EX-10.5 2 ssni-ex105_373.htm EX-10.5 ssni-ex105_373.htm

 

Exhibit 10.5

 

*** Certain omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 24b-2 promulgated under the Securities Exchange Act of 1934.

 

 

 

 

 

MASTER PROCUREMENT AGREEMENT

 

 

 

between

 

AusNet Electricity Services Pty Ltd
(“AusNet Services”)

ABN 91 064 651 118

 

and

 

Silver Spring Networks, Inc.
(“Supplier”)

 

 

 

 


MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

Table of Contents

 

Table of Contents

2

Recitals

3

Terms and Conditions

3

 

1

Agreement

3

 

2

Definitions and Interpretation

3

 

3

Ordering

13

 

4

Charges

14

 

5

GST

14

 

6

Payment

14

 

7

Supplier Obligations

15

 

8

Health and Safety and Incident Reporting

16

 

9

Security

17

 

10

Project Management Responsibilities

18

 

11

Data Conversion, Migration and Protection

18

 

12

Integration Activities

18

 

13

AusNet Services Inputs

19

 

14

AusNet Services Step In Rights

19

 

15

Deliverables

20

 

16

Risk and Title

20

 

17

Personnel

20

 

18

Lawful Directions

21

 

19

Documentation

22

 

20

Delays

22

 

21

Suspension

23

 

22

Cooperation

23

 

23

Acceptance Process

24

 

24

Governance Process

25

 

25

Records

26

 

26

Quality Assurance

26

 

27

Audit

27

 

28

Intellectual Property Rights

28

 

29

Intellectual Property Indemnity

29

 

30

Escrow of Source Code

31

 

31

Viruses

31

 

32

Confidentiality

32

 

33

Privacy

33

 

34

Warranties

34

 

35

Liability and Indemnity

36

 

36

Insurance

37

 

37

Liquidated Damages

38

 

38

Termination

38

 

39

Force Majeure

40

 

40

Sub-Contracting

40

 

41

Relationship Between Parties

41

 

42

No Solicitation

41

 

43

Conflicts of Interest

42

 

44

Benefit of Agreement

42

 

45

Assignment

42

 

46

Variations and change control

42

 

47

Disputes

43

 

48

Notices

44

 

49

General

44

Executed as an Agreement

47

Schedule: Contract Details

48

Attachment One: Pro Forma Statement Of Work

66

 

 

 

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

Recitals

 

A.

The Supplier is expert in the business of providing information technology products or services.  The Supplier acknowledges that AusNet Services is relying on the Supplier's expertise.

 

B.

AusNet Services will be acquiring information technology products or services for the benefit of AusNet Services and its Related Bodies Corporate from time to time.

 

C.

The Supplier acknowledges that the information technology products or services it provides to AusNet Services may also be used for the benefit of AusNet Services’ Related Bodies Corporate.  

Terms and Conditions

1

AGREEMENT

1.1

Parties

This agreement is made between AusNet Electricity Services Pty Ltd ABN 91 064 651 118 (AusNet Services) and the supplier described in the Schedule (Supplier).

2

DEFINITIONS AND INTERPRETATION

2.1

Definitions

In this Agreement, unless the contrary intention appears words have the following meanings.

 

Acceptance Certificate

 

means a written certificate issued by AusNet Services confirming that AusNet Services is satisfied that the Deliverable listed or described in that certification meets the Acceptance Criteria.

 

 

 

Acceptance Criteria

 

means the acceptance criteria set out in the relevant Statement of Work or otherwise agreed between the Parties.

 

 

 

Acceptance Date

 

means the date on which AusNet Services issues the Supplier with an Acceptance Certificate for the relevant Deliverable.

 

 

 

Acceptance Period

 

means:

(a)         in respect of a Documentary Deliverable, *** (or such other period as may be agreed);

(b)         in respect of a Non-Documentary Deliverable, the relevant period set out in any test plan contained in the Acceptance Process documentation or otherwise agreed,

commencing from the date AusNet Services receives the relevant Deliverable and which may be extended in accordance with the procedure set out in clause 23 (Acceptance Process).

 

 

 

Acceptance Process

 

means the process by which Deliverables are accepted by AusNet Services.

 

 

 

Acceptance Tests

 

means the tests described in the Statement of Work together with any supplementary tests conducted in accordance with the Project Agreement.

 

 

 

Agreement

 

means the terms and conditions set out in this document and the Schedule.

 

 

 

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

AusNet Services Delay

 

means a delay in the performance of any AusNet Services Input which is solely caused by AusNet Services Entities or any third party vendor contracted directly to them (other than the Supplier).

 

 

 

AusNet Services Entities

 

means:

(a)         AusNet Services (Distribution) Ltd (ACN 108 788 245);

(b)         AusNet Services (Transmission) Ltd (ACN 116 124 362);

(c)         AusNet Services Holdings Pty Ltd (ACN 086 006 859); or

(d)         a Related Body Corporate of AusNet Services or the entities in paragraphs (a) – (c) of this definition.

 

 

 

AusNet Services Inputs

 

means the goods, services and other resources to be provided by AusNet Services under a Project Agreement as described in a Statement of Work.

 

 

 

AusNet Services Material

 

means any Material owned or licensed by AusNet Services or its Related Bodies Corporate which is provided to or accessed by the Supplier in the course of a Project Agreement.

 

 

 

AusNet Services Policies

 

means the AusNet Services policies relevant to the provision of the Services which are identified in the Statement of Work or have otherwise been notified to the Supplier in writing.

 

 

 

AusNet Services Signing Authority

 

means the person who has the authority to commit AusNet Services to any variation to a Project Agreement as identified in the Statement of Work.

 

 

 

AusNet Services Systems

 

means the information technology, communications and other business systems utilised by or on behalf of AusNet Services and each of its Related Bodies Corporate.

 

 

 

Australian Accounting Standards

 

means accounting standards as defined in section 9 of the Corporations Act.

 

 

 

Business Day

 

means:

(a)         for determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and

(b)         for any other purpose, a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.

 

 

 

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

Change of Control

 

of the Supplier means:

(a)       a person who Controls the Supplier ceasing to Control the Supplier;

(b)       a person who does not Control the Supplier obtaining Control of the Supplier;

(c)       a person together with its associates (as defined in section 12 of the Corporations Act) acquiring or coming to hold a relevant interest (as defined in the Corporations Act) in more than 50% of the voting shares (as defined in the Corporations Act) of the Supplier,

unless

(d)       the persons holding, directly or indirectly, more than 50% of the voting shares (as defined in the Corporations Act) of the Supplier are also, or immediately prior to the event that would otherwise result in a Change of Control were, persons who held, directly or indirectly, more than 50% of the voting shares (as defined in the Corporations Act) of the Supplier;

(e)       the (only) event that would otherwise result in a Change of Control is an on-market sale or sales of securities on any one or more of the Australian Securities Exchange or Singapore Exchange;

(f)        the person that ceases to Control the Supplier under paragraph (a) of this definition was, immediately beforehand, Controlled by a person that Controls the Supplier and continues to Control the Supplier; or

(g)       the person that obtains Control of the Supplier under paragraph (b) of this definition was, immediately afterward, a wholly-owned Subsidiary of a person that previously Controlled and continues to Control the Supplier;

 

 

 

Change Request

 

means a document detailing any change to a Project Agreement which is agreed in accordance with the procedure in clause 46 (Variations and Change Control).

 

 

 

Charges

 

means the professional fees, expenses and other charges payable by AusNet Services to the Supplier as specified in the Statement of Work, based on the rates (if any) set out in the Project Agreement.

 

 

 

Commencement Date

 

means in relation to the Agreement, the commencement date specified in the Schedule, and in relation to a Project Agreement, the date specified in the Statement of Work.

 

 

 

Conditional Acceptance Certificate

 

means a written certificate issued by AusNet Services that, subject to specified Defects being rectified, AusNet Services is satisfied that the Deliverable listed or described in that certification meets the Acceptance Criteria.

 

 

 

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

Confidential Information

 

means any and all information of any nature and in any form (including electronic, magnetic and other tangible forms, whether capable of being read by human beings or not) concerning the operations, dealings, organisation, personnel, business strategies, customers, technology, Intellectual Property Rights of a Party or its Related Bodies Corporate which is received by, disclosed to or discovered by the other Party (receiving party) before, on or after the date of this Agreement, under or in connection with or as a result of this Agreement, including this Agreement and its terms and conditions, or any action taken under this Agreement, but does not include information that:

(a)         is or becomes part of the public domain through no act, failure to act, failure to act or default of the receiving party or any other person associated with, or who received that information from or as a consequence of disclosure by, the receiving party;

(b)         is disclosed to the receiving party by a third party lawfully in possession of such information and who is under no obligation to maintain such information in confidence;

(c)         was lawfully in the receiving party’s possession prior to receipt by, disclosure to or discovery by the receiving party;

(d)         is developed independently by the receiving party without use or reference to the information of, or related to, the other party or its Related Bodies Corporate.

 

 

 

Conflict of Interest

 

means circumstances in which, due to a direct or indirect relationship (commercial or otherwise and including any potential relationship or opportunity or inducement and any such situation which comes into existence subsequent to the commencement of this Agreement) involving one Party or its personnel and another person or entity, that Party is unable to discharge its obligations under this Agreement to the other Party in an objective and independent manner to the best of its ability.

 

 

 

Contract Material

 

means any material (including but not limited to documentation, software, configurations and coding) created by or on behalf of the Supplier under a Project Agreement, but excludes Pre-Existing Material.

 

 

 

Control

 

has the meaning given to it in section 50AA of the Corporations Act except that, in addition, a person controls another person (Other Person) if the Other Person is a Subsidiary of the person.

 

 

 

Corporations Act

 

means the Corporations Act 2001 (Cth).

 

 

 

Defect

 

means:

(a)         any fault, failure, degradation, or error in a Deliverable;

(b)         any non-conformance of a Deliverable with the Statement of Work or Documentation for that Deliverable;

(c)         any functionality or performance of a Deliverable below or not in accordance with the Statement of Work or Documentation for that Deliverable; or

(d)         any partial performance or non-performance of a Deliverable.

 

 

 

Deliverable

 

means the Products, Software, Third Party Software, Materials and outcome of the Services, or part thereof, which are to be supplied by the Supplier pursuant to a Project Agreement, as set out in the Statement of Work.

 

 

 

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

Delivery Date

 

means the date or period for the delivery of the Products as specified in the Statement of Work.

 

 

 

Documentary Deliverable

 

means a Deliverable which consists of documentation and which is subject to the Acceptance Process as set out in the Project Schedule.

 

 

 

Documentation

 

means the operating manuals, procedures manuals, training materials and associated documentation related to the Products or Services specified in a Statement of Work.

 

 

 

Electricity Law

 

means any legislation of a State or the Commonwealth of Australia which regulates transmission or distribution network service providers in a State or national electricity industry or markets or which regulates third party access to electricity transmission or electricity distribution assets or which empowers any person or public authority to do so or to impose sanctions or penalties on such service providers or to direct such service providers to do any act or to refrain from doing any act in relation to its participation in the electricity industry or market.

 

 

 

Export Transition Holding Costs

 

means the reasonable, unavoidable and verified out of pocket expenses incurred or likely to be incurred by AusNet Services in relation to the cost of transitioning from the Supplier to an alternative supplier, subject to the following conditions:

(a)         all reasonable steps having been taken by AusNet Services to mitigate such costs, including by redeployment of Personnel where possible; and

(b)         AusNet Services having used reasonable endeavours to engage an alternative supplier as soon as practicable.

 

 

 

Force Majeure Event

 

means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this Agreement and that is beyond the reasonable control of that Party, including but not limited to, forces of nature, acts of war or terrorism or industrial action.

 

 

 

Gas Law

 

means any legislation of a State or the Commonwealth of Australia which regulates transmission or distribution network service providers in a State or national gas industry or markets or which regulates third party access to gas transmission or gas distribution assets or which empowers any person or public authority to do so or to impose sanctions or penalties on such service providers or to direct such service providers to do any act or to refrain from doing any act in relation to its participation in the gas market.

 

 

 

GST

 

means:

(a)         the same as in the GST Law;

(b)         any other goods and services tax, or any tax applying to a transaction under any Project Agreement in a similar way; and

(c)         any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

 

 

 

GST Law

 

means the same as "GST law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

 

 

Harmful Code

 

has the meaning given in clause 31(a) (Viruses).

 

 

 

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

Holding Costs

 

means the reasonable, unavoidable and verified out of pocket expenses incurred or likely to be incurred by the Supplier in relation to the suspension of a project subject to the following conditions:

(a)      all reasonable steps having been taken by the Supplier to mitigate such costs, including by redeployment of Personnel where possible;

(b)      no such costs being payable in respect of the initial 5 Business Days of the delay; and

(c)      the Supplier having used reasonable endeavours to retain and re-engage relevant personnel for deployment as soon as practicable upon recommencement of the Services.

