Battery Subscription Agreement - General Conditions

The General Conditions that apply to a PowerHub battery subscription. This page is the full text of that agreement.

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1. GENERAL

1.1. These General Conditions apply to the provision of BSSaaS Services by PowerHub, the licence of the battery solution that incorporates the use of the Battery and licence to use the software (“Software”) that supports the Battery.

1.2. The Software is licensed pursuant to the software license agreements provided with the Battery (“SLA”). By entering into this Agreement, the Client represents that it has become familiar with and agrees to the SLA.

2. CONDITIONS

2.1. This Agreement may be terminated by PowerHub under clause 2.5 if each of the following conditions are not satisfied or waived on or before the Conditional Date:

• (a) PowerHub is satisfied that the Site meets all technical, regulatory, and safety requirements necessary for the installation and operation of the Battery and for supplying the electricity to the Client;

• (b) PowerHub entering into a Retail Electricity Supply Agreement on terms satisfactory to PowerHub, enabling it to procure electricity under commercially viable conditions for the intended usage; and

• (c) PowerHub is satisfied with the Client’s financial standing, including but not limited to the:

• (i) Client’s credit rating, as determined by a credit assessment conducted by PowerHub or its agent; and

• (ii) Client’s historical electricity consumption over the 12 months preceding the date of this Agreement, which is sufficient to justify the intended energy supply under this Agreement.

2.2. The Client must use best endeavours to assist PowerHub so that each of the conditions in clause 2.1 are satisfied.

2.3. A condition may only be waived by written agreement of PowerHub. The conditions under clause 2.1 are for the sole benefit of PowerHub.

2.4. As soon as each of the conditions in clause 2.1 has been satisfied or waived, PowerHub will issue a notice to the Client to that effect, and at the same time provide a preliminary Commissioning Schedule for the Battery within 45 (forty-five) Business Days after that notice. The Commissioning Schedule will set out the information based on the Specification, including an estimated Commissioning Date. The Commissioning Date and the Specification are indicative estimates only. The Specifications are subject to PowerHub’s sole discretion to make adjustments based on operational requirements or the Client’s changing needs. PowerHub reserves the right to modify the Specifications and Commissioning Date as necessary and disclaims any liability for delays to the Commissioning Date or alterations to the Specifications, whether arising from PowerHub’s internal processes, external factors, or the Client’s requirements.

2.5. If the conditions are not fulfilled by the Conditional Date, or a later date, PowerHub may terminate this Agreement by written notice to the Client. In the event of termination under this clause, PowerHub will bear no liability to the Client.

3. TERM and BSSaaS Services

3.1. This Agreement commences on the Commencement Date and ends on the Expiry Date.

3.2. During the Term PowerHub will use reasonable efforts to provide the Client with the BSSaaS Services.

4. BATTERY

4.1. Subject to the terms of this Agreement, from the Commissioning Date and for the Term:

• (a) PowerHub will make available all electricity stored by the Battery during Off-Peak (“Battery Stored Electricity”) for the Client to purchase; and

• (b) the Client will purchase from PowerHub, electricity stored by the Battery that is required by the Client (“Consumed Battery Electricity”).

4.2. If the Consumed Battery Electricity is less than the Battery Stored Electricity, then the difference is the (“Excess Battery Electricity”).

4.3. PowerHub may sell any Excess Battery Electricity subject to the terms of the Excess Battery Electricity Supply Agreement and the Client must use reasonable endeavours to assist PowerHub to fulfil the terms of the Excess Battery Electricity Supply Agreement.

5. INSTALLATION

5.1. PowerHub will install the Battery in accordance with all applicable laws and government approvals and Good Electricity Practice to the extent reasonably practicable.

5.2. PowerHub, at Client’s cost, will use reasonable efforts to:

• (a) obtain necessary approvals and permits for Battery installation and operation at the Site; and

• (b) ensure the Site meets general suitability standards for Battery installation based on the Specification.

5.3. The Client will pay to PowerHub the Installation Fee and PowerHub’s reasonable costs associated with the installation and commissioning of the Battery.

5.4. Following the installation of the Battery, PowerHub will test the performance of the Battery. Once a test indicates that the Battery meets the Specifications in accordance with this Agreement, PowerHub will send a notice to the Client confirming that the Battery has been Commissioned.

5.5. Once the Battery is installed, the Client must obtain prior written consent from PowerHub before undertaking any uninstallation or removal of the Battery. PowerHub’s consent will only be granted after the Client provides adequate information regarding:

• (a) The reason for uninstallation or removal;

• (b) The party engaged to carry out the uninstallation or removal; and

• (c) The proposed safety and security measures to be implemented during the process.

5.6. The Client acknowledges that the uninstallation or removal of the Battery without PowerHub’s consent may result in:

• (a) Voiding of any warranties provided under this Agreement;

• (b) Liability for any damage caused to the Battery, premises, or third parties as a result of unauthorised uninstallation or removal; and

• (c) Breach of this Agreement, entitling PowerHub to seek remedies under this Agreement.

5.7. PowerHub reserves the right to supervise or arrange for qualified personnel to undertake the uninstallation or removal, at the Client’s expense, to ensure compliance with applicable safety and industry standards.

5.8. If the Client relocates from the Site, the Client may request PowerHub to provide relocation services for the Battery.

5.9. Relocation services will be provided at the Client's sole expense, including any associated costs for removal, transportation, reinstallation, and re-commissioning of the Battery at the new premises.

5.10. The provision of relocation services is subject to PowerHub’s consent, which may be withheld if the new premises are deemed unsuitable for the Battery installation or if the Client fails to meet any obligations under this Agreement.

5.11. The Client must notify PowerHub of the relocation request at least 60 days in advance to allow for necessary arrangements.

