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Energy Terms & Conditions

‚ÄčEnergy.intersect.org.au Terms of Use v1.1

 

1. Definitions

1.1 Agreement means the Quotation for provision of Energy Services, the Acceptance of the Quotation, these Terms and Conditions of Use, our Policies and Procedures, and any schedules, annexures and attachments thereto, as modified and varied in accordance with these Terms of Use from time to time.

1.2 Claim means means any present or future, actual or contingent, right remedy, entitlement, demand, proof of debt, action, suit or proceeding for damages, loss, debt, costs (including legal costs and expenses), restitution, equitable compensation, account, injunctive relief, specific  performance or any other remedy, whether by original claim, cross claim or otherwise, whether arising at common law, in equity, under statute, or otherwise arising out of or in connection with the facts or matters referred to or alleged in or concerning this Agreement.

 1.3 Energy.Assignment Services means the Services identified under that heading on the Quotation.

1.4 Energy.Assignment Services Terms means the terms set out in clause 2 which apply, in addition to these general Terms, in respect of Energy.Assignment Services.

1.5 Energy.intersect.org.au is the collective trading name of Intersect’s professional services and software engineering capabilities, created by researchers for researchers.

1.6 Client Material means documents, images or other material provided by you to us for use in the delivery of the Service.

1.7 Confidential Information means all know how, financial information and other commercially valuable information, in whatever form. This  includes information that is by its nature confidential, information that a party claims is confidential, information that the recipient knows or ought to know is confidential and personal information.

1.8 Deliverables means the set of agreed outcomes for the Service.

1.9 Fee means the amount we charge you for the provision of the Service as set out in the Quotation.

1.10 Force Majeure Event means any event which is outside the reasonable control of the affected party and could not have been prevented by that party taking all reasonable steps.

1.11 Energy.Project Services means the Services identified under that heading on the Quotation.

1.12 Energy.Project Services Terms means the terms set out in clause 2 which apply, in addition to these general Terms, in respect of Energy.Project Services.

1.13 Intellectual Property Rights or Intellectual Property means all intellectual property rights, including without limitation: patents, copyright, registered designs, trademarks, all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields and the right to have confidential information kept confidential; and any application or right to apply for registration of any of those rights;

1.14 Material: means all User-submitted content, including text, code, photos, video, music, audio, graphics and any other form of data. Some products may offer additional services where physical materials are provided. These are all included under the term “Material”.

1.15 Policies and Publications means each and all of the documents referred to in clause 15.

1.16 Quotation means the quotation for the provision of Services provided by us to you, which identifies the Services to  be provided and the amount to be paid for the provision of the Services.

1.17 Services (or Service) means the activities we will perform, including engineering and professional services, whether Energy. Project Services or Energy. Assignment Services as detailed in the  Description section of  the Quotation.

1.18 Software Defect: an error or fault in a computer program or system that causes it to behave in ways that differ from agreed specifications.


2. Acknowledgment and Acceptance of Terms

2.1 These Terms of Service ("Terms") govern your use of our Services and form a binding contractual agreement between you, the user of the Services, and Intersect Australia Limited [ACN 131 752 657] (we/us). These Terms are important and you should ensure that you read them carefully and contact us with any questions before you use the Service. 

2.2 By engaging Intersect to provide Services, you acknowledge and agree that you have had sufficient chance to read and understand these Terms and you agree to be bound by them. If you do not agree to these Terms, please do not use our Services.

2.3 We reserve the right to modify these Terms of Use at any time without prior notice and at our sole discretion. You agree that any and all consumption of the Service, will be subject to the Terms of Use current including all modifications current at the time you use the relevant Service or part thereof, If you do not agree to any modified term, you may advise us and provide notice of termination within 90 days of that modification in writing or by emailing help@intersect.org.au.


3. Accepting the Quotation, Payment and Privacy Policy & Your Obligations

3.1 You must pay any invoices received from us that are correct and issued in accordance with the provision of the Service, in the time period stated.

3.2 You will provide us with Client Materials and reasonable assistance including, where relevant, instructions and or decisions on queries, to enable us to perform our obligations in the delivery of the Service. 

3.3 You will take responsibility for and pay for any costs and expenses incurred by us for unanticipated expenses such as third party code licences, stock images, domain name registration, that are required to complete the Service.

3.4 You must pay for any enhancement to the Service beyond the agreed specifications, as requested by you and agreed by us by email from time to time after the Service commences.