 

 

 

Incident

 

has the meaning given in clause 8.2.

 

 

 

Initial Term

 

means 3 years from the Commencement Date.

 

 

 

Insolvency Event

 

means the happening of any of these events:

(a)         an application is made to a court for an order that the relevant party be wound up, declared bankrupt or that a provisional liquidator be appointed (unless the application is withdrawn, struck out or dismissed within 14 days of it being made);

(b)         a liquidator is appointed to the relevant party;

(c)         a resolution is passed or a decision taken to appoint an administrator to the relevant party or there is a controller appointed in respect of any of its assets;

(d)         except to reconstruct or amalgamate while solvent, the relevant party enters into, or resolves to enter into, an arrangement or composition with, or assignment for the benefit of, all of any of its creditors, or it, or anyone on its behalf, proposes a reorganisation, moratorium, deed of company arrangement or other administration involving any of them or the winding up or dissolution of that party;

(e)         the relevant party is, states that it is or is presumed under any applicable law to be, insolvent; or

(f)         anything having a substantially similar effect to any of the events specified above happens to the relevant party under the law of any jurisdiction.

 

 

 

Installation Date

 

means the date or period for installation of the Products as specified in the Statement of Work.

 

 

 

Intellectual Property Rights

 

means all present and future intellectual property rights, whether such rights are conferred by statute, common law or equity in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered or patentable.  These rights include:

(a)         all rights in all applications to register these rights; and

(b)         all renewals and extensions of these rights.

 

 

 

IP Claim

 

has the meaning given in clause 29.1.

 

 

 

Key Personnel

 

means the Supplier Personnel specified as such in the Statement of Work who are integral to the performance of the Services.

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

 

 

 

Liquidated Damages

 

means the amount or amounts calculated in accordance with the formula specified in the Statement of Work that is payable by the Supplier to AusNet Services as compensation for a delay caused by the Supplier in performing an obligation under the Project Agreement.

 

 

 

Liquidated Damages Cap

 

means the maximum amount of Liquidated Damages payable under a Project Agreement as specified in the relevant Statement of Work.

 

 

 

Material

 

means material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies and includes all releases, updates and amendments to such material made under this Agreement.

 

 

 

Milestones

 

means the date for the completion of specific Deliverables as specified in the Statement of Work.

 

 

 

Moral Rights

 

means any of the rights described in Article 6b is of the Berne Convention for the Protection of Literary and Artistic Works 1886, being moral and other analogous rights including but not limited to:

(a)         a right of attribution of authorship;

(b)         a right not to have authorship falsely attributed;

(c)         a right of integrity of authorship; and/or

(d)         a right of a similar nature;

which is conferred by statute, including the Copyright Act 1968 (Cth), and which exists or comes to exist anywhere in the world.

 

 

 

MPA

 

means this Agreement, titled the Master Procurement Agreement.

 

 

 

Non Documentary Deliverable

 

means any Deliverable other than a Documentary Deliverable.

 

 

 

Party

 

means either AusNet Services or the Supplier as the context dictates.

 

 

 

Personal Information

 

has the same meaning as defined in section 6 of the Privacy Act.

 

 

 

Personnel

 

means all employees, officers, agents and contractors of either AusNet Services or the Supplier as the context dictates.

 

 

 

Pre-Existing Material

 

means any Material (including but not limited to documentation, Software, configurations and coding):

(a)         which the Supplier can establish was developed by the Supplier prior to or independently of the Agreement or any Project Agreement, or

(b)         in which Intellectual Property Rights are owned by a third party,

but excludes Contract Material and Third Party Software.

 

 

 

Primary Contact

 

means each party’s primary contact point for a particular project, as specified in the relevant Statement of Work.

 

 

 

Privacy Act

 

means the Privacy Act 1988 (Cth).

 

 

 

Privacy Laws

 

means the Privacy Act, including the Australian Privacy Principles contained in Schedule 1 of the Privacy Act, and all other applicable privacy legislation.

 

 

 

Products

 

means any equipment, products or other material to be supplied by the Supplier under the terms of a Statement of Work, excluding Software and Third Party Software.

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

 

 

 

Project Agreement

 

means the Agreement, together with the relevant Statement of Work and any associated schedules and annexures, subject to clause3.2(b).

 

 

 

Project Schedule

 

means the schedule for the performance of obligations and completion of Deliverables as set out in the Statement of Work.

 

 

 

Records

 

has the meaning given in clause25.1.

 

 

 

Regulatory Authority

 

means:

(a)         any Commonwealth, State or Territory government, governmental authority or instrumentality;

(b)        any independent authority invested with responsibility under a Commonwealth, State or Territory Act, regulation or legislative instrument (or any code or other instrument made under such an Act, regulation or legislative instrument, including any Regulatory Requirement) for regulating any aspect of the conduct of, or pricing and products or services supplied by AusNet Services or its Related Bodies Corporate;

(c)         any Commonwealth, State or Territory energy industry ombudsman; or

(d)         any other body empowered in any way to regulate compliance of AusNet Services or its Related Bodies Corporate or the Supplier (as applicable) with the Regulatory Requirements, including the Australian Energy Regulator and Australian Energy Market Operator, the Essential Services Commission, Energy Safe Victoria and the Australian Competition and Consumer Commission.

 

 

 

Regulatory Requirement

 

means:

(a)         any Commonwealth, State or Territory Act, regulation, order or other regulatory instrument of any kind (including the Electricity Law and the Gas Law);

(b)         any regulation, code, rule, procedure, guideline, related obligation or other instrument made (including any instrument regulating any aspect of the pricing of products or services supplied by AusNet Services or any of its Related Bodies Corporate), or agreement required to be entered into (including network use of systems, co-ordination or access agreements or community service obligation, concession or rebate agreements), under any Act, regulation order or other regulatory instrument referred to in paragraph (a) of this definition.

(c)         any voluntary code or other instrument with which AusNet Services or any of its Related Bodies Corporate have elected to comply.

 

 

 

Rejection Certificate

 

means a written notice issued by AusNet Services stating that AusNet Services does not accept the Deliverable the subject of that notice because it fails to meet all or some of the Acceptance Criteria.

 

 

 

Related Bodies Corporate

 

means:

(a)         a related body corporate as defined in section 9 of the Corporations Act 2001 (Cth); and

(b)         in relation to AusNet Services, includes AusNet Services Entities.

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

 

 

 

Related Project Agreement

 

means a Project Agreement or Project Agreements specified in the Statement of Work as being related, and any other agreement where the products or services being supplied by the Supplier relate to the same primary project which is the subject of the Project Agreement.

 

 

 

Relevant Laws

 

means all Commonwealth, Australian State or Territory and local legislation and any mandatory requirements, notices, orders or directions of an Authority which are relevant to:

(a)         the Deliverables,

(b)         the Services,

(c)         the Supplier’s performance of its obligations under this Agreement; and/or

(d)         AusNet Services’ use of the Deliverables.

 

 

 

Relevant Obligations

 

means all Relevant Laws and AusNet Services Policies.

 

 

 

Relevant AusNet Services Systems

 

means the AusNet Services Systems identified in the relevant Statement of Work or otherwise notified to the Supplier in writing.

 

 

 

Representative

 

means, in respect of a Party, any person acting for or on behalf of that Party and includes any director, officer, employee, contractor, subcontractor or professional adviser of that Party.

 

 

 

Schedule

 

means the schedule attached to these terms and conditions which sets out the contract details.

 

 

 

Services

 

means the services supplied (or to be supplied) by the Supplier under a Project Agreement.

 

 

 

Site

 

means the location for delivery and installation of the Products as specified in the Statement of Work.

 

 

 

Software

 

means any software program, interface, data, or databases (in any material form) supplied or licensed by the Supplier to AusNet Services or AusNet Services’ Related Bodies Corporate under any Project Agreement.

 

 

 

Solution

 

has the meaning set out in the Statement of Work.

 

 

 

Source Code

 

means computer programs expressed in a source language or form which can be interpreted or compiled and then executed by a computer as commands, and all documentation reasonably required to enable a person familiar with computer programming to read, understand and modify such computer programs.

 

 

 

Specifications

 

means the functional, technical and other requirements for the Deliverables and Services set out in the Statement of Work.

 

 

 

Statement of Work

 

means a document substantially in the form of Attachment 1 which sets out the specific details for a project.

 

 

 

Subsidiary

 

means, in relation to any person (the Parent) at any particular time, an entity that is:

(a)   an entity that is a subsidiary of the Parent under section 46 of the Corporations Act; or

(b)   a subsidiary of, or otherwise controlled by, the Parent under any Australian Accounting Standards

 

 

 

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

*** Amendments

 

means amendments to the terms and conditions in this Agreement (if any) which are outlined in the Schedule.

 

 

 

Suspension Impact Notice

 

has the meaning given in clause 21(b) (Suspension).

 

 

 

Suspension Notice

 

has the meaning given in clause 21(a) (Suspension).

 

 

 

Term

 

means, in relation to the Agreement the Initial Term and any additional term under clause 2.3(c) and in relation to the Project Agreement means the term specified in the Statement of Work.

 

 

 

Third Party Software

 

means commercially available software (including open source software) owned by a third party which is to be supplied by or otherwise made available by the Supplier under a Project Agreement.

 

 

 

Warranty Period

 

unless specified to the contrary in a Statement of Work, means the period of 90 days beginning on first use of a Deliverable in a live production environment, or on such other date specified in a Project Agreement, during which the Supplier will rectify Defects at its own cost.

 

 

 

Warranty Response Period

 

means applicable time-frames set out in the Statement of Work based on the severity level assigned to the Defect by AusNet Services, or if not time-frame is specified in the Statement of Work, 10 Business Days from the date the Defect was first identified.

2.2

Interpretation

In this Agreement, except where the context otherwise requires:

 

(a)

the singular includes the plural and vice versa, and a gender includes other genders;

 

(b)

another grammatical form of a defined word or expression has a corresponding meaning;

 

(c)

a reference to a clause, paragraph, schedule, attachment or annexure is to a clause or paragraph of, or schedule, attachment or annexure to, this Agreement, and a reference to this Agreement includes any schedule, attachment or annexure;

 

(d)

a reference to currency is a reference to Australian currency unless otherwise specified;

 

(e)

a reference to a Party to a document includes the Party's executors, administrators, successors and permitted assigns and substitutes;

 

(f)

a reference to AusNet Services, its Related Bodies Corporate or the Supplier includes the officers, employees, agents and sub-contractors of that entity;

 

(g)

a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

 

(h)

a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

 

(i)

the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

 

(j)

headings are for ease of reference only and do not affect interpretation;

 

(k)

a rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of this Agreement or any part of it; and

 

(l)

if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

 

 

 

Commercial in Confidence

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MPA between AusNet Electricity Services Pty Ltd and Silver Spring Networks, Inc.

2.3

Engagement and Term

 

(a)

AusNet Services engages the Supplier and the Supplier agrees to provide the Deliverables and Services in accordance with the Project Agreement.

 

(b)

This Agreement commences on the Commencement Date and will continue in force for the Term unless it is terminated in accordance with clause38.

 

(c)

Subject to clause 2.3(d) at the expiration of the Initial Term or any subsequent Term this Agreement will automatically continue for a further 12 months unless terminated by either Party in writing prior to the expiration of the current term under clause38.4.

 

(d)

This Agreement will not extend beyond 5 years without the prior written agreement of the Parties.  

2.4

Precedence

 

(a)

Subject to clauses 2.4(b) and 2.4(c), in the event of any inconsistency between the various documents comprising a Project Agreement, the following order of precedence will apply:

 

(i)

if applicable, any *** Amendments contained in the Schedule;

 

(ii)

if applicable, any special conditions contained in a Statement of Work;

 

(iii)

these terms and conditions;

 

(iv)

subject to clause2.4(a)(i), the Schedule;

 

(v)

the Statement of Work;

 

(vi)

any attachments or annexures to the Statement of Work.

 

(b)

In the event of an inconsistency, the inconsistent provisions will be deemed deleted to the extent of any inconsistency, unless that provision states expressly that it is intended to take precedence.

 

(c)

No special condition in a Statement of Work will be taken to over-ride these terms and conditions unless the clause being over-ridden is expressly and specifically identified.

2.5

Scope of Agreement

This Agreement sets out the terms upon which the Supplier will make Deliverables and Services available to AusNet Services.

2.6

No obligation

Nothing in this Agreement creates an obligation on AusNet Services to acquire Products or Services from the Supplier unless and until a Statement of Work has been executed by both Parties.

3

ORDERING

3.1

Project Agreement

 

(a)

A Project Agreement will be created upon execution by the Parties of a Statement of Work.