6. PERSONAL PROPERTY

6.1. The Client agrees and will procure that its landowner (if the Client is not the landowner) provides written acknowledgement that:

• (a) the Battery is the personal property of PowerHub and will at no time be or become a fixture on the Client’s property;

• (b) this Agreement is not a contract to sell or lease the Battery;

• (c) nothing in this Agreement confers on the Client any right or property or interest in or to the Battery and the Client will be bailee only;

• (d) the installation of the Battery creates a security interest under the Personal Property Securities Act 1999 (“PPSA”) in favour of PowerHub;

• (e) PowerHub has the right to register a financing statement on the Personal Property Securities Register (“PPSR”) to record its interest in the Battery;

• (f) no other security interest, lien, mortgage, charge or encumbrance will be granted over the Battery;

• (g) at all times the Client must keep the Battery free and clear of all liens, claims, levies and legal processes of any nature not created by PowerHub;

• (h) the Client and/or landowner must sign any documents and do anything else reasonably required by PowerHub to give effect to the rights of PowerHub under this Agreement; and

• (i) the Client will procure that the landowner will do and procure such things as PowerHub may reasonably request to enable PowerHub to register a financing statement on the PPSR and to ensure that PowerHub’s security interest in the Battery is a first ranking perfected security interest in the Battery on the PPSR.

6.2. The Client waives any right to receive a copy of a verification statement (as defined in the PPSA) and agrees to the extent permitted by law that:

• (a) sections 114(1)(a), 133 and 134 of the PPSA will not apply; and

• (b) the Client will have none of the rights referred to in sections 116, 117(1)(c), 119, 120(2), 125, 126, 127, 129 and 131 of the PPSA and the Client waives its rights to object under section 121 and to redeem under section 132 of the PPSA.

7. OPERATIONS AND MAINTENANCE

7.1. PowerHub is responsible for the delivery Battery Stored Electricity to the Client at the Point of Connection.

7.2. From the Commissioning Date, PowerHub will operate, maintain and repair the Battery in accordance with Good Electricity Industry Practice and at PowerHub's sole cost and expense, provided that any repair or maintenance costs incurred by PowerHub as a result of the Client’s negligence or breach of its obligations under this Agreement will be reimbursed to PowerHub by the Client.

7.3. From time-to-time, PowerHub may make changes to the Battery to maintain or improve it. PowerHub will notify the Client of any changes that it intends to make to the Battery at least seven (7) Business Days prior to the date on which PowerHub intends to make the changes. The Client consents to such changes.

7.4. If an Unplanned Outage occurs in respect of the Battery, PowerHub will notify the Client of the existence, nature and expected duration of the Unplanned Outage as soon as practicable provided that PowerHub has been notified of the Unplanned Outage.

7.5. If the Client intends to undertake any repairs or improvements to the Site that could interfere with the Battery, the Client will provide not less than 30 (thirty) Business Days prior written notice to PowerHub of such works. The Battery may only be removed and replaced with the consent of PowerHub. The Client may not install any other batteries on the same ICP as the Battery, join cables, or in any way do anything that may affect the operation of the Battery negatively.

7.6. The Client acknowledges and agrees that PowerHub does not guarantee that the Battery will provide an uninterrupted supply of electricity for the Supply Period or will deliver any minimum amount of electricity.

7.7. PowerHub will procure and maintain any equipment manufacturer’s warranties applicable to the Battery in full force and effect during the Term, and promptly exercise its rights under them in the event of any defect in or non- conformity of any part of the Battery the subject of a manufacturer’s warranty.

7.8. PowerHub is not responsible for any lost power production, or any repair, replacement or correction required due to the following:

• (a) someone other than PowerHub or its approved service providers installing, removing, re-installing, altering, modifying or repairing the Battery;

• (b) destruction or damage to the Battery or its ability to safely produce power not caused by PowerHub or its approved service providers while servicing the Battery; and

• (c) the Client’s failure to perform, or breach of, the Client’s obligations under this Agreement.

8. SUPPLY

8.1. During the Supply Period, PowerHub will supply the Battery Stored Electricity to the Client at the Point of Connection on the terms and conditions set out in this Agreement.

8.2. Title to, and risk in relation to and control of the Consumed Battery Electricity supplied under this Agreement passes to the Client at the Point of Connection.

8.3. The Client and PowerHub agree that in the event that PowerHub commissions an expansion of the capacity of the Battery, the Client may purchase the additional electricity in accordance with the terms of this Agreement.

8.4. During the Supply Period PowerHub may generate and sell any Excess Battery Electricity to a third party. The parties agree that the Excess Battery Electricity does not form part of the Consumed Battery Electricity.

9. SALE AND PURCHASE OF ELECTRICITY

9.1. The Consumed Battery Electricity will be purchased by the Client at the Power Price.

9.2. Circumstances or events beyond PowerHub’s control (including the events specified in clause 9.3) may cause supply to be interrupted from time to time. For example, the Network Company may shut down all or part of its network or may interrupt supply for maintenance or improving the reliability of supply. The network may also be affected by a storm, high winds, third-party interference like a car accident or for other reasons. PowerHub is not required to honour this Agreement where circumstances or events that are beyond its control prevent it from doing the things it would normally do. In these circumstances, PowerHub will carry on honouring its obligations as soon as it is reasonably practicable for it to do so.

9.3. For the purposes of clause 9.2, circumstances or events beyond PowerHub’s Control also include (without limitation and for example only):

• (a) any Events of Force Majeure;

• (b) acts of God;

• (c) malicious damage;

• (d) compliance with any law or governmental order, rule, regulation or direction;

• (e) accidents, including traffic accidents;

• (f) fire;

• (g) interference with the network from birds, animals or vegetation;

• (h) faults in the network;

• (i) acts or omissions of the Network Company;

• (j) problems with the generation, transmission or distribution of electricity;

• (k) problems with the Client’s wiring;

• (l) problems arising due to health and safety hazards at the Client’s premises; and

• (m) any other things which PowerHub have no control over.

9.4. PowerHub will give the Client at least 4 Business Days’ notice of any planned shutdowns in accordance with the electricity code of practice unless the shutdown is urgently required for reasons that were not reasonably foreseeable such that 4 Business Days’ notice is not possible. In the event of any urgent shutdown of this nature, PowerHub, will give the Client as much notice of the shutdown as possible. The Client can call PowerHub at any time for information about any planned interruption.

