Terms & Conditions


These are the Terms and Conditions (‘Terms’) on which SpendWatt Pty Ltd ABN 38 150 704 475 (‘SpendWatt’) permit you (referred to as ‘You’ or ‘Your’) to use and access the SpendWatt Platform, and which govern Your relationship with SpendWatt in relation to Your use of the SpendWatt Platform.   

You, a user, accept these Terms and SpendWatt's Privacy Policy when You register for an Account to use the SpendWatt Platform.  If You are using the SpendWatt Platform for or on behalf of a company, You accept these Terms and SpendWatt's Privacy Policy for and on behalf of that company.  

If You do not accept these Terms, You should immediately stop using the SpendWatt Platform. 

Updates to Terms and Conditions  

The SpendWatt Platform is subject to change at any time without notice and may contain errors. SpendWatt may from time-to-time review and update these Terms including to take account of new Laws, products or technology.  Your use of the SpendWatt Platform will be governed by the most recent Terms posted on the SpendWatt Platform.  By continuing to use the SpendWatt Platform, You agree to be bound by the most recent Terms.  It is Your responsibility to check the SpendWatt Platform regularly for updated versions of the Terms. 

1. Definitions

In these Terms, unless the context otherwise requires: 

Account means an account set up for use with the SpendWatt Platform, and which may be configured for an Administrator, an Operator, or an End User;  

Administrator means a User that is configured to receive access to the relevant administrator functionality and features set out in clause 4(a); 

Affected Obligations has the meaning given to that term in the definition of Force Majeure Event;  

Affected Party has the meaning given to that term in the definition of Force Majeure Event; 

Business Day means a day excluding a Saturday, Sunday or public holiday in Victoria, Australia; 

Changes means any upgrades, maintenance, repairs, additions or removals of any features and functionality, redesign, improvements, or any other alterations to the SpendWatt Platform or the services offered through the SpendWatt Platform; 

Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim; 

Confidential Information means: 

(a) these Terms including information submitted or disclosed by either party during negotiations, discussions and meetings relating to these Terms;
 
(b) information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
 
(c) all other information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party,

and includes the Platform Content (in the case of SpendWatt), but excludes information which:  

(d) prior to the execution of these Terms is in the public domain;
 
(e) hereafter becomes part of the public domain other than as a result of an unauthorised disclosure by either party to these Terms;
 
(f) is or becomes available to a party to these Terms from a third party lawfully in possession of such information and who has the lawful power to disclose such information to the party on a non-confidential basis; or
 
(g) is rightfully known by a party to these Terms (as shown by written record) prior to the date of disclosure under these Terms;

Consequential Loss means special, incidental, punitive, exemplary, indirect or consequential losses, as well as business interruption losses, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business opportunity, costs of procurement or substitution of goods, technology or services, and loss of information or data (including the costs of recovering or reconstructing any lost or corrupted data); 

Data means any data which may be uploaded, generated, compiled, arranged or developed on the SpendWatt Platform; 

Disclosing Party means the party to whom information belongs or relates; 

End User means a User that is configured by the Operator to receive access to the relevant end user functionality and features set out in clause 4(a); 

End User Information means information or Data about or in relation to an End User, including type of business and energy use; 

Environment means Your existing hosting and processing environment, including all hardware, software, storage space, power, internet connectivity and other components to be used in conjunction with the SpendWatt Platform; 

Fees means the fees set out from time to time in the SpendWatt Platform;  

Force Majeure Event means an event beyond the reasonable control of a party including any act, event or cause being: 

(a) an act of God, peril of the sea, accident of navigation, war, sabotage, riot, act of terrorism, insurrection, civil commotion, national emergency (whether in fact or Law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, epidemic, quarantine, radiation or radioactive contamination;
 
(b) an action or inaction of a Government Agency, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or 
 
(c) termination or withdrawal by third party providers of any of the products, facilities or services used to provide the products or services hereunder, or other service disruptions involving hardware, software of power systems within such party's possession or reasonable control and denial of service attacks,

to the extent that the act, event or cause directly results in a party (Affected Party) being prevented from or delayed in performing one or more of its material obligations under these Terms (Affected Obligations); 

GST has the meaning in the GST Act; 

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended; 

Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction; 

Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including: 

(a) patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder's rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration; 
 
(b) any application or right to apply for registration of any of these rights;
 
(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and

(d) all renewals, divisions and extensions of these rights;