 

(b)

The Supplier will not commence to provide any services or supply any products to AusNet Services unless and until a Project Agreement is in force and effect under clause 3.1(a) or clause3.2(b).  AusNet Services will have no obligation to pay for any services performed without a valid Project Agreement in place.

3.2

Statement of Work or Purchase Order

 

(a)

Where agreed with the Supplier, AusNet Services may elect to procure Products or Services by issuing the Supplier with a purchase order which references this Agreement instead of entering into a Statement of Work.  

 

 

 

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(b)

Where AusNet Services issues a purchase order to the Supplier pursuant to clause 3.2(a) then that purchase order together with this Agreement will be considered a Project Agreement notwithstanding the absence of a Statement of Work.  In the event of any inconsistency between any terms and conditions specified in the purchase order and this Agreement, this Agreement will take precedence over the purchase order to the extent of the inconsistency.

4

CHARGES

4.1

Charges Specified in Statement of Work

Charges for Deliverables and/or Services provided by the Supplier will be as specified in the relevant Statement of Work, or purchase order where applicable.

4.2

No Additional Costs

Except to the extent otherwise provided in the Project Agreement, and in particular, subject to clause 5 (GST), the Charges will be the total charges payable by AusNet Services for the project.  Without limiting the foregoing, no additional charges will be made on account of new or existing or increased government levies or charges applicable to this Agreement or any Project Agreement.

5

GST

5.1

Definitions

Words defined in the GST Law have the same meaning in this clause 5 (GST), unless the context makes it clear that a different meaning is intended.  

5.2

GST Exclusive

In addition to paying the Charges, AusNet Services will:

 

(a)

pay to the Supplier an amount equal to any GST payable for any supply by the Supplier in respect of which the Charges or other amount is payable under this Agreement; and

 

(b)

make such payment either on the date when the Charges or other amounts to which it relates is due or within 20 Business Days after AusNet Services receives a valid Tax Invoice, whichever is the later.

5.3

Tax Invoice

AusNet Services will be under no obligation to make any payment to the Supplier under this Agreement unless and until the Supplier has provided a valid Tax Invoice.  

5.4

Adjustment Note

The Supplier will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to AusNet Services, any over payment by AusNet Services for GST but the Supplier need not refund to AusNet Services any amount for GST paid to the Commissioner of Taxation unless the Supplier has received a refund or credit for that amount.

6

PAYMENT

6.1

Timing of Payments

Unless specified to the contrary in a Statement of Work, and subject to clauses 6.2 (Invoicing Procedure), 5.3 (Tax Invoice), and 6.4 (Payment Disputes), AusNet Services will pay the Charges as set out in a Project Agreement.  The Supplier acknowledges that any of AusNet Services’ Related Bodies Corporate may pay an invoice on behalf of AusNet Services.  Where any of AusNet Services’ Related Bodies Corporate pays an

 

 

 

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invoice, the Supplier recognises that the Related Body Corporate has the authority to settle the account on behalf of AusNet Services and must accept such payment on the payment terms outlined in this clause 6.  AusNet Services will pay the Charges within 30 days of the end of the month in which a correctly rendered invoice is received.

6.2

Invoicing Procedure

An invoice is correctly rendered if:

 

(a)

the specified Charge is correctly calculated and due for payment;

 

(b)

the invoice is set out in a manner that enables AusNet Services to ascertain the Products or Services to which the invoice relates and the Charges payable in respect of those Products or Services;

 

(c)

the invoice is accompanied (where necessary or where reasonably requested by AusNet Services) by verifying documentation;

 

(d)

the invoice is addressed as specified in the Schedule;

 

(e)

it satisfies the requirements of a Tax Invoice under the GST Law; and

 

(f)

it references the applicable AusNet Services Statement of Work or purchase order number.

6.3

Payment on Account Only

Except to the extent otherwise provided in this Agreement, payment of an invoice is not:

 

(a)

evidence or an admission that the Supplier has complied with its obligations under a Project Agreement;

 

(b)

an admission of liability by AusNet Services;

 

(c)

acceptance or approval of the Supplier’s performance; or

 

(d)

a waiver or release of the Supplier’s obligations under any Project Agreement, but must be taken only as payment on account.

6.4

Payment Disputes

AusNet Services may withhold payment of all or any part of an invoice if AusNet Services believes on reasonable grounds that the invoice is not correctly rendered in accordance with clause 6.2 (for example if AusNet Services believes that the amount has not been correctly calculated or the Deliverables have not been properly provided in accordance with this Agreement), and AusNet Services is not required to make any payment of such withheld amounts until the dispute has been resolved in accordance with clause 0 (Dispute Resolution) or the Parties agree otherwise.

6.5

***

***

7

SUPPLIER OBLIGATIONS

7.1

General Responsibilities

Without limiting any other clause of this Agreement or any Project Agreement, the Supplier must:

 

(a)

ensure the Deliverables and Services comply with (and/or perform in accordance with) the Statement of Work (including but not limited to the Specifications), all Relevant Obligations, AusNet Services’ reasonable directions and all the other requirements of the Project Agreement;

 

(b)

use its reasonable endeavours to minimise the effect of any deficiencies or delays on the delivery of Deliverables or performance of the Services (including by reassigning resources to other work or providing a work-around where reasonably possible);

 

 

 

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(c)

comply with Relevant AusNet Services’ Policies, and in particular the health, safety and environment policies and information security policies and procedures of AusNet Services as may be amended from time to time;

 

(d)

act at all times with the level of care, skill, competence, diligence and judgment which may be expected of a professional organisation experienced in providing deliverables and services of the type and complexity of the Deliverables and Services;

 

(e)

act at all times in a professional and ethical manner;

 

(f)

not provide the Deliverables or perform the Services in a manner which causes AusNet Services (or any AusNet Services’ Related Bodies Corporate) to breach any Relevant Obligation;

 

(g)

work with AusNet Services in an efficient and co-ordinated manner and not cause unnecessary detriment, inconvenience or damage to AusNet Services or third parties;

 

(h)

unless expressly stated otherwise and subject to AusNet Services’ obligation to provide the AusNet Services Inputs, provide all necessary equipment (including the certification of equipment where required) to perform the Services and to deliver the Deliverables;

 

(i)

unless expressly stated otherwise, provide its own tools of trade (including all equipment, software and other business tools) to perform the Services and to deliver the Deliverables;

 

(j)

to the extent that the Supplier uses any plant or equipment which is owned by AusNet Services or its Related Bodies Corporate, repair and replace any such plant or equipment which is damaged or destroyed by the Supplier;

 

(k)

do nothing that is prejudicial to the goodwill, commercial reputation or overall public image of AusNet Services and its Related Bodies Corporate;

 

(l)

ensure that the Supplier Personnel and all third parties engaged by the Supplier in connection with any Project Agreement comply with the Supplier's obligations under that agreement.

8

HEALTH AND SAFETY AND INCIDENT REPORTING

8.1

Health and Safety obligations

 

(a)

The Supplier must:

 

(i)

provide a safe and hygienic working environment and take reasonable steps to prevent work related incidents and injuries;

 

(ii)

comply with, and ensure that its personnel comply with, all relevant laws and regulations relating to occupational health and safety, including mandatory codes of practice and Australian Standards;

 

(iii)

comply with all Relevant AusNet Services Policies which relate to occupational health and safety policies and procedures;

 

(iv)

take all necessary precautions for the safety of the general public, AusNet Services and persons engaged in providing any Products and Services;

 

(v)

ensure that it provides, at its own expense, all necessary and appropriate items of personal protective clothing and equipment and ensure that its Personnel engaged in providing Products and Services wear and use such items of personal protective clothing and equipment;

 

(vi)

provide appropriate health and safety induction training and adequately supervise all Personnel engaged in providing any Products and Services;

 

(vii)

conduct risk assessments at regular intervals to identify existing and potential hazards and implement effective hazard controls associated with providing Products and Services and immediately report to AusNet Services any identified existing or potential hazards;

 

 

 

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(viii)

immediately discontinue any practice or remove any equipment considered by AusNet Services (acting reasonably) to be dangerous;

 

(ix)

comply with any reasonable direction given by AusNet Services to improve or rectify the Supplier’s safety precautions;

 

(x)

report to AusNet Services any matters events which may have resulted in an accident or incident had corrective action not been taken.

8.2

Incident Reporting

 

(a)

The Supplier must provide AusNet Services with reports of any:

 

(i)

accidents and incidents involving persons engaged in providing the Products and Services;

 

(ii)

accidents and incidents involving members of the public; or

 

(iii)

damage to property or equipment (including Products) or damage caused by Products arising from or incidental to the provision of the Products and Services,

(each, an Incident).

 

(b)

The reports referred to in clause 8.1(a) must be provided within the time and in the format specified by AusNet Services or, if no time or format is specified:

 

(i)

in the first instance, as soon as possible after the Incident becomes known to the Supplier but no later than 4 hours after the incident, a verbal report to the AusNet Services Primary Contact specified in the Project Agreement;

 

(ii)

a written report within 1 Business Day of the notification in clause8.2(b)(i);

 

(iii)

an investigation of a standard approved by AusNet Services with the report and outcomes of the investigation being provided to AusNet Services within 7 Business Days of the report in clause8.1(a)(i); and

 

(iv)

a written report and plans detailing measures to prevent further Incidents and to rectify any deficiencies identified during the investigation within 7 Business Days of the report and outcomes in clause8.2(b)(i).

9

SECURITY

9.1

Avoiding Unauthorised Use of AusNet Services’ Property

 

(a)

The Supplier will, and will ensure that its Personnel access or use the premises or AusNet Services Systems, or those of its Related Bodies Corporate or third party providers solely for the purpose of performing Services under a Project Agreement.

 

(b)

The Supplier must ensure all information and materials of AusNet Services in the custody of the Supplier for purposes connected with this Agreement will be protected at all times from unauthorised access or use by a third party or misuse, damage or destruction by any person.

9.2

Access to Premises

The Supplier will comply with all security regulations, procedures or directions as may be given by AusNet Services from time to time when accessing AusNet Services or an AusNet Services Related Body Corporate’s premises.

9.3

Access to Systems

Where the Supplier accesses AusNet Services Systems, the Supplier will comply with all information technology security policies and directions as may be given by AusNet Services from time to time regarding any aspect of security.

 

 

 

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9.4

Obligation to Notify

The Supplier must notify AusNet Services immediately if it becomes aware of any breach or suspected breach of the obligations in this clause 9 (Security).

9.5

Survival of Clause

This clause 9 (Security) will survive the expiration or termination of this Agreement.

10

PROJECT MANAGEMENT RESPONSIBILITIES

Without limiting any other clause of this Agreement, the Supplier will perform the following project management responsibilities:

 

(a)

provide, manage and maintain sufficient resources, equipment and facilities to enable the Supplier to perform its obligations under the Project Agreement;

 

(b)

co-ordinate and manage any third parties who are required to provide input into the Deliverables and Services;

 

(c)

attend meetings and report to AusNet Services as required under the Project Agreement;

 

(d)

maintain reasonable continuous and visible audit trails in relation to the Deliverables, Services and the performance of the Supplier's obligations under the Project Agreement; and

 

(e)

utilise the project management tools specified in the Statement of Work, or if no project management tools are specified, AusNet Services’ EPPM and QC tools.

11

DATA CONVERSION, MIGRATION AND PROTECTION

11.1

Data conversion and/or Migration

AusNet Services Systems contain a large amount of AusNet Services data which is critical to AusNet Services.  Subject to clause 11.2 (AusNet Services’ Data Backup Obligations) where the Services involve any data conversion or migration, the Supplier will use reasonable endeavours to prevent any:

 

(a)

data loss;

 

(b)

data corruption; or

 

(c)

any reduction in the accessibility or useability of the data.

11.2

AusNet Services’ Data Backup Obligations

Nothing in this clause 11 will limit AusNet Services’ obligation to perform data backups in accordance with good business practice.

12

INTEGRATION ACTIVITIES

12.1

Responsibility for Integration

Where the Services involve systems integration, the Supplier must ensure that:

 

(a)

the Solution forms a fully integrated and properly functioning system which conforms with the Specifications and the requirements of the Project Agreement; and

 

(b)

the Solution ***AusNet Services Systems in a manner which does not ***AusNet Services, AusNet Services’ Systems, AusNet Services’ Related Bodies Corporate, AusNet Services’ suppliers and/or other end users.

 

 

 

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12.2

Obligation to Notify

The Supplier must notify AusNet Services as soon as practicable if it becomes aware of any problems or potential problems concerning the Solution and/or the integration of the Solution with Relevant AusNet Services Systems and take reasonable steps to prevent or mitigate those problems and potential problems.

12.3

Interfacing Information

Before any Deliverable is provided to AusNet Services, the Supplier must supply AusNet Services (and/or at AusNet Services’ request AusNet Services’ nominated providers), at no charge, all available information relevant to the installation, commissioning, interfacing, interworking and communication between that Deliverable and Relevant AusNet Services Systems (including the protocols and other interface information required for interworking) to allow Relevant AusNet Services Systems to interwork, interface or communicate with the Deliverable (Interfacing Information).

