data or information may be visible to other Users and to members of the public.
8. Content and Information
If you as a User upload or create content (including any contact details, engineering designs, processes, techniques, customer proposals, including where these are created or displayed on the OpenSolar Site) or any data, information, documentation, energy data, pricing data, material, designs, drawings, reports, notes, calculations, specifications, photographs, audio-visual materials, recordings, manuals, tools and anything else in a material form (which, for the avoidance of doubt includes information stored in an electronic form) on the OpenSolar Site (User Content) you grant us a worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the User Content, in any media known now or in the future, for the purpose of providing the OpenSolar Services and the OpenSolar Site.
With regard to the sharing of information:
if User Content contains business-sensitive competitive information, which includes pricing information, data on a User’s use of products (or their customer’s use of products), customer data, business process information (such as the ‘Tag’ and ‘Action’ information created by Users) and case study data: a. We will take all reasonable steps to protect any information we regard as confidential or ‘market sensitive’, acting reasonably at all times; b. This business-sensitive competitive information will always be anonymized if we share it with a third party or other Users on the OpenSolar Site, unless it is in the normal course of business between Users to share such data in using the OpenSolar Services (for example where a User purchases products or services from another User and OpenSolar shares that sales information with the User who is selling the services); and c. In an anonymized form we may share this kind of information with third parties and other Users for the purpose of offering Users information, services, offers or analytical data which Users may find useful, or to inform third parties about the markets we serve. Nothing in this clause shall operate to limit our rights to use Protected Data in accordance with section 9 (K) of these terms.
You may decide you want to share this information with other Users or third parties on a case by case basis (such as sharing case study data on your business profile page or sending a customer a sales proposal).
If you as a User are a member or employee or otherwise affiliated to an Associated Business and use the OpenSolar Site and Services to enter customer information, we will not contact those customers without the express permission of a User either directly from the User or from the Associated Business, other than in the normal course of providing OpenSolar Services (for example when our Site facilitates the emailing of proposals designed by the User to their customers). Customer information entered by a User will be assigned to the Associated Business selected by that User and that customer information will not be shared with any other competitive Associated Business, without the express permission from a User from the relevant Associated Business.
You acknowledge and agree that:
we act only as a forum for the online distribution and publication of User Content. We make no warranty that User Content is made available on the OpenSolar Site. We have the right (but not the obligation) to take any action deemed appropriate by us with respect to your User Content;
we have no responsibility or liability for the deletion or failure to store any User Content, whether or not the content was actually made available on the OpenSolar Site; and
we may reject, approve or modify your User Content at our sole discretion to the extent we consider, in our sole discretion, that such content breaches the representations and warranties below.
You represent and warrant that your User Content:
will not infringe upon or misappropriate any copyright, patent, trademark, trade secret, or other intellectual property right or proprietary right or right of publicity or privacy of any person;
will not violate any applicable federal, provincial, local, or international law or regulation;
will not be defamatory or trade libellous;
will not be obscene;
will not be harmful to our reputation or goodwill;
will not include incomplete, false or inaccurate information about User or any other individual;
will not contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and
will not be in breach of these terms or the terms of any OpenSolar site policies.
In the event that:
this Agreement is terminated or comes to an end;
you close your Account; or
we close your Account;
we may continue to use the information we have previously collected or obtained (including any User Content) from the start of this Agreement until the end of this Agreement or the closure of your Account in accordance with these User Terms and Conditions. We may need to retain some of your personal information and, if applicable, your customer’s personal information, to satisfy regulatory requirements and our own external obligations. Closing your account does not necessarily delete or remove all of the information we hold.
9. Data Processing
If you, as a User, provide us with access to or upload any User Content to the OpenSolar Site which belongs to a third-party, customer or client (for example, where you input their data or information in order to assist you to design a process or product for them using the OpenSolar Site), you represent and warrant that:
(a) where required under applicable Data Protection Legislation, you have obtained consent from your third-party, customer or client to upload that User Content to the OpenSolar Site;
(b) you have explained to them how that User Content may be used pursuant to this Agreement; and
Information on the OpenSolar Site may contain general information about legal, financial and other matters. The information is not advice, and should not be treated as such. You must not rely on the information on the OpenSolar Site as an alternative to professional advice. If you have specific questions about any matter you should consult a professional adviser.
We provide unmonitored access to third party content, including User feedback and articles with original content and opinions (or links to such third party content). We only act as a portal and have no liability based on, or related to, third party content on the OpenSolar Site, whether arising under the laws of copyright or other intellectual property, defamation, libel, privacy, obscenity, or any other legal discipline.
