FUUZIO STANDARD TERMS AND CONDITIONS
Fuuzio offers smart energy management solutions by providing the tools (software and hardware) that allow you to take control of your energy footprint.
- Fuuzio Operations Pty Ltd ABN 38 627 150 547 (we or us) own the cloud-based energy monitoring software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible at www.fuzzio.com.au and available on our app (Site). We also own the associated energy monitoring hardware to be used with the Software (Hardware).
- These terms and conditions (Terms):
- set out the terms and conditions upon which we agree to (i) grant you a right to use the Software as a service, as described on the Site (SaaS Services) and provide any other services as set out in these Terms (together with the SaaS Services, the Services) and (ii) lease you the Hardware; and
- are binding on you from the date (Effective Date) on which we provide you with an account to enable you to access and use the Services (Account) until the date on which your Account is terminated in accordance with these Terms (Term).
- Please read these Terms carefully and immediately terminate your Account if you do not agree to them.
- By logging into an Account and/or accessing and/or using the Services, you; each person, entity or organisation using our Platform (referred to as you or a user):
- warrant to us that you have the legal capacity to enter into a legally binding agreement;
- warrant to us that you have all hardware, software and services which are necessary to access and use the Services (apart from the Hardware we will supply to you);
- warrant to us that you meet the Eligibility Criteria (set out below); and
- agree to use the Services in accordance with these Terms.
- If you are agreeing to these Terms not as an individual but on behalf of a company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “user” means you as the individual user and the Represented Entity and you are binding yourself and the Represented Entity to these Terms. If you are accepting these Terms and using our Services on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.
2. User Eligibility
- You agree to meet the following minimum eligibility requirements, if applicable, in order to access the Services:
- you must have Wi-Fi internet that we can connect the Hardware to at the point of installation of the Hardware to use the Services. The Hardware will not function and we will not be able to provide you with the Services if you do not meet this requirement. You are responsible for any costs associated with providing this. The Hardware will use no more than 2GB of data in any month;
- you agree that the Services are location specific. You must reside or otherwise occupy the premises you wish to connect the Services to (Premises) and/or pay any relocation fees if required;
- you have all rights, permissions, consents and authorisations to connect the Services (including, for the avoidance of doubt, the right to authorise the installation of the Hardware on the Premises, even if you are an apartment dweller or renter); and
- your electricity switchboard is compatible or suitable for the purposes of participating in the Services, (together, Eligibility Criteria).
- It is your responsibility to ensure that you meet the Eligibility Criteria when assessing whether the Services are appropriate for you before you create an Account. You must notify us at any time during the Term if you fail to meet any of the Eligibility Criteria.
- We will notify you if at any stage during your Plan (defined below) you do not meet our internet requirements set out in clause 2(a)(1).
- If, during the Term you fail to meet any of the Eligibility Criteria and it cannot be remedied, we may terminate these Terms in accordance with the Termination clause below. We may, at our absolute discretion, choose to provide you with limited Services.
3. Registration, Account and Service Orders
- When you create an Account, you will choose your plan based on the features, including if applicable, number of authorised users and monitoring points described on the Site (Plan). If applicable, as part of each Plan, we may provide you with a number of authorised user log-ins and passwords, and any Hardware as set out in your Plan (which will be installed in accordance with the Hardware and Hardware Installation clauses below). It is your responsibility to keep your Account details confidential. You are liable for all content posted and all activity on your Account, including purchases made using your Account details and content posted by others who have logins or accounts associated with your Account, and you must immediately notify us of any unauthorised use of your Account.
- When creating an Account, you may also be required to complete an order form (Service Order) as set out on the Site to place your order for the requested Services and Hardware installation as set out below.
- You may be offered additional services as set out on the Site. We may require you to complete additional Service Orders for these services and pay any additional fees as set out on the Site.
- By creating an Account and completing a Service Order we will provide you with an online portal where you can view information to assist you in managing your energy usage and provide details for installing any necessary Hardware at your Premises.