10. LICENCE TO OCCUPY

10.1. If the Client is the landowner, the Client grants to PowerHub, a non-exclusive licence to occupy the Site for the purposes of installing, maintaining, Improving and operating the Battery. If the Client is not the landowner, the Client will procure that the landowner grants to PowerHub a non-exclusive licence to occupy for the purposes of installing, maintaining, Improving and operating the Battery, and removing the Battery on termination of the Agreement. In each case the Client must arrange for the non-exclusive licence to occupy to be granted and all consents of holders of interests in the Site (including any mortgagee) prior to PowerHub commencing installation of the Battery under this Agreement (to the satisfaction of PowerHub in its entire discretion).

10.2. If the Client is not the landowner, the Client will procure that the landowner expressly acknowledges that:

• (a) PowerHub may obtain debt financing from lenders, investors or other third parties (Financing Parties) in connection with the installation, operation and maintenance of the Battery;

• (b) it has received notice of, and consented to, the Financing Parties’ security interest in the Battery and this Agreement;

• (c) on receipt of written notice by a Financing Party, it will enter into a direct agreement with that Financing Party, the form of which shall be negotiated by the parties in good faith (and will provide the Financing Party with (amongst other things) a period of no less than 20 (twenty) Business Days in addition to the cure periods in this Agreement to remedy a Default) (“Direct Agreement”);

• (d) the landowner will, for all purposes, accept the performance of any obligation or liability of PowerHub and/or the remedy or cure of any breach or failure by PowerHub by or on behalf of a Financing Party and/or any of its representatives (including but not limited to the right for that Financing Party and/or any of its representatives to access the property using the access ways as directed by the landowner from time to time to maintain and perform the rights and obligations of PowerHub under this Agreement).

10.3. The Client agrees to immediately notify PowerHub in writing if the landowner proposes to sell, lease or otherwise grant an interest in the Site. If the landowner sells the Site, the Client will use good faith to procure that the landowner ensures that the transferee assumes the obligations of the landowner under the non-exclusive licence to occupy or, at the option of PowerHub, enters into a new non-exclusive licence to occupy with PowerHub.

10.4. If at any time the non-exclusive licence to occupy is terminated for any reason, this Agreement will automatically terminate and:

• (a) the Client agrees to provide PowerHub, its agents, contractors and employees the right to safe unobstructed access to the Site and the Battery as necessary for the purposes of exercising its rights or otherwise complying with this Agreement;

• (b) PowerHub will no longer be obliged to sell electricity to the Client; and

• (c) PowerHub will be entitled to remove the Battery from the Site at the cost of the Client in accordance with clause 20.8.

11. RETAILER

11.1. The Parties acknowledge that the Customer may change Retailer from time to time throughout the Term. The Customer agrees that it will give PowerHub no less than 10 Business Days’ prior written notice if it intends on changing the Retailer.

11.2. Upon changing Retailers, the Client shall cooperate with PowerHub and the new Retailer to ensure the necessary technical and operational setup is in place to facilitate the continued provision of services under this Agreement. Any additional costs for reconfiguration or setup due to the change in Retailer will be borne by the Client unless otherwise agreed.

11.3. If PowerHub does not have a Retail Electricity Supply Agreement to facilitate energy transactions or storage services under this Agreement, PowerHub will use commercially reasonable efforts to establish the necessary agreements. If such an agreement cannot be reached, PowerHub reserves the right to suspend the licence granted under this Agreement, with no liability for interruptions arising from the Retail Electricity Supply Agreement.

11.4. For avoidance of doubt, failure to give PowerHub notice in accordance with clause 11.1 is a Default by the Customer, giving PowerHub the right to pursue remedies as specified in clause 20.

12. METERING

12.1. The quantity of electricity supplied to the Client under this Agreement will be determined by either:

• (a) The Software;

• (b) the readings registered by the Metering Equipment at the Point of Connection; or

• (c) where PowerHub cannot take a reading under (a) of this clause, estimated readings at the relevant Point of Connection of the Battery based on several factors, including previous consumption of Consumed Battery Electricity and seasonal variations, (collectively the “Metered Data”).

12.2. All data generated from the Battery and the Software including and not limited to Metering Data that become available as a result of installation and operation of the Battery and the Software will be the property of PowerHub.

13. BILLING AND PAYMENT

13.1. The Client will pay PowerHub:

• (a) Consumed Battery Electricity in each Billing Period multiplied by the Power Price;

• (b) Compensation for PowerHub’s reasonable costs of Commissioning, installing, decommissioning and removing the Battery.

13.2. All Invoices for Consumed Battery Electricity will be based on the Metered Data.

13.3. Within five (5) Business Days after the end of each Billing Period, PowerHub will provide the Client with an invoice for the amount due by PowerHub to the Client for that Billing Period. The invoice must set out:

• (a) the amount payable for that Billing Period;

• (b) any outstanding amounts (if any) from any previous Billing Period; and

• (c) any other information that the Client may require.

13.4. Payments invoiced under this Agreement will be due and payable within 15 (fifteen) Business Days following the receipt of the relevant Invoice. The Client will maintain a direct debit arrangement with PowerHub consistent with any Required Payment Method.

13.5. To resolve any billing Dispute, the Parties must use the dispute resolution procedures under clause 23. If the billing Dispute is resolved, the Party owing an amount must pay that amount owed within five (5) Business Days of the date of resolution.

13.6. All payments by the Client under this Agreement must be made without setoff, deduction or withholding except to the extent required by Law other than in respect of an amount that is genuinely disputed in good faith.

13.7. The Client may at its cost install additional Metering Equipment for metering data verification purposes provided that:

• (a) the additional Metering Equipment does not interfere with the certification or normal operation of, and communication with, any installed equipment owned or used by PowerHub;

• (b) the Client ensures that the additional Metering Equipment is installed in accordance with Good Electricity Industry Practices;

• (c) the data obtained from the additional Metering Equipment is used for the purposes of verifying the data produced by PowerHub’s Metering Equipment only.

