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Master Service Agreement

BRANDED SERVICE AGREEMENT

PARTIES

Electricityinabox	Electricityinabox Pty Ltd ACN 140 547 226 of Level 1, 9 Bronte Road Bondi Junction NSW 2022
Service Provider	the person or entity specified in Item 1 of Schedule 1

BACKGROUND

The Service Provider has an existing business and customer base and wishes to offer branded services from Electricityinabox to those customers.
Electricityinabox agrees to provide the Service Provider branded electricity enablement on the terms and conditions of this agreement.

AGREEMENTS

1. INTERPRETATION

Definitions

1.1 The meanings of the terms used in this agreement are set out below.

Term	Meaning
ACL	Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth)
ACMA	Australian Communications and Media Authority
Business Day	any day between Monday to Friday from the hours of 9am and 5pm GMT +10
Campaign Brief	the ‘Campaign Brief’ annexed to this agreement together with any amendments and, as the context requires, any new or amended ‘Campaign Brief(s)’ provided by Electricityinabox to the Service Provider from time to time
Campaign Products	the energy products of Electricityinabox and its Related Bodies Corporate which are marketed to Customers pursuant to this agreement
Cancellation Report	a list of Customers (in a similar format to the Sales Report) that have been rejected or have cancelled their contract during the Cooling-off Period, or Sales already reported in the Sales Report
Change of Control	(a) the happening of circumstances or events, following which the Service Provider becomes Controlled by another person, alone or together with any Related Body Corporate; (b) acquisition by a third party or third parties of all or substantially all of the assets of the Service Provider or of any entity in the Service Provider’s ownership chain; or (c) a merger of the Service Provider or of any entity in the Service Provider’s ownership chain with or into a third party to form a new entity
Client	a salesperson of the Service Provider, whether existing at the Commencement Date or acquired during the Term
Commencement Date	the date specified in Item 2 of Schedule 1, or if there is no such date specified, the date of this agreement
Cooling-off Period	the cancellation period granted to Customers pursuant to section 82(3)(b) of the ACL or any equivalent consumer protection
Confidential Information	of a party, the terms of this agreement and any information: (a) relating to the business and affairs of that party; (b) relating to the customers, clients, employees, contractors, subcontractors or other persons doing business with that party; (c) which is by its nature confidential; (d) which is designated as confidential by that party; or (e) which the other party knows or ought to know, is confidential, and includes all trade secrets, know-how, financial information, customer data and other commercially valuable information of that party.
Control	of an entity includes the definition of ‘Control’ in section 50AA Corporations Act and in the case of a corporation includes the power (whether it is legally enforceable or not) to control, whether directly or indirectly, the composition of the board of directors of that corporation, the voting rights of the majority of the voting shares of the corporation or the management of the affairs of the corporation
Corporations Act	the Corporations Act 2001 (Cth)
Customer	an existing or potential consumer of the Campaign Products
Deliverable	any Material given by the Service Provider to Electricityinabox in the performance of the Services
Electronic Communication	has the meaning given to it by the Electronic Transactions Act 1999 (Cth) and time of despatch and receipt are defined by section 14 of that Act
Entitlements	salary, wages, allowances, annual leave or payment in respect of annual leave, long service leave or payment in respect of long service leave, notice of termination or payment in lieu of notice of termination, severance pay, commissions, bonuses, reimbursement of expenses, superannuation and any entitlement which may be owed or payable under any award, agreement or other industrial instrument, statute or employment contract to which an employee may be entitled in respect of their employment or the termination of that employment
Fees	the fees specified in Item 6 of Schedule 1
Electricityinabox Material	any Material given by or to which access is given by Electricityinabox to the Service Provider for the purposes of this agreement
Government Agency	(a) a government or government department or other body; (b) a government, semi-governmental or judicial person; or (c) a person (whether autonomous or not) who is charged with the administration of a law
GST	the same meaning as in the GST Act
GST Act	A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Initial Period	the period specified in Item 3 of Schedule 1
Insolvency Event	any of the following events concerning a party: (a) if an administrator, liquidator, receiver, receiver and manager or other controller (as defined in the Corporations Act) is appointed to, or over, any of the property or undertaking of the party; (b) if the party becomes bankrupt; (c) if a controlling trustee is appointed to, or over, any of the property or undertaking of the party; (d) if the party's property or undertaking becomes subject to a personal insolvency arrangement under part X of the Bankruptcy Act 1966 (Cth) or a debt agreement under part IX of the Bankruptcy Act 1966 (Cth); (e) the party is unable to pay its debts when they become due and payable; (f) if the party ceases to carry on business; or (g) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition
Intellectual Property Rights	all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, Moral Right, patent, registered or unregistered trademark, registered or unregistered design, trade secret, know-how, right in relation to trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of those rights
Marketing List	a list of Customers provided by Electricityinabox to the Service Provider
Material	software, source code, object code, designs, test cases, documents, equipment, reports, technical information, customer lists, studies, plans, charts, drawings, calculations, tables, trademarks, logos, schedules and data stored by any means
Moral Right	(a) the right of integrity of authorship; (b) the right of attribution of authorship; and (c) the right not to have authorship falsely attributed, including those rights as conferred by the Copyright Act 1968 (Cth), and rights of a similar nature anywhere in the world whether existing before, on or after the commencement of this agreement
Personal Information	information or an opinion (including information or an opinion forming part of a database), whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion
Personnel	in relation to a party, that party’s employees, officers and agents and in relation to the Service Provider also includes its contractors, consultants, licensees and invitees (including their employees, officers and agents)
Privacy Act	the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued there under, as amended from time to time
Privacy Laws	(a) the Privacy Act; (b) the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act; and all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information
Related Body Corporate	has the same meaning as in the Corporations Act
Sales	the sale of Campaign Products to Customers by the Service Provider
Sales Report	A report provided by the Service Provider to Electricityinabox Australia pursuant to clause 4.1(f), which shall include (but is not limited to) Sales, Customer names, Customer addresses, Customer dates of birth and all other details as required by Electricityinabox
Sales Requirements	the requirements for sale of Campaign Products specified in Schedule 2
Service Area	the area specified in Item 5 of Schedule 1
Services	the services specified in Item 4 of Schedule 1
Taxable Supply	the same meaning as in the GST Act
Tax Invoice	the same meaning as in the GST Act