- You must ensure you have consent under all applicable Laws (defined below) when sharing the personal information of any other users including authorised users and your personnel.
- At our sole discretion, we may refuse to allow any person to create an Account.
- You must pay us:
- the Fee for your Plan; and
- any other amount payable to us under these Terms,
without set off or delay via credit card or any other payment method set out on the Site in advance of the next billing cycle for your Plan.
- As part of your Plan you may be required to pay an establishment fee as set out on the Site to cover the costs of set up and installation of Hardware (Establishment Fee). The Establishment Fee is in addition to the Plan Fees.
- The first Plan Fee and Establishment Fee will be payable upon creation of your Account.
- Your Plan will only commence upon the delivery of the Services and you will be notified of this date in writing.
- Depending on which Plan you choose, your Plan may automatically renew on the date following the expiry of your Plan for consecutive billing periods until you terminate your Account in accordance with the Termination clause below. If this is the case, we will provide you with notification 45 days before the renewal date. If you wish to terminate your Plan, you must notify us in accordance with the Termination clause below by giving at least one complete billing cycles’ notice prior to the end of the current billing cycle.
- Fees are payable in advance of each Plan billing cycle, unless otherwise agreed with us.
- You will be issued an invoice or receipt, as applicable, when your payment is processed for each billing cycle.
- You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on the Site. Where applicable, the Fee for your Plan is based on the number of authorised users or monitoring points before the commencement of the next Plan billing cycle.
- You must pay any Fees due within 7 days otherwise we may suspend or terminate your Account in accordance with the Termination clause below.
- Where you have chosen to sign up to a Plan for a specified amount of time (Fixed Term Plan) and you choose to terminate your Plan before the end of the Fixed Term Plan, you will be liable to pay a fee to terminate these Terms early which may, at our absolute discretion, be the sum of all Fees for the remaining billing cycles in your Fixed Term Plan (Early Termination Payment).
- The Fee is non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Plan (or part thereof), Plan downgrade or unused Accounts. Downgrading your Plan may result in the loss of content, features or capacity of your Account. We do not accept any liability for any losses or damages that may arise in such cases.
- You must pay the Fees for the Services where the Services are unavailable or you are unable to access the Services due to you not meeting the Eligibility Criteria including, for the avoidance of doubt, where your internet connection is unavailable.
- If the Hardware is not installed or the Services are not provided within four weeks of you ordering the Service and you have complied with your obligations under these Terms, you have the right to withdraw the Service Order (and the Services) and if applicable, obtain a full refund of any Fees paid.
- We may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure they are right for you before signing up for a paid Plan. Any trial period can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services. Any services that are offered on a free or introductory basis without annuity charge (irrespective of whether a setup charge may be payable) are provided on an as-is, where is basis without warranty.
- If you upgrade or downgrade your Plan, the credit card linked to your Account will automatically be charged the Fee for your new Plan in advance of your next Plan billing cycle. Please ensure that this credit card has sufficient funds to pay the Fee. If your credit card expires and you do not cancel your Account, you will remain responsible for paying the Fee for the Plan, which will accrue to your Account until we receive a cancellation notice.
- If you accept any “in app” or web based offers made in conjunction with the Services they will be binding at the time we receive full and final payment unless the offer expressly states otherwise.
- All Fees exclude GST. If you are located outside Australia you will not be charged GST. You are responsible for all taxes, levies or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of them. We have no responsibility to them on your behalf.
- The Fee is subject to change upon 45 days’ notice from us to you and will apply to the next Plan billing cycle. Such notice may be provided at any time by posting the changes on our Site, via email or via a notification to your Account. If you do not agree to the Fee change, you may cancel your Account in accordance with the Termination clause below.
- If any payment is not made in accordance with our payment terms, including if applicable, where an invoice is issued, we may (at our absolute discretion):
- immediately cease providing the Services and recover as a debt due and immediately payable from you our additional costs of doing so;
- charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the due date of payment;
- engage debt collection services and/or commence legal proceedings in relation to any unpaid amounts; and/or
- report you to independent credit data agencies.