13.8. Interest accrues daily and is payable at the Default Interest Rate in respect of payments due and owing but unpaid under this Agreement from the due date for the original payment until the date the amounts are paid, and any discounts incorporated into the Power Price will not apply to the amounts so outstanding and due.

14. REPRESENTATIONS AND WARRANTIES

14.1. Each Party represents and warrants to the other Party that:

• (a) it is duly formed and validly exists under the Laws of New Zealand;

• (b) it has the power to execute this Agreement and to perform its obligations under this Agreement, and has taken all necessary action to authorise such execution and performance;

• (c) the execution and performance of this Agreement does not violate, breach, conflict with or result in a contravention of any Law applicable to it in relation to this Agreement, any provision of its constitutional documents, any order or judgment of any court or Government Authority applicable to it or any of its assets, or any contractual restriction binding on or affecting it or any of its assets;

• (d) all approvals or other action required by any Government Authority to authorise that Party’s execution, delivery and performance of this Agreement have been (or will be, by the time required) duly obtained and are (or will be, once obtained) in full force and effect;

• (e) no Default (or event which with notice and/or lapse of time would constitute a Default) has happened with respect to it and no such event would happen as a result of its entering into or performing its obligations under this Agreement.

• (f) the Site is structurally sound and suitable for the Battery to be installed within;

• (g) it will obtain written consent from PowerHub if it sells, transfers or in any way gives possession of the Site to a new buyer and will procure that the new buyer agrees to perform all obligations under this Agreement; and

• (h) in the case of the Client, it has entered into this Agreement with a full understanding of the material terms and risks of this Agreement, and it is capable of assuming those risks; and

• (i) the other party is not acting as a fiduciary or an advisor for it, nor have the other parties given to it any advice, representation, assurance or guarantee as to the expected performance, benefit or result of this Agreement.

14.2. The representations and warranties given in clauses 14.1:

• (a) are continuing representations and warranties that will not merge on, and will remain in full force and effect on and after the Commencement Date; and

• (b) are each to be treated as a separate representation and warranty in respect of each statement made, and the interpretation of any statement made is not restricted by any reference to or inference from any other statement.

15. CLIENT OR LANDOWNER’S PREMISES

The Client undertakes that it will (and will procure that its landowner (if the Client is not the landowner) and contractors will):

• (a) not alter, obstruct, interfere with or cause any damage to the infrastructure owned by PowerHub;

• (b) use all reasonable endeavours to ensure that no third parties alter, obstruct, interfere with or cause any damage to the infrastructure owned by PowerHub;

• (c) employ appropriate security measures to ensure that the infrastructure owned by PowerHub but located on the Client’s or the landowner’s premises are kept in a safe condition and reasonably protected from any foreseeable damage;

• (d) grant all property and access rights reasonably required by PowerHub at the Client’s Premises to enable PowerHub to maintain and perform its rights and obligations under this Agreement;

• (e) assist PowerHub in obtaining all property rights, including easements, from third parties that are reasonably necessary for PowerHub’s performance of its obligations under this Agreement;

• (f) use reasonable endeavours to procure that the applicable Network Company (if any) provides PowerHub with any assistance as may be reasonably required by PowerHub for the design, construction, installation, maintenance and operation of the Battery and any other relevant infrastructure;

• (g) keep any land, floor, building or other supporting structure (as applicable) on which the Battery is positioned in sufficient repair to provide appropriate support for the Battery;

• (h) maintain all approvals and third-party consents which are required to be held by it and necessary to retain the Battery at the Site;

• (i) co-operate with PowerHub in all matters relating to the operation and maintenance of the Battery and comply with all reasonable instructions and guidelines issued by PowerHub in relation to them; and

• (j) take all necessary steps to prevent or address any issue which may adversely affect the Battery as may arise from time to time.

16. VULNERABLE OR MEDICALLY DEPENDENT CUSTOMER

16.1. The Client will promptly notify PowerHub in writing if it, or anyone permanently residing at the Site, is or becomes Medically Dependent during the Term.

17. TEMPERATURE

On becoming aware of the existence of, or circumstances which could result in the temperature of the Battery or the environment surrounding the Battery increasing to levels at or above what is prescribed as acceptable by the Battery’s manufacturer, the Client must promptly notify PowerHub.

18. INDEMNITIES

To the extent permitted by law, the Client agrees to indemnify PowerHub and its respective directors, officers, employees and agents against any liability (including liability arising from bodily injury or death to persons and third-party property damage) and any loss or damage to the Battery arising out of the Client’s acts or omissions resulting from or caused by a breach of this Agreement, violation of any applicable law or by the Client’s negligence.

19. LIMITATION OF LIABILITY

19.1. No Party will be liable to any other Party in any circumstances for any Indirect Loss which the other Party suffers or incurs as a result of or in connection with any act or omission by the Party under or in connection with this Agreement.

19.2. Under this Agreement, “Indirect Loss” includes any special indirect loss or damage and any loss of profits, loss of production, loss of revenue, loss of use, loss of goodwill and loss of opportunity whatsoever, whether direct or indirect.

19.3. This clause 19 does not limit any express provision of this Agreement which provides for an indemnity, or which expressly provides for any Party to make a payment to another other than in respect of a breach.

19.4. The Client acknowledges that in no event will PowerHub be liable for any damage to any of the Client’s property that may occur during the installation of the Battery, provided that PowerHub has exercised Good Industry Practice.

19.5. The maximum amount PowerHub will pay as compensation for any loss incurred by the Client under or in connection with this Agreement is $500 in respect of any event or series of closely related events or the amount recovered from insurance by PowerHub in respect of any event or series of events (whichever is greater).

19.6. The limitations and exclusions of liability described in this clause 19 will not apply to, or limit the liability for any fraudulent, malicious, or criminal act or omission.