Construction

1.2       In this agreement:

(a)        words in the singular include the plural and vice versa;

(b)        words indicating any gender indicate the appropriate gender;

(c)         where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(d)        a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;

(e)        references to any document (including this agreement) include references to the document as amended, consolidated, supplemented, novated or replaced;

(f)          a reference to a statute includes a reference to all enactments amending or consolidating the statute and to an enactment substituted for the statute and any subordinate legislation, including regulations;

(g)        monetary references are references to Australian currency;

(h)        any Schedules or Annexures form part of this agreement;

(i)          a reference to an Item is a reference to an Item in Schedule 1 to this agreement;

(j)          headings are included for convenience only and do not affect interpretation of this agreement; and

(k)         no provision will be construed adversely to a party solely on the grounds that the party was responsible for the preparation of this agreement or that provision.

2.          Apppointment of SERVICE PROVIDER

2.1       On and from the Commencement Date, Electricityinabox appoints the Service Provider as a contractor for the purpose of providing the Services in accordance with the terms of this agreement.

2.2       The Service Provider shall have no authority or requirement to provide any Services prior to the Commencement Date.

3.          Term and termination

3.1       Term

(a)        This agreement commences on the Commencement Date and continues for the Initial Period unless terminated earlier under this clause 3.

(b)        Electricityinabox will automatically renew this agreement after the Initial Period for 12 months in the absence of written notice by the Service Provider to terminate before the end of the Initial Period.

3.2       Termination for breach

If:

(a)        the Service Provider commits a breach of this agreement; or

(b)        an Insolvency Event occurs in relation to the Service Provider,

then Electricityinabox may terminate this agreement by written notice to the Service Provider in which case this agreement will terminate on the date specified in that written notice or, if no date is specified, immediately.

3.3       Termination for convenience

(a)        *removed

(b)        *removed

3.4       After termination or expiry

On termination or expiry of this agreement:

(a)        accrued rights or remedies of a party are not affected; and

(b)        if required by Electricityinabox with respect to particular Services which have not yet been performed to Electricityinabox satisfaction, this agreement will continue until the Service Provider has performed the Services contemplated by those requests to Electricityinabox satisfaction.

3.5       Survival

Termination or expiry of this agreement will not affect clauses or any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination.

4.          Service provider’s obligations

4.1       During the Term, the Service Provider undertakes and agrees to:

(a)        provide the Services

(b)        strictly comply with the terms contained in Schedule 2

(c)         comply with (and ensure that its Personnel are aware of and comply with) all applicable State, Territory and Commonwealth laws in force in Australia, including but not limited to:

(i)          the Competition and Consumer Act 2010 (Cth),

(ii)         the Electronic Transactions Act 1999 (Cth);

(iii)        the Telecommunications Act 1997 (Cth);

(d)        not make (and procure that its Personnel do not make) any representations, statements, or warranties about Electricityinabox other than as set out in this agreement without the prior written consent of an authorised officer of Electricityinabox;

(e)        comply with any directives provided by Electricityinabox from time to time;

(f)          provide Electricityinabox with lists of all Sales complying with the Sales Requirements listed in Schedule 2;

(g)        only make customers available to Electricityinabox through marketing channels approved by Electricityinabox;

(h)        if the Service Provider is approved to perform cold calling services, ensure that all data is managed and called in compliance with ACMA requirements and guidelines (provided that without prejudice to any other rights Electricityinabox may have, the Service Provider will be liable for and shall indemnify Electricityinabox in respect of any fees or penalties incurred by Electricityinabox in relation to the same); and

(i)          unless otherwise directed by Electricityinabox, provide Electricityinabox with a recorded copy of all daily calls as directed on or prior to 9.30am AEST of the following day.