EU Data Privacy Provisions
IF YOU ARE BASED IN THE E.U. OR UK, THE FOLLOWING WILL APPLY TO YOUR USE OF THE OPENSOLAR SITE, ANY USER SERVICES, OR OPENSOLAR SERVICES:
The following clauses apply only in respect of, and to the extent that: (i) you act as a Controller of Protected Data under Data Protection Law; and (ii) we are a Processor in the course of our provision of the OpenSolar site and OpenSolar Services to you:
(a) each of us shall comply with our obligations under Data Protection Laws and agree that the subject matter, nature, purpose, and duration of processing of Protected Data and the applicable types of Protected Data and the categories of Data Subjects are as set out in the table in this section 9 below (which may be updated from time to time by OpenSolar);
(b) OpenSolar shall:
process the Protected Data in accordance with your written instructions for such purpose (which, we and you agree, shall be as set out in these terms and any other agreement we may enter into), (the “Processing Instructions”); and
promptly inform you of any requirement under applicable law that would require OpenSolar to process the Protected Data other than in accordance with the Processing Instructions, or if your instructions do not comply with Data Protection Laws, unless that law prohibits such notification on important grounds of public interest;
(c) you hereby authorise OpenSolar to appoint the Sub-Processors listed in the table in this section 9 below (which may be updated from time to time by OpenSolar). OpenSolar shall inform you by providing a notice of the appointment of any new Sub-Processor, including details of the Processing to be undertaken by the Sub-Processor, without undue delay and at the latest, 10 business days before engaging a new Sub-processor. If within 10 business days of receiving the notice, you raise any reasonable objections to the proposed appointment, OpenSolar shall not appoint (or disclose any Protected Data to) that proposed Sub-Processor until reasonable steps have been taken to address the objections raised by you and until you have been provided with a reasonable written explanation of the steps taken. OpenSolar shall appoint the Sub-Processor under a binding written contract (“Processor Contract”) which imposes data protection obligations that are no less onerous as those contained in these terms on the Sub-Processor. For the avoidance of doubt, OpenSolar shall not be subject to such restrictions regarding its appointment of processors to the extent it is acting in its capacity as a controller;
(d) OpenSolar shall:
promptly on request from you give details of any Processor Contract to you (provided OpenSolar shall not be required to disclose any information subject to obligations of confidentiality); and
promptly enter into discussions with you regarding the possibility that OpenSolar ceases to use a Sub-Processor to process Protected Data where you reasonably request that the Sub-Processor stops processing Protected Data for security reasons or concerns about the Sub-Processor’s ability to carry out the processing in compliance with Data Protection Laws or these terms;
(e) OpenSolar shall:
ensure that personnel processing Protected Data on behalf of OpenSolar have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; and
take reasonable steps to ensure the reliability of the personnel processing Protected Data on behalf of OpenSolar;
(f) OpenSolar shall put in place and maintain appropriate technical and organisational measures to assist you with your obligations to respond to any requests made by Data Subjects exercising their rights under Data Protection Laws (Data Subject Requests) and shall promptly refer any such request it receives to you;
(g) OpenSolar shall provide reasonable assistance and information to you to ensure compliance with your obligations under
Data Protection Laws with respect to:
security of processing;
notification by you of Data Breaches to the Supervisory Authority and/or Data Subjects (as applicable); and
data protection impact assessments and prior consultation with a Supervisory Authority regarding high risk processing;
(h) if you are established in the UK or the European Union, in respect of the transfer of the Protected Data from you to OpenSolar, OpenSolar will adhere to, and be bound by, the requirements as 'data importer', and you will adhere to, and be bound by, the requirements as 'data exporter' set forth in the standard contractual clauses as set out in Schedule 2 (the "Standard Contractual Clauses").
(i) OpenSolar shall, on your request, provide you with access to the Protected Data. OpenSolar shall allow for and contribute to audits, including inspections, carried out by or on behalf of you to determine OpenSolar’s compliance with its obligations under Data Protection Laws and this Clause, subject to you giving OpenSolar reasonable prior notice of such audit and/or inspection, and ensuring that any auditor is subject to binding obligations of confidentiality;
(j) in respect of any Data Breach related to the processing of Protected Data, OpenSolar shall notify you of the breach without undue delay and provide you with all details relating to the Data Breach at regular intervals and as are available to OpenSolar from time to time; and
(k) OpenSolar shall without delay, at your written request, either securely delete or return all the Protected Data to you in hardcopy or electronic form (as decided by you) after the end of the provision of the OpenSolar site and OpenSolar Services and securely delete existing copies (unless storage of any Protected Data is required by applicable law, and if so OpenSolar shall notify you of this); and
Notwithstanding the above clauses (a-k) you authorise OpenSolar to process the Protected Data, including to de-identify and aggregate the Protected Data (Aggregated Data), for OpenSolar's own use in improving OpenSolar's services (including in connection with the ability of the OpenSolar Site to better tailor recommendations to specific projects or certain of your customers) and to conduct market and project analytics, trend analysis, data insights and forecasts, and market research and insights creation, including to make any such analytics, insight or research available to third parties, provided that OpenSolar shall:
ensure that such processing is carried out in compliance with the Data Protection Laws; and
not use any Aggregated Data or Protected Data to carry out any direct marketing in connection with OpenSolar's own services unless the User has provided consent in accordance with Data Protection Legislation.