13

AUSNET SERVICES INPUTS

13.1

AusNet Services’ Obligation

Subject to clause 13.3, AusNet Services will provide AusNet Services Inputs in accordance with the Project Schedule.

13.2

Supplier's Acknowledgement

The Supplier acknowledges that AusNet Services Inputs are the only items or tasks to be provided or performed by AusNet Services and are sufficient to enable the Supplier to deliver all Deliverables, perform all Services and otherwise perform its obligations under this Agreement and the Project Agreement.

13.3

Supplier ***AusNet Services ***

If at any time during the Term, the Supplier ***AusNet Services ***AusNet Services ***the Supplier ***and not more than ***AusNet Services ***AusNet Services ***The Supplier ***that will be***the Supplier ***AusNet Services***AusNet Services’***

14

AUSNET SERVICES STEP IN RIGHTS

14.1

Right to Step In

 

(a)

Where the Supplier has failed to rectify any material Defect in a Deliverable within the time-frame required by this Agreement, or has otherwise failed to meet a material obligation under the Project Agreement then AusNet Services may, in its discretion, provide the Supplier with notice in writing of its intent to perform the work itself, or procure the work to be performed by a third party (Step In Notice).

 

(b)

If, within *** or any longer period agreed between the Parties in writing the Supplier has failed to remedy the issue described in the Step In Notice, AusNet Services may ***

14.2

Consequences of Step In

 

(a)

The rights provided to AusNet Services under this Agreement in respect of Pre-Existing Materials and/or Supplier’s Confidential Information may be exercised by AusNet Services (or by a third party on behalf of AusNet Services) in the course of performance of the work performed by AusNet Services (or by a third Party on behalf of AusNet Services) under this clause 14.

 

(b)

AusNet Services may seek to recover from the Supplier a reasonable amount for work performed by AusNet Services (or by a third Party on behalf of AusNet Services) under this clause 14.1 (Step In Rights).

 

 

 

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(c)

Where AusNet Services modifies a Deliverable or performs a Supplier obligation under the provisions of clause 14.1 (Step In Rights), the Supplier will not be required to warrant the modifications or additional work performed by or procured by AusNet Services.

15

DELIVERABLES

15.1

Delivery

The Supplier will provide the Deliverables in accordance with the Milestones and/or dates specified in the Project Agreement.

15.2

Compliance with Specifications

The Supplier will ensure that the Deliverables comply in all material respects with the Specifications.

15.3

No Substitution or Modification

No substitution or modification to Deliverables or any component of the Deliverables may be made by the Supplier prior to delivery without the written consent of AusNet Services.  Where substitution is required in order to meet delivery time-frames, the Supplier may propose a substitution as long as the proposed substituted equipment:

 

(a)

is at least of equal quality;

 

(b)

will not adversely affect the performance or capacity of any Products or Solution;

 

(c)

will not alter the Specifications of the Products or the system in any material respect; and

 

(d)

will not otherwise materially affect the obligations of the Supplier or prejudice the rights of AusNet Services under the Project Agreement

15.4

Installation

Where specified in the Statement of Work, the Supplier is to install relevant Deliverables, at the Site in accordance with the Project Schedule.

16

RISK AND TITLE

 

(a)

Title in the Products will pass to AusNet Services (or such other entity as may be designated by AusNet Services) upon AusNet Services acknowledging receipt of delivery of the Products.

 

(b)

Risk of loss or damage to the Products passes to AusNet Services upon the transfer of title.

17

PERSONNEL

17.1

Use of Key Personnel

 

(a)

The Supplier acknowledges that the Key Personnel are critical to the success of the Project Agreement and/or the Solution.  The Supplier must use the Key Personnel to perform the designated roles set out in a Statement of Work and must use reasonable endeavours to ensure that the Key Personnel remain in their designated roles for the duration of the relevant Services.

 

(b)

Unless specified to the contrary in the Project Agreement, the Supplier must ***AusNet Services) the Key Personnel are***AusNet Services.

17.2

Removal of Key Personnel for Unsatisfactory Performance

If AusNet Services is of the reasonable opinion that any Key Personnel are not working in a satisfactory manner or are causing or contributing to a breach or potential breach of the Project Agreement, then without

 

 

 

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limiting any other rights AusNet Services may have, AusNet Services may direct the Supplier to remove or replace the relevant Key Personnel or take other reasonable steps to address AusNet Services’ concerns and the Supplier must promptly comply with AusNet Services’ direction.

17.3

Prolonged Absence from Work of Key Personnel

If any Key Personnel are absent from work for any reason (other than due to annual leave) for more than ***, AusNet Services may direct the Supplier to remove or replace the relevant Key Personnel permanently, with equally qualified skilled personnel or for the duration of the absence or take other reasonable steps to address AusNet Services’ concerns and the Supplier must promptly comply with AusNet Services’ direction.  The Supplier must inform AusNet Services immediately it becomes aware that any such absence has occurred or may occur.

17.4

Change of Key Personnel

The Supplier must not remove or change a person nominated as Key Personnel unless:

 

(a)

the Supplier has a suitable replacement person available who is of an equivalent or higher level of skill, qualification and experience (at the same rate or less as the person being replaced);

 

(b)

the Supplier has provided AusNet Services with a copy of the proposed replacement person’s resume and given AusNet Services a reasonable opportunity to interview the replacement without the Supplier Representative present; and

 

(c)

***

17.5

Use of Supplier Personnel

The Supplier must at all times ensure that it has a sufficient number of appropriately trained and qualified Supplier Personnel to enable it to fulfil its obligations under each Project Agreement.

17.6

Replacement of Supplier Personnel

If AusNet Services believes on reasonable grounds that any Supplier Personnel has engaged in conduct which is unlawful, violates occupational health and safety or discrimination, bullying or harassment laws or policies or is otherwise unprofessional, then it may direct the Supplier to replace that Supplier Personnel.  Unless otherwise agreed between the Parties, the Supplier will promptly replace the relevant Supplier Personnel with a suitably qualified and skilled replacement at a rate no higher than the rate of the person being replaced.

17.7

Roll Off of Supplier Personnel

If AusNet Services determines that the role being performed by any member of Supplier Personnel is no longer required to complete part of the scope set out in a Project Agreement for which work is performed on a time and materials basis, AusNet Services may provide the Supplier with a minimum of *** written notice and the Supplier must roll off the relevant Supplier Personnel and will not be entitled to charge for those Personnel unless they are re-engaged in relation to the Project Agreement at a later date.

18

LAWFUL DIRECTIONS

18.1

Compliance with Directions

Subject to clause 18.2 (Supplier’s Independent Discretion) in the discharge of its duties, the Supplier will comply with all resolutions, regulations and directions of AusNet Services as may be given from time to time as to the nature and scope of the Services to be provided.

18.2

Supplier's Independent Discretion

 

(a)

Nothing in this Agreement or any Project Agreement will affect the Supplier's right to exercise its own judgement and to utilise its skills as it considers most appropriate in order to achieve compliance with

 

 

 

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the said resolutions, regulations and directions or otherwise to comply with its obligations under the relevant Project Agreement.

 

(b)

Where Supplier believes on reasonable grounds that its compliance with any direction given by AusNet Services will result in a delay or will otherwise adversely impact the performance of the Services it must notify AusNet Services in writing specifying the nature of the concern, and will work with AusNet Services to agree an appropriate modification to the direction.

19

DOCUMENTATION

19.1

Documentation to be Supplied

The Supplier will provide AusNet Services with the Documentation in such quantities as is specified in the Statement of Work or otherwise as typically necessary for AusNet Services to make proper use of the Deliverables.

19.2

Documentation to be Sufficient

The Documentation will contain sufficient information for the proper operation of the Deliverables or Products.

19.3

Additional Documentation

The Supplier will from time to time and in any event as soon as practicable provide AusNet Services, free of charge, with copies of amended, revised or supplementary Documentation or information arising during the Warranty Period or any support period.

20

DELAYS

20.1

Supplier Must Notify Delays

If the Supplier cannot deliver, or reasonably anticipates that it cannot deliver, any of the Deliverables or Services by their due date, the Supplier must notify AusNet Services of the delay in writing immediately (and not more than five (5) Business Days) of the delay or anticipated delay being identified (and in any event before the due date for the relevant Deliverable or Service as detailed in the Statement of Work.).  The notice must specify:

 

(a)

the nature of the delay;

 

(b)

whether the Supplier believes it is an AusNet Services Delay;

 

(c)

the affected Deliverables and/or Services;

 

(d)

the cause of the delay (if known); and

 

(e)

the effect the delay will have on the Supplier being able to deliver any of the Deliverables.

20.2

AusNet Services Delays

If the Supplier is unable to deliver any Deliverables or Services by the due date as detailed in the Statement of Work or Project Schedule solely by reason of an AusNet Services Delay (such delay having been confirmed by AusNet Services in writing within 10 Business Days), AusNet Services will extend the applicable Delivery Date and/or Milestones for that Deliverable or Service by a reasonable period determined by AusNet Services, (acting reasonably, and taking into account the duration of the AusNet Services Delay and the time taken by AusNet Services to confirm the delay was an AusNet Services Delay), provided that the Supplier has:

 

(a)

adequately performed its project management and other obligations under the Project Agreement;

 

(b)

used reasonable endeavours to minimise the effects of the delay; and

 

 

 

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(c)

notified AusNet Services of the delay or impending delay in accordance with clause 13 (AusNet Services Inputs).

20.3

Supplier Delays

If the Supplier fails to deliver all or any of the Deliverables due by the relevant Delivery Date for any reason other than an AusNet Services Delay or a Force Majeure Event, the Supplier will immediately and at no additional cost to AusNet Services, commit such additional resources (including suitably qualified and experienced personnel) as are required in order to:

 

(a)

accelerate work to ensure completion and the delivery of the late Deliverables and Services as soon as reasonably possible (and in any event on or before the Delivery Date for any subsequent Deliverable); and

 

(b)

minimise the impact of the delay on the Project Schedule.

20.4

Extension of Time

 

(a)

If there is a delay to any task, Milestone or obligation under a Project Agreement for which the Supplier is not entitled to an extension of time, AusNet Services may, at its discretion, grant an extension of time for that delay by giving written notice to the Supplier which expressly refers to this clause 20.4.  

 

(b)

If AusNet Services grants an extension of time under clause 20.4(a), the Supplier is not entitled to any compensation or additional fees for the relevant delay.

21

SUSPENSION

 

(a)

AusNet Services may at any time provide written notice to the Supplier of its intention to suspend any or all Project Agreements in whole or in part (Suspension Notice).  The Suspension Notice must specify the duration of the proposed suspension, and the number of Project Agreements impacted.

 

(b)

Within *** of receipt of a Suspension Notice, the Supplier must provide AusNet Services with a document which details:

 

(i)

the current status of the relevant project;

 

(ii)

impact of the proposed suspension, including the availability of Key Personnel and other Personnel on re-commencement;

 

(iii)

a break-down of Holding Costs.  

 

(c)

In determining Holding Costs, Supplier will use reasonable endeavours to mitigate costs associated with a suspension, including by redeploying Personnel where reasonably practicable.

 

(d)

If AusNet Services elects to proceed with suspension after review of the Suspension Impact Notice, the parties will negotiate and agree a Change Request to give formal effect to the suspension.

22

COOPERATION

22.1

Working with Third Parties

The Supplier must:

 

(a)

***and***AusNet Services and AusNet Services’ ***and

 

(b)

***third party suppliers ***as reasonably requested by AusNet Services.

 

 

 

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22.2

Integration Disputes

 

(a)

The Supplier must act in good faith in its dealings with AusNet Services’ other providers and take reasonable steps to prevent or quickly resolve and mitigate the impact to AusNet Services of any dispute or potential dispute with those providers (Supplier Dispute).

 

(b)

If the Supplier cannot resolve a Supplier Dispute quickly and without impact to AusNet Services, the Supplier will immediately refer the Supplier Dispute to AusNet Services for resolution.  ***

23

ACCEPTANCE PROCESS

23.1

Acceptance of Deliverables

Subject to clause 6.3 (Payment on Account Only), AusNet Services will not be regarded as accepting a Deliverable under a Project until it has issued an Acceptance Certificate in respect of that Deliverable.  

23.2

Before Supplier submits a Deliverable to Acceptance Process

 

(a)

Before the Supplier submits a Non-Documentary Deliverable to the Acceptance Process, the Supplier must:

 

(i)

conduct extensive pre-delivery testing in order to limit the number of Defects detected during the Acceptance Tests; and

 

(ii)

provide to AusNet Services details of the results of the testing carried out under clause 23.2(a)(i) in sufficient detail to allow AusNet Services to verify that the Non-Documentary Deliverable is ready to undergo the Acceptance Process.