Law means:

(a) principles of law or equity established by decisions of courts; 
 
(b) statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a Government Agency;  
 
(c) requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or a Government Agency that has the force of law; and
 
(d) any professional standards or codes of conduct; 

Loss means any loss, damage, liability, cost (including all legal and other professional costs), charge, expense, outgoing, fine or payment of any nature or kind; 

Malicious Code means any virus, Trojan horse, worm, logic bomb or other malicious code that infect, manipulate, modify, deny, corrupt or inhibit the operation of the SpendWatt Platform;  

Operator means a User that is entitled to receive access to the relevant functionality and features set out in clause 4(a); 

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form, electronic form or otherwise, about an identified individual or an individual who is reasonably identifiable, and includes anything that is defined as personal information or as sensitive information in the relevant Privacy Laws; 

Platform Content means content, information, communications, text or other material provided by SpendWatt or its Related Entities on the SpendWatt Platform;  

Privacy Law means any applicable Law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy or health Information, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles under that Act, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), and any Australian (including State or Territory) legislation from time to time in force which relates to or affects privacy rights or Personal Information; 

Project Option means a potential opportunity for a project in relation to the installation, maintenance, upgrade, replacement or decommissioning of energy technologies, products and services:  

(a) administered and managed by an Administrator; 
 
(b) proposed or subsequently undertaken by an Operator; and 
 
(c) for a specific End User;

Proposal means a Proposal or Proposals prepared by an Administrator or Operator for a Project Option, including physical Proposals;  

Receiving Party means the party to whom information is disclosed or who possesses or otherwise acquires information belonging or relating to a Disclosing Party; 

Recipient has the meaning given to that term in clause 14(c); 

Related Entity has the meaning given to that term in the Corporations Act 2001 (Cth); 

Service Provider means any service provider which assists SpendWatt in providing the SpendWatt Platform;  

SpendWatt Platform means the quoting and integrated cost benefit analysis platform for the installation, maintenance, upgrade, replacement or decommissioning of energy technologies, products and services that enables: 

(a) Administrators and Operators to create Proposals for Project Options, and present those Proposals to End Users; 
 
(b) End Users to review Proposals; and 
 
(c) Administrators to track and manage Project Options; 

Suggestion has the meaning given to that term in clause 6; and 

User means any user of the SpendWatt Platform, including any Administrator, Operator or End User.  

2. Interpretation

In these Terms, unless the context requires otherwise:

(a) the singular includes the plural and vice versa; 

(b) a gender includes the other genders; 

(c) the headings are used for convenience only and do not affect the interpretation of these Terms; 

(d) other grammatical forms of defined words or expressions have corresponding meanings; 

(e) a reference to a document includes the document as modified from time to time and any document replacing it;

(f) a reference to a party is to a party to these Terms and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes; 

(g) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;

(h) the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;

(i) the word "month" means calendar month and the word "year" means 12 months;

(j) the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;

(k) a reference to a thing includes a part of that thing;

(l) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, reenacted or replaced from time to time;

(m) wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";

(n) money amounts are stated in Australian currency unless otherwise specified;

(o) a reference to time is to Melbourne, Australia time;

(p) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body;

(q) any agreement, representation, warranty or indemnity in favour of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and severally; and

(r) any agreement, representation, warranty or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and severally. 

3. Registration

(a) In order to access certain features and functionality of the SpendWatt Platform, You will have to register as a User of the SpendWatt Platform and obtain an Account by providing all the information required at registration.  You must not provide another person's information to register for an Account.  

(b) There may be a number of different Account types, which may include from time to time: 

(i) Administrator; 

(ii) Operator; and  

(iii) End User, 

the details of which are set out in clause 4(a).

(c) When creating Your Account, You become a User and warrant that You are of legal age and have the necessary capacity to enter into a binding legal contract with SpendWatt in the place where You are accessing the SpendWatt Platform and that all information You have provided is true, accurate and complete.  You must provide an email address that You own or control. 

(d) You will be fully responsible for all acts and omissions of any person using Your password and Account as if they were Your own acts and omissions.  You agree that You will not share, disclose, or permit disclosure of, Your password, let anyone else access Your Account or do anything that would risk the security of Your Account.  SpendWatt will not in any event be liable for any Loss arising out of the use or misuse of Your password and Account, and You will indemnify SpendWatt against all Loss in this regard.  You will notify SpendWatt promptly if you become aware of, or form a reasonable belief that there has been an occurrence of, any unauthorised access to or use of your Account or the SpendWatt Platform generally. 