You agree and acknowledge that OpenSolar will act as a Controller with respect to its Processing of Protected Data in accordance with this clause. You grant OpenSolar an irrevocable, perpetual, non-exclusive, non-transferable, non-sublicensable, license to use your Intellectual Property in the User Content and in the Protected Data for the purposes described in this clause.
10. Feedback and Reviews
You acknowledge and agree that some Users may be subject to feedback, reviews and ratings given by other Users, and that that feedback, reviews and ratings may be displayed and be visible by other Users on the OpenSolar Site.
You acknowledge that you transfer copyright of any feedback or reviews you leave consisting of comments and any rating(s) (e.g. quality, communication etc.) together with any composite rating by us. You acknowledge that such feedback and reviews belong solely to us, notwithstanding that we permit you to use it on the OpenSolar Site while you remain a User. You must not use, or deal with, such feedback and reviews in any way inconsistent with our policies as posted on the OpenSolar Site from time to time without our prior written permission.
You may not do (or omit to do) anything that may undermine the integrity of the OpenSolar feedback system. We are entitled to suspend or terminate your Account or remove any User feedback or reviews at any time if we, in our sole and absolute discretion, are concerned by any feedback about you, or your feedback rating or where we believe our feedback system may be subverted.
Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of User Services via the OpenSolar Site. You may not use your User feedback (including, but not limited to, marketing or exporting your any or all of your composite rating(s) or feedback comments) in any real or virtual venue other than a website operated by OpenSolar or its related entities, without our written permission.
Unless otherwise agreed with us, you must not advertise an external website, product or service on the OpenSolar Site.
We may display advertisements or promotions on the OpenSolar Site. You acknowledge and agree that we shall not be responsible for any loss or damage of any kind incurred by you as a result of the presence of such advertisements or promotions or any subsequent dealings with third parties.
Furthermore, you acknowledge and agree that content of any advertisements or promotions may be protected by copyrights, trademarks, service marks, patents or other intellectual property or proprietary rights and laws. Unless expressly authorised by OpenSolar or third party right holders, you agree not to modify, sell, distribute, appropriate or create derivative works based on such advertisement or promotions.
To the extent reasonably possible, communication with other Users in relation to services and transactions facilitated through the OpenSolar Site should be conducted through the OpenSolar Site.
We may read all correspondence posted to the OpenSolar Site and download or access, and test (if necessary), all uploaded files, programs and websites related to your use of the OpenSolar Site for the purpose of investigating fraud, regulatory compliance, risk management and other related purposes.
14. User Services
Upon a User accepting any User Services offered by another User on the OpenSolar Site, or any purchase of goods or services by one User from another User, those Users will be deemed to have entered into a User Contract under which one User agrees to purchase, and another User agrees to deliver the User Services (as relevant). We are not a party to the User Contract. You agree not to enter into any contractual provisions in conflict with the User Terms and Conditions.
You are solely responsible for ensuring that you comply with your obligations to other Users (including, but not limited to, any confidentiality obligations). If you do not, you may become liable to that User. You must ensure that you are aware of any domestic laws (including common law), international laws, statutes, ordinances and regulations relevant to you as a User, or in any other uses you make of the OpenSolar Site.
Each User acknowledges and agrees that it will obtain and maintain at its own expense all licenses, consents, permits or certificates required for the performance of the respective User Services, including any such licenses, consents, permits or certificates required by the laws of the jurisdiction in which the User is providing or performing the User Services. We may require Users to provide documentary evidence of such current valid licenses, consents, permits or certificates, however we do not review, approve, recommend or verify any of the credentials, licences or statements of capability of any User.
If another User breaches any obligation to you, you are solely responsible for enforcing any rights that you may have. For the avoidance of doubt, we have no responsibility for enforcing any rights under a User Contract.
Depending on their jurisdiction, Users may have rights under statutory warranties that cannot lawfully be excluded. Nothing in these User Terms and Conditions is intended to override a right that by applicable law may not be excluded. Nothing in these User Terms and Conditions is intended to violate any laws relating to unfair contracts. To the extent that any component of these User Terms and Conditions is in conflict with inalienable rights under local laws, all parties intend for this agreement to be read down only insofar as to be in compliance with such local laws and no further.