 

(b)

Before the Supplier submits a Documentary Deliverable to the Acceptance Process the Supplier must have delivered at least one draft of the Deliverable to AusNet Services and have received and addressed AusNet Services’ input on that draft.

23.3

Acceptance Process for Non-Documentary Deliverables

 

(a)

To commence the Acceptance Process, the Supplier must submit the Non-Documentary Deliverable***to AusNet Services ***Deliverable i***Acceptance Process.

 

(b)

***Deliverable***AusNet Services (unless and to the extent agreed otherwise)***in relation to the Deliverable in accordance with the ***Deliverable***The Supplier will provide such assistance as is reasonably stipulated by AusNet Services in respect of the Acceptance Process.

 

(c)

By the end of the ***AusNet Services ***

 

(i)

***

 

(ii)

***

 

(iii)

***

 

(iv)

***

 

(d)

If AusNet Services fails to comply with clause 23.3(c) within***Supplier ***to AusNet Services and the Parties ***

 

(e)

If AusNet Services ***the Supplier ***the Deliverable ***Deliverable***, the procedure set out in this clause 23.3 will ***in relation to the Deliverable

 

(f)

If AusNet Services issues a ***will stipulate:

 

(i)

***

 

(ii)

***to that Deliverable; and

 

(iii)

***of the Deliverable and the ***

 

 

 

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23.4

Acceptance Process for Documentary Deliverables

 

(a)

To commence the Acceptance Process, the Supplier must ***Documentary Deliverable ***AusNet Services together ***

 

(b)

***Deliverable ***AusNet Services ***Deliverable***Deliverable***

 

(c)

***AusNet Services ***

 

(i)

***

 

(ii)

***

 

(iii)

***

 

(iv)

***

 

(d)

If AusNet Services ***Supplier ***AusNet Services and the Parties will***

 

(e)

If AusNet Services ***in relation to a Documentary Deliverable, AusNet Services ***Deliverable ***Deliverable ***Deliverable.

 

(f)

***the Supplier ***Deliverable***Deliverable***in relation to the Deliverable.

 

(g)

If AusNet Services ***

 

(i)

***

 

(ii)

***Deliverable***

 

(iii)

***of the Deliverable.

23.5

Termination and Other Action

If any Deliverable fails to pass the Acceptance Process ***that failure will be deemed a***by the Supplier entitling AusNet Services to:

 

(a)

***

 

(b)

***Deliverables***

 

(c)

***AusNet Services ***

23.6

Review or Acceptance does not Diminish Responsibility

Any review, approval or Acceptance of a Deliverable or Service by (or on behalf of) AusNet Services does not relieve the Supplier from its responsibilities or affect AusNet Services’ rights under a Project Agreement (or otherwise).

24

GOVERNANCE PROCESS

24.1

Parties to establish Governance Process

The Parties will establish governance processes and designate decision-makers to govern the strategic overview and day to day management of the delivery of the Services in accordance with the Project Agreement.

24.2

Meetings

 

(a)

During the performance of the Services, progress meetings shall be held at least once a week at AusNet Services’ premises or as otherwise agreed between AusNet Services and the Supplier, and will involve the Supplier procuring attendance of any approved Supplier subcontractor representative if requested by AusNet Services.

 

 

 

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(b)

AusNet Services may convene other meetings with the Supplier (and any approved Supplier subcontractor) at any time if AusNet Services considers progress to be unsatisfactory or for any other reasons.

24.3

Reports

 

(a)

On or before the 25th day of each month or otherwise specified in the Statement of Work, the Supplier must prepare and submit to AusNet Services a progress report showing the progress of activities during the current month, the projected activities of the coming month, and any anticipated delays, reasons for such delays and other relevant information in such a form as AusNet Services may require.

 

(b)

Where relevant to the Project, the progress report shall include a statement either confirming that Acceptance Dates will be met or, if delays are anticipated, giving a detailed explanation of such delays and a plan to minimise the delays.

25

RECORDS

25.1

Supplier to Keep Proper Records

The Supplier must keep full, proper and up to date books of accounts and records relating to all Products and Services provided under this Agreement, including all Charges paid or payable by AusNet Services and all documentation justifying those Charges (to Australian accounting standards) (Records) and subject to clause 0 (Retention of Records) will retain those Records as follows:

 

(a)

in respect of Records which are AusNet Services property or Confidential Information of the Supplier must retain those Records until the earlier of:

 

(i)

a request by AusNet Services that the Records be delivered to AusNet Services; or

 

(ii)

a request by AusNet Services that the Records be destroyed; and

 

(b)

in respect of all other Records, the Supplier must retain those Records until the later of:

 

(i)

7 years after the creation of the relevant Record; or

 

(ii)

the date on which all disputes under the relevant Project Agreement are resolved.

25.2

Retention of Records

Notwithstanding clause 25.1 (Supplier to Keep Proper Records), the Supplier may retain copies of AusNet Services Confidential Information where it is necessary to do so to comply with legislative record keeping obligations, provided that such information continues to be treated confidentially and stored in a secure environment.

26

QUALITY ASSURANCE

26.1

Quality Assurance Review

 

(a)

AusNet Services or its Representative may, at any during the term of the Project Agreement attend any Site at which the Services are being performed for the purpose of confirming that:

 

(i)

the Services are being performed in accordance with the requirements of the Project Agreement;

 

(ii)

the Deliverables are being developed in accordance with the Specifications; and

 

(iii)

there are no delays or potential delays which may impact the overall Project Schedule.

 

(b)

The Supplier will co-operate with AusNet Services during any review conducted under clause 26.1(a) and provide any information reasonably requested by AusNet Services.

 

 

 

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(c)

In the event that AusNet Services determines as a result of any quality assurance review that the Supplier has failed to meet, or may fail to meet any requirement under the Project Agreement it will notify the Supplier in writing, and the Supplier must provide AusNet Services with a remediation plan within ***.

27

AUDIT

27.1

Right to Audit

 

(a)

The Supplier must permit AusNet Services and/or AusNet Services’ designated representative or any regulatory authority access to the records, data, premises, facilities and systems of the Supplier during business hours as may be reasonably necessary to perform an audit of those records, premises, facilities and systems to the extent reasonably necessary to:

 

(i)

confirm the Supplier’s compliance with its obligations under this Agreement and any Project Agreement;

 

(ii)

verify whether the Supplier’s Charges to AusNet Services are calculated in accordance with the Agreement; and

 

(iii)

enable AusNet Services to comply with Regulatory Requirements or those of AusNet Services’ Related Bodies Corporate.

 

(b)

The Supplier must on reasonable notice provide AusNet Services with access to such Supplier Personnel as AusNet Services may reasonably require for the purposes described above.  

27.2

Notification of Audit

AusNet Services must:

 

(a)

give the Supplier *** Business Days’ notice of a proposed audit (including any re-audit) (or any shorter period where required by law in connection with an audit by a Regulatory Authority);

 

(b)

inform the Supplier of the proposed scope of the audit, including details of Supplier materials likely to be required and any Supplier Personnel who need to made available in connection with the audit; and

 

(c)

provide the Supplier with an estimate of the audit’s duration.

27.3

Frequency

Without limiting AusNet Services’ rights under clause 26 (Quality Assurance) for each audit specified in clause 27.1 (Right to Audit), AusNet Services may not, unless required by law without the prior written consent of the Supplier, undertake the same audit more frequently than ***, except where:  

 

(a)

AusNet Services is required to do so under applicable laws; or

 

(b)

a re-audit is required following remedial activity undertaken to correct a major service failure or following an adverse audit.

27.4

Adjustment of Charges and Practices

If an audit conducted under this clause reveals any non-compliance by the Supplier with obligations under this Agreement or any Project Agreement then:

 

(a)

AusNet Services will make available a copy of the report to the Supplier;

 

(b)

the Parties will work in good faith to agree upon any reimbursement of Charges due to or payable by AusNet Services and any appropriate future adjustments to the Supplier’s Charges; and

 

(c)

without limiting AusNet Services’ rights under clause 38 (Termination) where the audit revealed non-compliance by the Supplier with other obligations under the Agreement or a Project Agreement, the Supplier will submit to AusNet Services, within a reasonable period, a plan outlining the steps it will take to rectify non-compliance.

 

 

 

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27.5

Costs

Subject to clause 27.6 (Supplier to Reimburse Costs), each Party must bear its own costs of any audit.

27.6

Supplier to Reimburse Costs

If an audit demonstrates the Supplier’s invoiced Charges for the period covered by the audit exceeded the correct Charges for that period by more than *** then, without limiting the Supplier’s obligations to repay the overcharged amount, the Supplier must pay or reimburse AusNet Services all reasonable costs of that audit for the relevant audit period.

27.7

Survival

AusNet Services’ rights under this clause 26 (Audit) may be exercised at any time from the date of this Agreement until the expiry of 12 months following termination or expiration of the Project Agreement.

28

INTELLECTUAL PROPERTY RIGHTS

28.1

Ownership of Intellectual Property Rights

 

(a)

Intellectual Property Rights in Contract Material will vest based on one of four options outlined below, effective on creation of the relevant Contract Material (“IP Ownership Option):

 

Option A

AusNet Services owns all Intellectual Property Rights in Contract Material and grants to the Supplier an irrevocable, perpetual, non-exclusive, royalty free licence to use, reproduce, modify and sublicence that Contract Material in the ordinary operation of the business of each AusNet Services Entity.

Option B

Supplier owns all Intellectual Property Rights in Contract Material and grants to AusNet Services an irrevocable, perpetual, non-exclusive, royalty free licence to use, reproduce, modify and sublicence that Contract Material in the ordinary operation of the business of each AusNet Services Entity.

Option C

AusNet Services owns all Intellectual Property Rights in Contract Material and grants a licence to the Supplier to use that Contract Material solely for the purpose of performing its obligations under the Project Agreement.

Option D

The Parties will jointly own all Intellectual Property Rights in Contract Material, without obligation to account.

 

 

(b)

The Statement of Work will identify which IP Ownership Option applies to the Contract Material, and may specify different IP Ownership Options for different parts of the Contract Material.

 

(c)

If no IP Ownership Option is specified in a Statement of Work, Option A will apply to all Contract Material developed under that Project Agreement.

28.2

Rights to Pre-Existing Material

 

(a)

Nothing in this Agreement or in any Statement of Work will affect ownership of rights in Material created by or on behalf of AusNet Services prior to the date of the Project Agreement.

 

(b)

Nothing in this Agreement or in any Statement of Work will affect ownership of Supplier or third party rights in Pre-Existing Material.

 

(c)

Where Pre-Existing Material is incorporated into a Deliverable, the Supplier grants to AusNet Services or will procure for AusNet Services a non-exclusive, irrevocable, perpetual, royalty-free, world-wide licence (including the right of sub-license) to use, reproduce, adapt, modify, maintain and develop Pre-Existing Material as part of the Deliverable, solely for the business purposes of each AusNet Services Entity.

 

 

 

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(d)

Where use of Pre-Existing Material is reasonably necessary in order for an AusNet Services Entity to obtain or make full use of any Deliverable or Service, Supplier grants to AusNet Services, or will procure am irrevocable, non-exclusive, perpetual, royalty-free, world-wide licence (including the right of sub-license) to use, reproduce, adapt, modify, maintain and develop Pre-Existing Material solely as necessary for AusNet Services to obtain and make use of the Deliverable or Service for the business purposes of each AusNet Services Entity.

 

(e)

For the avoidance of doubt, nothing in clause 28.2 or clause 28.2(d) is intended to give AusNet Services or any Related Body Corporate the right to sell or otherwise exploit Pre-Existing Material.

28.3

Consent to Incorporate Pre-Existing Material

Any Pre-Existing Material which will be incorporated into a Deliverable, or will otherwise be provided to AusNet Services by the Supplier under a Project Agreement will be identified in the Statement of Work, or if not identifiable at the time of signing a Statement of Work, will be notified by the Supplier to AusNet Services in writing prior to supply or incorporation in a Deliverable.  The Supplier must not incorporate any Pre-Existing Material into a Deliverable without obtaining AusNet Services’ prior written consent.

28.4

Third Party Software

 

(a)

Nothing in this Agreement will affect rights in Third Party Software.  

 

(b)

Supplier will not incorporate any Third Party Software in a Deliverable, or make available Third Party Software as part of the Services or Solution unless it is has been identified in the Statement of Work and AusNet Services has been provided with an appropriate time-frame to review licence terms and conditions.  Where modifications to Third Party Software licence terms are deemed by AusNet Services to be required, Supplier will provide commercially reasonable assistance to AusNet Services which may include assisting AusNet Services with negotiation of required terms.

28.5

Consents

Unless and to the extent stipulated to the contrary in the Statement of Work, the Supplier will be responsible for obtaining all necessary authorisations and consents from third party licensors in respect of:

 

(a)

Pre-Existing Material supplied or procured by the Supplier for incorporation into a Deliverable; and

 

(b)

Third Party Software made available to AusNet Services in connection with a Project Agreement.

28.6

Warranty on Pre-Existing Material

The Supplier *** AusNet Services that the Supplier ***and the ***

28.7

Waiver of Moral Rights

To the extent permitted by applicable law, the Supplier will procure from the author of any works comprised in a Deliverable an unconditional and irrevocable written consent to any act or omission by AusNet Services that would otherwise infringe any Moral Rights in any work which is included in Deliverables supplied pursuant to this Agreement or any Project Agreement, whether occurring before or after a consent is given.  The obligations in this clause do not apply to open source software.

29

INTELLECTUAL PROPERTY INDEMNITY

29.1

*** Indemnity for Infringement

 

(a)

The Supplier ***that the ***and***AusNet Services Entity ***

 

(b)

Subject to this clause29, the Supplier will fully indemnify AusNet Services and its Related Bodies Corporate against any loss, costs, expenses, demands or liability, directly arising out of a claim that the Deliverables, Services or any Pre-Existing Material (or the use of the Deliverables, Services or Pre-

 

 

 

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Existing Materials by any AusNet Services Entity in the manner licensed or otherwise contemplated in this Agreement) infringe a third party’s Intellectual Property Rights (IP Claim).

29.2

Indemnity Offered Regardless of Institution of Proceedings

The indemnity referred to in clause 29.1 will be granted whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.

29.3

Notification of Infringement

 

(a)

AusNet Services will notify the Supplier as soon as practicable of any IP Claim.

 

(b)

The Supplier must immediately notify AusNet Services if it becomes aware of any potential infringement of any Intellectual Property Rights or breach of any trade secret or obligations of confidence relating to the Deliverables, Pre-Existing Materials or the Services.

29.4

AusNet Services ***

 

(a)

AusNet Services ***Supplier’s***

 

(b)

***AusNet Services ***Supplier***Supplier’s ***the Supplier must:

 

(i)

***AusNet Services ***

 

(ii)

***and

 

(iii)

***AusNet Services.

 

(c)

If AusNet Services ***Supplier’s ***

 

(i)

AusNet Services ***by the Supplier in relation to***

 

(ii)

Supplier***AusNet Services ***

 

(iii)

AusNet Services ***

 

(iv)

the indemnity in clause 29.1 (IP Indemnity) and the limitation on liability in clause 35.3 (Liability Cap) ***AusNet Services ***Supplier,***and

 

(v)

AusNet Services ***Supplier without the Supplier’s prior consent, which will not be unreasonably withheld.

29.5

AusNet Services to Assist in Supplier Defence

 

(a)

AusNet Services will, if requested by the Supplier and at the Supplier’s expense, provide the Supplier with reasonable assistance in conducting the defence of the IP Claim pursuant to clause 29.4.  

 

(b)

The Supplier will reimburse AusNet Services for all expenses directly incurred pursuant to this clause 29.5 within 10 Business Days of receipt of AusNet Services’ written demand.

29.6

Supplier’s Obligations

 

(a)

If it is determined by any independent tribunal of fact or law or if it is agreed between the parties to the dispute that an infringement of Intellectual Property Rights has occurred in connection with the Products and/or Services (IPR Infringement Event), and without limiting the generality of clauses 29.1 to 29.5 or any other right or remedy of AusNet Services arising out of the infringement, the Supplier will at its sole expense, without delay:

 

(i)

modify the Deliverables, Services and Pre-Existing Materials in order to avoid continuing infringement;

 

(ii)

procure for AusNet Services the right to continue the use the Deliverables, Services and Pre-Existing Materials; or

 

 

 

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(b)

If the Supplier, using the mechanisms described in clause 29.6(a)(i) and/or clause 29.6(a)(ii), is unable to overcome the impact of the IPR Infringement Event on AusNet Services within a reasonable timeframe (taking into account the impact on AusNet Services), then:  

 

(i)

the Supplier may remove the infringing Deliverables or Pre-Existing Materials or cease providing the infringing Services;

 

(ii)

the Supplier must ***and

 

(iii)

if the IPR Infringement Event ***AusNet Services ***

29.7

Exclusions

The Supplier shall have no liability for any IP Claim to the extent that it results from:

 

(a)

modifications made by or on behalf of AusNet Services by anyone other than the Supplier or on the Supplier’s behalf, save where the Supplier has endorsed or approved those modifications; or

 

(b)

use of the Deliverables, Pre-Existing Materials or Services in combination with equipment or software programs not supplied or endorsed by the Supplier, in a way that was not reasonably intended.

29.8

Survival of Clause

This clause 29 will survive the expiration or termination of this Agreement.

30

ESCROW OF SOURCE CODE

30.1

Obligation to Enter Escrow Agreement

If so specified in the Statement of Work, the Parties will enter into an escrow agreement in relation to the source code of any proprietary Supplier Software.  

30.2

Form of Escrow Agreement

The escrow agreement described in clause 30.1 will be in a form approved by AusNet Services and will provide for the release of the source code by the escrow agent to AusNet Services in the event, that:

 

(a)

AusNet Services has a right to ***the Supplier, whether or not AusNet Services elects to exercise that right;

 

(b)

the Supplier becomes subject to any form of insolvency administration;

 

(c)

the Supplier is unable to ***and AusNet Services elects to exercise its right to ***; and

 

(d)

any other circumstance agreed by the Parties.

31

VIRUSES

 

(a)

In this clause, Harmful Code means any computer code:

 

(i)

that is intended or known to be harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data, but excludes passwords, trial period software and like features which are security features or intended elements of the software used to prevent unauthorised use of the software in contravention of a licence; and

 

(ii)

which is installed or released into any AusNet Services Systems or those of its Related Bodies Corporate without AusNet Services’ written consent.  Examples include viruses, worms, spyware, adware, key loggers, trojans and any new types of programmed threats that may be classified.

 

 

 

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(b)

The Supplier warrants that it will use its reasonable endeavours (through use of industry standard virus protection software and other customary procedures) to not adversely affect or alter the operation, functionality or technical environment of AusNet Services’ or its Related Bodies Corporates’ systems through the introduction of Harmful Code, except to the extent (if any) this is a requirement set out in any Statement of Work.

 

(c)

If the Supplier becomes aware that any Harmful Code is found to have been introduced into a Deliverable or an AusNet Services system or a system of its Related Bodies Corporates, the Supplier will notify AusNet Services immediately.

 

(d)

The Supplier must:

 

(i)

provide all information reasonably requested by AusNet Services in relation to the Harmful Code, its manner of introduction and the effect the Harmful Code has had or is likely to have; and

 

(ii)

to the extent it has the necessary access to AusNet Services’ or its Related Bodies Corporate’s systems, take all necessary remedial action to eliminate the Harmful Code and prevent re-occurrence during the term of the Statement of Work and rectify any consequences (to the extent they are capable of rectification).

32

CONFIDENTIALITY

32.1

Confidentiality Obligations

Each Party must:

 

(a)

take all action reasonably necessary to protect and maintain the confidentiality of the other Party’s Confidential Information and to secure Confidential Information against theft, loss or unauthorised disclosure;

 

(b)

only use or reproduce the other Party’s Confidential Information for the purposes of:

 

(i)

discussions or negotiations between the Parties regarding a potential project; or

 

(ii)

performing its obligations or exercising its rights under this Agreement or the relevant Project Agreement;

 

(c)

not disclose the other Party’s Confidential Information to any person except as permitted under this clause 32, and restrict disclosure of the other Party’s Confidential Information to those Personnel who have a need to know for the purpose providing or receiving Services under the Project Agreement;

 

(d)

take reasonable steps to ensure that any person who has access to Confidential Information of the other Party through it or on its behalf does not use, reproduce or disclose that Confidential Information other than in accordance with this Agreement; and

 

(e)

not make, assist or permit any person to make any unauthorised use, disclosure or reproduction of the Confidential Information of the other Party.

32.2

Permissible Disclosure

A Party will not be in breach of clause 32.1 (Confidentiality Obligations) in circumstances where disclosure is required by law or the rules of any stock exchange upon which an entity is listed;

32.3

Disclosure to Certain Persons

Notwithstanding any other provision of this clause 32, a Party may disclose the terms of this Agreement to its related companies, solicitors, auditors, insurers or accountants for purposes directly associated with:

 

(a)

the performance of this Agreement or a Project Agreement or, in the case of AusNet Services, any agreement between AusNet Services and its Related Bodies Corporate;

 

(b)

an assessment of that Party’s rights or obligations under this Agreement or a Project Agreement; or

 

 

 

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(c)

advice in relation to or arising out of the performance of this Agreement or a Project Agreement.

32.4

Return of Confidential Information

Each Party must return the other Party’s Confidential Information on request or otherwise when such Materials are no longer required for the purpose of this Agreement.  Return of the documents and other materials referred to in this clause 32 does not release any Party from its confidentiality obligations.

32.5

Injunctive Relief

Each Party acknowledges that a breach of this clause 32 may cause irreparable damage for which monetary damages would not be an adequate remedy.  Accordingly, in addition to other remedies that may be available, a Party may seek injunctive relief against such a breach or threatened breach.

32.6

Survival of Clause

This clause 32 will survive the expiration or termination of this Agreement.

33

PRIVACY

33.1

Privacy Laws

The Supplier must at all times comply with Privacy Laws in relation to Personal Information, whether or not the Supplier is an organisation bound by the Privacy Act.  

33.2

Personal Information

 

(a)

The Supplier must take all reasonable measures to ensure that Personal Information held in connection with this Agreement is protected against loss, and against unauthorised access, use, modification, disclosure or other misuse in accordance with reasonable procedures for that purpose notified by AusNet Services to the Supplier in writing from time to time, and that only authorised personnel have access to the Personal Information.

 

(b)

Each Party acknowledges that Personal Information is also Confidential Information and is subject to the confidentiality obligations set out in clause 32 (Confidentiality).

33.3

Transfer of Personal Information Overseas

 

(a)

The Supplier must not transfer Personal Information held in connection with this Agreement outside Australia, or allow parties outside Australia to have access to it, without the prior, written approval of AusNet Services.  

 

(b)

AusNet Services may exercise its sole discretion in consenting to or rejecting a request to transfer Personal Information outside Australia and will take into account the nature of privacy laws in place in the relevant jurisdiction outside Australia and/or the nature and extent of any contractual undertaking given to the Supplier by a recipient of the Personal Information overseas.

33.4

Obligations on Other Parties

The Supplier must ensure that any Supplier Personnel and other persons who may have access to Personal Information held in connection with this Agreement are aware of the obligations of the Supplier under this Agreement and undertake to not collect, access, use, disclose or otherwise deal with Personal Information except in performing their employment, agency or contractual duties in accordance with this Agreement or the relevant Project Agreement.

33.5

Disclosure Required by Law

The Supplier must immediately notify AusNet Services where it becomes aware that a disclosure of Personal Information may be required by law.

 

 

 

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33.6

Breach of Privacy Obligations

The Supplier must in respect of any Personal Information held in connection with this Agreement immediately notify AusNet Services where the Supplier becomes aware of a breach of this clause 33 by itself or its Personnel or any third party.

33.7

Privacy Complaint Procedure

A complaint alleging an interference with the privacy of an individual in respect of any services performed under this Agreement must be handled by AusNet Services in accordance with the following procedures:

 

(a)

where AusNet Services receives a complaint alleging an interference with the privacy of an individual by the Supplier or any Supplier Personnel, or alleging interference by AusNet Services which AusNet Services reasonably attributes to the Supplier, AusNet Services must immediately notify the Supplier of only those details of the complaint necessary to minimise any breach or prevent further breaches of clauses 33.1 to 33.7;

 

(b)

where the Supplier receives a complaint alleging an interference with the privacy of an individual by the Supplier or any Supplier Personnel, the Supplier must immediately notify AusNet Services of the nature of the complaint, but must only release to AusNet Services Personal Information concerning the complainant with the complainant’s consent; and

 

(c)

after AusNet Services has given or been given notice in accordance with clauses 33.7(a) or 33.7(b), AusNet Services must keep the Supplier informed of all progress with the complaint that relates to the actions of the Supplier in connection with the allegation of an interference with the privacy of an individual.

33.8

Return, Retention or Destruction of Personal Information

When this Agreement expires or is terminated, the Supplier must, at AusNet Services’ discretion:

 

(a)

return to AusNet Services all records containing Personal Information;

 

(b)

retain any material containing Personal Information in a secure manner as approved by AusNet Services; or

 

(c)

destroy or delete any Personal Information.

33.9

Survival of Clause

This clause 33 will survive the expiration or termination of this Agreement.

