Araya Pictures Pty Ltd (ACN 138 046 563) trading as “Energesse” (the “Provider” or “us” or “we” or “our”) is a provider of technology services under the “Energesse” brand name. All services provided by the Provider shall hereinafter be referred to as the “Services”, including services provided via the Provider’s website https://www.energesse.com or https://pxme.com.au (the “Energesse Platform”).
These General Terms and Conditions (“General Terms”) and any other terms and conditions notified by the Provider shall apply in respect of the use of the Services, including the Energesse Platform, by any customers, subscribers or users of the Provider (“Subscribers” or “you”).
Where you have been authorised and/or invited to use the Energesse Platform because of authorisation by a Subscriber to which you are affiliated and/or associated (for example, you are an employee or staff member of a Subscriber who has authorised you to access the Energesse Platform as part of the Subscriber’s use of the Services), these General Terms will apply to your use of the Energesse Platform to the maximum extent which they are applicable, including paragraphs 2 (Definitions and interpretation), 3 (Nature of the Services) (other than paragraphs 3.4 to 3.6), 4 (Subscription), 6 (Warranties and Limitations), 7 (Termination) (other than any requirements that you pay any fees, charges and/or expenses), 8 (Intellectual Property) and 9 (Confidentiality). Finally, and in this respect, all references to “Subscriber” in these General Terms shall be read as a reference to you.
- Effect of Terms
1.1 These General Terms together with:
- any other principal terms and conditions notified by the Provider in writing to the Subscriber as being applicable to the Services (“Principal Terms”), such as principal terms and conditions set out in any proposal document or letter of agreement issued by the Provider; and
- our “Privacy Policy” at https://www.energesse.com/privacy-policy/,
(together referred to as the “Terms”) create a binding, legal agreement between the Provider and each Subscriber.
1.2 The Subscriber acknowledges that the Provider provides the Services solely in accordance with the Terms and that the Subscriber has read and understood the Terms as forming a binding legal agreement between the Provider and the Subscriber in relation to the access and use of the Services, including the Energesse Platform.
1.3 The Subscriber acknowledges that the scope, details and specifications of the Services which are provided by the Provider to the Subscriber, and the Fees which the Provider charges in relation to the provision of those Services, are set out in the Principal Terms.
1.4 The Subscriber acknowledges that if:
- there is any conflict between the content of these Terms and the content of the Website or any information provided to the Subscriber by the Provider, these Terms shall prevail (unless expressly provided otherwise by the Provider); and
- there is any conflict between the Principal Terms and these General Terms, the Principal Terms shall prevail.
1.5 The Subscriber acknowledges that the Provider may, from time to time, revise these Terms. The Provider will post a notice on the Website and/or email Subscribers whenever it revises these Terms (“Notice of Change”), such revisions being effective seven (7) days after the date of posting and/or emailing of the Notice of Change. The Subscriber agrees that by continuing to use the Services following such period, the Subscriber shall be deemed to have accepted any such revisions. It is the Subscriber’s responsibility to review these Terms periodically and if at any time the Subscriber finds any revision to these Terms to be unacceptable, the Subscriber should notify the Provider and cease using the Energesse Platform.
Definitions and interpretation
2.1 In these Terms, unless the context otherwise requires or permits:
“Business Day” means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in New South Wales, Australia;
“Confidential Information” means all information of a confidential nature relating to the relevant person (whether such information is disclosed in writing, orally, by visual presentation or by means of providing access to such information), including, without limitation, computer programs, code, algorithms, know-how, methodology, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, pricing and fee schedules, financial and product development plans, customer lists, information regarding distribution channels, forecasts, strategies and any other information marked ‘confidential’ or that is expressed to be confidential by the party providing such information;
“Content” means all information, data, materials, articles, images, videos, sound recordings and any other content, regardless of the manner or context in which such content or other features are conveyed, embodied or delivered;
“Fees” means the fees, charges and expenses that may be payable by the Subscriber to the Provider pursuant to these Terms, including those fees, charges and expenses payable in respect of any Services as set out in the Principal Terms;
“GST” means the Goods and Services Tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
“Intellectual Property Rights” means any and all intellectual and industrial property rights subsisting in any part of the universe in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction;
“Provider Content” means all Content accessible to the Subscriber via the Services (including the Energesse Platform), including educational and training materials created by the Provider which form the substance of the Services, such as instruction guides and videos, training modules, manuals, pamphlets, reference materials, newsletters, educational articles, tutorials, courses, seminars, webinars, interactive content, questionnaires, quizzes, workbooks and any content displayed, downloaded, accessed or conveyed via the Energesse Platform or via any means as part of any Services (including via electronic messages or any interactive medium such as telephone or Skype calls);
“Subscriber Content” means all Content provided by, or sourced from, the Subscriber, including the Subscriber’s directors, officers, agents, representatives, staff members, employees, contractors and/or other personnel, for use in connection with the provision of the Services;
“Subscription” means the status achieved by a Subscriber by accepting these Terms with respect to the provision of the Services;
“Subscription Term” means the period during which a Subscriber may access and use the Services (including the Energesse Platform) as set out in the Principal Terms and as further provided for in paragraph 4.2 below; and
“Third Party Content” means any Content accessible or available directly via the Services which has been sourced from or provided by third parties, including content on websites that may be linked to or from the Energesse Platform or the Website, and that is not Provider Content or Subscriber Content.
