Terms of Use

1. Agreement to Terms of Use

1.1 These terms and conditions are entered into between you and Energy Action by:

(a) accepting an invitation to access the Portal by logging into the site with a username and password; or

(b) using the Portal or any information contained therein in any other manner; and

you acknowledge that access to the Portal is sufficient consideration and agree to be bound by these Terms of Use.

1.2 Access to the Portal has been provided to you by Energy Action in accordance with the terms of the Service Agreement. The terms on which you are given access to and may use the Portal, and the terms on which the information or materials published in the Portal is given to you (including any warranties or representations made by Energy Action in relation to that information or material) are contained in these Terms of Use and the Service Agreement. If in respect of any matter that is dealt with both these Terms of Use and the Service Agreement, there is an inconsistency, then the terms of the Service Agreement shall prevail to the extent of the inconsistency.

2. Access

2.1 You acknowledge that you are accessing the Portal on your own behalf and on behalf of your employer or hirer.

2.2 You understand that access to the Portal is:

(a) for you only;

(b) for the purpose of the Approved Purpose and not for any other purpose;

(c) subject to these Terms of Use; and

(d) revokable by Energy Action without notice if there is a violation of these Terms of Use.

2.3 You warrant that at any time you access any web page forming part of, or information published on, the Portal, that you are a person that has been assigned access (by means of the allocation to you of a username and password that permits you to log in to the Portal) to that web page or information by Energy Action or any other person authorised by Energy Action to grant that access.

3. Your obligations

3.1 In accessing and using material on the Portal, you warrant that you will not:

(a) do or omit to do any thing which, if done or omitted to be done by your employer, would be a breach of any obligations you or they may have with respect to access of the Portal;

(b) use the Portal, or any document, information or material obtained from the Portal, for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or any other activity that infringes the rights of Energy Action, its Associates or any other third parties, even where such use may be associated with or subsidiary to the Approved Purpose;

(c) use the Portal in any manner which could damage, disable, overburden, or impair the Portal or interfere with any other party’s use and enjoyment of the Portal;

(d) obtain or attempt to obtain any materials, data or information through any means not intentionally made available or provided for through the Portal; and

(e) use the Portal to transmit or post any material or information that is unlawful, harassing, libellous, abusive, tortious, defamatory, threatening, harmful, invasive of another person’s privacy, vulgar, obscene or otherwise objectionable, infringes another party’s intellectual property rights, or contains software viruses or other malicious computer code, files or programs.

3.2 In addition to any obligations under clause 5 (Confidentiality and Privacy), you must:

(a) establish and maintain effective security measures to avoid loss, theft or unauthorised use of your username and password to access the Portal;

(b) neither attempt, nor encourage or assist others to attempt, to gain unauthorised access to any portion, feature or aspect of the Portal or any portion, feature or aspect of the network connected to the Portal by any method, including, reverse look-up, tracing, hacking, password mining or any other illegitimate means;

(c) exercise all reasonable care to ensure that the security of your access to the Portal is not compromised; and

(d) immediately notify Energy Action if you become aware that the security of your access to the Portal has been compromised, or there is a substantial risk of compromise;

3.3 You must immediately notify Energy Action if there is any change to any information provided to Energy Action in relation to access to the Portal, including if you cease to be employed or hired in the capacity in which you have been given access to the Portal.

4. Disclaimer

4.1 The availability and functioning of the Portal is dependent on the availability and functioning of service provided by the Internet Service Provider. These services are beyond the control of Energy Action and it expressly disclaims any responsibility for services or their effect on the Portal.

4.2 The data, information, documents and other material contained on the Portal are subject to change without notice. Energy Action disclaims any responsibility to provide notifications or information relating to information, data or materials on the Portal that is varied, changed or replaced from time to time.

4.3 [Energy Action reserves the right to do any of the following, at any time, without notice:

(a) modify, suspend or terminate the operation of or access to the Portal for any reason;

(b) modify, change or replace the Portal, or any part of the Portal, and any applicable terms, policies or conditions applicable to the Portal; and

(c) to interrupt the operation of the Portal, or any part of the Portal, as necessary to perform routine, or non-routine, maintenance, error correction or other changes.]

4.4 Subject to anything to the contrary stated in the Service Agreement, no warranty of any kind (implied, express or statutory, including without limitation, warranties for non-infringement of third party rights, ownership, fitness for purpose, accuracy, completeness, reliability, currency or freedom from computer virus) is given in conjunction with the documents, data, information and materials published on or generated by you by use of the Portal.

4.5 Subject to anything to the contrary stated in the Service Agreement, no representation, guarantee or warranty is given as to the accuracy, completeness, or likelihood of achievement or reasonableness of any forecasts, projections or forward-looking statements made available to you or to any other person as part of or in connection with your access to the Portal. Forecasts, projections and forward-looking statements are, by their nature, subject to significant uncertainties and contingencies, and they should not be taken as implying that the assumptions upon which the projections have been prepared are correct or exhaustive. You should make your own independent assessment of the information and seek your own independent professional advice in relation to the information and any action taken on the basis of the information.

4.6 This disclaimer shall take effect to the fullest extent permitted by law.

5. Confidentiality and Privacy

5.1 The terms of the Energy Action Privacy Policy are incorporated into these Terms of Use. You agree to the use of personal information by Energy Action and its Associates in accordance with the terms of and for the purposes permitted in the Energy Action Privacy Policy.