34

WARRANTIES

34.1

General warranties

 

(a)

The Supplier and AusNet Services each represent and warrant to each other:

 

(i)

it has full power and authority to enter into, perform and observe its obligations under this Agreement and any Project Agreement, and that its execution, delivery and performance of the Agreements have been duly and validly authorised;

 

(ii)

neither this Agreement nor any Project Agreement will contravene its constitution or other constituent documents or any law, regulation, ruling, consent, judgement, order or official directive or any of its obligations or undertakings by which it or any of its assets are bound or cause a limitation on its powers or those of its directors to be exceeded;

 

(iii)

it has not granted to any other person rights inconsistent with the rights granted under this Agreement or a Project Agreement; and

 

 

 

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(iv)

no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or threatened which, if adversely decided, could have a material adverse effect on its ability to perform its obligations under this Agreement or a Project Agreement.

34.2

Supplier's Warranties Regarding Deliverables

The Supplier represents and warrants to AusNet Services:

 

(a)

the Deliverables will:

 

(i)

be free from material defects and errors;

 

(ii)

***

 

(iii)

***comply with and will perform in accordance with the applicable Documentation and the Specifications in every respect including features, capability, compatibility, performance, design and durability;

 

(iv)

***

 

(v)

in the case of Products:

 

(A)

***

 

(B)

***

 

(b)

***AusNet Services ***Deliverables***

 

(c)

the Supplier has ***Deliverables*** AusNet Services’***Supplier;***

 

(d)

***AusNet Services ***AusNet Services ***

 

(e)

***Deliverables***AusNet Services’ ***

 

(f)

***of any Deliverable; and

 

(g)

the Supplier ***or in respect of any Deliverable.

34.3

Manufacturer’s Warranties

The Supplier will procure for AusNet Services the benefit of any manufacturers' warranties relevant to the Deliverables.  The provision of any of the benefits referred to in this clause 34.3 does not limit any of the Supplier’s obligations under this Agreement or any Project Agreement.

34.4

Supplier's Warranties Regarding the Services

The Supplier represents and warrants to AusNet Services that:

 

(a)

it will provide all Services with due care, skill and attention in accordance with all Relevant Obligations;

 

(b)

it has the level of skill, knowledge, experience and ability which may be expected of a professional organisation experienced in providing services of the same type and complexity as the Services;

 

(c)

the Supplier's Representatives, in performing the Services, have the level of skill, knowledge, experience and ability, which may be expected of an individual performing those Services; and

 

(d)

to the extent the Services relate to ***the Services will be performed in accordance with the***

34.5

Rectification of Defects within Warranty Period

Without limiting any other right or remedy that AusNet Services may have under any Project Agreement or at law, if AusNet Services notifies the Supplier of a Defect during the Warranty Period, the Supplier must at no cost to AusNet Services:

 

(a)

perform all activities necessary to diagnose and rectify the Defect within the Warranty Response Period,(including performing all activities necessary to manage any work required from AusNet

 

 

 

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Services or any third parties such as licensors of third party software and performing all testing and training); and

 

(b)

ensure that action taken to rectify the Defect does not adversely impact other Deliverables or any Relevant AusNet Services System.

34.6

Warranty Period ***

 

(a)

Any Deliverable ***Warranty Period ***Deliverable.

 

(b)

Without limiting the Supplier’s obligation***Warranty Period ***in respect of a Deliverable.

34.7

Relationship between Warranty Period and Support Services

For the avoidance of doubt, where the Supplier is required to provide support services under a Project Agreement, the correction of Defects during the Warranty Period pursuant to clause 34.5 do not form part of the support services for which the Supplier is entitled to be paid under the Project Agreement.

35

LIABILITY AND INDEMNITY

35.1

Supplier’s Indemnities

The Supplier releases and indemnifies AusNet Services and its Related Bodies Corporate, their employees and agents against all loss, costs, expenses, damages, actions, claims and demands (including the cost of defending or settling any action, claim or demand) incurred or suffered by AusNet Services or its Related Bodies Corporate arising out of:

 

(a)

***

 

(b)

***

 

(c)

***

 

(d)

***

 

(e)

***

except to the extent that the loss is directly attributable to the negligence or wrongful act or omission of AusNet Services, its Related Bodies Corporate or their Personnel.

AusNet will take reasonable, commercial steps to mitigate any losses suffered for which it is indemnified under this clause.

35.2

Operation of Indemnities

 

(a)

Each indemnity in this Agreement survives the expiry or termination of this Agreement.

 

(b)

A Party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given.

35.3

Limitation on Liability

 

(a)

Subject to clause 35.3(b) (Exclusions from Limitation on Liability), and unless specified to the contrary in a Statement of Work, the total liability of each Party under a Project Agreement in the aggregate and for all claims (whether arising in or under contract, statute, tort (including negligence), equity or otherwise at law) is limited to:

 

(i)

in the case of Deliverables and Services***

 

(ii)

in the case of Software support and/or maintenance Services,***

 

 

 

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(b)

The limitation on liability in clause 35.3 will not apply to liability:

 

(i)

for personal injury (including sickness and death);

 

(ii)

for loss of, or damage to, tangible property;

 

(iii)

under an indemnity provided in this Agreement; or

 

(iv)

***

 

(v)

***

35.4

Consequential Loss

Neither Party will be liable to the other under this Agreement or any Project Agreement for any consequential, indirect or special loss or damage arising out of or in connection with this Agreement or any Project Agreement or for any, loss of opportunity, flow on contracts, or goodwill.  The Parties acknowledge that the following losses are not deemed to be consequential losses and may be claimed by a Party depending on the circumstances of the claim:

 

(a)

costs or expenses incurred by a Party (including costs incurred to a third party contractor) in***

 

(b)

***on a Party ***

 

(c)

holding or delay costs incurred by a Party where ***

35.5

Liability for Implied Terms

Nothing in this Agreement or any Project Agreement will operate so as to exclude, restrict or modify the application of any of provisions of the Competition and Consumer Act 2010 (Cth) or any equivalent State or Territory legislation (Relevant Legislation), the exercise of a right conferred by such a provision, or any liability of a Party for a breach of a condition or warranty implied by such a provision, where the Relevant Legislation would render it void to do so.

36

INSURANCE

36.1

Supplier’s Insurance Obligations

The Supplier must be insured in respect of its performance of this Agreement and each Project Agreement as set out below, unless specified to the contrary in the Statement of Work:

 

(a)

property and contents insurance with a minimum cover of *** per claim for the duration of the Term;

 

(b)

products and public liability insurance with a minimum cover of *** per occurrence, for the duration of the Term; and

 

(c)

professional indemnity insurance with a minimum cover of $*** claim, for the duration of the Term and thereafter for a period of ***

36.2

Insurance of sub-contractors

The Supplier must ensure that any sub-contractors engaged by it are adequately insured for the work they are performing under this Agreement and any Project Agreement.

36.3

Evidence of Insurance

The Supplier must produce evidence on demand of the insurance effected and maintained in accordance with this clause 36.1 (Insurance).

In addition the Supplier must:

 

(a)

***; and

 

 

 

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(b)

provide AusNet Services with a certificate from the Supplier’s insurer or broker confirming the currency and status of the insurance policies on the Commencement Date of this Agreement and then on each anniversary of the commencement date during the Term.

37

LIQUIDATED DAMAGES

37.1

Application of Liquidated Damages

 

(a)

Where specified in a Statement of Work, AusNet Services may claim Liquidated Damages from the Supplier for any delay in the provision of Services or Deliverables by providing written notice to the Supplier.

 

(b)

If the Supplier, acting reasonably, rejects AusNet Services’ claim to Liquidated Damages it must notify AusNet Services in writing within 5 Business Days of receiving a notice under clause 37.1(a), and any dispute will be resolved in accordance with clause 47 (Disputes).

 

(c)

In the absence of a rejection notice under clause 37.1(b) AusNet Services may recover the relevant amount of Liquidated Damages by:

 

(i)

***

 

(ii)

***

 

(d)

The Supplier acknowledges and agrees that Liquidated Damages represent a genuine pre-estimate of AusNet Services’ expected loss for the Supplier’s failure or delay in providing the Deliverables or Services by their due date.

37.2

***

37.3

***

38

TERMINATION

38.1

Termination of Project Agreement for Breach

 

(a)

Without prejudice to any other rights a Party may have under a Project Agreement or at law, a Party may terminate a Project Agreement immediately by notice in writing if the other Party:

 

(i)

is in material breach and such breach is not remedied within *** of written notice by the first-mentioned Party (or any longer period agreed by the Parties taking into account the nature of the breach and the length of time reasonably required to remedy) or

 

(ii)

has committed ***, and has failed to remedy all those breaches within *** of receiving written notice (or any longer period agreed by the Parties taking into account the nature of the breach and the length of time reasonably required to remedy).

 

(b)

Termination of a particular Project Agreement will not terminate any other current Project Agreement other than a Related Project Agreement which is expressly identified in the termination notice.

38.2

Termination for Insolvency or Change of Control

 

(a)

AusNet Services may terminate this Agreement immediately upon notice in writing to the Supplier if:

 

(i)

an Insolvency Event occurs or the Supplier becomes subject to any similar form of insolvency administration; or

 

(ii)

the Supplier undergoes a Change of Control which AusNet Services reasonably believes may adversely affect the Supplier’s ability to perform its obligations under this Agreement in a manner acceptable to AusNet Services.

 

 

 

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38.3

Other Termination Rights

AusNet Services may terminate this Agreement and/or any or all Project Agreements (in whole or in part) by written notice to the Supplier if a Conflict of Interest arises which in the reasonable opinion of AusNet Services adversely affects the Supplier’s ability to perform its obligations under this Agreement or a Project Agreement objectively and impartially.

38.4

Termination for Convenience

 

(a)

AusNet Services may terminate this Agreement or any or all Project Agreements at any time by providing the Supplier with *** prior notice in writing.  

 

(b)

Where AusNet Services terminates a Project Agreement for convenience under clause 38.4 (Termination for Convenience), unless otherwise specified in the Statement of Work AusNet Services will pay to the Supplier reasonable demobilisation costs ***

38.5

Rights and Obligations on Termination

 

(a)

Upon termination of a Project Agreement for any reason:

 

(i)

AusNet Services will, subject to clause 6.1 (Timing for Payments) pay the Supplier for Services properly performed (on a pro rata basis) up to the effective date of termination;

 

(ii)

Supplier will deliver to AusNet Services all completed Deliverables and AusNet Services will pay all relevant Charges related to those Deliverables subject to clause 6.1 (Timing for Payments) and satisfactory completion of Acceptance Testing in accordance with clause 23 (Acceptance Testing);

 

(iii)

upon receipt of a written request from AusNet Services, and subject to AusNet Services’ payment under clause 38.5(a)(i) (payment for services up to termination), Supplier will provide to AusNet Services any Deliverables which are partially complete at the date of termination;

 

(iv)

each Party will subject to clause 32.4 (Return of Confidential Information) promptly return to the other Party all Confidential Information in its possession or control once it is no longer required for the purpose of this Agreement;

 

(v)

AusNet Services may employ, contract or otherwise engage any third party to complete Services and any remaining Deliverables and may contract directly with the Supplier’s subcontractors for any such services. Supplier will provide reasonable assistance to assign relevant subcontracts to AusNet Services upon request provided the relevant subcontractor has not objected to such assignment; and

 

(vi)

the rights provided to AusNet Services under this Agreement in respect of Pre-Existing Materials and/or Supplier’s Confidential Information may be exercised by AusNet Services (or by a third party on behalf of AusNet Services) for the purpose of completing the Services and any remaining Deliverables, as contemplated in clause 38.5(a)(v).

38.6

Termination of Head Agreement

Termination of this Agreement will have no impact on any Project Agreement in existence at the time of termination of the Agreement, and the terms and conditions in the Agreement will continue to apply to each Project Agreement until completed, or validly terminated.

38.7

Claims

The expiry or termination of this Agreement or any Project Agreement does not affect:

 

(a)

any claim that a Party may have against the other Party;

 

(b)

either Party’s rights in respect of any breach of this Agreement occurring before expiry or termination; or

 

(c)

the obligations of the Parties to make a payment or perform any other act under this Agreement which was due before expiry or termination.

 

 

 

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39

FORCE MAJEURE

39.1

No Liability for Delays

Neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to a Force Majeure Event.

39.2

Notice of Force Majeure

In the event of a Force Majeure Event, the affected Party must:

 

(a)

notify the other Party in writing of the Force Majeure Event as soon as possible after the Force Majeure Event occurs providing details of the Force Majeure Event and the steps that Party is intending to take to remedy the Force Majeure Event and to mitigate the consequences of the Force Majeure Event; and

 

(b)

use reasonable endeavours to remove or remedy the impact of any Force Majeure Event as quickly as possible and to mitigate the consequences of the Force Majeure Event.