Nothing in these User Terms and Conditions creates a partnership, joint venture, agency or employment relationship between OpenSolar and any User. Nothing in these User Terms and Conditions shall in any way be construed as forming a joint venture, partnership or an employer-employee relationship between OpenSolar and any User.
15. Closing Accounts, suspension and limits
We may close, suspend or limit your access to your Account at any time without reason. Without limiting the foregoing, we may close, suspend or limit your access to your Account:
if we determine that you have breached, or are acting in breach of, these User Terms and Conditions;
if we determine that you have infringed legal rights or applicable laws (resulting in actual or potential claims), including infringing Intellectual Property Rights;
if we determine that you have engaged, or are engaging, in fraudulent, or illegal activities;
you do not respond to any account verification requests;
your Account is inactive or has not been logged into for a period of time;
to manage any risk of loss to us, a User, or any other person; or
for other reasons. If we close your Account due to your breach of these User Terms and Conditions, you may also become liable for certain fees as described in these User Terms and Conditions.
Without limiting our other remedies, to the extent you have breached these User Terms and Conditions, you must pay us all fees owed to us and reimburse us for all losses and costs (including any and all of our employee time) and reasonable expenses (including legal fees) related to investigating such breach and collecting such fees.
You acknowledge and agree that:
the damages that we will sustain as a result of your breach of these User Terms and Conditions will be substantial and will potentially include (without limitation) fines and other related expenses imposed on us by our payment processors and Users and that those damages may be extremely difficult and impracticable to ascertain; and
if you breach these User Terms and Conditions, we may take legal action against you to recover losses.
In the event that we close, limit or suspend your Account, you will have no claim whatsoever against us in respect of any such suspension, termination or closure of your Account.
You may close your Account at any time.
16. Other Disputes With Users
You acknowledge and agree that in the event that a dispute arises between you and another User in relation to any User Services, that you will first attempt to resolve any differences that you have in relation to such User Services, including in relation to the quality of the services provided.
In relation to disputes with any other Users of the OpenSolar Site, you agree to release and indemnify OpenSolar, its officers, employees, agents and successors from any and all claims, demands, and damages, actual and consequential, of every kind and nature, known and unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the OpenSolar Services.
17. Disputes With Us
If a dispute arises between you and OpenSolar, our goal is to address your concerns immediately and, if we are unable to do so to your satisfaction, to provide you with a means of resolving the dispute quickly. We strongly encourage you to first contact us directly to seek a resolution by emailing us at email@example.com. You agree that if you have a concern, issue or complaint with the OpenSolar Site or the OpenSolar Services, you will advise us of such concern, issue or complaint and provide us with a reasonable opportunity to reply (which in any event will be no less than 5 business days) and that you will not publish any material in any public forum or advise any third party of such an issue, concern or complaint prior to following this process.
If a dispute arises in connection with this Agreement, a party to the dispute must give to the other party or parties to the dispute notice specifying the dispute and requiring its resolution under this clause 17 (Notice of Dispute). The parties must use reasonable endeavours to negotiate with a view to resolving the dispute within two (2) weeks of the date of the Notice of Dispute. If the dispute is not able to be resolved following this process of dispute resolution, either party may take such further legal action or commence proceedings in relation to the dispute or claim as they determine is appropriate.
All claims you bring against OpenSolar must be resolved in accordance with the terms of this Agreement. All claims filed or brought contrary to this Agreement shall be considered improperly filed and a breach of this Agreement. Should you file a claim contrary to the terms of this Agreement, OpenSolar may recover its legal fees and costs (including the cost of the use of in-house lawyers and paralegals), provided that OpenSolar has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
You agree that you will not pursue any claims arising under these User Terms and Conditions on a class or other representative basis and will not seek to coordinate or consolidate any arbitration or action hereunder with any other proceeding.
If any proceeding by or against you is commenced under any provision of any bankruptcy or insolvency law, OpenSolar will be entitled to recover all reasonable costs or expenses (including reasonable legal fees and expenses) incurred in connection with the enforcement of this Agreement.
18. Severability and waiver
This agreement supersedes any other agreement between you and the Company. If any part of this document is found to be unenforceable, that part will be limited to the minimum extent necessary so that this document will otherwise remain in full force and effect. Our failure to enforce any part of this document is not a waiver of any of our rights to later enforce that or any other part of this document.
Our failure to act with respect to an anticipated or actual breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Nothing in this section shall exclude or restrict your liability arising out of fraud or fraudulent misrepresentation. We may assign, novate or transfer any of our rights and obligations under this document from time to time. In the event of any assignment, novation or transfer you will remain bound by this Agreement.