(e) You agree that You will not create more than one Account and if SpendWatt disables or terminates Your Account for any reason, You will not create another one without SpendWatt's permission, whether through the use of Your own Personal Information or those related to You or created by You. 

(f) SpendWatt reserves the right to refuse registration of any Account at its sole discretion. 

(g) You shall give SpendWatt not less than fourteen (14) days prior written notice of any proposed change in Your details (including but not limited to, changes in Your address, email or phone number).  You shall be liable for any Loss incurred by SpendWatt as a result of Your failure to comply with this clause 3(g). 

(h) If you are an End User, you do not need to register for an Account in order to access the functionality described in clause 4(a), however:  

(i) You authorise the Operator to transfer End User Information to SpendWatt through the SpendWatt Platform, including any Personal Information that may be incorporated into the End User Information; and 

(ii) You acknowledge and agree that SpendWatt may collect, disclose, use, handle, and store the End User Information, including any Personal Information that may be incorporated into the End User Information, as necessary to provide the SpendWatt Platform in accordance with these Terms. 

4. Functionality

(a) Depending on Your Account type, You will be granted permission to access the following features and functionality of the SpendWatt Platform (together with any other features or functionality as may be described on the SpendWatt Platform): 

Account Type

Permissions

Administrator 

All features to invite Users to register an Account as an Administrator or Operator. 

All features and functionality relating to tracking and managing Project Options. 

All features and functionality relating to Proposal creation and preparation. 

Operator 

Create profile information with the details of the Operator's information, including labour rates, costs and margins, product catalogues, and unit costs. 

All features and functionality relating to Proposal creation and preparation. 

End User 

View, amend, or save Proposals. 

 

(b) SpendWatt may develop or implement Changes to the SpendWatt Platform from time to time in addition to those described in these Terms, including the permissions described at clause 4(a).  To avoid doubt, these Changes: 

(i) may be implemented by SpendWatt at its own discretion, however SpendWatt will not exercise its rights under this clause 4(b) in a manner that would materially degrade the functionality of the SpendWatt Platform; and  

(ii) (may be applicable to certain Account types only, and not applicable to all Users. 

5. SpendWatt Platform and Platform Content

(a) The SpendWatt Platform is only intended to provide tools to assist in the creation and presentation of Proposals to End Users.  Administrators and Operators must rely on their own skill, knowledge and qualifications to create, design, review, or use Proposals and in accordance with all applicable Laws.  SpendWatt does not warrant or guarantee that End Users will accept Proposals, and SpendWatt is not party to, or has any obligations under, any contract between users arising out of or in connection with the Proposals. 

(b) You acknowledge and agree that:

(i) the SpendWatt Platform is provided to use and is managed and supported through SpendWatt's Service Providers;

(ii) the SpendWatt Platform is only accessible through the internet or other network connection to SpendWatt's servers, and will not be available locally on Your Environment; and 

(iii) no 'back-end' access to the SpendWatt Platform is available to You, or any other User. 

(c) The Platform Content is obtained and developed from a variety of sources including but not limited to collaborations with third parties and information provided by third parties under licence.  Inclusion of Platform Content on the SpendWatt Platform is not an endorsement of any organisation, product, service or advice. 

(d) All Intellectual Property Rights, including copyright, in the SpendWatt Platform and Platform Content, including any Changes, is owned by SpendWatt or its Related Entities. You must not copy, modify or transmit any part of the SpendWatt Platform or Platform Content. 

(e) The SpendWatt Platform and Platform Content may also contain SpendWatt's, or its Related Entities', or third parties' trade marks, logos and trade names, which may be registered or otherwise protected by Law.  You are not permitted to use any trade marks, logos or trade names appearing on the SpendWatt Platform or Platform Content. 

(f) If You have a complaint regarding any Platform Content, SpendWatt's sole obligation will be to review any written complaint notified to it and, if it sees fit, in its sole discretion, to modify or remove the particular Platform Content. 

(g) SpendWatt grants You a non-exclusive, non-transferable, non-sublicensable, revocable and royalty-free licence to use and access the SpendWatt Platform (including the functionality therein) and Platform Content in accordance with these Terms.  