39.3

Suspension of Obligations

If a Party is unable to perform any obligation under a Project Agreement due to a Force Majeure Event, the performance of that Party’s obligations will be suspended for as long as the Force Majeure Event continues to prevent performance.

39.4

Entitlement to Terminate

If a delay or failure by a Party to perform its obligations due to a Force Majeure Event exceeds ***, either Party may immediately terminate the relevant Project Agreement on providing notice in writing to the other Party.

39.5

Refunds for Products or Services Not Provided

If this Agreement is terminated pursuant to this clause 39.5 (Force Majeure), the Supplier will refund moneys previously paid by AusNet Services pursuant to this Agreement for Products or Services not provided by the Supplier to AusNet Services.

39.6

No relief and no extension

 

(a)

To avoid doubt, a Force Majeure Event does not relieve a Party from performing its obligations:

 

(i)

under any disaster recovery plan;

 

(ii)

if the delay or failure to perform or the Force Majeure Event itself could have been prevented by taking reasonable precautions; or

 

(iii)

if the delay or failure to perform or the Force Majeure Event itself can be circumvented by taking reasonable steps;

 

(b)

Any failure to perform by a subcontractor or agent of the Supplier will not constitute a Force Majeure Event unless the agent or subcontractor was itself subject to a Force Majeure Event.

40

SUB-CONTRACTING

40.1

No Subcontracting Without Consent

The Supplier must not subcontract or otherwise arrange for another person to perform any part of this Agreement or a Project Agreement or to discharge any of its obligations under this Agreement or any Project Agreement without the prior written consent of AusNet Services, such consent not to be unreasonably withheld.

 

 

 

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40.2

Supplier Responsibility

In the event AusNet Services consents to a subcontract pursuant to clause 40.1 (No Subcontracting Without Consent), the Supplier will not be relieved of any of its liabilities or obligations under this Agreement or the relevant Project Agreement and the Supplier will be liable to AusNet Services for the acts, defaults and neglects of any subcontractor or any employee or agent of the subcontractor as if they were the acts, defaults or neglects of the Supplier.

40.3

Supplier to Ensure Suitability of Sub-contractors and their Work

The Supplier will be responsible for ensuring the suitability of all subcontractors and for ensuring that the work performed by the subcontractor meets the requirements of the Project Agreement.

40.4

Subcontractors to be Aware of Supplier Obligations

The Supplier will ensure that each subcontractor is aware of all relevant obligations under this Agreement and the relevant Project Agreement.

40.5

Consistency

Any subcontract entered into by the Supplier must be consistent with the terms of this Agreement and the relevant Project Agreement (insofar as is relevant to the services being provided by the subcontractor) and be capable of assignment by the Supplier to AusNet Services (or its nominee) at no cost without the need for any additional consent from the subcontractor.

41

RELATIONSHIP BETWEEN PARTIES

41.1

Supplier an Independent Contractor

The Supplier is an independent contractor without authority to bind AusNet Services by contract or otherwise and neither the Supplier nor the Supplier Personnel are employees of AusNet Services or its Related Bodies Corporate by virtue of this Agreement or any Project Agreement.

41.2

Supplier Responsible for Personnel

The Supplier acknowledges that it has sole responsibility in relation to payment, if any, of superannuation, workers’ compensation and taxes incidental to employment in respect of the Supplier Personnel.  The Supplier further acknowledges that neither it nor the Supplier Personnel have, pursuant to this Agreement or any Project Agreement, any entitlement from AusNet Services or its Related Bodies Corporate in relation to any form of employment or related benefit.

42

NO SOLICITATION

 

(a)

Neither Party will, during the term of the relevant Project Agreement or within *** (or such other period as agreed between the Parties) after its termination, induce, solicit, engage or employ (or procure the inducement, solicitation, engagement or employment of) any officer or employee of the other Party without that other Party’s prior written consent, such consent not to be unreasonably withheld.  

 

(b)

Clause 42(a) (No Solicitation) will not apply in the case of an employee who has ceased employment with a Party for a period for six months prior to their engagement by the other Party, or to an employee who is engaged as a consequence of responding to a bona fide publicly advertised position with the other Party.

 

 

 

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43

CONFLICTS OF INTEREST

43.1

No Conflict of Interest to Exist

The Supplier warrants that to the best of its knowledge no Conflict of Interest exists or is likely to arise in the performance of its obligations under this Agreement or any Project Agreement.

43.2

Disclosure of Conflicts

The Supplier must not, during the course of this Agreement, engage in any activity likely to compromise its ability to perform its obligations under this Agreement or any Project Agreement fairly and independently.  The Supplier must immediately disclose to AusNet Services any activity which constitutes or may constitute a Conflict of Interest.

44

BENEFIT OF AGREEMENT

 

(a)

The agreements, acknowledgements, undertakings, indemnities, representations and warranties given by the Supplier in this Agreement and any Project Agreement operate for the benefit of AusNet Services and its Related Bodies Corporate (on whose behalf and for whose benefit AusNet Services is deemed to be contracting).

 

(b)

For the purposes of clause 44(a), agreements, acknowledgements, undertakings, indemnities, representations and warranties in this Agreement and any Project Agreement:

 

(i)

may be enforced by AusNet Services for itself; and

 

(ii)

are held by AusNet Services on trust for the benefit of each of its Related Bodies Corporate and may be enforced by AusNet Services on behalf of any of its Related Bodies Corporate or by any such Related Body Corporate directly.

45

ASSIGNMENT

 

(a)

Subject to clause 45(b)***

 

(b)

AusNet Services may assign all or any part of this Agreement or any Project Agreement:

 

(i)

to any of its Related Bodies Corporate; or

 

(ii)

in connection with a corporate restructure (including a divesture);

provided that the assignment/s result in no change in:

 

(iii)

the use restrictions of any licence (other than by virtue of the assignments granting new entities rights under the licence); or

 

(iv)

the overall number of users for any licence.  

46

VARIATIONS AND CHANGE CONTROL

46.1

Variations to be in Writing

 

(a)

The provisions of this Agreement or any Project Agreement, including any change to the Charges, scope of the Services or Specifications may only be effected through a formal change request detailing:

 

(i)

the nature of the proposed change;

 

(ii)

any impact to the Charges or expenses (including rationale and justification for any increase in the Charges); and

 

(iii)

any impact on the Project Schedule.

 

 

 

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(b)

No variation will be effective unless and until a formal Change Request has been documented in writing and signed by the AusNet Services Signing Authority and the Supplier Primary Contact.  For the avoidance of doubt, AusNet Services will have no obligation to pay the Supplier any amount in excess of the Charges set out in the Project Agreement unless and until a formal Change Request has been agreed in accordance with this clause.  

47

DISPUTES

47.1

Dispute Notice

If a dispute arises between AusNet Services and the Supplier in relation to this Agreement or a Project Agreement, either Party may by notice to the other Party, specifying details of the dispute (Dispute Notice), refer the dispute for resolution in accordance with this clause 47.

47.2

Good Faith Discussions

 

(a)

If a Dispute Notice is given, the Parties must meet and engage in good faith discussions with the bona fide objective of resolving the dispute by agreement.

 

(b)

If the parties are unable to resolve the dispute after a period of 10 Business Days (or such other period as may be agreed), either Party may escalate the dispute by notice to the other Party (Escalation Notice).

 

(c)

If an Escalation Notice is given, senior managers of each Party must meet and engage in good faith discussions with the bona fide objective of resolving the dispute by agreement.

 

(d)

If the Parties are unable to resolve the dispute after a period of 10 Business Days (or such other period as may be agreed), the Parties may by agreement refer the dispute to mediation in accordance with clause 47.3,

47.3

Mediation

 

(a)

Where the Parties agree to refer a dispute to mediation, that mediation will be conducted in accordance with The Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules which can be accessed here:  https://www.iama.org.au/resources/adr-rules-guidelines/mediation, as amended from time to time.

 

(b)

Unless the Parties agree upon a mediator, either Party may request a nomination from the National President of the Institute of Arbitrators and Mediators Australia and the Parties agree to be bound by that nomination.

47.4

Equitable Relief

Nothing in this clause 47 will prevent a Party from seeking urgent equitable relief before an appropriate court.

47.5

No legal Proceedings

Neither AusNet Services nor the Supplier may commence legal proceedings (other than for urgent interlocutory relief) in relation to any dispute unless the dispute resolution procedures set out in this clause 47 have been followed.

47.6

Continued Performance of Agreement

Notwithstanding the existence of a dispute as described in this clause 47, each Party will, to the extent possible given the nature of the dispute, continue to perform its obligations under the relevant Project Agreement or Agreements until the dispute is resolved or otherwise determined.

 

 

 

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48

NOTICES

48.1

Method of Communication

Subject to clause 48.4 a notice, consent or other communication under this Agreement or any Project Agreement is only effective if it is:

 

(a)

in writing, signed by an authorised representative of the Party giving the notice;

 

(b)

addressed to the person to whom it is to be given; and

 

(c)

either:

 

(i)

delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to that person’s address;

 

(ii)

sent by fax to that person’s fax number and the machine from which it is sent produces a report that states that it was sent in full; or

 

(iii)

sent in electronic form (such as email).

48.2

Deemed Communications

A notice, consent or other communication is regarded as given and received:

 

(a)

if it is delivered or sent by fax:

 

(i)

by 5 pm (local time in the place of receipt) on a Business Day – on that day; or

 

(ii)

after 5 pm (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day – on the next Business Day;

 

(b)

if it is sent by mail:

 

(i)

within Australia –3 Business Days after posting; or

 

(ii)

to or from a place outside Australia –5 Business Days after posting;  and

 

(c)

if it is sent by email, upon receipt of a delivery and “read” confirmation.

48.3

Addresses

A person’s postal and email address and fax number are those set out in the Schedule.

48.4

Formal Notices

All notices or notifications required to be given in writing under this Agreement or any Project Agreement must be sent by mail or fax only, and addressed or copied to the Primary Contact of the receiving Party.

48.5

Time for performance of obligations

A reference to the time and / or date by which an obligation must be performed is a reference to the time or date (as the case may be) in Melbourne, Victoria, regardless of where the obligation is being performed.

49

GENERAL

49.1

Supplier to Sign Documentation

The Supplier will sign all documents and do all things necessary or desirable to give effect to this Agreement and any Project Agreement and will procure its Personnel to declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement and any Project Agreement.

 

 

 

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49.2

Successors and Assigns

Subject to any provision to the contrary, this Agreement and each Project Agreement will devolve to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons.

49.3

Survival of Covenants

The covenants, conditions and provisions of this Agreement and each Project Agreement which are capable of having effect after the expiration of the Agreement or Project Agreement will remain in full force and effect following the expiration.

49.4

Consents

Where this Agreement or any Project Agreement contemplates that a Party may agree or consent to something (however it is described), that Party may:

 

(a)

agree or consent, or not agree or consent, in its absolute discretion; and

 

(b)

agree or consent subject to conditions.

49.5

Governing Law

This Agreement and each Project Agreement is governed by the law in force in Victoria, Australia.

49.6

Jurisdiction of Courts

Each Party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with this Agreement or any Project Agreement, and waives any right it might have to claim that those courts are an inconvenient forum.

49.7

Assistance with reporting to Regulatory Authorities

 

(a)

The Supplier must provide AusNet Services with all reasonable assistance, co-operation and/or information in a timely manner as is requested by AusNet Services from time to time to enable AusNet Services to:

 

(i)

provide information required by or required to be given to a Regulatory Authority;

 

(ii)

allocate or designate any fees, charges, costs or other amounts related to this Agreement or any Project Agreement in a manner which reflects any process, treatment or methodology required or approved by a Regulatory Authority or any Regulatory Requirement; and

 

(iii)

facilitate recovery of costs or charges pursuant to any process, treatment or methodology required or approved by a Regulatory Authority or any Regulatory Requirements.

 

(b)

While AusNet Services or any of its Related Bodies Corporate are a controlling corporation for the purposes of the National Greenhouse and Energy Reporting Act 2007 (Cth), the Supplier will provide reports as reasonably required by AusNet Services from time to time in writing containing sufficient information to allow the Services provided pursuant to this Agreement or any Project Agreement to be captured by AusNet Services or its Related Bodies Corporate for the purposes of that Act.

49.8

Counterparts

This Agreement and each Project Agreement may be executed in counterparts by the respective Parties, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement, provided that no agreement will be in force and effect until the counterparts are exchanged.

 

 

 

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49.9

Each Party to Bear Own Costs

Each Party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement and any Project Agreement.

49.10

Waiver of Rights

 

(a)

A right may only be waived in writing, signed by the Party giving the waiver, and:

 

(i)

no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;

 

(ii)

a waiver of a right on one or more occasions does not operate as a waiver of that right or as an estoppel precluding enforcement of that right if it arises again; and

 

(iii)

the exercise of a right does not prevent any further exercise of that right or of any other right.

49.11

Operation of this Agreement