SUSTAINABILITY VICTORIA – THERMAL PERFORMANCE CERTIFICATES

END USER TERMS OF SERVICE (Version 1.2)


THIS IS A BINDING AGREEMENT between Sustainability Victoria ABN 62 019 854 067 (Sustainability Victoria) and any person (you) who registers a User Account on the Site. 

In consideration of your access to and/or use of:

(a)      your User Account on the Site; and

(b)      the Services, you agree to be bound by and abide by the terms and conditions set out in these Terms of Service.

1.         DEFINITIONS

In these Terms of Service:

AAO means an Assessor Accrediting Organisation accredited under the NatHERS Protocol for Assessor Accrediting Organisations, being an organisation which accredits Thermal Performance Assessors.

Certificate Credits means the credits provided to you upon payment of the Certificate Fee which represent your right to generate Thermal Performance Certificates, as more fully described in section 4 below.

Intellectual Property Rights means all intellectual property rights, including patents, copyright, rights in circuit layouts, registered and unregistered designs, moral rights, registered and unregistered trade marks, service marks, trade names and any right to have confidential information kept confidential (together with any application or right to apply for registration of any of the rights referred to in this paragraph).

NATHERS means the Nationwide House Energy Rating Scheme.

Project File means a data file in a format approved by Sustainability Victoria (as described on the Site) which a User may upload to the Site in order to generate a Thermal Performance Certificate.

Services means the services provided by Sustainability Victoria via the Site relating to the generation of Thermal Performance Certificates, as more fully described in section 3.

Site means the FirstRate5 website located at <www.fr5.com.au>.

Thermal Performance Assessor mean a person accredited by an AAO to assess the thermal performance of dwellings.

Thermal Performance Certificate means a certificate generated by the Site which sets out a dwelling's thermal performance as determined in accordance with the NatHERS.

User means any person who accesses or uses the Site.

User Account means an account registered by a User on the Site under section 2.

2.         REGISTRATION OF USER ACCOUNT

2.1       Registration. You must register a user account in order to:

(a)        upload Project Files;

(b)        generate Thermal Performance Certificates;

(c)        access and download Thermal Performance Certificates which you have previously generated; and

(d)        download the FirstRate5 client software.

2.2       Accuracy. When registering as a User of the Site, you must provide Sustainability Victoria with accurate, complete and up-to-date information as requested on the registration page of the Site. It is your responsibility to inform Sustainability Victoria of any changes to that information. You may do this at any time by accessing your Account page on the Site.

2.3       Obligations. Sustainability Victoria may, in its absolute discretion, refuse registration or close your User Account if:

(a)        you breach these Terms of Service;

(b)        you open or attempt to open a User Account using incomplete or falsified details, or otherwise in a fraudulent or illegal way; or

(c)        Sustainability Victoria considers refusal of registration or the closure of your User Account is necessary to comply with Sustainability Victoria's obligations at law.

2.4       Responsibility and security. You acknowledge and agree that:

(a)        you are solely responsible for all activities that occur on your User Account; and

(b)        your password is confidential.

You must change your password regularly and must notify Sustainability Victoria if the confidentiality of your password is compromised.

3.         SERVICES

3.1       Uploading of Project Files. Once you have registered a User Account, you may upload one or more Project Files.

3.2       Assessment. The Site will indicate the dwelling's thermal performance assessment on the basis of the data and information contained in the uploaded Project File(s). 

3.3       Discrepancies. If the thermal performance assessment indicated by the Site is not consistent with the results that you expect from the Project File(s), you should address this discrepancy before generating the relevant Thermal Performance Certificate(s) (for example, by validating or re-uploading the applicable Project File(s)).

3.4       Thermal Performance Certificates. Once you are satisfied with the thermal performance assessment indicated by the Site, you may generate one or more Thermal Performance Certificates (but you must have obtained Certificate Credits in order to do so, as more fully described in section 4 below). Each Thermal Performance Certificate generated by you will be emailed to the email address set out in your User Account details and will also be available for you to download from your User Account. 

3.5       No modifications to Project Files. Once a Thermal Performance Certificate has been generated by the Site, you will not be able to make modifications to the Project File(s) that you have uploaded to generate that Thermal Performance Certificate.