5. SaaS Licence
- In consideration for payment of the fees, as set out on the Site (Fees) for your Plan, we grant you a non-exclusive, non-transferable, non-sublicensable, location specific (except as otherwise permitted under these Terms) and revocable licence to access and use the SaaS Services for personal and internal business purposes for the Term (SaaS Licence).
- You agree that:
- the SaaS Licence will start from the date your Account is created;
- the SaaS Licence permits you to access and use the SaaS Services in accordance with the number and type of authorised users and monitoring points, as set out in your Account or otherwise agreed by us;
- if the number of authorised users and/or monitoring points is exceeded we may charge a fee for each additional authorised user or monitoring point as specified on the Site or as agreed; and
- we reserve the right at any time and from time to time to change or add features provided that, where there is any material alteration to the SaaS Services in accordance with this clause, we will provide 20 business days’ notice to the registered Account holder and that such changes or additions will not negatively impact your use of the Services.
- If at any time during the Term you relocate your Premises you must notify us in writing as soon as possible.
- In discussion with you, we will determine whether relocation of the Services is possible at your new location. There may be times where relocation is not possible at your new Premises. Any relocation is subject to the Eligibility Criteria. If you do not meet the Eligibility Criteria then we may at our absolute discretion terminate your Account.
- Where we are able to relocate your services you may need to pay relocation fees as set out on the Site (Relocation Fee) and at our discretion we will determine whether your Plan will continue at the new location or whether you may need to enter into a new Plan and pay any further fees associated.
- Relocation of a service will void any “Performance Guarantee” that may be in place.
7. Plan Hardware
- Where your chosen Plan includes Hardware and you do not purchase it from us, in consideration of your payment of the Fees, we will lease you the Hardware chosen in your Plan to track and analyse your electricity consumption, generation and energy activity at your Premises from the date of installation until the date your Account is terminated in accordance with these Terms (Hire Period).
- We own the Hardware and you take the Hardware as bailee only.
- We use a third party manufacturer to manufacture and supply the Hardware (Manufacturer).
- During the Hire Period, despite any provision to the contrary, to the maximum extent permitted by law, you acknowledge and agree:
- to ensure that you have any necessary permissions or consent to install and use the Hardware (including from any strata or building management) and to the fullest extent possible do not allow anyone to interfere or otherwise tamper with the functioning of the Hardware;
- where applicable you protect and maintain the Hardware and keep it in good order and condition;
- that you are responsible for any loss, cost, theft, damage, vandalism or destruction of or to the Hardware; and
- that no such loss, cost, theft, damage or destruction of or to the Hardware will impair or frustrate any of your obligations under these Terms (including, without limitation, as to the payment of the Fee).
- Hardware Support and Maintenance Services are included in your Plan. If you require support and/or maintenance for the Hardware during the Term please contact us in accordance with the Support and Maintenance Services clause below. Where any upgrades are made to the Hardware during the Hire Period we will supply these upgrades to you at no extra cost.
- We will collect energy consumption data from the Hardware, including real time electricity consumption data throughout the day and daily, and use this data to provide you with the Services and for research and development purposes. By creating an Account, you consent to us collecting and using this data for such a purpose.
- You are not permitted to otherwise conduct any support, maintenance and/or otherwise tamper with the Hardware or permit any third party not authorised by us to do so. Any such actions may void any remedies and/or rights you may have under the Hardware Defects and Support and Maintenance Services clauses below.
- Upon termination of these Terms or cancellation of the SaaS Licence, we retain the right to collect the Hardware from your Premises at your cost.
8. Hardware Installation and Energy Assessment
- References to Hardware in this clause only apply where we have leased you the Hardware as part of your chosen Plan.
- The Hardware is to be installed by a qualified tradesperson (for example an electrician) contracted by us. We may take your preferences into consideration, but we may select the tradesperson to install the Hardware at our sole discretion. The tradesperson will contact you to organise a time for installation of the Hardware at your Premises. You must ensure that you are available at the Premises to facilitate this installation if required. We will deliver the Service within 4 weeks of you creating an Account.
- By accepting these Terms, you grant us (and our authorised personnel) all permissions, consents and rights of access necessary to enable us (and our authorised personnel) to install the Hardware at the electricity meter box or switchboard at your Premises.
- The Hardware is installed in a location that is inaccessible and there are no user serviceable components. The Hardware must not be installed by you. You must not tamper, alter or otherwise modify the Hardware or allow any of your agents or third parties to do so. Where this occurs and the Hardware has been modified or altered without our consent, to the extent that any changes, modifications or alterations were caused by you, your agents or third parties, then you will be charged additional fees for the re-installation of new Hardware.
- Risk and title in the Hardware passes to you upon installation of the Hardware at your Premises. Until title to the Hardware passes, we have authority to sell or otherwise deal with and/or dispose of all or any part of the Hardware at our discretion.
- Provided you consent, when we install the Hardware we will conduct an audit of your Premises in order to establish baseline information regarding your energy consumption and use this data to provide our recommendations to you (Energy Assessment). Depending on the physical design and other aspects of the Premises, that will potentially vary what data we capture and advice and recommendations we provide.
- If we (or our authorised personnel) determine that the Hardware is unable to be installed at the Premises, we may terminate these Terms in accordance with Termination clause and provide you with a refund.
- We (and our authorised personnel) reserve the right to refuse to install the Hardware or carry out the Energy Assessment for any reason, including where we (or our authorised personnel) reasonably consider that:
- it would be unsafe to install the Hardware at the Premises (for example, where there are hazardous materials or substances in, on or around the Premises); or
- the Premises (or any part thereof) is unsuitable for the installation of the Hardware (for example, where you have a non-standard or incompatible switchboard or metering arrangements).
9. Hardware Purchase and Defects
- You may be permitted to purchase Hardware from us as set out on the Site.
- This clause only applies where you purchase Hardware from us and does not apply to Hardware that is leased as part of your Plan.
- To the extent permitted by law, this clause only applies if you are not in breach of these Terms and use the Hardware in accordance with these Terms.
- If you consider that the Hardware contains any fault, defect or error which is caused by a breach of these Terms by us (Defect), you must immediately notify us in writing. If we inform you that it is necessary you must arrange for us to access the Hardware for our inspection (or the inspection of our Manufacturer, if applicable) to the details set out at the end of these Terms. You agree to provide us with all information we reasonably request concerning the Defect.
- If, on our inspection of the Hardware, (or the inspection of our Manufacturer, if applicable) we (or our Manufacturer, if applicable) consider the Hardware to be defective, and such Defect was not caused or contributed to by anything that you or a third party did, then:
- we may, either repair or replace the relevant Hardware, refund that portion of the Fee to which the relevant Hardware relates, or provide you with compensation in the way of an extension of the use of the Hardware and your Plan; and
- we will refund you any costs associated with the return of the Hardware to us.
- The Hardware may be covered by a separate hardware manufacturer’s warranty which will be set out on the Site and incorporated into these Terms. Where any hardware manufacturer’s warranty applies we may be required to send any Defects to our Manufacturer for inspection, repair and/or replacement under this clause.
- Nothing in the Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law. In Australia, our goods come with guarantees which cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
- Where any Hardware is damaged, or otherwise contains any fault, defect or error, caused or contributed to by you or any third party, you may obtain replacement Hardware, at your cost, by contacting us.
10. Fuuzio Performance Guarantee
- Your chosen Plan may come with a Fuuzio Performance Guarantee. (Performance Guarantee)
- To be eligible for the Performance Guarantee you must subscribe to our service for 36 months and be able to provide us with evidence of your electricity bill at your service location for a 12 month period that demonstrates an annual electricity bill that exceeds:
- $2000 (excluding GST) if you are a residential customer; or
- $3200 (excluding GST) if you are a business customer.
- If you are eligible for the Performance Guarantee You will be advised during the establishment process that you are eligible and you will be advised of your calculated baseline 3 year electricity cost (Baseline Cost) which is determined from the bills you have supplied to us.
- If you disagree with the Baseline Cost we have calculated you must inform us in writing within 7 days of receiving our advice under (c).
- Our obligation under this guarantee will have been met when we have demonstrated savings over a 3 year period that exceed the sum of:
- your Plan Fee over 3 years (plus any Establishment Fees); and
- interest on any purchases that have been made in connection with a recommendation from us. The interest rate will be deemed to be the actual interest rate if approved by us at the time the recommendation is accepted or the Commonwealth Bank variable mortgage rate plus 4% per annum as advertised and varied from time to time
- Cost reductions that will demonstrate our performance under this Performance Guarantee will be the sum of:
- Where your aggregate electricity costs over 3 years is or is projected to be less than the Baseline Cost, the difference between your actual or projected electricity costs over 3 years and the Baseline Cost; and
- Where we have provided you with recommendations that you have chosen to delay or not accept, our the estimated savings that are identified in our recommendation to you (which, to the extent that the recommendation is delayed will be prorated against the length of the delay); and
- Any amounts credited to your account against your Plan Fee for any reason other than billing corrections.
- We will notify you in writing at any time we believe our obligations under this performance guarantee have been fulfilled and provide the evidence to support our conclusion. If you disagree with our conclusion you must advise us within 4 weeks of receiving our notification.
- Once our obligations have been met under this Performance Guarantee this guarantee will have no further cause or effect irrespective of when the obligation is met.
- If you believe we have failed to meet our obligation under this Performance Guarantee you must notify us within 60 days of the completion fo the 36 month period and we will credit to your account, against your plan fee, an amount sufficient to demonstrate our performance under clause (f)
- To the extent permitted by law, the Performance Guarantee only applies if you are not in breach of these Terms and use the Services and the Hardware in accordance with these Terms.
- Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value.
- You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
11. Restrictions and Prohibited Use
- You acknowledge and agree that these Terms incorporate by reference the terms of any acceptable use policy as set out on the Site or as provided to you from time to time.
- You must not (and must ensure the authorised users do not) access or use the SaaS Services or Hardware (as applicable) except as permitted by the SaaS Licence or the Hardware lease (as applicable) and you must not do, omit to do, or authorise any act that would or might invalidate or be inconsistent with our intellectual property rights in the SaaS Services, Software or Hardware. Without limiting the foregoing provisions, you must not and must not permit any other person to:
- resell, assign, transfer, distribute or provide others with access to the SaaS Services or Hardware;
- “frame”, “mirror” or serve any of the SaaS Services or Hardware source code on any web server or other computer server over the Internet or any other network;
- copy, alter, modify, create derivative works from, reproduce to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services, Software or Hardware;
- alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the SaaS Services or Software and/or Hardware;
- use the SaaS Services or Hardware in any way which is in breach of any applicable local, state, federal and international laws and regulations (Laws) or which infringes any person’s rights, including intellectual property rights and privacy rights;
- use the SaaS Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
- use the SaaS Services or Hardware in any way that damages, interferes with or interrupts the supply of the SaaS Services or the functionality of the Hardware;
- introduce malicious programs into our Hardware and Software or our Hardware, Software and Services which are integrated and operate together, including our networks (Systems), including viruses, worms, trojan horses and e-mail bombs;
- reveal your Account password to others or allow others to use your Account (other than authorised users);
- use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
- use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the SaaS Services;
- send any unsolicited email messages through or to users of the SaaS Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
- use the SaaS Services to circumvent user authentication or security of any of your networks, accounts or hosts or those of your customers or suppliers.
- You acknowledge that any breach of this clause may lead to termination of these Terms.
12. Personal Property Securities Act 2009 (Cth)
- In this clause, PPSA means Personal Property Securities Act 2009 (Cth). Terms defined in the PPSA have the same meaning when used in this clause.
- We will retain full legal and equitable ownership of and title to, all Hardware.
- You acknowledge that our interest in the Hardware leased under these Terms and in all proceeds from the sale of such Hardware by you to a third party is a security interest (although any such sale would be a breach of these Terms).