3.5 You represent and warrant that that your use of the Service does not violate any applicable law or regulation, and that you agree to abide by the entirety of these Terms and any Policies and Publications made by us in relation to use of the Service, as specified in clause 14 hereof, and which are  incorporated by reference into these Terms of Use.

3.6 Our Privacy Policy (see clause 15) explains to you how we treat your personal information and metadata and protects your privacy when you use our Service. By using our Service, you agree that we can use such personal information and metadata in accordance with our Privacy Policy.


4. Our Obligations

4.1 We will perform the Service, complying with any agreed specifications on the Service or Deliverables, on or before agreed milestones and complying with any applicable standards, awards, laws and regulations.

4.2 For a period of 90 calendar days after the completion of the contracted Service, we will rectify any software defects in the Deliverables, that we have caused.

 

5. Warranties & Release


5.1 You represent and warrant to us that:

  • 5.1.1 you have the legal capacity to enter this Agreement;
  • 5.1.2 no use of the Service by you or your consumers is to be in breach of any law; and
  • 5.1.3 that no Material provided by you (regardless of medium) will infringe the copyright of third parties.


5.2 You acknowledge and agree that despite our best endeavours the Service may not be available on a continuous basis, and may be unavailable from time to time, due to illness or other statutory leave entitlements.  You release us, and agree to keep us released, from all Claims arising as a result of the Service being unavailable for any period.

5.3 Losing your data is something we engineer against and seek to avoid, however, we are unable to unconditionally warrant and guarantee that this will not occur. You hereby irrevocably covenant and agree and hereby release and agree to keep us keep released from and indemnified against all Claims that may arise as a result of any such loss . 

5.4 You acknowledge and agree that your use and reliance on the information referred to in clause 5 is voluntary, and at your own risk and must be undertaken in accordance with the terms of use for the individual locations. By using our Service you acknowledge that we are neither responsible for the availability of, nor the content located on or through any third party locations. 

 

6. Liability

6.1. To the full extent permitted by law, we exclude all liability in respect of loss of data, interruption of business or any consequential or incidental damages.

6.2. To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms.

6.3. These Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, we limit our liability in respect of any claim to, at our option:

6.4. In the case of goods, provided by us in the provision of the Services, the:

  • 6.4.1 Replacement of the goods or the supply of equivalent goods;
  • 6.4.2 Repair of the goods;
  • 6.4.3 Payment of the cost of replacing the goods or of acquiring equivalent goods; or
  • 6.4.4 Payment of having the goods repaired, and
     

6.5. In the case of services, the:

  • 6.5.1 Supply of the services again; or
  • 6.5.2 Payment of the cost of having the services supplied again.


6.6. All timeframes estimated by us and communicated to you are estimates. We will endeavour to complete all work within estimated timeframes. However, we will not be liable for any penalties, monies or hardships otherwise incurred by the client if the Services cannot be completed within the estimated timeframe.

6.7. We do not accept responsibility for losses or damage arising from Software Defects or other errors in Services.

6.8. We do not accept responsibility for Software Defects, errors, damages, losses or additional costs that relate to third party products that Intersect may depend on when delivering the Service.

7. Client Materials

7.1 Ownership of all Client Material, including Property Rights in the Client Materials remains vested at all times in you.

7.2 We will keep safe and secure any Client Materials we have been given for the purpose of this Service.

7.3 We will copy and reproduce Client Materials only for the purpose of this Service and in accordance with any stipulated conditions as agreed in writing.

8. Intellectual Property Rights

8.1 You acknowledge and agree that the Service contains proprietary information and content that is protected by intellectual property and other laws, and may not be used except as provided in this Agreement.

8.2 You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from the Service without incurring any liability to you or any other party and refer the infringement claims to you.

8.3 It is strictly prohibited to copy, alter, adapt, distribute, display, republish or modify any materials or software contained in the Service except as authorised under the Agreement. Nothing contained in the Agreement will be construed as granting any licence or right of use of any trademark, information, material or software in the Service.  To the extent that you choose to use any software of any third parties made available as an aspect of the Service, you agree to comply with the terms and conditions of use of that software as provided by the relevant supplier.

8.4 You must not copy, modify, display or use in any manner any name, logo or trademark of Intersect Australia Limited, Energy.intersect.org.au or any other product or service of ours except in the manner described in our Attribution Conditions (refer to clause 15 hereof) which are incorporated by reference into this contract and agreement.

9. Support and Maintenance

9.1 Any applicable ongoing support and maintenance services, updates, versions, or new releases must be contracted under a separate agreement.


10. Termination

10.1 These Terms terminate after you have paid for the Services supplied to you and we have performed the Service.

10.2 These Terms terminate if, for any reason, we cease to operate the Service.

10.3 We may otherwise terminate the Agreement immediately, on notice to you, if you have breached any provision hereof in any way, including but not limited to:

  • 10.3.1 failure to pay any Fees on time, regardless of whether you have been asked to pay them;
  • 10.3.2 breach of any of our Policies and Publications, which breach is not rectified within a reasonable time requested by us, except in the case of a breach which, in our sole opinion, is not capable of being rectified. In this case termination is effective as at the date shown in the notice;
  • 10.3.3 breach of any of these Terms,  which breach is not rectified within a reasonable time requested by us, except in the case of a breach which, in our sole opinion, is not capable of being rectified. In this case termination is effective as at the date shown in the notice;
  • 10.3.4 if you commit an act of Insolvency, including but not limited to the appointment of an administrator, receiver, manager or liquidator.
  • 10.3.5 if we notify you that there is a Force Majeure Event.

10.4 Upon termination:

  • 10.4.1 We will invoice you for any work completed to date, as a percentage of the total work involved and pass on any other costs incurred in the delivery of the Service prior to termination.
  • 10.4.2 You will pay us for any work completed to date, as a percentage of the total work involved, and for any other costs incurred in the delivery of the Service prior to termination.
  • 10.4.3 Each party must return to the other all documents and information provided to the other party.
  • 10.4.4 You will have no right to access the Service. 

 

11. Billing

11.1 Payment terms are typically net 30 days from invoice and will be agreed to by both parties prior to the commencement of any Service.

11.2 Invoices are due and payable on the date indicated on the document.

11.3 We will not release the Deliverables unless all payments have been met. These Deliverables remain our property until all financial obligations have been met.

11.4 All prices, terms and conditions are subject to change without prior notice.

 

12. GST

Meaning of words
12.1 Words used in this clause but not defined in this Agreement have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

12.2 Amounts exclusive of GST

12.3 Unless otherwise expressly stated in this Agreement, all amounts payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

12.4 Payment of GST

12.5 The recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid Tax Invoice in respect of the supply at or before the time of payment.  Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement. 

12.6 If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:

  • 12.6.1 the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense (“net amount”); and
  • 12.6.2 if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply, such that after the other party meets the GST liability, it retains the net amount.


13. Force Majeure

13.1 Neither party is liable for any breach of its obligations under this Agreement to the extent that the breach resulted from a Force Majeure Event provided that it: 

  • 13.1.1 promptly notifies the other party (with appropriate details); and 
  • 13.1.2 takes all reasonable steps to work around or reduce the effects of the Force Majeure Event. 


13.2 If a Force Majeure Event continues for more than 14 days or continues beyond the Service Period, we may terminate this Agreement with immediate effect.


14. General

14.1 You must not assign, sub-licence or otherwise deal in any other way with any of your rights under these Terms. 

14.2 If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

14.3 Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

14.4 This Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.

 

15. Policies, Publications and Websites incorporated into these Terms

15.1 The content of the following websites, as published from time to time at the time of any use by you of the Service, are incorporated into the Agreement  as if set out in these Terms: 

 

16. Confidentiality and Protection of Data

16.1 Each party:

  • 16.1.1 May use Confidential Information of the other party for the purposes of the Service.
  • 16.1.2 Must keep confidential all Confidential Information of the other party; and
  • 16.1.3 May disclose Confidential Information of the other party only to employees and contractors who have a need to know and aware that Confidential Information must be kept confidential.


16.2 A mutually agreed Non Disclosure Agreement is required to be executed for projects that result in the creation or alteration of sensitive material or Intellectual Property.

16.3 A party must use best endeavours in accordance with industry best practice to prevent unauthorised physical and online access by third parties to any Confidential Information of the other party in its possession.

16.4 A party’s obligations under this clause 16 will not be taken to have been breached where the information is legally required to be disclosed.  However, the Confidential Information (or part of it) which is disclosed by force of law will remain Confidential Information for all other purposes.

16.5 You must, on demand, return (and procure the return) to us any of our or our Related Bodies Corporate’s Confidential Information in your possession or control (or in the possession or control of any of your employees, agents, contractors or sub-contractors).

16.6 Nothing in this clause 16 will be construed to prevent a party from disclosing information including the Confidential Information of the other party to its employees, agents or contractors on a “need-to-know” basis, provided that if the information is Confidential Information the disclosing party ensures that such information is treated as confidential by its employees, agents and contractors and such disclosure is bound by terms equivalent to this clause 16.

16.7 This clause 16 survives termination or expiry of this Agreement.