- In these General Terms, unless the context otherwise requires or permits:
- where any word or phrase is given a defined meaning, then other parts of speech and grammatical forms of that word or phrase will have a corresponding meaning;
- references to the singular includes the plural and vice versa;
- reference to parties means the parties to these Terms and to a party means a party to these Terms;
- references to a party will include as the context requires that party’s respective agents, representatives, advisors, subcontractors, executors, administrators and successors;
- references to a successor to a party includes its successors, assigns and licensees and all further successors, assigns and licensee of the relevant party or such successors, assigns or licensees;
- references to these Terms includes any annexures, appendices and schedules to these Terms and any other document expressly incorporated as part of these Terms;
- references to these Terms include references to these Terms as varied from time to time in accordance with these Terms;
- references to any legislation or legislative provision will include modifying, consolidating, or replacing legislation or legislative provisions;
- references to a “breach of warranty” includes that warranty not being complete, true or accurate;
- references to “$”, “AUD$”, “A$”, “Australian Dollars” or “dollars” is a reference to the lawful tender for the time being and from time to time of the Commonwealth of Australia;
- the words “including” and “includes” and similar words are not words of limitation;
- every covenant, provision, representation, warranty, obligation or an agreement applying to, binding or given by more than one person will bind them jointly and each of them severally;
- a requirement to do any thing includes a requirement to cause that thing to be done and a requirement not to do any thing includes a requirement to prevent that thing being done;
- a provision of these Terms is not to be construed adversely against a party solely on the ground that the party or its solicitors were responsible for the preparation of these Terms or of a particular provision of these Terms; and
- if the day on which any act, matter or thing is to be done under or pursuant to these Terms is not a Business Day, that act, matter or thing may be done on the next Business Day.
Nature of the Services
3.1 The parties acknowledge and agree that, subject to the Subscriber complying with the terms and conditions of these Terms, the Subscriber shall be entitled, for the duration of the Subscription Term, to have access to and use of the Services as permitted from time to time by the Provider, subject to the payment of any Fees payable by the Subscriber to the Provider.
3.2 The Subscriber acknowledges and agrees that:
(a) any Services which the Provider provides to the Subscriber are provided strictly in accordance with these Terms;
(b) the Subscriber will sign any additional documentation reasonably required by the Provider to be signed in respect of the provision of the Services;
(c) the Services are provided by the Provider in the form as set out in the Terms;
(d) the Services may be provided in any manner which the Provider deems appropriate;
(e) the Provider does not provide legal, accounting, taxation, financial, medical, health or other professional advice and the Subscriber is responsible for seeking their own advice in relation to any Content or other aspects of any Services;
(f) the Provider does not guarantee any positive outcomes in respect of the provision of any Services or any Content and the Subscriber must exercise their own judgment and take any appropriate advice before seeking to implement any elements of the Services or any Content;
(g) the Services may not be tailored to the specific circumstances of the Subscriber and/or any particular person, thus Subscribers are urged to apply their own judgment as to whether the Services are suitable for their purposes;
(h) the Provider does not provide any warranty, representation or guarantee that the Subscriber will be able to receive any particular benefits as a result of the use of the Services as any benefits which may be obtained are highly dependent on the circumstances of the Subscriber and matters outside the Provider’s control;
(i) the Services may or may not provide any benefits, outcomes, improvements or other changes to the Subscriber as any effects may not be readily perceptible, quantifiable or measurable or may not be perceptible, quantifiable or measurable within a certain timeframe;
(j) the Services are not intended to be used as a substitute or supplement to seeking appropriate medical, health or other professional advice or treatment;
(k) the Services, including the Provider Content, may include or involve the provision of opinions, suggestions, recommendations, proposals and/or guidance by the Provider, it is the Subscriber’s responsibility to determine and assess whether or not it should use or rely on such opinions, suggestions, recommendations, proposals and/or guidance and the Subscriber’s accepts all risks arising from such use or reliance;
(l) the quality, reliability, accuracy and completeness of the Services, including Provider Content, may depend on factors outside the Provider’s control (for example Provider Content may have been created or adapted from Subscriber Content and/or Third Party Content), and it is the Subscriber’s responsibility to determine and assess whether or not it should use or rely on the Services and the Subscriber’s accepts all risks arising from such use or reliance; and
(m) the Services, including the Provider Content, may include or involve the analysis and interpretation of data to which there may be no correct or definitive answer.