(j)          provide intel on any issues impacting their ability to succeed

4.2       The Service Provider must:

(a)        provide the Services in a proper, timely and efficient manner using the standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services that are similar to the Services;

(b)        ensure the highest quality of work and the delivery of the Services with the utmost efficiency;

(c)         act in good faith and in the best interests of Electricityinabox;

(d)        keep Electricityinabox informed of all matters of which it ought reasonably be made aware, and provide such information in relation to the provision of the Services as may reasonably be required by Electricityinabox; and

(e)         fully comply with its obligations and duties under this agreement.

4.3       not used

4.4       The Service Provider warrants that there is no legal impediment to its provision of the Services on the terms set out in this agreement.

4.5       The Service Provider must provide, at its cost, any and all equipment (including computer hardware and software and any ancillary support) necessary for the performance of the Services.

4.6       If, at any time during the Term, the Service Provider is unable or is likely to become unable to provide any or all of the Services, the Service Provider must immediately notify Electricityinabox of that fact.

4.7       The Service Provider will not, nor will any of its Related Bodies Corporate or affiliates, and their respective officers, directors, employees, agents and representatives, directly or indirectly make any contact with any suppliers or Customers of Electricityinabox, other than strictly in connection with performing the Services.

4.8       The Service Provider acknowledges and agrees that Electricityinabox may, upon providing 10 Business Days’ prior written notice:

(a)        change any Campaign Product;

(b)        withdraw any Campaign Product; and/or

(c)         amend or supplement any Campaign Brief.

5.          Fees

5.1       Subject to clauses 5.3 and 5.4 and the Service Provider complying with this agreement, Electricityinabox must pay the Fees to the Service Provider for all, active, paid accounts. The process for reconciliation, invoicing and payment of Fees is specified in Schedule 3.

5.2       The Service Provider acknowledges and agrees that, apart from the Fees, the Service Provider is not entitled to any other fees, payments, or any Entitlements from Electricityinabox.

5.3       An invoice for payment must:

(a)        be a tax invoice for the purposes of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(b)        include any information requested by Electricityinabox; and

(c)         be in a form approved by Electricityinabox.

5.4       If there is a dispute about whether a Fee, refund or other amount contemplated by this agreement is payable or available, Electricityinabox may withhold the amount in dispute without penalty until the resolution of the dispute.

6.          personnel

The Service Provider must utilise such Personnel as are necessary to enable it to fulfil its obligations under this agreement. The Service Provider must ensure that such Personnel have the requisite skills and experience.

7.          Performance management and monitoring

Electricityinabox may at any time conduct performance reviews to evaluate, monitor or review the Service Provider’s performance and compliance with this agreement. The Service Provider must participate and cooperate in any such performance reviews.

8.          Electricityinabox obligations

Electricityinabox will:

(a)        make available to the Service Provider, a branded quote/compare and sales portal, payment portal and all required information in relation to the Campaign Products;

(b)        provide the Service Provider’s personnel with any training reasonably required to enable them to sell the Campaign Products;

(c)         provide the Service Provider with a summary of Customer’s exercising 10 day Cooling-off Period termination rights;

(d)        provide regular feedback to the Service Provider in relation to the progress of the Services;

(e)        promptly advise the Service Provider of any changes to the Campaign Products and provide additional training as required; and

(f)          in the event that an existing Client of the Service Provider offers its services directly or indirectly Electricityinabox (save for in performing this agreement), refer those persons back to the Service Provider.

9.          Ownership of customers

9.1       The Service Provider acknowledges and agrees that:

(a)        As the holder of the Electricity Retail authorisation, all Customers are customers of Electricityinabox, and that the Service Provider’s contact with such Customers in relation to electricity, shall be limited to provision of Services pursuant to this agreement; and

(b)        any Customer details constitute Confidential Information and are only to be used by the Service Provider for the purpose of providing Services pursuant to this agreement.

9.2       The Service Provider must not, and must procure that its Personnel do not, contact the Customers for any reason relating to electricity, other than in connection with the provision of Services pursuant to this agreement.

9.3       If Electricityinabox forms a view, acting reasonably, that the Service Provider has breached this clause 9, without prejudice to any other rights Electricityinabox may have under or in connection with this agreement, the Service Provider must upon a written demand by Electricityinabox immediately refund to Electricityinabox any Fees attributable to Services provided in connection with the Customer(s) in respect of whom the Service Provider made prohibited contact (and such amount will be treated as a liquidated debt due and owing to Electricityinabox which must be paid in cleared funds without any set-off, deduction or withholding whatsoever). Electricityinabox may set-off such amounts under clause 21.

