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.
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 Fees. Sustainability 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.
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 termination. You 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).