With the release of FR5 v5.3.0 (3.21), Sustainability Victoria (SV) has made some changes to the Software Licence Agreement (Licence Agreement) which governs your use of the FirstRate5 (FR5) software and the End User Terms of Service (Terms of Service) which govern your use of the FR5 website.
Users will be asked to agree to the new Licence Agreement when they install FR5 v5.3.0 (3.21). Continued use of the website will mean that a user agrees to the updated Terms of Service. If you do not agree to the updated Terms of Service, please cease using the website and disable your account.
The updated Terms of Service can be viewed by clicking on 'Terms of Use' located at the bottom of the FirstRate5 website or by clicking here.
The key changes are summarised below.
Summary of Key Changes to the Licence Agreement
Compliance with NatHERS
The FR5 software is accredited by NatHERS in accordance with the NatHERS Software Accreditation Protocol. This means that the software is suitable for demonstrating compliance with the National Construction Code using the NatHERS regulatory pathway only. The Licence Agreement now clarifies that:
- a thermal performance assessment using the FR5 software must be done in accordance with the current NatHERS Technical Note;
- FR5 software is not suitable for Verification Using a Reference Building (VURB);
- you must generate a Thermal Performance Certificate from the FR5 website to demonstrate compliance with the National Construction Code; and
- you must not use the diagnostic data to generate any document (other than a Thermal Performance Certificate) to demonstrate compliance with the National Construction Code.
In addition to complying with NatHERS requirements, you must also:
- use the software in good faith;
- ensure you have relevant consents if you are including personal information in your assessments; and
- not sublicense the software or make it available to any person.
Warranties by SV
SV warrants that the FR5 software is accredited by NatHERS. This means the software has undergone significant testing to ensure calculations for energy ratings meet minimum accuracy requirements, are representative of Australian conditions and comparable across different types of dwellings and locations. And, although SV has developed the FR5 software in good faith and with all reasonable care, SV makes no other warranties about the software and does not accept any liability for loss or damage incurred as a result of reliance on the software.
Consumer Guarantees and Limitation of Liability
As under previous licence agreements, SV limits its liability to you, under the Australian Consumer Law, to the resupply of goods or services or payment of the costs of such resupply. In addition to this, we have clarified that SV will not be liable to you for any indirect or consequential losses such as loss of any profit or damage to your reputation. Where we are not able to exclude our liability to you, our liability will be limited to the total value of certificate credits paid by you in the 12 months before you notify any claim to us. We will also not be liable for any loss which you have contributed to.
Licensee Indemnity
The Licence Agreement clarifies that while you must indemnify SV (and its officers, employees, agents and contractors) against third party claims, you are not required to indemnify SV to the extent that the cause of action or loss is caused by our negligence.
Termination
In addition to our right to terminate the Licence Agreement because our rights to the supporting software components have been terminated, or for convenience at any time, we may now terminate the Licence Agreement if:
- you are in breach of the Licence Agreement or the Terms of Service and you have not rectified the breach; or
- you become bankrupt or insolvent.
Refund of Certificate Credits in Certain Circumstances
We will refund to you any certificate credits if we terminate your licence:
- because our rights to any incorporated software are terminated; or
- for convenience (for instance, if SV is no longer able to offer the FR5 software).
We may also refund your certificate credits if you terminate your licence because you choose not to accept any updates or variations, provided you are not in breach of the Licence Agreement or the Terms of Service.
Otherwise, the refund of certificate credits will be at our discretion. But note that you will not be entitled to any refund where the Licence Agreement is terminated because you have become insolvent or bankrupt or you have breached the Licence Agreement or the Terms of Service.
Updates and Notices
Any proposed amendments to the Licence Agreement, including any increase in certificate fees, will be notified to you by a notice on the FR5 website and by email to you. We must give you at least 30 days’ notice. If you do not accept the variation, you may terminate the Licence Agreement and the Terms of Service in writing no less than 5 days before the changes come into effect.
Summary of Key Changes to the Website's Terms of Services
Compliance with NatHERS
As with the Licence Agreement, we have clarified that only Thermal Performance Certificates can be used to demonstrate compliance with the performance requirements of the National Construction Code.
Your Responsibilities
You must protect your User Account by safeguarding your password. You are responsible for all activities on your account where you have failed to protect your account.
You must not deliberately or recklessly permit the introduction of any virus, worm, trojan or other malicious code into the FR5 website.
Confidentiality
You must not disclose any of SV’s confidential information.
Warranties by SV
Apart from the warranty given in the Licence Agreement (that the FR5 software is NatHERS accredited), although SV has developed the FR5 software and site in good faith and with all reasonable care, SV makes no other warranties in relation to the software, site or services and does not accept any liability for loss or damage incurred as a result of reliance on the software, site or services.
In particular, SV does not warrant or guarantee that the FR5 site will be continuously available or reliable.
Consumer Guarantees and Limitation of Liability
As under previous terms of service, SV limits its liability to you, under the Australian Consumer Law, to the resupply of goods or services or payment of the costs of such resupply. In addition to this, we have clarified that SV will not be liable to you for any indirect or consequential losses such as loss of any profit or damage to your reputation. Where we are not able to exclude our liability to you, our liability will be limited to the total value of certificate credits paid by you in the 12 months before you notify any claim to us. We will also not be liable for any loss which you have contributed to.
Indemnity
The Terms of Service clarify that while you must indemnify SV (and its officers, employees, agents and contractors) against third party claims, you are not required to indemnify SV to the extent that the cause of action or loss is caused by our negligence.
Termination
In addition to our right to terminate the Terms of Service because you have breached the Terms of Service or the Licence Agreement, we may now terminate the Terms of Service if you have become bankrupt or insolvent.
Refund of Certificate Credits
As with the Licence Agreement, SV may refund any certificate credits to you if we terminate the Terms of Service or Licence Agreement for our convenience (for instance, if SV is no longer able to offer the FR5 software, website and service). We may also refund your certificate credits if you terminate your User Account because you choose not to accept any updates or variations, provided you are not in breach of the Licence Agreement or the Terms of Service.
Otherwise, the refund of certificate credits will be at our discretion. But note that you will not be entitled to any refund where the Licence Agreement or Terms of Service are terminated because you have become insolvent or bankrupt or you have breached the Licence Agreement or the Terms of Service.
Updates and Notices
As with the Licence Agreement, any proposed amendments to the Terms of Service, including any increase in certificate fees, will be notified to you by a notice on the FR5 website and by email to you. We must give you at least 30 days’ notice. If you do not accept the variation, you may terminate the Licence Agreement and the Terms of Service in writing no less than 5 days before the changes come into effect.
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