- You consent to us registering our security interest on the PPSR and agree to provide all assistance we reasonably require (i) to facilitate registration, (ii) to ensure that our security interest is enforceable against you and third parties, perfected and otherwise effective, and has the priority we require and/or (iii) to enable us to exercise our rights in connection with the security interest.
- You undertake to give us not less than 14 days written notice of any proposed change in your name and/or any other changes in your details (including but not limited to changes in your address, telephone numbers, email address, trading name or business practice).
- Pursuant to section 275(6) of the PPSA, you agree that you will not disclose to an interested person information pertaining to our security interest without our prior approval.
- You will pay on demand any losses arising from, and any costs and expenses incurred in connection with registration of a security interest and/or any action taken by us to protect our security interest described above.
- You waive the right to receive any notice, copies of documents or information under the PPSA (including notice of a verification statement) unless the notice, document or information is required by the PPSA and cannot be excluded (including under sections 95, 117, 118, 121(4), 125, 127, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 136(5), 137(3), 142 and 143 of the PPSA which will not apply).
13. Collection Notice
- By accepting these Terms, you grant us (and our personnel) all permissions, consents and rights necessary to access, collect, disclose, hold, analyse and use any and all data and information derived from you arising from, or in connection with, these Terms, including, without limitation, all your data or information:
- held by the Australian Energy Market Operator (and regulated by the Australian Energy Regulator) regarding your historical and current meter data and standing data;
- held by any other third party including your energy provider if applicable; and
- collected via the Hardware and through the Services.
- We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information we may not be able to provide the Services to you. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
14. Support and Maintenance Services
- During the Term, we will endeavour to provide you with the support and maintenance services during business hours as set out on the Site (Support and Maintenance Services). When providing support you are required to (i) notify us in accordance with any applicable systems and processes set out on the Site and (ii) where required, assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you or your personnel have done in relation to the fault) and if applicable, access to the Hardware.
- We have no obligation to provide Support and Maintenance Services for, and provide no warranties in respect to, the Software and/or Hardware, or any part of the Software and/or Hardware, which has been modified by a person other than us.
15. Your Data
- Licence: You grant us and our sub-processors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to (i) use, copy, back-up, process, transmit, store, edit, modify, aggregate, combine, reproduce, distribute, display, and prepare derivative works of the information, documents and other data you, your personnel or any authorised users provide to us including any energy information and metering data, is created by the use of the SaaS Services including your energy consumption data to the SaaS Services or which we otherwise access in providing the Services (Data) and (ii) otherwise access, use or make reference to the Data or any intellectual property rights in the Data:
- to supply the Services (including enabling you, your personnel and authorised users to access and use the SaaS Services);
- for diagnostic purposes;
- to test, enhance and otherwise modify the Services whether requested by you or not;
- to develop other services; and
- as reasonably required for the performance of our obligations under these Terms.
- Notwithstanding anything to the contrary in these Terms or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymized format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (i) does not contain identifying information; and (ii) is not compiled using a sample size small enough to make the underlying data identifiable. We and/or our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all intellectual property rights in the foregoing.
- Moral Rights: If you or any of your personnel have any moral rights (as defined in the Copyright Act 1968 (Cth)) (Moral Rights) in any Data, you (and you will ensure that your personnel) consent to the infringement of those Moral Rights by us or our personnel.
- General: You must, at all times, and where applicable, ensure your Data is virus free, accessible and useable and that your use of your Data is compliant with all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and (ii) your Data and its transfer to and use by us as authorised by you under these Terms do not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies. We assume no responsibility or liability for your Data, and you shall be solely responsible for your Data and the consequences of using, disclosing, storing or transmitting it.
- Removals: We have no obligation to monitor any content uploaded to the SaaS Services. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the SaaS Services. We have no liability to you for removing your Data from the SaaS Services.
16. Your Responsibilities and Obligations
You must, at your expense:
- provide us with all materials and all reasonable assistance and cooperation in order for us to supply the Services and Hardware in an efficient and timely manner, including obtaining from authorised users (or building management or strata) any consents necessary to allow you and your personnel to engage in the activities described in these Terms and to allow us to provide the Services and install the Hardware;
- provide us and our personnel with reasonable access to your environment and Premises, including all Systems, information technology and telecommunications services, electricity meter box or switchboard (Environment), if necessary for us to supply the Services and install the Hardware;
- ensure that only your personnel and authorised users access and use the SaaS Services and Hardware and such use and access is in accordance with the terms and conditions of the SaaS Licence and Hardware lease;
- ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked; and
- make any changes to your Environment, such as system upgrades or repairs or maintenance, that may be required to support the delivery and operation of any Services or Hardware.
17. Audit and monitoring
- You must keep a record of the use of and access to the SaaS Services and provide a copy of it to us upon request.
- We, our personnel and any person authorised by us may audit and inspect, and appoint one or more auditors to audit and inspect, any of your Systems, documents and records to verify your compliance with these Terms. Upon receipt of a written notice from us, you must permit such audits and inspections and give such persons reasonable assistance, access and facilities. We will bear all costs associated with such audits and inspections.
18. Intellectual Property Rights
- All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Software, the Hardware and the Services) will at all times vest, or remain vested, in us.
- You must not, without our prior written consent:
- copy or use, in whole or in part, any of our intellectual property;
- reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or
- breach any intellectual property rights connected with the Site, the Software, the Hardware or the Services, including (without limitation) altering or modifying any of our intellectual property; causing any of any of our intellectual property to be framed or embedded in another website; or creating derivative works from any of our intellectual property.
- This clause 18 will survive termination of your Account.
19. Indemnity and liability
- Despite anything to the contrary, to the maximum extent permitted by the law:
- our maximum aggregate liability arising from or in connection with these Terms (including the Services, Software, Hardware or the subject matter of these Terms) will be limited to, and must not exceed the total amount of Fees you paid, or would have paid, to us for your Plan (including any Fixed Term Plan) in which the liability arose; and
- we will not be liable to you for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
- Despite anything to the contrary, to the maximum extent permitted by the law, we have no liability, and you release and discharge us from all liability, arising from or in connection with any:
- any damage, injury or loss to any person or property;
- failure or delay in providing the Services;
- unavailability, outage or interruption to the Services or your Systems;
- breach of these Terms or any Laws;
- the accuracy of and fitness for purpose of the recommendations made through the Services in respect of your energy consumption;
- guarantee or warranty if you choose to not follow any of our recommendations provided through the Services;
- the Hardware, including the functionality, use or installation of the Hardware;
- any act or omission of third parties (including, without limitation, any third parties engaged to install the Hardware at your Premises); or
- the supply or lack of supply of energy to you or your Premises;
where caused or contributed to by any:
- event or circumstance beyond our reasonable control;
- a fault, defect, error or omission in your Environment or Data; or
- act or omission of you, your related parties, personnel or a third-party service provider,
and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.
- Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
- You agree that, to the maximum extent permitted by the law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms. Where those conditions and warranties cannot be excluded by law, you acknowledge and agree that our liability under such conditions or warranties is limited to, at our option:
- the supplying of the affected Software, Hardware or Services again;
- repairing the affected Software or Hardware as applicable; or
- a refund of the Fees paid in respect to the affected Software, Services and Hardware.
- You acknowledge and agree that:
- you are responsible for all users using the Services, including your personnel and any authorised users;
- you are responsible for obtaining any necessary consents from your personnel, building management or strata, as applicable, to operate and use the Hardware and the Software as required;
- you use the Services and any associated programs and files at your own risk;
- the technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
- we may use third-party service providers to host the Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without liability or entitling you to any refund, credit, or other compensation;
- the Services and Hardware may use third party products, facilities or services. We do not make any warranty or representation in respect of the third-party products, facilities or services;
- we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
- any collation, conversion and analysis of Data performed as part of the Services (whether by the Services or otherwise) is likely to be subject to human input and machine errors, omissions, delays and losses, including any loss of Data; we are not liable for any such errors, omissions, delays or losses; and you are responsible for adopting reasonable measures to limit the impact of such omissions, delays losses and errors;
- we are not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by you, your personnel, your related bodies corporate or any authorised users;
- we are not responsible for the integrity or existence of any Data on the Environment, network or any device controlled by you or your personnel; and
- we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
- Despite anything to the contrary, to the maximum extent permitted by law, you must indemnify us and hold us harmless from and against any loss, cost, liability or damage, howsoever arising, suffered or incurred by us and arising from or in connection with any claim relating to your Data, your use of the Services or any breach of these Terms by you.
- This clause 19 will survive termination of the Account.
- You may only terminate your Account by contacting us in writing, either via the contact details below, via your Account or on the Site, giving at least one complete billing cycle’s notice in advance. No refunds will be given upon termination in accordance with this clause and these Terms. You will also be liable for any Early Termination Payment if applicable, as set out in clause 4. Your Account will terminate at the end of the following billing cycle. This may mean that where you are in the middle of your billing cycle and you provide us with notice that you wish to terminate your Account, your Account will not be terminated until the end of the following billing cycle.
- We may, suspend or terminate your Account if for you are in breach of these Terms, including any breach of the Restrictions and Prohibited Use clause. We will generally alert you when we take such action and give you a reasonable opportunity to remedy any breach of these Terms, but if we determine that your actions endanger the operation of the Services or other users, we may deactivate or terminate your Account immediately without notice. You will continue to be charged for the Services during any suspension period in which you are in breach of these Terms. If we suspend your Account and you are not in breach of these Terms, we will apply a credit to your Account for the Fees you have paid for any unused portion of your Plan to which the period of suspension relates. If we terminate your Account and you are not in breach of these Terms, we will refund you the Fees you have paid for any unused portion of your Plan. If we terminate your Account and you are in breach of these Terms, no refunds will given
- Where you have not paid any Fees within 7 days of the due date we may at our absolute discretion, suspend or terminate overdue Accounts without notice to you. A reinstatement charge for your Plan applies to reactivate any deactivated Account once full payment has been received. Where you have not paid any Fees for 30 days we will terminate your Account.
- You must ensure that all your Data on the SaaS Services is backed up so that you do not lose your Data if we deactivate or terminate your Account.
- During any suspension period we may continue to collect Data from your Account so that if and when your Account is re-activated we can continue to provide the Services to you.
- Non-exclusive: Our Services are performed on a non-exclusive basis.
- Illegal Requests: We reserve the right to refuse any request for or in relation to any Services and Hardware that we deem inappropriate, unreasonable, illegal or otherwise non-compliant with these Terms.
- Subcontracting: We may engage subcontractors to perform the Services on our behalf.
- Force Majeure: If a party (Affected Party) is unable to perform any of its obligations under these Terms due to an event or circumstance beyond its reasonable control (Force Majeure) and it gives the other party prompt written notice of such, the Affected Party’s obligations shall be suspended to the extent necessary. The Affected Party must use reasonable efforts to limit the impact of the event on its performance and must continue to perform its obligations in full as soon as the Force Majeure ceases.
- Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
- Notices: Any notice given under these Terms must be in writing and addressed to us at the details set out below or to you at the details provided when setting up your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email.
- Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
- Relationship of parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.
- Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
- Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent.
- Entire agreement: These Terms contain the entire understanding and agreement between you and us in respect of their subject matter.
- Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. Such variation will take effect at the commencement of your next Plan billing cycle. Prior to the commencement of each Plan billing cycle, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them.
- Governing law: These Terms are governed by the laws of Queensland. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. The Services may be accessed in Australia and overseas. We make no representation that the Services complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Services.
For any questions, please contact us at:
Fuuzio Operations Pty Ltd trading as Fuuzio ABN 38 627 150 547
Level 5, Tower 1, 55 Plaza Parade, Maroochydore, QLD 4558
Email: [email protected]
Last update: 15 August 2018