20. DEFAULT AND TERMINATION

20.1. If a Party (the “Defaulting Party”) has committed a default, the other Party (the “Non-Defaulting Party”) may serve a notice (“Default Notice”) on the Defaulting Party specifying the nature of the Default and stating that, in the case of:

• (a) a Default which is reasonably capable of being remedied and which is a:

• (i) Financial Default, the Defaulting Party is required to remedy the Default within a period stated, not less than 15 (fifteen) Business Days from the date of service of the Default Notice; or

• (ii) Non-Financial Default, the Defaulting Party is required to remedy the default within a period stated which is reasonable in the circumstances but, in any case, not less than 20 (twenty) Business Days from the date of service of the Default Notice; or

• (b) a Default which is not reasonably capable of being remedied, the Non-Defaulting Party intends to exercise any of the powers referred to in this Agreement at any time after the expiration of a period stated, but not less than 15 (fifteen) Business Days from the date of service of the Default Notice.

20.2. Where, in the circumstances outlined in clause 20.1 the period of time specified in the Default Notice has expired and the Default has not been remedied, the Non-Defaulting Party may exercise without prejudice to any of its other rights and remedies terminate this Agreement by giving not less than 20 (twenty) Business Days’ notice to the Defaulting Party.

20.3. At the end of the Term or upon the termination of this Agreement, the rights and obligations of the Parties will cease other than:

• (a) the requirements to make payment of monies when due in respect of any obligation arising prior to termination;

• (b) the licence to occupy for the purposes of removal of the Battery under clause 10;

• (c) to meet the confidentiality provisions of clause 28; and

• (d) any obligations under clause 18.

20.4. If an Insolvency Event occurs with respect to a Party:

• (a) that Party must immediately notify the other Party that the Insolvency Event has occurred; and

• (b) subject to any Direct Agreement and clause 26, the other Party may terminate this Agreement at any time by giving written notice of termination to the Party suffering the Insolvency Event, regardless of whether notice is given under clause 20.4(a).

20.5. Either Party can terminate this Agreement by giving not less than 20 Business Days’ prior written notice to the other Party.

20.6. If the Retail Electricity Supply Agreement expires or is terminated and PowerHub is unable to enter into a new Retail Electricity Supply Agreement on terms satisfactory to it (in its sole discretion) then PowerHub may terminate this Agreement by giving written notice to the Customer.

20.7. Any expiry or termination of this Agreement does not affect any rights of the Parties which may have accrued before the date of expiry or termination.

20.8. If this Agreement is terminated for any reason then PowerHub will decommission and remove the Battery from the Site. The Client agrees to pay PowerHub’s reasonable costs relating to removal of the Battery within 20 (twenty) Business Days of receiving notice from PowerHub.

21. PRIVACY AND DATA

21.1. PowerHub may collect, retain and use information that client data and personal information (as defined in the Privacy Act 2020) that is for the purpose of:

• (a) supplying the BSSaaS Services;

• (b) assessing the Client’s creditworthiness;

• (c) enforcing PowerHub’s rights under this Agreement;

• (d) referring any matter to debt collection; or

• (e) any other purpose set out in PowerHub’s Privacy Policy.

21.2. PowerHub is permitted to disclose any of the Client’s data or personal information collected in accordance with clause 21.1 for the purpose of performing the BSSaaS Services.

22. NOTICES AND AGREEMENT ADMINISTRATION

22.1. Any notice, approval, consent or other communication in relation to this Agreement must be:

• (a) in writing;

• (b) marked to the attention of the relevant representative; and

• (c) either:

• (i) left at the address set out in the Key Terms;

• (ii) sent by prepaid ordinary post (airmail if appropriate) to the address set out in the Key Terms; or

• (iii) sent by email to the email address of the addressee set out in the Key Terms.

22.2. However, if the addressee has notified a change of postal address or email address, then the communication must be to that address.

22.3. A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.

22.4. A letter or email is deemed to be received:

• (a) in the case of a posted letter, on the fifth day after posting (seventh in the case of a letter sent by airmail); and

• (b) in the case of an email, when actually received in readable form by the recipient, provided that a delivery failure notice has not been received by the sender, in which case the notice will be deemed not to have been received.

22.5. PowerHub must keep complete and accurate Operating Records. PowerHub must also keep such further records required by any Government Authority, all such records to be kept in the prescribed format and maintained for a period of not less than six (6) years.

23. DISPUTE RESOLUTION

23.1. If a Dispute arises, the Dispute must be referred to the Representatives for resolution by written notice specifying that it is a notice given under this clause 23.1 giving full particulars of the nature and extent of the Dispute.

23.2. If the Dispute is not resolved within 10 (ten) Business Days of a referral in accordance with clause 23.1, either Party may give notice to the other requiring that the Dispute be referred to mediation by a single mediator agreed between the Parties.

23.3. If the Dispute is not resolved by mediation within 10 (ten) Business Days of the Parties agreeing to mediation pursuant to clause 23.2, either Party may, by notice in writing to the other Party, refer the Dispute to arbitration by a single arbitrator in accordance with the Arbitration Act 1996. The Parties shall agree on the arbitrator, or failing agreement within five (5) Business Days after, and exclusive of, the date the Dispute was referred to arbitration, will be appointed at the request of a Party by the president, vice-president or their nominee for the time being of AMINZ (Arbitrators’ and Mediators’ Institute of New Zealand Inc). The place of arbitration will be Auckland and each Party must pay its own costs of the arbitration and the Parties must pay the arbitrator’s remuneration in equal shares.

23.4. No Party may commence legal proceedings unless the Parties have undertaken the processes set out in clauses 23.1 to 23.3 and those processes have failed to resolve the Dispute or one of the Parties has attempted to follow these processes and the other Party has failed to participate.

23.5. Nothing in this clause 23 prevents a Party from seeking urgent injunctive relief or similar interim relief from a court.

23.6. Despite the existence of a Dispute, the Parties must continue to perform their respective obligations under this Agreement other than paying an amount in genuine Dispute withheld in good faith.