3.3 In using the Services, the Subscriber irrevocably and unconditionally acknowledges and accepts the following:
(a) that the Provider provides the Services on a purely ‘as is’ basis without warranty of any kind and, to the maximum extent permitted by law, the Provider expressly disclaims any and all liability and any warranties or guarantees, express or implied, regarding the Services, including, but not limited to, any implied warranties or guarantees of acceptable quality or fitness for a particular purpose not otherwise disclosed in these Terms;
(b) that the Subscriber is only entitled to use the Provider Content and any Third Party Content directly in connection with the use of the Services in respect of which such Content or Third Party Content was provided;
(c) that to the maximum extent permitted by law, the Provider is not responsible for any inability or delay in providing the Services for any reason which is outside the Provider’s immediate control (including to the extent such inability or delay is attributable solely to the acts or omissions of the Subscriber);
(d) that use of the Services may require the Subscriber to comply with various requirements, including the use of computer hardware or software, having an active Internet connection, having appropriate telephony services and attending various venues, and it is the Subscriber’s responsibility to ensure that it complies with any and all such requirements, and the Provider shall not be liable in any way for any losses or damages suffered by the Subscriber as a result of the Subscriber failing to comply with any such requirements;
(e) that the Subscriber will not use or attempt to use or abuse the Services for any activity that violates local, state or federal law in any jurisdiction, or engage in any conduct which the Provider finds to be offensive or harmful, and the Subscriber hereby indemnifies the Provider to the full extent for any losses or damages suffered by the Provider as a result of such acts or omissions;
(f) that the Subscriber will respond to queries from the Provider in a timely manner and to provide any comments or feedback to the Provider if reasonably appropriate;
(g) that the Subscriber will provide reasonable assistance to the Provider in a timely manner with respect to the provision of the Services when required by the Provider;
(h) that the Subscriber will comply with the reasonable directions and instructions of the Provider in relation to the use of the Services; and
(i) that the Subscriber will make available to the Provider on reasonable notice for consultation and guidance staff who are familiar with the Subscriber’s organisation, operations and business practices to assist with the provision of the Services.
3.4 At any time prior to the completion of Services and the termination of the Subscription, either party may request a modification to such Services (each a “Modification”). Modifications must be requested by written or electronic mail notice, which must include a description, in reasonable detail, of the Modification. Within ten (10) business days after such notice is given, the Provider may provide the Subscriber with a written notice listing the changes that the proposed Modification will have on the Fees, the Services and these Terms (“Change Order”). Services requested by the Subscriber that are outside the scope of the Terms or that are caused by material delays or cancellations caused by the Subscriber will be charged at AUD$2,000 + GST per day unless otherwise notified in writing by the Provider in the Change Order. Unless a Change Order is agreed to and signed by the parties, the Provider is not obliged to implement the Modification.
3.5 The Change Orders may be initiated under the following conditions (not exhaustive):
- a requirement included in these Terms that is more complex than what was originally assessed through early discussions between the Provider and the Subscriber with respect to the Services to be provided by the Provider;
- a new requirement outside the scope of these Terms;
- an assumption stated in these Terms is incorrect or untrue; or
- An unforeseen risk to project delivery timeline/cost arises (e.g. unavailable Customer resource issues, unforeseen project delays, delay in receiving data, change in critical Customer resources).
