These terms and conditions govern the provision of Services by Switchwise to you and your use of the Switchwise website and call centre ("T&Cs"). Please read these T&Cs carefully before you use the Switchwise website or call centre.
You agree that your use or continued use of the Switchwise website or call centre means that you accept and agree that the T&Cs constitute an agreement between you, the customer ("Customer" or "you"), and Switchwise Pty Ltd ABN 98 126 526 298 ("Switchwise", "we" or "us") with respect to your use of the Switchwise website and call centre, and the provision of Services by Switchwise to you ("Agreement").
If you do not accept these T&Cs, you must not use the Switchwise website or call centre.
1. Definitions
In these T&Cs, unless the context otherwise requires:
"Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State and Territory fair trading legislation;
"Consumer" has the meaning given to it in section 3 of the Australian Consumer Law;
"Consumer Guarantees" means the consumer guarantees contained in the Australian Consumer Law;
"Consumer Services" means services of a kind ordinarily acquired for personal, domestic or household use or consumption as that expression is used in the Australian Consumer Law;
"Intellectual Property Rights" means all present and future statutory and other proprietary rights (whether registered or unregistered) throughout the world, including but not limited to trade marks, business names, trading names, domain names, logos, trade secrets, confidential information, designs, patents, inventions, processes, systems, databases, computer software, source code, object code, websites, technical data, formulae, circuit layouts, copyrights, confidential information, pricing and plan information, know-how including modifications and improvements to same and all other rights with respect to intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967, and moral rights as defined under Part 9 of the Copyright Act 1968 (Cth);
"Internet" means the global data network comprising interconnected networks using the TCP/IP or Transmission Control Protocol/Internet Protocol;
"Law" means any legislation, regulations, guidelines, codes of conduct (whether or not having the force of law), and all other laws from which legal rights and obligations may arise including without limitation the common law and equity, in any jurisdiction to which Switchwise or the Customer is from time to time subject;
"Representatives" means directors, officers, employees, agents, representatives, contractors or subcontractors of Switchwise;
"Retailer" means any supplier of energy services and/or goods selected by Switchwise from time to time in its absolute discretion and who is listed on the Switchwise website;
"Save Your Search" means the service that the Customer may register to receive on the Switchwise website which is designed to enable the Customer to, amongst other things, save the searches that the Customer conducts through the website;
"Services" means the services provided by Switchwise via the Switchwise website or call centre whereby the Customer may obtain information on the Retailers and the services and/or goods they offer to residential customers in Australia (including the prices for such services and/or goods) and may transact and/or enter agreements with the Retailers for the provision of those services and/or goods;
"Software" means any software owned by, or licensed to, Switchwise which is used for the purposes of providing the Services to the Customer.
2. Changes to Terms & Conditions
2.1 - Switchwise reserves the right to amend these T&Cs from time to time without notice.
2.2 - The latest version of the T&Cs appears on the Switchwise website and will be available when you contact the Switchwise call centre.
2.3 - You can identify whether the T&Cs have been amended since your last review by checking the "Updated" date at the foot of these T&Cs or when you contact the Switchwise call centre.
2.4 - You agree to review the T&Cs to check the "Updated" date each time you use the Switchwise website or Switchwise call centre to ensure that you are aware of any amendments.
2.5 - Your continued use of the Services or the Switchwise website or call centre will be deemed to constitute acceptance of the amended T&Cs.
3. Provision of the Services
3.1 - The provision of the Services by Switchwise, and the use of the Switchwise website and the Switchwise call centre by or on behalf of the Customer, are subject to these T&Cs and the Switchwise Privacy Policy ("Privacy Policy").
3.2 - The Customer acknowledges that in providing price comparisons and quotations from Retailers, Switchwise may need to make assumptions about the Customer's energy use and electricity and/or gas meter configurations and tariff types. To improve the accuracy of the results displayed, Switchwise asks the Customer a series of questions. The Customer acknowledges that if such questions are not answered fully or accurately, the tariffs quoted and the costs and savings calculated by any particular Retailer may be different to those provided by Switchwise. To receive the most accurate results, the Customer must provide information from his/her electricity and/or gas bill.
4. Use of Services
Without limitation, the Customer undertakes:
- (a) to only use the Services and the Switchwise website and call centre (as the case may be) for personal use; and
- (b) not to use (or procure or assist anyone else to use) the Services or the Switchwise website or call centre:
- (i) in breach of any Laws;
- (ii) to send or receive any material which is grossly offensive, of an indecent, obscene or menacing character, blasphemous or defamatory of any person, in contempt of court or in breach of confidence, copyright, rights of personality, publicity or privacy or any other third party rights;
- (iii) to cause annoyance, inconvenience or needless anxiety;
- (iv) to intercept or attempt to intercept any communications transmitted by way of a telecommunications system;
- (v) other than in conformance with accepted Internet practices and practices of any connected networks;
- (vi) in any way which is calculated to incite hatred against any ethnic, religious or any other minority or is otherwise calculated to adversely affect any individual, group or entity;
- (vii) for commercial purposes or for resale or resupply of the Services or the Retailer's services or goods without the prior written consent of Switchwise or the relevant Retailer;
- (viii) for furnishing false data including but not limited to false names, addresses and contact details and fraudulent use of credit or debit cards;
- (ix) to attempt to circumvent Switchwise's security or network including, but not limited to, accessing data not intended for the Customer, logging into a server or account the Customer is not expressly authorised to access, or probing the security of other networks (such as running a SATAN scan or similar tool);
- (x) for executing any form of network monitoring which will intercept data not intended for the Customer;
- (xi) for sending unsolicited mail messages, including the sending of "junk mail" or other advertising material to individuals who did not specifically request such material;
- (xii) for creating or forwarding "chain letters" or other "pyramid schemes" of any type, whether or not the recipient wishes to receive such mailings;
- (xiii) for malicious e-mail, including, but not limited to, "mail-bombing" (flooding a user or site with very large or numerous pieces of e-mails);
- (xiv) for entering into fraudulent transactions with a Retailer (including but not limited to transactions purportedly entered into on behalf of a third party where the Customer has no authority to bind that third party or pretending to be a third party); or
- (xv) for unauthorised use, or forging, of mail header information.
5. Disclosure of Commission and Fees
5.1 - In order to provide the Services, Switchwise receives payments (including commissions) from participating Retailers.
5.2 - Customers are not charged for the provision of the Services or the use of the Switchwise website or call centre. However, Switchwise reserves the right to charge the Customer a fee for the Services, the use of the website or the use of the call centre, where Switchwise provides the Customer with prior written notice of any such fees.
6. Your Information
6.1 - The Customer represents and warrants that all information provided by (or on behalf of) the Customer to Switchwise is true, accurate and complete. The Customer must promptly inform Switchwise of any changes to such information.
6.2 - The Customer acknowledges and agrees that Switchwise may collect the Customer's personal information and use and disclose such information (including, without limitation, to Retailers) in accordance with the Privacy Policy. The Privacy Policy can be accessed by visiting http://www.switchwise.com.au/privacy/ or by requesting the call centre to mail a copy to you. The Customer acknowledges and agrees to the Privacy Policy.
6.3 - Except with respect to the Customer's personal information, the Customer grants Switchwise a royalty-free, perpetual, irrevocable, non-exclusive right to use, copy, modify, adapt, translate, publish and distribute all of the information and other material transmitted by the Customer using the Services, including the Intellectual Property Rights in such information.
Passwords
6.4 - Any password allocated to or created by the Customer to enable the Customer to use the Services (including, without limitation, Save Your Search) must be kept confidential by the Customer and the Customer must immediately notify Switchwise if any authorised third party becomes aware of that password.
6.5 - The Customer agrees that any person to whom its username or password is disclosed is authorised to act as the Customer's agent for the purposes of transacting via the Services.
6.6 - The Customer must take reasonable steps to prevent unauthorised access to the Customer's password and account.
7. Application to Retailer
Where the Customer uses the Services to apply to a Retailer to acquire services or goods from the Retailer, the Customer acknowledges and agrees that:
- (a) the application by the Customer constitutes an offer to the Retailer to acquire the relevant services or goods ("Offer") which the Retailer may accept or reject (in its absolute discretion);
- (b) once the Offer is made, the Customer is solely responsible for dealing with the Retailer and this includes without limitation monitoring the progress of the Customer's Offer with the Retailer. Switchwise recommends that the Customer follow up the Retailer if the Customer has not been contacted by the Retailer within 5 days of the date the Offer is made;
- (c) the Retailer may require further information from the Customer prior to accepting or rejecting the Customer's Offer;
- (d) the Customer's Offer is subject to the terms and conditions of the relevant Retailer with respect to the relevant services or goods;
- (e) Switchwise is not a party to any agreement between the Customer and the Retailer with respect to the provision of services or goods; and
- (f) the Customer is responsible for paying all monies due to the relevant Retailer on the terms agreed with that Retailer.