24. FORCE MAJEURE

24.1. If, as a result of an Event of Force Majeure, a Party becomes unable, wholly or in part, to perform any of its obligations under this Agreement or is delayed in performing those obligations:

• (a) the affected Party must immediately give notice to the other Party setting out full details of the Event of Force Majeure and the reasons for the Event of Force Majeure preventing that Party from, or delaying that Party from, performing the affected obligations under this Agreement;

• (b) the affected obligations identified in the notice referred to in clause 24.1(a), will be suspended but only so far as, and for so long as, the performance of those obligations is affected by the Event of Force Majeure; and

• (c) the affected Party must use its best endeavours to overcome or remove the effects of the Event of Force Majeure as quickly as possible and, when the affected Party is able to resume the performance of its obligations, it shall give the other Party notice to that effect.

24.2. Upon completion of the Event of Force Majeure, the affected Party must as soon as reasonably practicable recommence the performance of the affected obligations.

24.3. Parties have no entitlement to, or liability for:

• (a) any costs, losses, expenses, damages or payments during an Event of Force Majeure; and

• (b) any delay costs in any way incurred by the affected Party due to an Event of Force Majeure.

24.4. An Event of Force Majeure does not relieve a Party from liability for an obligation which arose before the occurrence of that event.

24.5. The Parties acknowledge and agree that, where an Event of Force Majeure prevents the affected Party from fulfilling its material obligations under this Agreement for an aggregate period of at least 24 (twenty-four) Months, either Party may, on 20 (twenty) Business Days written notice to the other Party, terminate this Agreement.

25. ASSIGNMENT AND SUBCONTRACTING

25.1. The Client may not assign, dispose of or create an interest in any of its rights and obligations under this Agreement without the prior written consent (not to be unreasonably withheld) by PowerHub.

25.2. The Client may not subcontract any of its obligations under this Agreement without the prior written consent of PowerHub (which consent may be withheld in its entire discretion).

25.3. The Parties agree that:

• (a) PowerHub will be entitled to assign its rights and obligations under this Agreement (without the prior written consent of the Client) to the Funders (if any) (or any agent, security trustee or nominee acting on their behalf); and

• (b) nothing in this Agreement restricts the Funders from taking security over this Agreement, or the shares and assets of PowerHub, or from enforcing the Funders’ rights in respect of that security, and the Client must promptly do all reasonable acts and things necessary to give effect to the exercise of those rights of the Funders.

25.4. Subject to clauses 25.3 and 25.5, a person who is not a party to this Agreement (including any employees, agent or subcontractor of any party) has no right, whether under the Contract and Commercial Law Act 2017 or otherwise, to enforce any term of this Agreement.

25.5. The Parties acknowledge that clause 25.4 does not apply in respect of the Funders, who are intended to have the benefit of the provisions of this Agreement that confer a benefit on them for the purposes of section 12 of the Contract and Commercial Law Act 2017.

26. FINANCING

26.1. The Parties acknowledge that PowerHub may obtain debt or equity financing or other credit support from Financing Parties in connection with the installation, construction, ownership, operation and maintenance of the Battery.

26.2. The Client agrees and acknowledges that:

• (a) it shall promptly execute any consents to the assignment (which may include notice, cure, adornment and or step-in right(s)) or estoppels and negotiate any amendments to this Agreement that may be reasonably requested by PowerHub or the Financing Parties; provided, that such estoppels, consents to assignment or amendments do not alter the fundamental economic terms of this Agreement; and

• (b) on receipt of written notice by any Financing Party it will enter into a Direct Agreement with that Financing Party.

26.3. The Client will, for all purposes, accept the performance of any obligation or liability of PowerHub and/or the remedy or cure of any breach or failure by PowerHub by or on behalf of any Financing Party and/or any of its representatives (including but not limited to the right for that Financing Party and/or any of its representatives to access the property using the access ways as directed by the Client or its landowner from time to time to maintain and perform the rights and obligations under this Agreement).

27. TAXES

27.1. All Payments referred to in this Agreement are exclusive of GST. The GST amount will be due and payable at the same time as the payment for the provision of the goods or services constituting a taxable supply is due.

27.2. Subject to clause 27.1, the Parties acknowledge and agree that taxes arising from or in connection with the transactions contemplated by this Agreement will be borne by the Party primarily responsible for them in accordance with the Law.

28. CONFIDENTIALITY

28.1. Each Party undertakes that it will not, either during the term of this Agreement or at any time thereafter (except to the extent necessary to comply with its obligations under this Agreement) disclose to any person any information of or relating to the other Party of which it has become possessed as a result of this Agreement or the negotiations preceding this Agreement including the terms of this Agreement, including all information and documentation supplied either Party or information to which either Party has access in the performance of this Agreement.

28.2. Nothing in this Agreement prohibits disclosure of information which:

• (a) is in the public domain otherwise than as a result of a breach of this clause 28;

• (b) is received from a third-party provided that it was not acquired directly or indirectly by that third party as a result of a breach of this clause 28;

• (c) for the purpose of performing the BSSaaS Services;

• (d) is required to be disclosed by Law or any Government Authority having authority over a Party; or

• (e) is for the purposes of obtaining legal advice.

29. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the Parties and sets out a full statement of the contractual rights and liabilities of the Parties in relation to the supply of electricity and no negotiations between them nor any document agreed upon or signed by them prior to the Commencement Date in relation to the supply of electricity is of any effect.

30. OTHER MATTERS

30.1. Any rights of a Party under this Agreement may only be waived by the Party in writing signed by a duly authorised representative of the Party giving the waiver.

30.2. This Agreement may not be varied except in writing signed by a duly authorised representative of each of the Parties.

30.3. This Agreement must not be interpreted to create an association, joint venture or partnership between the Parties or to impose any partnership obligation or liability upon either Party.

30.4. If any of the terms of this Agreement or the application or any such terms are held to be invalid, illegal or unenforceable by any court or administrative body having jurisdiction, all other terms of the Agreement and their application not adversely affected will remain in force and effect.

30.5. This Agreement, as amended from time to time pursuant to the terms of this Agreement, will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

30.6. To the extent of any inconsistency between the Key Terms and the General Conditions, then the Key Terms will prevail.

30.7. To the extent of any inconsistency between the General Conditions and either of the rows BSSaas Services and Specification (including any documents referred to in those rows) in the Key Terms, then the relevant row will prevail.

30.8. To the extent of any inconsistency between the rows BSSaaS Services and Specification (including any documents referred to in those rows) of the Key Terms, and any other Key Term, then the other Key Term will prevail.

30.9. The rights, remedies and powers of the Parties under this Agreement are in addition to any rights, remedies and powers provided by Law.

30.10. This Agreement may be signed in any number of counterparts, and all such signed counterparts, taken together, will be deemed to make up the one document.

31. BATTERY CHANGE

31.1. The Client must not make or allow a Battery Change without the prior written consent of PowerHub (not to be unreasonably withheld).

31.2. Before making any Battery Change, the Client must provide notice to PowerHub of the Battery Change, including all relevant information and details to allow PowerHub to assess the likely impact of the Battery Change on PowerHub's rights and obligations under this Agreement.

31.3. Within fifteen (15) Business Days of notice given under clause 31.2, PowerHub must:

• (a) give its written consent to the Battery Change; or

• (b) give notice that it does not consent to the Battery Change and set out its reasons.

31.4. To avoid doubt, any breach by the Client of clause 31.2 will constitute a Default.

32. INSURANCE

32.1. Each Party must obtain and maintain with a reputable insurer, at their own cost, for the period from the Commencement Date until the end of the Term the PowerHub Insurances and the Client Insurances, respectively.

32.2. Each Party must, on another Party’s request, provide to that Party details of the Insurance it is required to hold and evidence of payment of any premiums it is required to make in relation to them, and must pay those premiums in full and on time (whether taking out or renewing).

32.3. The Client must ensure that the Battery is covered under their contents insurance and provide PowerHub with a certificate of currency evidencing this coverage within 30 days following installation and upon PowerHub's reasonable request.

32.4. Each Party must notify the other Parties if any Insurance is (or will be) cancelled.

33. GOVERNING LAW

33.1. This Agreement is governed by the Laws of New Zealand.

33.2. The Parties agree to submit to the exclusive jurisdiction of the courts of New Zealand. Each Party waives any right it has to object to an action being brought in those courts including by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.

34. DEFINITIONS AND INTERPRETATION

34.1. In this Agreement unless the contrary intention appears: “Affiliate” means with respect to a Party:

• (a) Any person Controlled, directly or indirectly, by that Party; or

• (b) Any person that Controls, directly or indirectly that Party; or

• (c) Any person directly or indirectly under the common Control of that Party. “Agreement” means this BSSaaS agreement between the Client and PowerHub, comprised of the Key Terms and these General Conditions. “Battery” means the battery energy storage system described in the row Specification of the Key Terms. “Battery Change” means any action, including an alteration or partial or complete shutdown to, the Site that is reasonably likely to adversely affect:

• (a) the storage of electricity by the Battery;

• (b) the delivery of electricity to the Battery; or

• (c) the consumption of electricity by the Site. “Battery Stored Electricity” has the meaning given in clause 4.1. “Billing Period” means a Month. “BSSaaS Services” means the battery storage solutions as a service outlined in the Key Terms and such additional and related services offered by PowerHub to the Client from time to time. “Business Day” means a day when the banks in Auckland and Hamilton are open for business excluding a Saturday, Sunday or public holiday. “Client” means the person named in the Key Terms. “Client’s Consumption” means the Consumed Battery Electricity consumed by the Client, as measured by the Metering Equipment. “Client’s Insurance” means the Client’s Insurance specified in the Key Terms. “Commencement Date” means the date of this Agreement, as stated in the Key Terms. “Commissioning Date” means the date on which the Client is sent a notice under clause 5.4. “Commissioning Schedule” means the schedule required to be prepared by PowerHub under clause 2.4, which includes the information set out in the Specification row of the Key Terms. “Conditional Date” means 30 Business Days after the Commencement Date. “Consumed Battery Electricity” has the meaning given in clause 4.1. “Control” means, in respect of a person, any of the following:

• (a) Direct control of the exercise of a power to appoint or remove all the directors of the person or the number of directors as together hold a majority of the rights at meetings of the board of the person;

• (b) Direct control of the exercise of more than one-half of the maximum number of votes that can be exercised at a meeting of the person;

• (c) Ownership of more than one-half of the issued shares of the person other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital; and/or

• (d) Entitlement to receive more than one-half of every dividend paid on shares issued by the person, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital, and “Controlled” and “Controlling” and other cognate expressions will be construed accordingly. “Default” means a Financial Default or Non-Financial Default. “Default Interest Rate” means the rate equal to the then- current official cash rate set by the Reserve Bank of New Zealand plus 5%. “Default Notice” has the meaning given to it under clause 20.1. “Defaulting Party” has the meaning given to it under clause 20.1. “Dispute” is any part of the subject matter of any dispute between the Parties in relation to the obligations, rights or performance of those Parties under this Agreement. “Electricity Authority” means the independent Crown entity responsible for overseeing and regulating New Zealand’s electricity markets. “Electricity Code” means the Electricity Industry Participation Code 2010, as amended from time to time. “Event of Force Majeure” means an event or circumstance which is beyond the control and without the fault or negligence of the Party affected and which by the exercise of reasonable diligence the Party affected was unable to prevent provided that event or circumstance is limited to the following:

• (a) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not) acts of terrorism, civil war, rebellion, revolution or usurped power, requisition or compulsory acquisition by any governmental or competent authority;

• (b) earthquakes, flood, lightning or other physical natural disaster, but excluding weather conditions regardless of severity;

• (c) strikes at a national level or industrial disputes at a national level, or strikes or industrial disputes by labour not employed by the affected Party, its subcontractors or its suppliers but excluding any industrial dispute which is specific to the Site or you or the performance of this Agreement; and

• (d) pandemics and epidemics, but for the avoidance of doubt does not include merely not having sufficient funding to comply with obligations under this Agreement. “Excess Battery Electricity” means the amount (if any) by which the Battery Stored Electricity produced by the Battery exceeds the Consumed Battery Electricity, as described in clause 4.2. “Expiry Date” means the earlier of the date on which this Agreement is terminated under clause 20. “Excess Battery Electricity Supply Agreement” means an agreement entered into between PowerHub and a third party in relation to the sale and purchase of Excess Battery Electricity. “Financial Default” means, in respect of any Party, any default in the due and punctual payment of any sum due to the Client or PowerHub under this Agreement. “Funders” means the banks or other financial institutions (if any) which from time to time provide finance to PowerHub and who enjoy first-ranking security over the Battery as security for the performance and discharge PowerHub’s debts, obligations and liabilities (as applicable) under PowerHub’s financing arrangements (as applicable). “General Conditions” means these general conditions comprising clauses 1 to 34. “Good Electricity Industry Practice in respect of:

• (a) PowerHub, means the practices, methods and acts engaged in or approved by firms or bodies corporate who exercise that degree of diligence, prudence and foresight reasonably and ordinarily exercised by skilled and experienced operators engaged in the testing, operation or maintenance of battery energy storage systems in New Zealand under the same or similar circumstances and conditions; and

• (b) the Client, means the practices, methods and acts engaged in or approved by firms or bodies corporate who in the conduct of their undertaking exercise that degree of diligence, prudence and foresight reasonably and ordinarily exercised by skilled and experienced operators engaged in the same type of undertaking under the same or similar circumstances or conditions. “Government Authority” means any local council, governmental department (including the Electricity Authority), commerce commission, legislative, judicial or administrative body of New Zealand. “Grid” means the high voltage electricity network, provided by Transpower that transmits electricity over more than 12,000km of transmission lines throughout New Zealand from generators to Network Companies and major industrial users. “GST” means goods and services tax payable under the GST Act. “GST Act” means the Goods and Services Act 1985. “ICP” means installation control point a physical Point of Connection on a local network or an embedded network. “Improve” includes without limitation the adding battery equipment and or support services or any other improvements PowerHub determines are desirable in its entire discretion. “Indirect Loss” has the meaning given to it under clause 19.2. “Insolvency Event” means a Party:

• (a) has had a receiver, administrator or statutory manager appointed to or in respect of the whole or any substantial part of its undertaking, property or assets;

• (b) is deemed or presumed (in accordance with law) to be unable to pay its debts as they fall due, becomes, or is deemed (in accordance with Law) to be insolvent, or is, in fact, unable to pay its debts as they fall due, or proposes or makes a compromise, or an arrangement or composition with or for the benefit of its creditors or fails to comply with a statutory demand under section 289 of the Companies Act 1993; or

• (c) is removed from the register of companies (otherwise than as a consequence of an amalgamation) or an effective resolution is passed for its liquidation. “Key Terms” means the Key Terms document entered into by the Client and PowerHub. “Law” means any statute, code, law, rule or regulation by any Government Authority. “Medically Dependent Customer” has the meaning given to that term (also known as MDC) by the Electricity Authority in the Guidelines on arrangements to assist medically dependent customers (or any similar guidelines published by the Electricity Authority from time to time), and Medically Dependent has a corresponding meaning. “Metered Data” has the meaning given to it in clause 12.1. “Metering Equipment” means the equipment that measures and records the rate at which electricity is supplied, and the amount of electricity supplied at the relevant Point of Connection. “Month” means a calendar month. “Network Company” means the company or organisation (including its agents) that owns the electricity distribution network transmitting electricity from the Grid to the Client’s Point of Connection, including the network of overhead lines, underground cables, substations and other equipment used to distribute electricity. “Non-Defaulting Party” has the meaning given to it in clause 20.1. “Non-Financial Default” means a default by PowerHub or the Client in duly and punctually performing or observing any of the terms of this Agreement, but which is not a Financial Default. “Off-Peak” means low consumption period as defined from time to time. “Operating Records” means all records required to be maintained by PowerHub with respect to the Battery and the supply of electricity under the Agreement. “PowerHub Insurances” means the public liability and professional indemnity insurances held by PowerHub in respect of the Battery. “Power Price” has the meaning set out in the Key Terms. “Parties” means the Client and PowerHub and “Party” means any one of them. “Point of Connection” means:

• (a) in respect to the Battery, the point at which electricity may flow into or out of the Battery as depicted and described in the Specification row of the Key Terms;

• (b) in respect to the electricity supplied by the Retailer, the ICP. “Representative” means the authorised representative nominated by the relevant Party and notified to the other Party from time to time. “Required Payment Method” has the meaning set out in the Key Terms. “Retail Electricity Supply Agreement” means an agreement entered into by PowerHub and the Retailer in relation to among other things the sale and purchase of Battery Stored Electricity and Excess Battery Electricity.. “Retailer” means the electricity retailer providing electricity supply from the local network to the Site from time to time. “Site” has the meaning set out in the Key Terms. “Specification” has the meaning set out in the Key Terms. “Supply Period” means the period between the Commissioning Date and the Expiry Date. “Term” has the meaning set out in the Key Terms. “Unplanned Outage” means the unplanned interruption of the supply of electricity.

34.2. In this Agreement unless the contrary appears:

• (a) a reference to this Agreement or another instrument includes any variation or replacement of either of them;

• (b) the singular includes the plural and vice versa;

• (c) the word person includes a firm, a body corporate, an unincorporated association or an authority;

• (d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

• (e) if a period of time is specified and dates from a given day or the day of an actual event, it is to be calculated exclusive of that day; and

• (f) the words “including” and “include” are a reference to “including, but not limited to”.

34.3. A word in these General Conditions commencing with a capital that is referred to in the Key Terms has the meaning set out in the Key Terms.

34.4. Headings are inserted for convenience only and do not affect the interpretation of this Agreement.