3.6 For the avoidance of doubt, despite paragraphs 3.4 and 3.5 above, the Provider is not obliged to issue a Change Order with respect to a Modification that is requested by the Subscriber. Furthermore, the Provider is not obliged to agree to any amendments requested by the Subscriber with respect to a Change Order.
Subscription
4.1 The Subscriber agrees and undertakes that it will provide all information as required by the Provider to enable the Provider to provide the Services to the Subscriber. The Subscriber must notify the Provider which of the Subscriber’s personnel, including the Subscriber’s directors, officers, agents, representatives, staff members, employees, contractors and/or other personnel, are authorised to use the Services and must supply the Provider with any and all information that is required by the Provider to approve such use. For the avoidance of doubt, the number of the Subscriber’s personnel which may be authorised to use the Services is set out in the Principal Terms or (if not set out in the Principal Terms) is to be determined by the Provider in consultation with the Subscriber.
4.2 The Subscription Term is as set out in the Principal Terms or (if not set out in the Principal Terms) is the period from when a Subscriber accepts these Terms and ending on the earlier of the completion of the Services or the termination of the Subscription in accordance with these Terms.
4.3 The Subscriber will be entitled to use the Services subject to suspension or termination in accordance with these Terms. The right to the benefit of any Services will be subject to the Subscriber paying for the applicable Services and complying with these Terms and any additional terms that apply to the relevant Services.
4.4 The Provider may suspend the Services (or so much of it), thereby preventing the Subscriber from continuing to use the Services (or so much of it), or suspend the provision of any Services to a Subscriber, if the Provider reasonably believes that the Subscriber has breached these Terms (including, for example, if the Subscriber has failed to make any payments due to the Provider).
4.5 The Subscriber acknowledges that, notwithstanding any other provision of these Terms, the Provider may alter the nature of, and/or suspend or cease providing, the Energesse Platform at any time.
4.6 In establishing a Subscription and/or using the Services, the Subscriber irrevocably and unconditionally warrants, represents and undertakes that:
(a) to the extent the Subscriber is a company, the Subscriber (or the person acting on behalf of the Subscriber) is authorised to accept these Terms;
(b) the Subscriber must use their own lawful name and personal details in establishing the Subscription and in using the Energesse Platform;
(c) to the extent the Subscriber is a person, the Subscriber is at least 18 years of age (or such age as is required to enter into legal contracts in their own capacity;
(d) the Subscriber will not allow any other person to use the Services for any reason other than those authorised in accordance with these Terms and duly notified to the Provider, and will actively takes steps to prevent any unauthorised person to do such and will keep secure any information (including usernames and passwords) used to access the Energesse Platform (such information shall constitute Confidential Information of the Provider for the purposes of paragraph 9 below);
(e) the Subscriber will notify the Provider immediately if it becomes aware of any unauthorised use of the Services, including the Energesse Platform and the Provider Content;
(f) the Subscriber will not cause or allow the Services to be leased, sold, transferred to or operated by another person, whether for money or other valuable consideration or gratuitously;
(g) the Subscriber assumes full responsibility for maintaining the confidentiality of the Services, including any details required to access or operate the Energesse Platform;
(h) the Provider is not responsible for any losses the Subscriber incurs due to informational or technical errors when using the Services, including the Energesse Platform, and will not be liable for any loss or damage the Subscriber incurs as a result of an unauthorised person using the Services;
(i) the Provider reserves the right to edit or delete any information associated with the Subscriber without notice and liability to the Subscriber in the event that the Provider determines, in its sole discretion, that any such information violates these Terms; and
(j) the Provider reserves the right to suspend or terminate the Subscription and/or the Services, without notice and liability to the Subscriber, in the event that the Subscriber has violated these Terms in any respect, as determined by the Provider, at its sole and absolute discretion, or if the Provider deems it appropriate pending investigation of any such violation.
Fees and Expenses
5.1 The Subscriber must pay to the Provider any Fees that are stated to be payable for the provision of the Services and must pay such Fees within the time as set out in the Principal Terms, these General Terms or as otherwise notified in writing by the Provider, time being of the essence.
5.2 If no time is set out in the Principal Terms or notified by the Provider in respect of when a payment must be paid (including a payment in relation to the Fees and/or the Expenses (see paragraph 5.3 below), such payment must be paid within thirty (30) days from the date of an invoice issued by the Provider.