19. Access and Interference
You agree that you will not use any robot, spider, scraper or other automated means to access the OpenSolar Site via any means, for any purpose without our express written permission. Additionally, you agree that you will not:
take any action that imposes or may impose (in our sole discretion, exercised reasonably) an unreasonable or disproportionately large load on our infrastructure;
interfere with, damage, manipulate, disrupt, disable, modify, overburden, or impair any device, software system or network connected to or used (by you or us) in relation to the OpenSolar Site or your Account, or assist any other person to do any of these things, or take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from the websites without the prior express written permission of OpenSolar and the appropriate third party, as applicable;
interfere or attempt to interfere with the proper working of the OpenSolar Sites, services or tools, or any activities conducted on or with the OpenSolar Sites, services or tools; or
bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the OpenSolar Site.
We will use commercially reasonable efforts to notify you if at any time we need shut down or suspend the OpenSolar Sites or the OpenSolar Services for any reason. We are under no obligation to continue to operate or provide access to the OpenSolar Sites or the OpenSolar Services.
We may terminate these User Terms and Conditions and any Service Agreement with you at any time by giving you two days’ notice in writing, unless otherwise set out in a Service Agreement.
Without prejudice to any other rights at general law or contained in this Agreement, we may immediately terminate this Agreement by notice in writing to you upon the occurrence of one or more of the following events:
you commit a breach of the terms of these User Terms and Conditions or any Service Agreement;
you cease or threaten to cease to carry on business;
you fail to meet your debts as they fall due;
an administrator is appointed or a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator to you;
a receiver, a receiver and manager, official manager, trustee, administrator or similar officer is appointed over your assets or undertakings; or
you enter into or resolve to enter any arrangement, composition or comprise with, or assignment for the benefit of your creditors or any class of them other than for the purpose of amalgamation or reconstruction.
You will defend, indemnify, and hold us (and our officers, directors, agents, subsidiaries, joint venturers and employees) harmless from and against:
any claim or demand, including legal fees and costs, made against us by any third party; and
all liabilities, damages, costs, losses and expenses suffered or incurred by OpenSolar,
due to or arising out of your breach of this Agreement, or your infringement of any law or the rights of a third party in the course of using the OpenSolar Site and OpenSolar Services.
In addition, we can apply any funds in your Account or amounts due and owing to you against any liabilities you owe to us or loss suffered by us as a result of your non-performance or breach of these User Terms and Conditions.
Without prejudice to any other rights or remedies that we may have, you acknowledge and agree that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by you. Accordingly, we shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
You must immediately notify us upon becoming aware of any unauthorised access or any other security breach to the OpenSolar Site, your Account, the OpenSolar Services or any User information and do everything possible to mitigate the unauthorised access or security breach (including preserving evidence and notifying appropriate authorities). Your User Account is yours only, and you must not share your password with others. You are solely responsible for securing your password. We will not be liable for any loss or damage arising from unauthorised access of your account resulting from your failure to secure your password.
23. No Warranty as to Each User’s Purported Identity
We cannot and do not confirm each User’s purported identity on the OpenSolar Site. We may provide information about a User, such as a strength or risk score, geographical location, or third party background check or verification of identity or credentials. However, such information is based in part on data that a User submits and we provide such information solely for the convenience of Users and the provision of such information is not an introduction, endorsement or recommendation by us.
24. No Warranties
The OpenSolar Site is a dynamic site. As such, information on the OpenSolar Site will change frequently. It is possible that some information could be considered offensive, harmful, inaccurate or misleading or mislabelled or deceptively labelled accidentally by us or accidentally or purposefully by a third party.
We provide applications and certain functionality on our OpenSolar Site to assist Users.
Our Services, the OpenSolar Site and all content on it are provided on an ‘as is’, ‘with all faults’ and ‘as available’ basis and without conditions, warranties, representations or other terms of any kind either express or implied. Without limiting the foregoing, we make no representation, condition, or warranty about:
the OpenSolar Site or any User Services or OpenSolar Services;
the accuracy, reliability, availability, veracity, timeliness or content of the OpenSolar Site or any User Services or OpenSolar Services;
whether the OpenSolar Site or User Services or OpenSolar Services will be up-to-date, uninterrupted, secure, error-free or non-misleading;
the quality or fitness for purpose of the User Services or any goods supplied by one User to another User, or whether any User Services will be rendered with due care and skill;
whether defects in the OpenSolar Site will be corrected;
whether the OpenSolar Site, the User Services or the OpenSolar Services or any data, content or material will be backed up or whether business continuity arrangements are in place in respect of the OpenSolar Site, User Services or OpenSolar Services;
any third party agreements or any guarantee of business gained by you through the OpenSolar Site, User Services or OpenSolar Services or us; or
the OpenSolar Site, User Services or OpenSolar Services or infrastructure on which they are based, being error or malicious code free, secure, confidential or performing at any particular standard or having any particular function.