3.6       Invalidation of Thermal Performance Certificates. You may invalidate any Thermal Performance Certificate stored in your User Account. You will not be able to revalidate any Thermal Performance Certificate once invalidated. You will need to contact Sustainability Victoria if you wish to revalidate a Thermal Performance Certificate (for example, because you accidentally invalidated it). To avoid doubt, invalidation of a Thermal Performance Certificate does not entitle you to any refund or reinstatement of the Certificate Credits applied in respect of that Thermal Performance Certificate.

3.7       No guarantee of access. You acknowledge and agree that to the extent possible under the law, and subject to section 8.3, Sustainability Victoria makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Services or any internet service provider (ISP) Services. Sustainability Victoria will not be liable if the Services, or any information obtained in relation to them, is inaccurate, outdated or incorrect, or if the Services or ISP Services are unavailable for any reason, including directly or indirectly as a result of:

(a)        telecommunications unavailability, interruption, delay, bottleneck, failure or fault;

(b)        negligent, malicious or wilful acts or omissions of third parties (including Sustainability Victoria’s third party service providers);

(c)        maintenance or repairs carried out by Sustainability Victoria or any third party service provider in respect of any of the systems used in connection with the provision of the Services or the ISP Services;

(d)        any events beyond Sustainability Victoria’s control; or

(e)        services provided by third parties ceasing or becoming unavailable.

3.8       FirstRate5 client software. You acknowledge that superseded versions of the FirstRate5 client software (or other client software) may not meet the requirements of the Australian Building Codes Board Protocol and may not create Project Files which are suitable for generating Thermal Performance Certificates. It is your sole responsibility to ensure that you are using a version of the FirstRate5 client software (or other client software) that creates Project Files which are suitable for generating Thermal Performance Certificates. Sustainability Victoria is under no obligation to produce Thermal Performance Certificates from superseded versions of the FirstRate5 client software. Sustainability Victoria may agree or decline to produce Thermal Performance Certificates from superseded versions of the FirstRate5 client software or agree subject to conditions or in limited circumstances, in its absolute discretion.

4.         PAYMENT

4.1       Purchase and use of Certificate Credits. In order to generate a Thermal Performance Certificate, you must pre-pay for one or more Certificate Credits (by one of the payment methods permitted on the Site) (Certificate Fee). The amount you must pay for each Certificate Credit, as well as the number of Certificate Credits that you will need to apply in order to generate a Thermal Performance Certificate, are specified on the Site. The applicable number of Certificate Credits will be applied against your then current Certificate Credit balance when you generate a Thermal Performance Certificate. 

4.2       Change to Certificate FeesSustainability Victoria may vary the amount you must pay to obtain Certificate Credits from time to time in its absolute discretion.

4.3       Maximum number of Certificate Credits. The maximum number of Certificate Credits you may hold in your User Account at any one time is 1,000.

4.4       Expiry of Certificate Credits. Certificate Credits will automatically expire on the date that is 12 months from the date on which you purchase them, except a Certificate Credit which is stated to expire on the date that is 2 months from the date of purchase, which will expire on the date stated.

4.5       Certificate Credits are not transferrable or refundable. You acknowledge and agree that unused Certificate Credits in your User Account are:

(a)        not transferrable; and

(b)        not refundable in any circumstance (unless Sustainability Victoria determines, in its sole and absolute discretion, to refund you for any unused Certificate Credits). 

4.6       GST. If Sustainability Victoria makes a supply under or in connection with these Terms of Service on which GST is imposed (not being a supply the consideration for which is specifically described in the Proposal as GST inclusive):

(a)        the consideration payable or to be provided for that supply under these Terms of Service but for the application of this section (GST exclusive consideration) is increased by, and you must also pay to Sustainability Victoria, an amount equal to the GST payable by you on that supply; and

(b)        the amount by which the GST exclusive consideration is increased must be paid to Sustainability Victoria by you without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

If a payment to a party under these Terms of Service is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

5.         YOUR RESPONSIBILITIES

5.1       ISP Services. To use and access the Services, you must have access to:

(a)        a valid User Account on the Site; and

(b)        an account for the provision of internet services (ISP Services) with an ISP in Australia.

Your ISP (and not Sustainability Victoria) is responsible for the provision of ISP Services pursuant to any agreement between you and that ISP in respect of those ISP Services. You are responsible, and are solely liable, for any account charges or other costs incurred in relation to the ISP Services, including without limitation the use of the Services using the ISP Services.