5.3 The Subscriber will reimburse expenses to the Provider all reasonable out of pocket expenses (the “Expenses”) incurred by the Provider in the course of providing the Services to the Subscriber. Expenses may include air travel, lodging, meals, printing, incidental expenses and industry research (Subscriber will be consulted in advance for any third-party research required above AU$1,000). The Provider may issue an invoice for the Expenses at any time it deems appropriate. The Provider shall not be required to provide receipts for the Expenses, but they can be requested by the Subscriber on an as-needed basis. Receipts for items under $30.00 will not be required.
5.4 The Subscriber acknowledges and agrees that:
(a) the Fees and Expenses are, to the maximum extent permitted by law, not refundable upon the cancellation or termination of the Subscription or Services by the Subscriber for whatever reason;
(b) the Provider may charge the Subscriber any administrative fees, such as credit card surcharges, associated with processing any payment made to the Provider;
(c) the Provider is authorised to retain any credit card or direct debit banking details which the Subscriber provides to the Provider for the purpose of paying any Fees and/or Expenses and that the Provider may, without obtaining the consent of the Subscriber, deduct any Fees and/or Expenses payable to the Provider under these Terms using the Subscriber’s credit card or direct debit banking details when such Fees and/or Expenses fall due;
(d) all Fees and Expenses must be paid in full without any deduction, withholding, set-off, counterclaim and/or cross-claim by the Subscriber;
(e) if any GST, tax or other duty is imposed on any supply made under these Terms, the supplying party, the Provider, may recover from the recipient party, the Subscriber, in addition to any consideration payable for the supply, the GST, tax and duty amount provided that the supplying party has provided to the recipient party an Invoice; and
(f) if the recipient party is required to pay any GST, tax or other duty amount in in connection with any goods, services or any other things under these Terms, the recipient party will pay the GST, tax and duty amount at the same time as the consideration is due for the supply of goods, service or any other thing under these Terms.
5.5 If the Subscriber disputes any invoice (or part thereof) issued by the Provider, it must provide written notice thereof to the Provider within 14 days of receipt of the relevant invoice, including an explanation of the dispute, and the parties shall, in good faith, attempt to resolve such dispute as soon as reasonably practicable. Nothing in this clause exempts the Subscriber from paying any undisputed portion of such invoice during the period of such dispute.
Warranties and Limitations
6.1 In respect of the Services, the Subscriber warrants, represents and undertakes that:
(a) any information, including Subscriber Content, the Subscriber provides to the Provider in connection with the provision of the Services will be accurate, true and complete and the Subscriber will ensure that all such information remains up-to-date at all times during the Subscription;
(b) the Subscriber must ensure that any of the Subscriber’s personnel who have been properly authorised to use the Services in accordance with these Terms, including the Subscriber’s directors, officers, agents, representatives, staff members, employees, contractors and/or other personnel, will not use the Services other than in accordance with these Terms and a breach of these Terms by such person shall be deemed to be a breach of these Terms by the Subscriber;
(c) the Subscriber hereby indemnifies the Provider to the full extent for any losses or damages suffered by the Provider as a result of any acts or omissions of the Subscriber’s personnel, including the Subscriber’s directors, officers, agents, representatives, staff members, employees, contractors and/or other personnel; and
(d) the Subscriber will not publish, distribute, sell, license, reproduce or communicate to the public any Provider Content, Third Party Content or any Confidential Information in any form and through any medium without the prior written permission of the Provider.
6.2 Notwithstanding any other provision of these Terms, to the maximum extent permitted by law, the maximum liability of the Provider for any loss or damage incurred by the Subscriber arising out of, in connection with or relating to the use of the Services or a breach or termination of these Terms by the Provider, regardless of the type of action the Subscriber may bring against the Provider for such loss or damage, is limited to the total Fees paid by the Subscriber to the Provider at the time any such claim is notified to the Provider.
6.3 Notwithstanding any other provision of these Terms, the Subscriber agrees that in no circumstances shall the Provider be liable for any indirect or consequential loss or damage suffered by the Subscriber in connection with or relating to the use of the Services, including the Provider Content or Third Party Content, or a breach or termination of these Terms by the Provider. Each party agrees that loss of profits, loss of business opportunities, loss of reputation, loss of anticipated savings, loss of revenue, loss of goodwill and loss of contracts however occurring, will constitute indirect or consequential loss or damage.