To every extent permitted by law, we specifically disclaim any implied conditions, warranties, representations, or other terms as to title, merchantability, fitness for a particular purpose, hidden defects, quality, suitability and non-infringement.
IF YOU ARE BASED IN THE U.S. OR CANADA, THE FOLLOWING SHALL APPLY TO YOUR USE OF THE OPENSOLAR SITE, ANY USER SERVICES, OR OPENSOLAR SERVICES:
TO THE FULLEST EXTENT PROVIDED BY U.S. OR CANADIAN LAW (AS APPLICABLE), WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE OPENSOLAR SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE OPENSOLAR SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE OPENSOLAR SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE OPENSOLAR SITE IS AT YOUR OWN RISK. THE OPENSOLAR SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE OPENSOLAR SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR ANY PERSON ASSOCIATED WITH US MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE OPENSOLAR SITE. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE OPENSOLAR SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE OPENSOLAR SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR OPENSOLAR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE OPENSOLAR SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE OPENSOLAR SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
25. Limitation of Liability
In no event shall we, our related entities, our affiliates or staff be liable, whether in contract, warranty, tort (including negligence), breach of statutory duty, or any other form of liability, for:
any indirect, special, incidental or consequential loss or damage that may be incurred by you;
any loss of income, business or profits (whether direct or indirect) that may be incurred by you;
any claim, damage, or loss which may be incurred by you as a result of any of your transactions involving the OpenSolar Site.
The limitations on our liability to you above shall apply, even if foreseeable and whether or not we, our related entities, our affiliates or staff have been advised of the possibility of such loss or damage arising.
Notwithstanding the above provisions, nothing in these User Terms and Conditions is intended to limit or exclude any liability on the part of us and our affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation including, without limitation, those within the Competition and Consumer Act 2010 (Cth) and relevant state fair trading legislation, as well as, if you are in the EU, liability for death or personal injury caused by our negligence or the negligence of our and our affiliates’ employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
To the extent that we are able to limit the remedies available under these User Terms and Conditions, we expressly limit our liability for breach of a non-excludable condition, warranty, representation or other term implied by virtue of any legislation to the following remedies (the choice of which is to be at our sole discretion) to the supply of the OpenSolar services again or the payment of the cost of having the OpenSolar services supplied again.
IF YOU ARE BASED IN THE U.S., THE FOLLOWING SHALL APPLY TO YOUR USE OF THE OPENSOLAR SITE OR OPENSOLAR SERVICES:
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE OPENSOLAR SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE OPENSOLAR SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
IF YOU ARE BASED IN CANADA, THE FOLLOWING SHALL APPLY TO YOUR USE OF THE OPENSOLAR SITE OR OPENSOLAR SERVICES:
UNDER NO CIRCUMSTANCE WILL WE, OUR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR SERVICE PROVIDERS BE LIABLE FOR NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION, FUNDAMENTAL BREACH, DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF PRIVACY OR OTHERWISE, EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, RELIANCE ON, THE OPENSOLAR SITE, ANY LINKED WEBSITES OR SUCH OTHER THIRD PARTY WEBSITES, NOR ANY SITE CONTENT, MATERIALS, POSTING OR INFORMATION THEREON.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
26. Legal Limitations
As some jurisdictions do not allow some of the exclusions or limitations as established above, some of these exclusions or limitations may not apply to you. In that event, the liability will be limited as far as legally possible under the applicable legislation. We may plead these User Terms and Conditions in bar to any claim, action, proceeding or suit brought by you, against us for any matter arising out of any transaction or otherwise in respect of these User Terms and Conditions.
You and we agree that you and we will only be permitted to bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and we agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. In addition, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other Users.
Legal notices can be served to the email address, phone number, address or other contact details you provide to OpenSolar during the registration process. Notice will be deemed given immediately after we send an email or SMS/MMS to you, unless we are notified that the email address or phone number is invalid or that the email/SMS/MMS has not been delivered. Alternatively, we may give you legal notice by mail to any address provided by you during the registration process. In such case, notice will be deemed given two days after the date of mailing.
Any notices to OpenSolar must be given by registered ordinary post (or if posted to or from a place outside Australia, by registered airmail).
28. Law and Forum for Legal Disputes
This Agreement will be governed in all respects by the laws of New South Wales, Australia. We encourage you to try and resolve disputes using certified mediation (such as online dispute resolution processes). If a dispute cannot be resolved then you and OpenSolar irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
This Agreement is made up of these User Terms and Conditions and the Service Agreement(s) (including each respective Fee Schedule applicable to that Service Agreement). The Service Agreement overrides the provisions of these User Terms and Conditions in the event of any inconsistency.