5.2       Information. You agree to provide all information required to enable Sustainability Victoria to provide the Services. You must ensure that all such information is accurate and complete. Sustainability Victoria will not be liable for any loss or damage arising from any inaccuracy, omission or other defect in any such information (including in any Project Files).

5.3       Compliance. You must comply with any reasonable directions of Sustainability Victoria from time to time in relation to your access to or use of the Services. In addition, you must use the Services in good faith, and must at all times comply with these Terms of Service and all applicable laws, statutes and regulations in all jurisdictions that relate to your access to or use of the Services (including, without limitation, applicable privacy laws). 

6.         RESTRICTIONS ON USE

6.1       Restrictions.  You must not:

(a)        use the Site or the Services for any purpose other than as permitted by these Terms of Service;

(b)        remove or tamper with any copyright notices on the Site or the Services;

(c)        disassemble, decompile, reverse engineer, or create derivative works or functionally equivalent software from the Site  (except to the extent permitted by Division 4A of Part III of the Copyright Act 1968 (Cth));

(d)        disassemble, decompile, reverse engineer, or create derivative works from the Services;

(e)        copy or download, in a systematic manner, any content, graphics, video, text or animation from the Site or the Services, or communicate or otherwise distribute such systematically obtained content, graphics, video, text or animation; or

(f)         incorporate the Services in any product to be made available commercially (unless Sustainability Victoria expressly agrees otherwise with you).

6.2       Disruption. You must not, directly or indirectly, introduce or permit the introduction of, any virus, worm, trojan or other malicious code into the Site or the Services, or in any other manner whatsoever corrupt, degrade or disrupt the Site or the Services.

6.3       Unlawful, unauthorised or dangerous use. You must not (nor permit a third party to) submit any data or information to the Site or the Services, nor otherwise use the Site or the Services:

(a)        to engage in any activity which breaches any law, infringes a third party’s rights, or in a manner which interferes with the rights of any other person;

(b)        to infringe the Intellectual Property Rights (including trade marks and copyright) of Sustainability Victoria or any third party;

(c)        in any way that is defamatory, obscene, misleading or deceptive or otherwise illegal; or

(d)        in any way that constitutes misuse, or resale or other commercial use, of the Services or any associated materials.

6.4       Misuse of Services. Without limiting section 6.3, you must not use the Site or the Services for any purpose other than as described under these Terms of Service.

7.         LICENCE

7.1       Project Files. You grant to Sustainability Victoria an irrevocable, perpetual, non-exclusive, royalty-free licence to use, reproduce, modify, adapt and communicate the Project Files (and all data and information in them), and to sublicense third parties to do those things:

(a)        to enable Sustainability Victoria to deliver the Services;

(b)        to enable Sustainability Victoria (or other third parties) to perform statistical analysis or research relevant to Sustainability Victoria's (or those third parties') functions and purposes; and

(c)        to enable your AAO to conduct audit-related activities in respect of your accreditation.

You warrant to Sustainability Victoria that you have all rights necessary to grant this licence.

7.2       Site, Services and Thermal Performance Certificates. You agree that all rights, title and interest (including all Intellectual Property Rights) in and to the Site, the Services and any Thermal Performance Certificates vest absolutely in Sustainability Victoria (and/or its third party licensors). Subject to payment by you of the applicable Certificate Fee, Sustainability Victoria grants you an irrevocable, perpetual, non-exclusive licence to use each Thermal Performance Certificate generated by you for your business purposes.  The only rights you have in respect of the Services and any Thermal Performance Certificates are those granted to you under these Terms of Service.

8.         LIABILITY

8.1       Disclaimer. You acknowledge and agree that energy rating software provides an estimate only of the energy use of the building fabric when the house dwelling is heated and cooled to a prescribed pattern. The estimate is dependent on construction details, third party product and material details and the area of the dwelling. In addition, actual energy consumption of the occupied house dwelling will be dependent on actual appliance use patterns and efficiency. Due to these dependencies and the fact that Sustainability Victoria cannot attest to the accuracy of the information, including third party product and material information, therefore Thermal Performance Certificates and other information about energy savings should be taken as indicative only and no guarantee of energy savings is made or implied. You must not make any claims (including public statements) relating to energy consumption, efficiency or savings based on your use of, or reliance on, the Services or any Thermal Performance Certificate.

8.2       Indemnity. You will indemnify Sustainability Victoria (and all its subsidiaries, employees and officers) and keep them indemnified against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising from any claim by a third party arising directly or indirectly out of or in connection with:

(a)        your access to or use of the Services or any Thermal Performance Certificate; and

(b)        any breach by you of these Terms of Service.