6.4 Nothing in these Terms excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include Australian Consumer Law (Cth) and corresponding provisions of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances. If any condition, warranty or statutory guarantee is implied into these Terms or applies by operation of law and cannot be excluded but the Provider is able to limit its liability for a breach of such condition, warranty or statutory guarantee, the liability of the Provider for breach of that condition, warranty or statutory guarantee is limited, to the extent permitted by law, at the Provider’s discretion, to the supply of the services again or the payment of the cost of having the services supplied again.
6.5 Subject to paragraph 6.4 above, all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms and/or the Services, that are not contained in it, are excluded to the fullest extent permitted by law.
6.6 To the maximum extent permitted by law, the aggregate liability of the Provider to the Subscriber for all actions, demands and claims arising from, or in relation to, these Terms, the Services and/or the act or omission of the Provider, shall be limited to the amount of the Fees paid by the Subscriber to the Provider.
6.7 To the maximum extent permitted by law, no action, demand or claim, regardless of form, arising out of the transactions contemplated by these Terms, including a Change Order, may be brought by either party against the other more than one year after the cause of action, demand or claim first arose, except that any action, demand or claim for non-payment of any fees, charges and expenses may be brought by the Provider within two years after the date of the last invoice issued by the Provider or the date of the last payment paid by the Subscriber to the Provider under these Terms, whichever occurred later. This paragraph 6.6 does not apply if the party who may bring the action, demand or claim was not reasonably capable of being aware of the facts giving rise to such action, demand or claim as a result of the other party’s intentional conduct to prevent or suppress the disclosure of such facts.
Termination
7.1 The Subscriber acknowledges and accepts that the Provider may terminate or suspend the Subscription or access to the Services to the Subscriber if:
(a) the Subscriber breaches any of these Terms and fails to remedy such breach (other than a breach relating to the non-payment of Fees or Expenses by the Subscriber or a breach that is not capable of remedy) within thirty (30) days following written notice of such breach from the Provider; or
(b) the Subscriber persistently behaves in a manner which prevents or impedes the Provider from complying with these Terms or providing the Services, and such an occasion has occurred at least three (3) times in the past three (3) months and on each occasion the prevention or impediment has last for more than seven (7) days after a written notice is issued by the Provider demanding the Subscriber to remedy its behaviour; or
(c) the Subscriber has not made a payment due under these Terms, including the Fees and/or Expenses, by the relevant due date or time for payment, except to the extent that the Client has disputed the relevant invoice pursuant to paragraph clause 5.5 above.
7.2 If the Provider terminates or suspends the Subscription or the Subscriber’s entitlement to use the Services by the Provider’s exercise of any rights in these Terms or at law, the Provider shall not be liable for any loss or damage suffered by the Subscriber as a result of such termination or suspension, nor is the Subscriber entitled to recover from the Provider any compensation (including the refund of any Fees or Expenses paid).
7.3 The Subscriber acknowledges and accepts that should its Subscription be terminated or suspended in accordance with these Terms, it must not subscribe for another Subscription.
7.4 In the event of termination of the Subscription by either party for any reason, the Subscriber shall remain liable for the payment of any fees, charges and/or expenses, including the Fees and/or Expenses (including Expenses that have been incurred or committed to by the Provider), in respect of Services provided by the Provider up to the date of termination, and the Provider shall remain liable to provide the Services up to the date of termination.
- Upon termination (including expiration) of the Subscription for whatever reason:
- the Subscriber must pay the Provider any fees, charges and expenses, including the Fees and Expenses (including Expenses that have been incurred or committed to by the Provider), due and payable to the Provider under these Terms promptly; and
- the Subscriber must do all things reasonably necessary, and as reasonably directed by the Provider, to stop using the Services; and
- certain rights, obligations and warranties in these Terms which are expressly stated or otherwise intended to apply after the termination or expiry of these Terms shall survive such termination or expiry, including 6 (Warranties and Limitations), 8 (Intellectual Property), 9 (Confidentiality) and 10 (Dispute Resolution).