30. Additional Terms
It is important to read and understand all our policies as they provide the rules for using the OpenSolar Site. In addition there may be specific policies or rules that apply, and it is your responsibility to check our pages and policies to make sure you comply. Our policies, including all policies referenced in them, are part of this Agreement and provide additional terms and conditions related to specific services offered on our OpenSolar Sites.
The policies that apply to the OpenSolar Site may be changed from time to time. Changes take effect when we post them on the OpenSolar Site. When using particular services on the OpenSolar Site, you are subject to any posted policies or rules applicable to services you use through the OpenSolar Site, which may be posted from time to time. All such policies or rules are incorporated into these User Terms and Conditions.
This Agreement contains the entire understanding and agreement between you and OpenSolar. The following Sections survive any termination of this Agreement: clause 4 Using OpenSolar, clause 5 Additional Services and Fees (with respect to fees owed for our services), clause 8 Content, clause 9 Data Processing, clause 10 Feedback and Reviews, clause 12 Ownership and Use of Information, clause 16 Other Disputes with Users, clause 17 Disputes With Us, clause 18 Severability and Waiver, clause 21 Indemnity, clause 24 No Warranties, clause 25 Limitation of Liability, clause 26 Legal Limitations, clause 28 Law and Forum for Legal Disputes, clause 29 Interpretation and this clause 31 General.
Terms and Conditions - Schedule 1
In these User Terms and Conditions:
Account means the user account used to access the OpenSolar Site.
Additional Services means any services provided by us to you set out in Item 3 of Schedule 2 of the relevant Service Agreement.
(a) these User Terms and Conditions; and
(b) any Service Agreement and any Fee Schedule which you accept;
and all the terms of those documents, including any schedule or annexure to them.
Associated Business means a business or company that a User shares a ‘connection’ with or is affiliated to through the OpenSolar Site, for example where that User is an employee of or provides services to as a contractor of that business or company.
Canada Data Protection Law means the ‘’‘Personal Information Protection and Electronic Documents Act’‘’, S.C. 2000, c. 5, the ‘’‘Personal Information Protection Act’‘’, R.S.A. 2003, c. P-6.5, the ‘’‘Personal Information Protection Act’‘’, R.S.B.C. 2003, c. 63 and an Act respecting the protection of personal information in the private sector, CQLR, c. P-39.1
Company Description Information means information which is generally publicly available about a company, such as company name, logo, business images and contact details.
Controller has the meaning set out in the GDPR.
Data Breach means a breach of security leading to the accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure, or access, of or to any Protected Data.
Data Subject means an identified or identifiable natural person.
Data Subject Requests has the meaning given to that term in section 9.
DPA means the Data Protection Act 2018.
Data Protection Legislation means all relevant and applicable data protection laws and regulations, including, where applicable and without limitation, the Privacy Act 1988 (Cth), EU Data Protection Law, and Canada Data Protection Law.
EU Data Protection Law shall mean (i) the GDPR, and any equivalent or replacement law in any Member State and all and any regulations made under those acts or regulations; (ii) any binding guidelines, recommendations, best practice opinions, directions, decisions, and codes of conduct issued, adopted or approved by the European Commission, the European Data Protection Board, and/or any supervisory authority or data protection authority from time to time in relation to the GDPR; and (iii) any judgments of any relevant court of law relating to the processing of personal data, data privacy, and data security.
Fees means the fees or price for the Additional Services as set out in a Fees Schedule in respect of the relevant Service Agreement. Fees Schedule means Schedule A of a Services Agreement which sets out the fees payable by you for the services set out in that Services Agreement.
GDPR means the EU General Data Protection Regulation ((EU) 2016/679)) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC save in respect of processing carried out in the United Kingdom where it shall mean: (i) until the expiry or termination of the transition or implementation period provided for in the EU – UK withdrawal agreement, the General Data Protection Regulation (Regulation (EU) 2016/679); and thereafter: (ii) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
GST means Australian goods and services tax regime as defined under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means without limitation, patents, copyright and related rights, registered designs, registered and unregistered trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, designs, computer software, databases, know-how and trade secrets.
Intellectual Property Rights means any and all intellectual property rights, existing worldwide and the subject matter of such rights, including:
(a) patents, copyright and neighbouring and related rights, moral rights, rights in circuit layouts (or similar rights), registered designs, registered and unregistered trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in design, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights; and
(b) any application or right to apply for registration and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, of any of the rights referred to in paragraph (a),
whether or not such rights are registered or capable of being registered and whether existing under any laws, at common law or in equity.
Member State shall mean a country that is a member of the European Union or of the European Economic Area.