6. Liability and Indemnity

6.1 Subject to anything to the contrary stated in the Service Agreement, Energy Action and its Associates exclude any liability for damages, loss or expense, including without limitation, direct, indirect, special or consequential damages, economic loss (including without limitation, any loss of profit or anticipated profit, fines or penalties, loss of business or anticipated savings, loss of use, business interruption or loss of goodwill, bargain or opportunities) or loss or corruption of data arising from or in connection to:

(a) any access, use or inability to access or use the Portal, including without limitation, the transmission of any computer virus, spyware, malware or other malicious code;

(b) any reliance on the accuracy, currency, reliability, accessibility or completeness of the contents of the Portal; and

(c) any warranty or representation (whether express, implied or statutory) that you would be otherwise be entitled to at law, to the extent that they can be excluded.

6.2 Any liability of Energy Action and its Associates for breach of a condition or warranty which cannot be excluded by law is limited, as far as the law permits:

(a) for services supplied by Energy Action on or through the Portal, to re-supplying the service or paying the cost of re-supplying the service; and

(b) for documents, information or any other materials provided by Energy Action on or through the Portal, to re-supplying the documents, information or materials in hard copy or electronic form, or to paying the cost of having the documents, information or materials provided;

with any such choice to be made by Energy Action, in its sole discretion.

6.3 You indemnify Energy Action and its Associates against any liability, loss or damage arising directly or indirectly from, and any costs and expenses (including, without limitation, legal expenses on a full indemnity basis) incurred in connection with:

(a) access by you to, and your use of, the Portal;

(b) your breach of these Terms of Use, the Service Agreement or the provisions of any related or associated agreement to the extent that they relate to documents, information or materials on or from the Portal; and

(c) any wilful, unlawful or negligent act or omission by you or any of your Associates.

7. Intellectual property

7.1 Energy Action or its Associates may own or control copyright and/or other intellectual property rights in the look and feel of the Portal and its contents including any sounds, music, text, graphics, data, stills, photographs and moving images. Such intellectual property rights shall include all registered and unregistered intellectual property rights of any type or nature including trademark and copyright.

7.2 Ownership of the copyright in reports, graphs, charts and documents published on the Portal or generated by use of the Portal are governed by the terms of the Service Agreement.

7.3 You acknowledge that unauthorised use of any intellectual property may be an infringement of the intellectual property rights of Energy Action, its Associates or a third party, and that this use may result in irreparable harm for which damages may not be an adequate remedy.

7.4 You acknowledge and agree that:

(a) you will not use, modify, distribute, reproduce, or incorporate in any derivative works the contents of the Portal, or any trade mark, logo, designs, slogans or copyright in materials, reproduced or published in the Portal without the prior written authorisation of Energy Action, however, you may use the Portal, and any materials reproduced in or published on the Portal, for the Approved Purpose without prior written authorisation of Energy Action;

(b) any act in breach of this sub-clause may result in irreparable damage to the owner of the intellectual property, for which damages may not be an adequate remedy; and

(c) you must comply with the reasonable directions of Energy Action and assist in preserving the intellectual property rights of any person.

8. General

8.1 Nothing in these terms and conditions of use is intended to limit any disclaimer or exclusion of liability contained in any other agreement (including without limitation the Service Agreement).

8.2 These terms of use are governed by, and are to be construed in accordance with, the laws from time to time in force in New South Wales, Australia. You agree to submit to the jurisdiction of the courts having jurisdiction in New South Wales, Australia.

8.3 Any provision that is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise to be severed to the extent of any invalidity or unenforceability, without affecting the validity or enforceability of the remaining provisions of these Terms of Use, or the validity or enforceability of that provision in any other jurisdiction.

9. Dictionary

9.1 In these Terms of Use, the follow definitions apply:

Approved Purpose means the objective or purpose of viewing, receiving, analysing and producing reports on, data related to the [electricity usage)], energy related expenses and CO² emission production of those specific physical sites for which you have been assigned access by Energy Action or a person authorised by Energy Action to assign such access, and the objective or purpose of viewing or receiving any other information Energy Action intentionally makes available for access by you on the Portal from time to time[ GL Note: EA to include any additional functions provided on the Portal ].

Associates of a person means any and all of that person’s related bodies corporate and associated entities and all and any officers, employees, agents, independent contractors and advisers of those bodies corporate and entities.

Employer means the person or entity who employs you by whom you are engaged under a contract for service.

Energy Action means [Energy Action (Australia) Pty Ltd (ACN 103 365 199)].

Portal means the website forming the Energy Action Activ8 Portal that you have been invited to access by means of the username and password provided to you, and includes without limitation:

(a) any text, graphics, audio-visual material, links, data, reports and any other information or materials accessible through this website;

(b) the arrangement and composition of the various elements in the website, including its general “look and feel”; and

(c) the website upon which you obtained access to these terms and conditions.

Service Agreement means the agreement between your Employer (or an Associate of your Employer) and Energy Action (or an Associate of Energy Action), by which Energy Action has agreed to provide energy data and analysis services known as ‘Activ8’ services.

I acknowledge that I have read and agree to be bound by these Terms of Use which govern my access to the Portal.