10.       indemnity

10.1     Notwithstanding any other provision of this agreement:

(a)        Electricityinabox aggregate liability under this agreement for loss or damage (however caused and including by the negligence of Electricityinabox) sustained by the Service Provider under this agreement is limited to the Fees paid for the Services to which the claim relates; and

(b)        Electricityinabox shall be deemed to have been discharged from all liability in respect of the agreement, whether under contract, in tort (including negligence), in equity, under statute or otherwise, upon the expiration of three (3) years from the termination of this agreement.

10.2     Subject to clause 10.1, Electricityinabox is not liable for any consequential loss however caused (including by the negligence of Electricityinabox), suffered or incurred by the Service Provider in connection with this agreement.

10.3     The Service Provider is liable for, and indemnifies Electricityinabox from and against, all loss or damage (including legal costs) incurred or suffered by Electricityinabox however caused in connection with:

(a)        any breach of this agreement by the Service Provider;

(b)        any claim by the Service Provider against Electricityinabox in connection with this agreement;

(c)         the enforcement of Electricityinabox rights in connection with any alleged or actual breach of this agreement by the Service Provider;

(d)        any claim or allegation by a third party, in connection with the Deliverables or the Services;

(e)        any claim or allegation that the Deliverables, exercise of the rights under this agreement or the provision of the Services infringes the Intellectual Property Rights or other rights of any third party;

(f)          personal injury or death of any person (including the Service Provider or any employee of the Service Provider) at premises owned or occupied by Electricityinabox or in connection with the provision of the Services;

(g)        any act or omission of the Service Provider, its officers, employees or agents;

(h)        Electricityinabox treating the relationship between it and the Service Provider as one of independent contract in respect of which:

(i)          PAYG tax need not be deducted;

(ii)         fringe benefits tax and pay-roll tax need not be paid; and

(iii)        legislative and industrial instrument provisions dealing with employment are not applicable; or

(i)          any claim of the Service Provider or its Personnel to Entitlements.

10.4     Each indemnity contained in this agreement is a continuing obligation notwithstanding:

(a)        any settlement of account; or

(b)        the occurrence of any other thing,

and it is not necessary for Electricityinabox to incur expense or make payment before enforcing or making a claim under an indemnity.

11.       Insurance

11.1     The Service Provider must obtain and maintain for the Term the following insurances:

(a)        a broad form public liability insurance to the value of at least $500,000 per claim;

(b)        professional indemnity insurance to the value of at least $250,000 per claim; and

11.2     The Service Provider must provide Electricityinabox with evidence of the currency of any insurance it is required to obtain on request by Electricityinabox at any time during the Term.

11.3     Any insurance obtained pursuant to clause 11.1 must be:

(a)        taken out with an insurer acceptable to Electricityinabox; and

(b)        on terms (including any excess) which are acceptable to Electricityinabox.

12.       No assumption of duty

The Service Provider is solely responsible for the discharge and satisfaction of the Service Provider’s duties in connection with the Services and this agreement and neither Electricityinabox nor any of its officers or agents assumes any duty to:

(a)        advise on, supervise or control the Service Provider’s performance of the Services;

(b)        detect, prevent or remedy any default of the Service Provider;

(c)         ensure the proper performance of any obligations of the Service Provider; or

(d)        exercise any discretion for the benefit of the Service Provider.

13.       Intellectual property

13.1     The Service Provider retains all Intellectual Property Rights in its systems and processes existing at the Commencement Date.

13.2     The Service Provider assigns to Electricityinabox the Intellectual Property Rights (including future Intellectual Property Rights):

(a)        in the Deliverables; or

(b)        otherwise created by the Service Provider in or as a result of the performance of the Services.

13.3     The Service Provider must sign all documents and do all things necessary to give effect to clause 13.2.

13.4     If the Service Provider suspects or becomes aware that a Deliverable infringes any third party’s Intellectual Property Rights then the Service Provider must:

(a)        immediately notify Electricityinabox that the Deliverable infringes or may infringe that third party’s Intellectual Property Rights; and

(b)        take any action required by Electricityinabox in connection with the infringement or suspected infringement of that third party’s Intellectual Property Rights.

13.5     The Service Provider must not perform any act or omission which damages or is likely to damage the reputation of Electricityinabox or a Deliverable.

13.6     The Service Provider acknowledges that:

(a)        Electricityinabox retains the Intellectual Property Rights in Electricityinabox Material; and

(b)        nothing in this agreement is intended to give the Service Provider any Intellectual Property Rights or other rights in any of Electricityinabox Material.

13.7     The Service Provider must only use Electricityinabox Material as directed by Electricityinabox and only to the extent necessary to perform the Services for Electricityinabox.

13.8     The Service Provider is responsible for the safe keeping and maintenance of any of Electricityinabox Material given to the Service Provider.

13.9     The Service Provider must not, use the names, trademarks or logos of Electricityinabox except with the prior consent of Electricityinabox.