Robotic Process Automation means the use of robotic or automated processes to elicit or determine client login details for access to secure online platforms by automated software- based processes, artificial intelligence, synthetic users, bots or screen scrapers to enable them to:
(a) view or extract any data;
(b) create derivative data;
(c) store data; or
(d) execute code-based or web-based actions or translations.
OpenSolar, we, our, company or us means OpenSolar Pty Ltd ACN 621 679 632.
OpenSolar Services means all services provided by us, and includes the Additional Services.
OpenSolar Site means the existing and future websites operated by OpenSolar and available at www.opensolar.com and any of its regional or other domains or properties, and includes any related OpenSolar service, tool or application, specifically including mobile web, any iOS App and any Android App, or other access mechanism.
Personal Data has the meaning given to it in the GDPR.
Processing has the meaning given to it under the GDPR, and “Process” and “Processed” shall be construed accordingly.
Processing Instructions has the meaning given to that term in section 9.
Processing Records has the meaning given to that term in section 9.
Processor has the meaning set out in the GDPR.
Processor Contract has the meaning given to that term in section 9.
Protected Data means Personal Data received from or on behalf of you, or otherwise obtained or created by OpenSolar in connection with the performance of OpenSolar’s obligations under this Agreement including information relating to User’s customers that are uploaded to, or hosted on, the OpenSolar Site in connection with the provision of services but excluding User Account Data.
Service Agreement means an agreement for services that we will provide you on the terms (and subject to the Fees, timetable, specifications and related matters) set out in a form substantially similar to that set out at Schedule 1.
User Account Data means a User's email address, log-in details and information used by OpenSolar in providing the User access to the OpenSolar Site together with that User's account usage information and history on the OpenSolar Site.
User, you or your means an individual who visits or uses the OpenSolar Site.
User Content has the meaning set out in clause 8.
User Contract means the contractual provisions accepted by the Users who have agreed to buy or sell goods or services from one another, to the extent not inconsistent with the User Terms and Conditions;
User Services means all services, products and goods provided by a User to another User.
Terms and Conditions - Schedule 2
Standard Contractual Clauses
These Clauses are deemed to be amended from time to time to the extent they relate to a transfer of Protected Data outside of the EEA which is subject to Data Protection Law to reflect any change (or replacement) made in accordance with Data Protection Law by the European Commission to or of the equivalent contractual clauses approved by the Commission under GDPR or by an equivalent competent authority to or of any equivalent contractual clauses under another Data Protection Law. If these Clauses are not governed by the law of a Member State, the terms "Member State" and "State" are replaced, throughout, by the word "jurisdiction".
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
'the data exporter' means the controller who transfers the personal data;
'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
'the sub-processor' means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written sub-contract.
'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
that it will ensure compliance with the security measures;
that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
that it will promptly notify the data exporter about:
any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
any accidental or unauthorised access; and
any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
that the processing services by the sub-processor will be carried out in accordance with Clause 11;
to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
to refer the dispute to the courts in the Member State in which the data exporter is established.
The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
The data importer shall not sub-contract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer sub-contracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.
The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data-processing services
The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
to the Standard Contractual Clauses
The data exporter is (please specify briefly your activities relevant to the transfer):
Client, who is transferring Protected Data to the data importer for the purposes of receiving and taking the benefit of the Additional Services
The data importer is (please specify briefly activities relevant to the transfer):
OpenSolar, who is receiving the Protected Data from the importer for the purposes of providing OpenSolar Site and OpenSolar Service in accordance with these terms.
The personal data transferred concern the following categories of data subjects (please specify):
Importer's directors, employees and other personnel
Categories of data
The personal data transfers concern the following categories of personal data:
B2B: Client Data, including names of importer's directors, employees and other personnel; email address and contact number; role; details relating to the Client's projects and specifications; importer's forecasts;
B2C: User’s customers including name, email address, address (including latitude and longitude), phone number and details relating to the customer's distributed energy project (e.g. solar panels system design, pictures of and notes relating to the customer’s property, pricing and other commercial information) and limited payment details (e.g. a graphic copy of a signature, a partially redacted card number and confirmation when payment has been made), details relating to the project (e.g. roof type, house parcel identifier, number of stories, cellular coverages, electricity meter number, electricity connection specification), User Account Data (including login details, account usage history, IP address and type of web browser on which the transaction occurred; and
B2C: Energy usage data including energy levels of User’s customers relating to active projects utility tariff information, saving information and data relating to comparisons against other energy sources.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories (please specify):
The personal data transferred will be subject to the following basic processing activities (please specify):
The processing of Protected Data by OpenSolar to provide the OpenSolar Services and OpenSolar Site to importer.
to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer.