terms & conditions

The following are the terms and conditions of use of the Switchwise website and call centre (“Agreement”). Please read these terms and conditions carefully before you use the Switchwise website or call centre.

You acknowledge and accept that your use or continued use of the Switchwise website or call centre means that you accept these terms and conditions and the Switchwise Privacy Policy. If you do not accept these terms and conditions or the Privacy Policy, you must not use the Switchwise website or call centre.

1. parties

This Agreement is made between you the customer (“Customer” or “you”) and Switchwise Pty Ltd ABN 98 126 526 298 (“Switchwise” or “we” or “us”).

2. definitions

In this Agreement, unless the context otherwise requires:

“Intellectual Property Rights” means statutory and other proprietary rights (whether registered or unregistered) in respect of trade marks, business names designs, patents, circuit layouts, copyrights, confidential information, know-how 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 law, statute or regulation, guideline or code of conduct (whether or not having the force of law) in any jurisdiction to which Switchwise or the Customer is from time to time subject;

“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 site;

“Service” means the service provided in the Territory by Switchwise via the Switchwise website or call centre whereby the Customer may obtain impartial information on the Retailers and the services and products they offer to residential customers in Australia and, potentially transact with the Retailers for the provision of those services and/or products;

“Software” means any proprietary software utilised by Switchwise to enable the Customer to use the Service;

“Retailer” means any supplier of services, products and/or goods selected by Switchwise from time to time and who is listed on the Switchwise website.

“Territory” means Victoria, Australia.

3. changes to terms & conditions

Switchwise reserves the right to amend these terms and conditions at any time. All amendments to these terms will be posted on the Switchwise website. You accept that by Switchwise doing this, Switchwise has provided you with sufficient notice of the relevant amendment and your continued use of the Service or the Switchwise website or call centre will be deemed to constitute acceptance of the new terms and conditions.

4. provision of the service

The use of the Service, the Switchwise website and the Switchwise call centre by or on behalf of the Customer are subject to the terms and conditions set out in this Agreement.

The Service is made available to the Customer solely for the Customer to communicate information to Retailers, for Retailers to communicate to the Customer, and for the Customer to obtain quotations from Retailers or transact with Retailers.

The Customer acknowledges that in providing price comparisons and quotations from Retailers, Switchwise makes many assumptions about the Customer”s energy use and electricity and/or gas meter configurations. 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 than the final prices offered by any particular Retailer may be different to those displayed. To receive the most accurate results, the Customer must provide information from his/her electricity and/or gas bill, specifically:

• for electricity, the National Meter Identifier (NMI) assigned to the Customer”s Meter; and
• for gas, the Meter Installation Reference Number (MIRN) assigned to the Customer”s Meter.

The Customer acknowledges that Switchwise is not acting as the agent of the Customer or the Retailer, and that Switchwise will not be a party to any transaction between the Customer and a Retailer.

When the Customer uses the Service to connect to a product or service offered by a Retailer or to enter into a contract with a Retailer, the Customer acknowledges and agrees that:

• the Customer consents to Switchwise recording the Customer”s information (including personal information) and use of the Service by using recording devices including sound recording devices and data recording devices (including cookies, analytics software and tracking software);
• the Customer”s use of the Service in this manner constitutes an offer to the Retailer, which the Retailer is capable of accepting or rejecting, and the Retailer may first require further information or clarification from the Customer;
• the Retailer may use the information provided by the Customer to Switchwise for the purposes of credit checking and/or identity verification to assist it in determining whether to accept the Customer”s offer;
• the Customer authorises and consents to Switchwise disclosing all information provided by the Customer to the Retailer;
• the Customer authorises and consents to Switchwise providing information to the Customer in relation to Switchwise and the Retailers;
• the Customer grants Switchwise royalty-free, perpetual, irrevocable, non-exclusive right to use, copy, modify, adapt, translate, publish and distribute worldwide all of the information and other material transmitted by the Customer using the Service, including the Intellectual Property Rights in the information; and
• the Customer”s offer is subject to the terms and conditions of the product or service as disclosed by the relevant Retailer.

Without limitation, the Customer undertakes not to use (or procure or assist anyone else to use) the Service or the Switchwise website:

• 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;
• to cause annoyance, inconvenience or needless anxiety;
• to intercept or attempt to intercept any communications transmitted by way of a telecommunications system;
• other than in conformance with accepted Internet practices and practices of any connected networks;
• 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;
• for resale of the Service or the Retailer's products or services without the prior written consent of Switchwise or the relevant Retailer;
• for furnishing false data including but not limited to false names, addresses and contact details and fraudulent use of credit or debit card numbers;
• 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);
• for executing any form of network monitoring which will intercept data not intended for the Customer;
• for sending unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material;
• for creating or forwarding “chain letters” or other “pyramid schemes” of any type, whether or not the recipient wishes to receive such mailings;
• 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);
• 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
• for unauthorised use, or forging, of mail header information.

5. payment and disclosure of commission

In order to provide the Service, Switchwise receives payments (including commissions) from participating Retailers. The receipt of such payments from Retailers does not influence how those Retailers are rated or ranked by Switchwise.

The use of the Switchwise website and the Service is currently free for Customers. However, Switchwise reserves the right to charge the Customer a fee for use of all or part of the Service, where Switchwise provides the Customer with prior written notice of that fee charges.

The Customer is responsible for transmitting all payments due to Retailers on the terms agreed with the relevant Retailer. Switchwise has no responsibility for transmission of payments to a Retailer.

If a Retailer requires details of the Customer's credit or debit card or bank account, the Customer will provide such details to Switchwise for the purpose of Switchwise forwarding such details to the relevant Retailer.

6. customer's obligations

Switchwise endeavours to inform the Customer of any applicable terms and conditions imposed by a Retailer in relation to the supply of the Retailer”s services or products and the Customer agrees to abide by those terms and conditions.

The Customer warrants the accuracy and completeness of all information provided to Switchwise in using the Service, which will includes the creation of a password in order to have access to Save Your Search. The Customer must promptly inform Switchwise of any changes to such information.

Any password allocated to or created by the Customer to enable the Customer to use the Service must be kept confidential by the Customer and the Customer must immediately notify Switchwise if any authorised third party becomes aware of that password.

The Customer agrees that any person to whom its user name or password is disclosed is authorised to act as the Customer's agent for the purposes of transacting via the Service. The Customer must take reasonable steps to prevent unauthorised access to its account via any computer the Customer uses to access its account.

7. intellectual property rights

All Intellectual Property Rights in the Switchwise name and logo, the Switchwise website, the Service (to the extent that Intellectual Property Rights in the Service are owed by Switchwise), the information and content on the Switchwise website, any database operated by Switchwise and Software remains the property of Switchwise (“Protected Material”). The Customer shall not obtain, and shall not attempt to obtain any title to the Protected Material. No part of the Protected Material may be reproduced or adapted by the Customer in any form or used in any other way except in accordance with these terms and conditions.

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 use of the Service and for no other purpose.

Please contact Switchwise if you would like to place a link to any part of the Switchwise website.

8. suspension and termination

Switchwise is entitled to temporarily suspend the availability of the Service to the Customer or terminate this Agreement (including the Customer”s access to the Service) if:

• the Customer breaches the Customer”s obligations under this Agreement in a manner which in Switchwise's sole opinion is serious enough to merit immediate termination; or
• the Customer commits any breach of any of the Customer”s obligations under this Agreement which is capable of remedy and in respect of which Switchwise issues a default notice, and the Customer fails to remedy the breach within the period specified in the notice; or
• Switchwise suspects that the Customer may have committed or be committing any fraud against Switchwise or any Retailer.

Switchwise reserves the right to block the Customer”s access to the Service and edit or remove any material from the Service, in its absolute discretion.

The right 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. All disclaimers and limitations of liability in this Agreement by Switchwise will survive termination.

9. customer breach

The Customer indemnifies Switchwise in full all claims (actual or threatened), losses, liabilities and costs (including legal costs on a full indemnity basis) incurred by Switchwise and arising out of:

• the Customer's use of the Service;
• the use of the Service through the Customer's password; or
• any breach of this Agreement by the Customer.

10. disclaimer

The Customer acknowledges and agrees that:

• whilst Switchwise uses reasonable endeavours to ensure that the information (including prices) forming part of the Service is updated regularly, information (including prices) are subject to change without notice. Switchwise does not guarantee the accuracy of the information forming part of the Service and it is the Customer”s responsibility to verify all relevant prices prior to entering into a contract with a Retailer;
• the information provided as part of the Service attempts to provide a summary of the Retailer”s products and services but the Customer should confirm the exact terms and conditions applicable to the Retailer”s products and services before making the decision to enter into a contract with the Retailer;
• any information provided by the Retailer to the Customer after the Customer”s use of the Service overrides the information provided as part of the Service to the extent of any inconsistency;
• Switchwise does not in any way warrant or represent that the Service compares all or a majority of the products or services offered by all or a majority of the retailers in the relevant energy market;
• Switchwise does not warrant that the Customer's use of the Service will be uninterrupted or that any messages or information transmitted via the Service will be transmitted accurately, reliably, in a timely manner or at all;
• Switchwise reserves the right to make the Service unavailable at any time, or to restrict access to parts or all of the Service without notice;
• Switchwise is not liable for the negligent, reckless or fraudulent use of the service by any of the Customer, the Customer”s agent or any third party; and
• Switchwise may at any time withdraw any Retailer (or any product or service of a Retailer) from the Service.

11. limitation of liability

Nothing in this Agreement affects Switchwise's liability to the extent it cannot by Law be excluded or restricted.

Switchwise”s liability for any breach of a condition or warranty implied in this Agreement by Law (to the extent that it cannot be excluded or modified) is limited, in the absolute discretion of Switchwise, to one or other of the following:

• supplying the Service (or part of it) again; or
• paying the cost of having the Service (or part of it) supplied again,

and does not extend to any consequential loss or damage whatsoever.

Switchwise does not warrant and excludes all liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Service. Switchwise excludes all liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material in relation to the Service.

The Customer agrees that Switchwise shall not be liable in contract, tort (including liability for negligence), or otherwise for any loss or damages suffered as a result of any use of the Service, including but not limited to direct, indirect or consequential loss or damage and loss of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data.

12. links to other websites

The Switchwise website may contain links to other websites by third parties (“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), although Switchwise may receive payments from the operators of Third Party Sites. Switchwise makes no warranties or representations regarding:

• the accuracy, quality, merchantability or fitness for purpose of the content on the Third Party Site; or
• that the content on the Third Party Site does not infringe the intellectual property rights of any person,

and to the extent that liability cannot be excluded at Law, it is limited in accordance with clause 11 of this Agreement.

13. no partnership or agency

Nothing in this Agreement shall be construed to create a joint venture, partnership or agency relationship between the Customer and Switchwise or Switchwise and any Retailer, and neither party shall have the right or authority to incur any liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.

14. assignment

The Customer shall not assign or delegate or otherwise deal with all or any of its rights or obligations under this Agreement. Switchwise shall have the right to assign or otherwise delegate all or any of its rights or obligations under this Agreement to any person or entity.

15. force majeure

Switchwise shall not be liable for any breach of its obligations under this Agreement where it is 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, accident (or by any damage caused by any of such events).

16. entire agreement and no waiver

This Agreement represents the entire understanding between the parties in relation to the subject matter herein and supersedes all other agreements or representations by either party, whether oral or written.

No waiver by Switchwise of any future defaults, whether of a like or different character, and no granting of time or other forbearance or indulgence by Switchwise to the Customer shall in any way release, discharge or otherwise affect the liability of the Customer under this Agreement.

17. notices

Unless otherwise stated within 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.

18. governing law

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.

Updated: 20 June 2008