13.10 The Service Provider must ensure that each author of a Deliverable genuinely and irrevocably consents to any acts or omissions of any person including Electricityinabox in connection with any Deliverable, whether occurring before, on or after the Commencement Date, which might otherwise infringe the Moral Rights of the author.

13.11 Without limiting clause 13.5, the Service Provider must ensure that the authors of the Deliverables irrevocably and genuinely consent to use of any Deliverable without identification of the authors as the authors or creators of the Deliverable.

13.12 Without limiting the warranties given under this agreement, the Service Provider warrants and represents that the Service Provider did not rely upon any statement or representation made by Electricityinabox before granting the consent contemplated by clause 13.11.

13.13 Without limiting clause 13.10, if requested by Electricityinabox in a particular case, the Service Provider agrees to ensure that the authors of the Deliverables consent to any specific act or omission nominated by Electricityinabox that may otherwise infringe the Moral Rights of the authors.

14.       Confidential information

14.1     The Service Provider agrees to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of Electricityinabox provided to or obtained by the Service Provider prior to or after entry into this agreement.

14.2     The obligations of confidence in clause 14.1 do not apply to Confidential Information:

(a)        that is required to be disclosed by applicable law, or under compulsion of law by a court or Government Agency, as long as the Service Provider:

(i)          discloses the minimum amount of Confidential Information required to satisfy the law or rules; and

(ii)         before disclosing any information, gives all available written notice to Electricityinabox and takes all available steps to maintain such Confidential Information in confidence; or

(b)        that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence.

14.3     The Service Provider may use and disclose Confidential Information of Electricityinabox only with the prior written consent of Electricityinabox.

14.4     If the Service Provider discloses Confidential Information under clause 14.3, the Service Provider must ensure that such information is kept confidential by the person to whom it is disclosed.

14.5     The Service Provider acknowledges that:

(a)        Electricityinabox may suffer financial and other loss and damage if any unauthorised act occurs in relation to the Confidential Information of Electricityinabox, and that monetary damages would be an insufficient remedy; and

(b)        in addition to any other remedy available at law or in equity, Electricityinabox is entitled to injunctive relief to prevent a breach of and to compel specific performance of this clause 14.

15.       Privacy

15.1     The Service Provider must process all Personal Information in connection with this agreement in accordance with the Privacy Laws and only for the purposes of performing its obligations under this agreement.

15.2     The Service Provider must comply with all reasonable requests or directions Electricityinabox in connection with the obligations of Electricityinabox under the Privacy Laws or in connection with policies developed by Electricityinabox from time to time for the purpose of complying with the Privacy Laws.

15.3     The Service Provider must not disclose Personal Information collected for the purposes of this agreement without the prior authority of Electricityinabox unless the disclosure is required:

(a)        for the purposes of performing its obligations under this agreement; or

(b)        by law.

15.4     The Service Provider must immediately notify Electricityinabox where it becomes aware that a disclosure of Personal Information may be required by law.

15.5     The Service Provider must not transfer outside Australia Personal Information collected for the purposes of this agreement, or allow parties outside Australia to have access to such Personal Information, without the prior consent of Electricityinabox.

15.6     The Service Provider must take all necessary steps to ensure that Personal Information collected for the purposes of this agreement is protected against loss and against unauthorised access, use, modification, disclosure or other misuse and that only Personnel authorised by Electricityinabox have access to the Personal Information.

15.7     The Service Provider must notify Electricityinabox immediately if it becomes aware of a breach of this clause 15 by the Service Provider or any employee, agent or subcontractor of the Service Provider or any of its Personnel.

16.       Warranties

16.1     The Service Provider represents and warrants, and it is a condition of this agreement, that:

(a)        all information given by the Service Provider or on the Service Provider’s behalf to Electricityinabox is accurate and is not, whether by omission of information or otherwise, misleading;

(b)        the Service Provider has not withheld from Electricityinabox any document, information or other fact material to the decision of Electricityinabox to enter into this agreement; and

(c)         the Service Provider did not rely upon any representation made to the Service Provider by Electricityinabox or any Related Body Corporate of Electricityinabox (if any) before entry into this agreement.

16.2     The Service Provider acknowledges and agrees that Electricityinabox, in entering into this agreement, is relying on the warranties and on the representations made in or under this agreement, including in any proposal or presentation prior to this agreement.

17.       Access and inspection

At the times required by Electricityinabox from time to time, the Service Provider must allow Electricityinabox or its nominated representatives to access the Service Provider’s premises; and inspect and copy the Service Provider’s relevant records, documents to verify the Service Provider’s compliance with this agreement.

18.       Change of control

If the Service Provider experiences a Change of Control during the Term:

(a)        the Service Provider must notify Electricityinabox in writing immediately; and

(b)        Electricityinabox may terminate this agreement by written notice to the Service Provider, in which case this agreement will terminate on the date specified in the notice, or, if no date is specified, immediately.

19.       Sub-contracting

19.1     Except as expressly provided in this agreement, the Service Provider must not subcontract to any third person any of its obligations under this agreement without the prior written consent of Electricityinabox, which consent may be given or withheld by Electricityinabox in its absolute discretion.

19.2     The Service Provider must ensure that any person engaged by it complies with all obligations imposed on the Service Provider by this agreement. The Service Provider will not, as a result of any sub-contracting arrangement, be relieved from the performance of any obligation under this agreement and will be liable for all acts and omissions of a sub-contractor as though they were the actions of the Service Provider itself.

20.       Personnel costs

20.1     The Service Provider must indemnify and keep indemnified Electricityinabox from and against all liability for the Entitlements in any way relating to the Services.

20.2     If Electricityinabox is or becomes liable to pay any Entitlements, the Service Provider may deduct the amount of its liability for the Entitlements from any amount due by Electricityinabox to the Service Provider, whether under this agreement or otherwise.

21.       SET-off

Electricityinabox may set off against any amount payable by the Service Provider under this agreement any amount payable by the Service Provider to Electricityinabox, including any:

(a)        amount payable under an indemnity; and

(b)        amount attributable to loss or damage suffered or incurred by Electricityinabox in connection with this agreement.

22.       DISPUTES

22.1     Parties to meet

If any dispute arises under or in connection with this agreement (Dispute) which Dispute is not able to be resolved by the parties within 14 days, the nominated senior executive officer (or equivalent) of each of Electricityinabox (on the one hand) and the Service Provider (on the other hand) will promptly meet and discuss in good faith with a view to resolving such Dispute.

22.2     Arbitration or Litigation

(a)        If the parties fail to settle any Dispute in accordance with clause 22.1, the parties may agree to submit the Dispute for resolution to final and binding arbitration under the Rules of Arbitration of the Resolution Institute Australia by one or more arbitrators appointed in accordance with those rules.

(b)        If the parties do not agree to refer the Dispute to arbitration in accordance with clause 22.2(a), either party may submit the Dispute for resolution to the exclusive jurisdiction of the Courts of New South Wales, Australia.

22.3     Performance during Dispute resolution

The parties to a Dispute will continue to perform their respective obligations under this agreement, pending the resolution of a Dispute under this clause 22.

22.4     Nothing in this clause 22 is to be taken as preventing any party to a Dispute from seeking interlocutory relief in respect of such Dispute.

23.       NOTICES

All notices and other communications required or permitted hereunder shall be in writing, (or deemed to be in writing if provided as an Electronic Communication) and shall be duly given upon actual receipt and shall be delivered by one of the following:

(a)        in person;

(b)        by registered mail with a return receipt requested or

(c)         by generally accepted means of electronic transmission in accordance with the Electronic Transactions Act 1999 (Cth) and addressed as specified in item 7 of Schedule 1.

24.       SUspension

24.1     Electricityinabox may in its discretion direct the Service Provider to suspend the provision of any or all of the Services with immediate effect by giving notice in writing for such time as Electricityinabox thinks fit:

(a)        to comply with any regulatory requirement or order, request or direction of a Government Agency;

(b)        to prevent or abate any emergency situation;

(c)         to eliminate, reduce or mitigate any hazard or risk;

(d)        to exercise any of its rights or comply with any of its obligations under this agreement;

(e)        if the Service Provider is, or Electricityinabox reasonably believes the Service Provider may be, in default under this agreement, including failing to meet any KPI Target set out in Schedule 2; or

(f)          at Electricityinabox absolute discretion and convenience, without the need to provide any reason for such suspension.

24.2     The Service Provider must recommence performance of the Services on reasonable notice by Electricityinabox.

25.       GST

25.1     The consideration payable by Electricityinabox has been fixed without regard to the impact of GST.

25.2     If GST is or becomes payable on a Taxable Supply made under or in connection with this agreement, the party providing consideration for that Taxable Supply must pay an additional amount equal to the GST payable on the Taxable Supply.

25.3     The additional amount payable under clause 25.2 must be paid at the same time as the consideration for the Taxable Supply or on the date on which the party making the supply delivers a Tax Invoice (whichever is later).

26.       GENERAL

Governing law

26.1     This agreement will be construed in accordance with the laws in force in New South Wales and the parties submit to the jurisdiction of the courts of New South Wales.

Relationship

26.2     This agreement does not create a relationship of employment, trust, agency or partnership between the parties.

Reference to a party

26.3     Any reference to a party in this agreement includes, and any obligation or benefit under this agreement will bind or take effect for the benefit of, that party’s executors, administrators, successors in title and assigns.

Assignment / novation

26.4     The Service Provider must not assign, in whole or in part, or novate the Service Provider’s rights and obligations under this agreement without the prior written consent of Electricityinabox. Electricityinabox may assign its interest under this agreement.

Legal costs

26.5     Each party will bear its own legal and other costs and expenses relating to this agreement.

Stamp duty and other taxes

26.6     The Service Provider must pay:

(a)        all stamp duty (including penalties and interest) assessed or payable in connection with this agreement; and

(b)        all taxes, duties, government charges and other taxes of a similar nature (including fines, penalties and interest) imposed or levied in Australia or overseas in connection with the performance of this agreement.

Entire agreement

26.7     This agreement represents the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings between the parties.

Severability

26.8     If any part of this agreement is invalid or unenforceable, that part will (if possible) be read down to the extent necessary to avoid the invalidity or unenforceability, or alternatively will be deemed deleted; and this agreement will remain otherwise in full force.

Amendments to be in writing

26.9     No amendment to this agreement has any force unless it is in writing.

Further assurances

26.10 Each party will sign and complete all further documents and do anything else that may be reasonably necessary to effect, perfect or complete the provisions of this agreement and the transactions to which it relates.

Joint and several

26.11 An obligation of two or more persons under this agreement binds them jointly and severally and every expressed or implied agreement or undertaking by which two or more persons derive any benefit in terms of this agreement will take effect for the benefit of those persons jointly and severally.

Waiver

26.12 The failure of a party to this agreement to enforce a provision or the granting of any time or indulgence will not be construed as a waiver of the provision nor of a waiver of the right of the party at a later time to enforce the provision.

Counterparts

26.13 This agreement may be signed in counterparts. Each counterpart will be deemed an original and the counterparts taken together constitute one and the same instrument.

26.14 A copy of a counterpart sent by electronic communication (as defined in the in Electronic Transactions (Queensland) Act 2001 (Qld)):

(a)        will be deemed an original counterpart;

(b)        is sufficient evidence of the signing of the original; and

(c)         may be produced in evidence for all purposes in place of the original.

Publicity

26.15 No public announcement or communication relating to the negotiations of the parties or the subject matter or terms of this agreement will be made without the written approval of all parties.

No merger

26.16 The rights and obligations of the parties contained in this agreement will not be extinguished by or upon completion.

Time of the essence

26.17 Time will be of the essence as regards a date or period determined under this agreement except that a date or period may be altered by agreement in which case time will be of the essence for date or period as altered.

SCHEDULE 1

Service Provider

_________________. ABN ____________________

Commencement Date

__________________

Initial Period

1 year commencing on the Commencement Date

Services

The marketing services (or any of them) specified in this agreement, including those referenced in the Campaign Brief

Service Area

Refer to the Annexure

Fees

$5 per paying residential customer per month

$15 per paying business customer per month

Item 7         Contact Details

                   Service Provider

Name:
_________________________

Title:
_________________________

Email address:
_________________________



Electricityinabox Pty Ltd

Name:
Robin Rai

Title
Operations Manager

Email Address
customer.service@electricityinabox.com.au

SCHEDULE 2

Customers and Authorised Sales
The Service Provider is authorised to conduct marketing activities to Customers as directed by Electricityinabox.
Any Sales received outside of the instructions outlined in the Campaign Brief provided by Electricityinabox will not be considered an authorised Sale.

An authorised Sale will be qualified only, in the instance of phone-based sales if:

full voice recordings support the following:
all mandatory questions provided by Electricityinabox from time to time have been asked by the Service Provider’s relevant member of Personnel, and have been affirmatively responded to by the Customer;
the relevant member of the Service Provider’s Personnel has not misled, coerced or pushed the Customer into concluding the Sale;
the Customer is eligible and capable of proceeding with the Sale;
recordings provided pursuant to clause 1(i) verify that the Sale has been validly concluded;
any sales script provided Electricityinabox has been strictly followed;
all details are confirmed with the Customer as per the Verification Script provided by Electricityinabox to the Service Provider as amended from time to time;
the Customer understands the offer and the switch; and
the Customer does not cancel within 30 days from the date of the sales recording.

KPIs

Process Group	KPI	KPI calculation	KPI Target	KPI Period
Sales	Energy Agreements cancelled or rejected	The number of Energy Agreements arranged by the Service Provider in the relevant month that are, within that month: · cancelled by the Customer; or · Rejected by Electricityinabox.	Less than 10%	Monthly
Sales	Sales processing	The percentage of Energy Agreements submitted to Electricityinabox for processing within two Business Days of the customer entering into the Energy Agreement.	100%	Monthly
Complaints	Complaints Management	Each Complaint is handled in accordance with the timeframes designated in the Campaign brief.	At least 95% of Complaints	Monthly
Complaints	Complaints	The number of Complaints received as a percentage of total Energy Agreements the Service Provider executes with Customers in that month.	Less than 0.1%	Monthly
Training	Training Content, Assessments and Compliance	All active staff: · attend required training.	100%	Monthly

Service Provider’s obligations

The Service Provider must:

only approach, contact or deal with in any way, Customers as directed by Electricityinabox through its Campaign Brief for the sole purpose of marketing and/or selling the Campaign Products;
not market or sell the products or services of any other person or entity to any Customer that enters into an agreement with Electricityinabox for the supply of Campaign Products as a consequence of this agreement for the period in respect of which Campaign Products are provided to the Customer; and
exercise reasonable care and skill in marketing and selling the Campaign Products.

Campaign hours

The Service Provider must not conduct any residential or business sales activities on any day that is an Australian public holiday.

Cease to negotiate

In relation to a phone based sale, If a salesperson of the Service Provider is told to hang up or stop selling, they must do so immediately. They must not contact that Customer again.
In relation to a phone based sale, If a Customer states that they are listed on the Do Not Call Register (DNCR), the salesperson must:

immediately apologize to the Customer and terminate the call; and
record the customer’s number on an internal DNCR list. This list is to be provided to Electricityinabox on a daily basis.

Cooling-off

The Service Provider’s salespeople must ensure that prior to finalising any Sale, they must inform the Customer of any applicable cooling-off rights, and how they can exercise their right to terminate the agreement during the Cooling-off Period.

Waivers

The Service Provider’s salespeople must not induce, or attempt to induce, Customers to waive their statutory or legal rights.

Provisions that are void

The Service Provider’s salespeople must not purport to, either orally or in writing, exclude, limit, modify or restrict:

a Customer’s right to terminate the agreement; or

the effect or operation of the ACL as it relates to unsolicited consumer agreements.

KPIs & Performance Review

The Service Provider must ensure that its volume performance at least matches the KPI’s as amended from time to time by Electricityinabox through the Campaign Brief provided.

Electricityinabox shall be entitled to conduct regular performance reviews of the Service Provider and its Personnel.

Auditing

All voice recordings must be available on-demand for 12 months from the date of each Sale generation.

The Service Provider must have ALL calls recorded on behalf of Electricityinabox irrespective of whether the call results in qualified Sale/Sales.

Rejected Sales

Electricityinabox will reject Sales (such that these shall not qualify for the payment of Fees) on any one or more of the following grounds:

In the instance of phone based sales;

(a)        if mandatory questions required by Electricityinabox has not been asked by the relevant Personnel of the Service Provider;

(b)        use of words such as “MAYBE” or “IN THE FUTURE” in accepting a positive answer;

(c)         hoax selling;

(d)        incomplete Customer records;

(e)        incorrect contact details;

(f)          incomplete verification recording;

(g)        duplicate records;

(h)        fudging of data;

(i)          data conducted in such a manner as to cause Customer complaints (i.e., intimidation of the Customer or a pushy sales manner);

(j)          if a verification recording is not available;

(k)         any breach of applicable law or regulatory requirement; or

(l)          misleading Customers and associating Electricityinabox with any other service provider.

11.2 In the instance of online sales;

(a)   Any and all sales raised from an IP address outside of Australia

(b)   Sign-ups with inaccurate or incorrect information

(c)   Duplicate records

(d)   Incomplete orders

SCHEDULE 3

Fees

Reconciliation process will be outlined by Electricityinabox in the Campaign Brief provided to the Service Provider.

Fees will only be payable on qualified Sales in accordance with Schedule 2 and paragraph 4 of this Schedule 3. For the avoidance of doubt, Fees will not be payable in respect of Sales which do not comply with the Sales Requirements (including rejected Sales under Schedule 2).

Payments to the Service Provider will be made in a monthly to Service Providers nominated account

A qualified sale is a sale that has remained active for 30 days and has no outstanding payments with Electricityinabox.

ANNEXURE

Campaign Brief

Campaigns vary from state to state, network to network and nature of the customer.
Each applicable campaign will be presented in the Electricityinabox toolbox and will be accessible from Service Providers customer quote and signup portal.
Specific rates for customers premises will be obtained by entering the address in question. The Electricityinabox system will present the plan or plans relevant to the specific customer location.
Rates change and the reference prices will automatically update and always be current in the quote and sign-up portal.
Service Providers toolbox and branded customer quote and signup portals fully qualified domain name will be provided upon execution of the agreement.

SIGNED AS AN AGREEMENT on the date the last party signed this document

SIGNED by ELECTRICITYINABOX PTY LTD ACN 74 140 547 22 in accordance with section 127(1) of the Corporations Act 2001 (Cth) by a director and a director/secretary or by a sole director (if applicable):

…………………………………………

Director

…………………………………………

Name

………………………………………….

Date

…………………………………………

Director/Secretary

…………………………………………

Name

………………………………………….

Date

SIGNED by _____________________PTY LTD ACN ____________________ in accordance with section 127(1) of the Corporations Act 2001 (Cth) by a director and a director/secretary or by a sole director (if applicable):

…………………………………………

Director

…………………………………………

Name

………………………………………….

Date

…………………………………………

Director/Secretary

…………………………………………

Name

………………………………………….

Date

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Timestamp

Audit

May 12, 2021 12:58 pm AEST

Master Service Agreement Uploaded by Morgan Duncan - morgan@electricityinabox.com.au IP 125.168.121.66