8.3       Consumer guarantees.  To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on Sustainability Victoria are excluded under these Terms of Service.  However, if a supply under these Terms of Service is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), nothing contained in these Terms of Service excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits Sustainability Victoria to limit its liability, then Sustainability Victoria's liability is limited to:

(a)        in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and

(b)        in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.

8.4       Subject to section 8.3, Sustainability Victoria excludes liability for all direct, indirect or consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence) or otherwise (Losses) suffered or incurred by any person:

(a)        in connection with or in any way relating to the Site or the Services, including:

(i)         in connection with any disruption to or unavailability or failure of the Site or Services or interference with or damage to computer systems or other electronic devices;

(ii)        in connection with errors, omissions or inaccuracies contained in any information published on the Site or supplied by Sustainability Victoria to you via email or otherwise (including in connection with your use of or reliance on any Thermal Performance Certificate);

(iii)       as a result of any fraudulent use, misuse or misappropriation of your User Account; or

(iv)       as a result of any act committed by another person in connection with your (or another User's) use of the Site or the Services;

(b)        arising from any circumstance beyond its control; and

(c)        otherwise under or in connection with these Terms of Use.

9.         TERMINATION

9.1       Termination for breach. Where you have breached any provision of these Terms of Service, and without prejudice to any other rights or remedies, Sustainability Victoria may by written notice immediately terminate these Terms of Service or the provision of any Services, without any liability to you.  This will include termination of your User Account. 

9.2       Termination without cause. Sustainability Victoria may terminate your access to and use of the Services (including your User Account) without cause by giving you 14 days prior written notice. You may close your User Account at any time via your 'Profile' section of the Site.

9.3       Consequence of terminationYou acknowledge and agree that, on termination of these Terms of Service for any reason, or should you close your User Account, all unused Certificate Credits in your User Account will expire immediately and are not refundable.

9.4       Survival. Clauses 8, 10 and 11 survive termination of these Terms of Service for any reason.

10.       CONFIDENTIALITY AND PRIVACY

10.1     Neither party will disclose to any third party, without the prior written consent of the other party, any confidential information received from the other party for the purposes of providing or receiving the Services. Sustainability Victoria's confidential information includes its methodologies and tools. The obligations in this clause 10:

(a)        do not limit in any way Sustainability Victoria's (or its sub-licensees') ability to exercise their licence rights granted under clause 7; and

(b)        do not apply to information which is or becomes generally available to the public (other than as a result of a breach of an obligation under this section), is independently developed by the recipient, or is required by law to be disclosed.

10.2     Sustainability Victoria's privacy policy relating to information collected by Sustainability Victoria may be accessed by following the link labelled 'Privacy Policy' on this Site, and forms part of these Terms of Service.

11.       GENERAL

11.1     Assignment. You may not assign or transfer your rights under these Terms of Service, or attempt or purport to do so, without Sustainability Victoria's prior written consent (which may be given or withheld at our absolute discretion).

11.2     Force majeure. Neither party will be liable to the other for any failure to fulfil, or delay in fulfilling, its obligations caused by circumstances outside of its reasonable control (including, without limitation, illness of our consultants).  However, this paragraph does not apply to any of your obligations to pay money for Services performed.

11.3     Governing law. These Terms of Service are governed by and interpreted in accordance with the laws of the State of Victoria, Australia, and both of us submit to the jurisdiction of the courts of that State.

11.4     Severability. If any provision, or part of a provision, of these Terms of Service is found to be illegal or unenforceable it will be severed from the agreement, and the remainder of these Terms of Service will be construed as if that provision or part did not form part of these Terms of Service.  The previous sentence will not apply if the provision or part to be severed constitutes a material and fundamental element of the agreement between the parties.

11.5     Variation. Sustainability Victoria reserves the right to revise and amend the Terms of Service in its discretion, as follows:

(a)        if Sustainability Victoria considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended Terms of Service (as applicable) on the Site;

(b)        if Sustainability Victoria considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change (solely by using the email address you have provided) and will display a notice on the Site describing the change.

Your continued use of the Site after an amendment will mean that you agree to that amendment. You must stop using the Site if you do not agree to an amendment.

11.6     Entire agreement. These Terms of Service are the entire agreement between us on its subject matter and supersede any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).