Intellectual Property
8.1 The Subscriber acknowledges and agrees that:
(a) the Provider owns the Intellectual Property Rights to the Services, including the “PMme” trade mark and brand name, the Energesse Platform and the Provider Content (other than insofar as the Provider Content incorporates the Subscriber Content), and in the software and systems the Provider uses to Provide the Services;
(b) the Provider does not make any claim to own any Intellectual Property Rights in Subscriber Content and/or any data uploaded to our systems or provided by the Subscriber;
(c) the Subscriber grants the Provider an irrevocable and unconditional, royalty-free, licence to store, reproduce, analyse, adapt, manipulate, transmit, communicate and to deal with the Subscriber Content for the following purposes:
- providing the Services to the Subscriber, including provision of the Subscriber Content to any person or contractor that assists the Provider with the provision of the Services;
- to maintain, improve and/or rectify any issues with the Services (including to assess whether there has been a breach of these Terms);
- benchmarking against other Subscribers, in a de-identified manner and
- for any other purpose as set out in the Terms;
(d) the Subscriber must ensure that it complies with Australian information privacy law (where applicable) in respect of the Subscriber Content that it provides to and/or procures for the Provider to use;
(e) Uploaded data may be provided to the Provider’s subcontractors and service providers (eg, our cloud hosting service provider, development partners) for the purposes of assisting the Provider to provide the Services. Any such provision will be in accordance with the Provider’s privacy policy and/or these Terms;
(f) all Provider Content is made available to the Subscriber by means of a limited and non-exclusive licence from the Provider to allow the Subscriber to use and enjoy the Services during the Subscription Term in accordance with these Terms;
(g) the Subscriber is only entitled to use any Third Party Content in connection with the relevant Services ordered by the Subscriber and subject always to these Terms and any other terms and conditions that may apply to the Third Party Content;
(h) the Provider (in respect of the Provider Content) and the applicable third party (in respect of Third Party Content) retains full and complete title and interest (including Intellectual Property Rights) to such Provider Content or Third Party Content, as applicable;
(i) the Subscriber must not:
- copy, license, sell, distribute, publish, communicate to the public, store or reproduce, decompile, reverse-engineer, disassemble, or otherwise convert the Provider Content (excluding any Subscriber Content incorporated in the Provider Content) or any Third Party Content by any means; or
- transmit or upload any harmful effects to the Energesse Platform, including, without limitation, by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” “hacking,” “hijack” or “crashing”, or test (or attempt to test) the security or vulnerability of the Energesse Platform or the software and systems used by the Provider to provide the Services; and
(j) the Subscriber must remove or destroy all Provider Content (excluding any Subscriber Content incorporated in the Provider Content) or Third Party Content that is in the Subscriber’s control or possession after the Services are terminated and/or at the end of the Subscription Term and cease any and all use of the Provider Content (excluding any Subscriber Content incorporated in the Provider Content) and Third Party Content.
8.2 In respect of all Third Party Content accessible via the Services, the Subscriber acknowledges and agrees that the Provider does not purport to confer on the Subscriber any right, title or interest in any such Third Party Content greater than that which is required for the use of the Services in accordance with these Terms. The Subscriber acknowledges and agrees that the mere access or availability of the Third Party Content to the Subscriber in connection with the Services shall not be an inference that the Provider has any relationship, affiliation or association with the author of the Third Party Content.
Confidentiality
9.1 The Subscriber undertakes to keep confidential any Confidential Information relating respectively to the Provider which it obtains under or in connection with these Terms and/or otherwise in relation to the use of the Services and not to use such information or disclose it to any other person, other than as permitted under these Terms or this paragraph 9.
9.2 The Provider undertakes to keep confidential any Confidential Information provided to it by the Subscriber and not to use such information or disclose it to any other person, other than as permitted under these Terms or this paragraph 9.
9.3 In using the Services, the Subscriber undertakes to keep confidential any Third Party Content (and any such Third Party Content shall be deemed to be Confidential Information).
9.4 If required by the Provider, the Subscriber undertakes to enter into any form of non-disclosure agreement as reasonably required by the Provider in relation to the Subscriber’s participation in any event, meeting, conference call, session or other activity pursuant to any particular Services, to the extent that the Provider requires all participants in such activities to enter into the same form of non-disclosure agreement.