8. Intellectual Property Rights
8.1 - All Intellectual Property Rights in the Services and the Switchwise website, and all information, content, data, databases, Software, text, graphics, images, logos, names, trade marks and any other materials on the Switchwise website or used in relation to the Switchwise website or the Services are owned by, or licensed to, Switchwise ("Switchwise Intellectual Property Rights").
8.2 - Switchwise will at all times remain the owner or licensee (as the case may be) of the Switchwise Intellectual Property Rights and the Customer will not obtain any right, title or interest in any Switchwise Intellectual Property Rights.
8.3 - The Customer must not use, reproduce, modify or adapt the Switchwise Intellectual Property Rights in any way except as provided by these T&Cs.
8.4 - Switchwise grants the Customer a revocable, non-exclusive, non-transferrable licence to use the Software solely in executable form and only to the extent necessary for the Customer's personal use of the Services and for no other purpose.
9. Termination
9.1 - Switchwise may immediately terminate this Agreement (including without limitation by blocking the Customer's access to the Services, the Switchwise website or the Switchwise call centre) if:
- (a) the Customer breaches a material term of this Agreement;
- (b) the Customer breaches any obligation under this Agreement which is capable of remedy and fails to remedy the breach within the period (which must be reasonable in the circumstances), and in the manner, specified in writing by Switchwise; or
- (c) Switchwise reasonably suspects that the Customer may have committed or is committing any criminal, fraudulent or dishonest act against Switchwise or any Retailer.
9.2 - The right of Switchwise to terminate this Agreement shall not prejudice any other right or remedy of Switchwise in respect of any breach or any rights, obligations or liabilities which accrued prior to termination and it shall not prejudice any licences granted by the Customer.
9.3 - All disclaimers, limitations of liability and indemnities in this Agreement will survive termination.
10. Customer's Liability
10.1 - Subject to clause 10.2, the Customer is liable for and must indemnify Switchwise and its Representatives from and against all and any actions, claims, demands, liabilities, costs (including reasonable legal costs), expenses, damages or losses (whether direct, indirect, special or consequential) ("Loss") suffered or incurred by Switchwise or any of its Representatives arising from or in connection with any act or omission of the Customer including without limitation:
- (a) the Customer's use of the Services, the Switchwise website or the Switchwise call centre; or
- (b) any breach of this Agreement by the Customer.
10.2 - The Customer's liability pursuant to clause 10.1 will be reduced proportionately to the extent that the Loss is contributed to by the negligence or wilful default of Switchwise or any of its Representatives.
11. Acknowledgements
11.1 - Except with respect to the Consumer Guarantees where the Customer is a Consumer or as expressly set out in this Agreement, all conditions, warranties, guarantees, representations and obligations with respect to the Services, the Switchwise website or the Switchwise call centre are excluded. For the avoidance of doubt, nothing in this Agreement is intended to exclude, modify or limit the Customer's rights and remedies where the Customer is a Consumer under the Australian Consumer Law and where such rights and remedies cannot be excluded, modified or limited.
11.2 - The Customer acknowledges and agrees that:
- (a) Switchwise does not in any way warrant or represent that the Services compare all or a majority of the services or goods offered by all or a majority of the retailers in the relevant energy market;
- (b) whilst Switchwise uses reasonable endeavours to ensure that all the information (including, without limitation, information as to the description of the services or goods offered by the Retailer, the prices of the services or goods, and the terms and conditions applying to the acquisition of such services or goods) provided by Switchwise pursuant to the Services ("Information") is updated regularly, such Information is subject to change by the relevant Retailer without notice to Switchwise;
- (c) the Customer may need to make further enquiries outside of the Services to assess whether particular services or goods offered by a Retailer are the most suitable services or goods for the Customer;
- (d) the Customer is solely responsible for its final choice of energy retailer (and the services or goods of the retailer) and must make its own enquiries, read all relevant documents and confirm the accuracy of the Information prior to making any Offer to enter an agreement with the Retailer;
- (e) the pricing determined by Switchwise to be applicable to the Customer's property is based on the information provided by the relevant Retailer to Switchwise, the information provided by the Customer to Switchwise and the assumptions made by Switchwise regarding the Customer's distribution region, meter type and meter configuration. If the relevant Retailer subsequently determines that the information and/or pricing is incorrect or incomplete, the Retailer is responsible for advising the Customer of the correct information and/or pricing;
- (f) any information provided by the Retailer to the Customer after the provision of the Information by Switchwise with respect to that Retailer or the Retailer's services or goods overrides the Information to the extent of any inconsistency;
- (g) except with respect to the provision of the Services, Switchwise will not be a party to any discussions, negotiations, representations, transactions or agreements between the Customer and a Retailer;
- (h) Switchwise does not warrant that the Customer's use of the Services will be uninterrupted or that any messages or information transmitted via the Services will be transmitted accurately, reliably, in a timely manner or at all;
- (i) Switchwise reserves the right to make the Services unavailable at any time, or to restrict access to part or all of the Services without notice;
- (j) Switchwise is not liable for the acts or omissions (including without limitation the negligent, reckless or fraudulent use of the Services) of the Customer, the Customer's agent or any third party for which Switchwise is not responsible; and
- (k) Switchwise may at any time withdraw any Retailer (or any services or goods of a Retailer) from the Services.
12. Limitation of Liability
12.1 - Subject to clauses 12.2 and 12.3, except where the Customer is a Consumer and Switchwise is liable pursuant to the Australian Consumer Law, Switchwise is not liable to the Customer for loss (including without limitation direct, indirect, special or consequential loss) or damage of any kind suffered or incurred by the Customer arising from or in connection with any act or omission of Switchwise or any of its Representatives, including without limitation, in relation to this Agreement, the provision of the Services or the Customer's use of the Switchwise website or the Switchwise call centre.
12.2 - Despite clause 12.1 and subject to clause 12.3, Switchwise is liable for direct loss or damage suffered or incurred by the Customer to the extent that the loss or damage is caused directly by the negligence or wilful default of Switchwise or its Representatives.
12.3 - The liability of Switchwise for loss or damage suffered or incurred by the Customer:
- (a) where the Services are not Consumer Services, it is fair and reasonable to do so and the loss or damage arises from or in connection with a failure to comply with a Consumer Guarantee; or
- (b) where Switchwise is liable pursuant to clause 12.2;
is limited to Switchwise (at its election):
- (c) supplying the Services again; or
- (d) paying the cost of having the Services supplied again.
13. Links to other Websites
13.1 - The Switchwise website may contain links to other websites of third parties ("Third Party Sites").
13.2 - The Customer acknowledges and agrees that:
- (a) the Third Party Sites are not controlled by Switchwise and Switchwise is not responsible for any content contained on the Third Party Sites;
- (b) whilst Switchwise may receive payments (including commissions) from the operators of the Third Party Sites, Switchwise does not endorse or approve of the Third Party Sites (including but not limited to the operators of, or the content on, the Third Party Sites);
- (c) subject to any liability of Switchwise under the Australian Consumer Law that cannot be excluded, Switchwise makes no warranties or representations regarding:
- (i) the accuracy, quality, merchantability or fitness for purpose of the content on the Third Party Sites; or
- (ii) that the content on the Third Party Sites does not infringe the Intellectual Property Rights of any person.
14. No Partnership or Agency
Nothing in this Agreement shall be construed to create an employment relationship, joint venture, partnership or agency relationship between the Customer and Switchwise, and neither party shall have the right or authority to bind the other party in any way including without limitation by incurring any liability, debt or cost or by entering into any agreements or other arrangements in the name of, or on behalf of, the other.
15. Assignment
The Customer shall not assign or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of Switchwise (which shall not be unreasonably withheld). Switchwise shall have the right to assign or otherwise deal with all or any of its rights or obligations under this Agreement to any person or entity.
16. Force Majeure
Switchwise shall not be liable for any breach of its obligations under this Agreement where it is delayed, hindered or prevented from carrying out its obligations by any cause outside its reasonable control including without limitation by lightning, fire, flood, extremely severe weather, strike, lock-out, labour dispute, power surge, black out, brown out, act of God, war, riot, civil commotion, malicious damage, failure of any telecommunications or computer system, compliance with any Law, a restraint of a government agency, accident (or by any damage caused by any of such events).
17. Entire Agreement and No Waiver
17.1 - This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, arrangements, representations, understandings, negotiations and discussions, whether oral or written.
17.2 - The Customer cannot rely on the words or conduct (including without limitation a failure to exercise, a delay in exercising or a partial exercise of, a right) of Switchwise as a waiver of any right unless the waiver is in writing and signed by Switchwise.
18. Notices
Unless otherwise stated in this Agreement, notices to be given to either party shall be in writing and shall be delivered by hand, electronic mail (other than for the purpose of legal process), sent by fax or pre-paid post to the Customer at the address supplied to Switchwise or to Switchwise at its address as specified on the Switchwise website.
19. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria and both parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia.