9.5 In addition to the above matters in this paragraph 9, each party agrees that with respect to any Confidential Information that is disclosed by one party (“Discloser”) to the other party (“Recipient”), except as expressly specified in these Terms, the Recipient shall (i) maintain in confidence such Confidential Information, using the same degree of care as it uses to protect its own confidential information of like nature, but not less than a reasonable degree of care; (ii) not disclose any such Confidential Information to any person outside the Recipient’s business organization, including, without limitation, to any business competitor of the Discloser; and (iii) return such Confidential Information to the Discloser after the termination of the Subscription or the completion of the Services (or to destroy the same as requested by the Discloser).
9.6 The obligations of confidentiality under this paragraph 9 shall not apply to any Confidential Information of the Discloser that is received by the Recipient and which: (i) was previously known to Recipient; (ii) is or becomes publicly available, other than by reason of a breach of these Terms by the Recipient; (iii) is independently developed by the Recipient; or (iv) is required to be disclosed as a matter of law.
Dispute Resolution
10.1 In the event that the Subscriber believes that a dispute, controversy or claim (“Dispute”), arising out of or in connection with the Services or these Terms has arisen, the Subscriber must comply with the following complaint procedure before commencing any legal proceedings or seeking any other remedy against the Provider or any other person:
(a) the Subscriber must first provide full details of the Dispute to the Provider by email at avnesh@energesse.com;;
(b) the Subscriber shall assist and cooperate with the Provider during the period when the Provider investigates and assesses the nature of the Dispute; and
(c) the Subscriber shall give the Provider thirty days from the date on which full details of the Dispute was notified to the Provider so that the Provider can investigate the Dispute before providing a written response to the Subscriber.
10.2 Nothing in this paragraph 10 prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with the Dispute without first having to attempt to resolve the Dispute in accordance with paragraph 10.1 above.
Force Majeure
11.1 If a Force Majeure Event occurs which prevents a party (“Affected Party”) from performing any of its obligations to the other (“Other Party”), or causes a delay in performance, the Affected Party shall not be liable to the Other Party and shall be released from its obligation to perform its obligations to the extent that its ability to perform has been affected by the Force Majeure Event, and:
- the Affected Party notifies the Other Party in writing as soon as reasonably practical of the occurrence of the Force Majeure Event and the nature and likely duration of its impact upon the Other Party;
- the Affected Party where practicable takes all reasonable steps to mitigate the impact of the Force Majeure Event on the Other Party and in particular continues to perform those obligations affected by the Force Majeure Event but whose performance has not been rendered impossible to the highest standard reasonably practicable in the circumstances; and
- the Affected Party resumes normal performance of all affected obligations as soon as the impact of the Force Majeure Event ceases, and notifies the Other Party in writing of such resumption.
11.2 If the impact of the Force Majeure Event upon the Affected Party continues for a period of no less than two (2) consecutive months and such delay or stoppage prevents the Affected Party from performing a substantial part of its obligations under these Terms (excluding an obligation to make payment), either party may, by written notice, terminate the Services either in whole or in part (in respect of all or some of those Services which have been affected by the Force Majeure Event) with immediate effect and without liability to the other party.
11.3 In this paragraph 11, “Force Majeure Event” means an event the occurrence of which is beyond the reasonable control of either party, including (without limitation) the following: Act of God, war, explosions, fires, floods, tempests, earthquake, insurrection, riot, civil, disturbance, rebellion, strike, lock-out or labour dispute but not a strike, lock-out or labour dispute involving the party relying on this clause, failures in public supply of electrical power or public telecommunications equipment.
Miscellaneous
12.1 All notices or other communications required or permitted to be given under these Terms must be given via any means permitted by these Terms. In the case of the Subscriber, the Provider may provide all notices or communications to the Subscriber using any email addresses supplied by the Subscriber to the Provider for such purpose and/or as set out in the Principal Terms.
12.2 If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
12.3 These Terms constitute the entire agreement between the parties in relation to its subject matter.
12.4 For the avoidance of doubt, a reference to the Provider in these Terms shall include a reference to any employees and contractors engaged by the Provider to provide the relevant Services (the “Provider’s Personnel”), however, these Terms shall only apply in respect of any services provided by the Provider’s Personnel where those services are provided directly as part of the Services offered by the Provider.
12.5 These Terms shall be construed in accordance with and governed by the laws of New South Wales, Australia, the Courts of which shall have jurisdiction in respect of disputes arising out of or related to the use of the Energesse Platform, the provision of any Services or otherwise in relation to these Terms.