(h) SpendWatt does not transfer or grant any rights to the Intellectual Property Rights in the SpendWatt Platform or any Changes other than as expressly set out in these Terms.  To avoid doubt, the licence granted under clause 5(g) does not authorise or permit a User to: 

(i) sell or grant additional licences, sub-licenses or any other access to the SpendWatt Platform not specifically permitted under the relevant Account type; or 

(ii) use or otherwise disclose Data or Confidential Information to third parties for any purpose other than to provide Proposals or otherwise for the subject matter of these Terms. 

(i) You agree not to modify, vary, adapt, reverse engineer, disassemble or decompile the SpendWatt Platform.  

(j) You will not, and will take reasonable measures to ensure that any individual using Your Account does not: 

(i) build a competitive product or service;

(ii) make or have made a product or service using similar ideas, features, functions or graphics of the SpendWatt Platform; 

(iii) make derivative works based upon the SpendWatt Platform;

(iv) remove, modify or obscure any copyright, trade mark or other proprietary rights that appear on the SpendWatt Platform; or 
"frame", "mirror" or otherwise copy any features, functions or graphics of the SpendWatt Platform.  

(k) You will immediately notify SpendWatt if You become aware that the SpendWatt Platform may infringe the Intellectual Property Rights of a third party.  

6. Suggestions 

If You suggest any new features, improvement or corrections to the SpendWatt Platform (Suggestion), such Suggestion shall be SpendWatt's sole and exclusive property free from any confidentiality restrictions that might otherwise be imposed upon SpendWatt pursuant to clause 14 or any other restriction.  To the extent that You have any rights, title or interest in a Suggestion, You assign those to SpendWatt absolutely and beneficially, the whole of Your rights, title and interest including any Intellectual Property Rights in and to the relevant Suggestion.  

7. Availability

(a) Although SpendWatt will use commercially reasonable efforts to ensure the SpendWatt Platform is available 24 hours a day, 7 days a week, the SpendWatt Platform may become unavailable from time to time for scheduled Changes or as a result of events beyond SpendWatt's reasonable control, including, but not limited to:

(i) any failure or default of SpendWatt's Service Providers; 

(ii) abnormal usage volumes; or 

(iii) any breach of these Terms or negligent acts or omissions committed by You or any other User. 

(b) SpendWatt does not represent or warrant that access to the SpendWatt Platform will be secure, error-free, uninterrupted or timely or that the SpendWatt Platform is free of Malicious Code.  You are responsible for implementing security measures to satisfy Your own requirements. 

8. Data

(a) When You use the SpendWatt Platform (including the functionality made available through it), You are permitted to post, upload, publish, submit or transmit Data subject to these Terms.  

(b) Any of Your Data can be used by SpendWatt and Service Providers in accordance with the licence Terms set out in clause 8(d).  

(c) You acknowledge and agree that You are responsible for all Data that You make available through the SpendWatt Platform.  You must keep and maintain a separate back up copy of all Data You have uploaded into or downloaded from the SpendWatt Platform.  

(d) You retain all Intellectual Property Rights in Your Data uploaded to the SpendWatt Platform. By making any Data available on or through the SpendWatt Platform, You grant to SpendWatt a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence (including the right to sub-licence) to use the Data, including any End User Information, for the purpose of:  

(i) using, viewing, copying, distributing, displaying, transmitting, accessing, or otherwise using such Data on, through or by means of the SpendWatt Platform to the extent necessary to provide the SpendWatt Platform to You and other Users including to provide Proposals;  

(ii) SpendWatt developing, improving, and offering the SpendWatt Platform and other products or services that SpendWatt may offer to You from time to time, including providing Changes; and 

(iii) creating or developing analytics, undertaking benchmarking, assessing accuracy of the SpendWatt Platform, creating or developing industry insights, reporting, and other uses that SpendWatt considers necessary or desirable for its business operations, including building a database of vertical and energy costs on de-identified and aggregated basis. 

(e) Where You upload any Data about Your business, including but not limited to Your business name, logo, images or other generally available Data to the SpendWatt Platform, You agree that SpendWatt may display this Data to other users on the SpendWatt Platform and in other marketing materials, in relation to the provision of the SpendWatt Platform. 

(f) You represent and warrant that You are the owner of or have all necessary rights to all Data that You make available through the SpendWatt Platform necessary to grant to SpendWatt the licence in accordance with clause 8(d). 

(g) You consent to Your Data being altered, edited or adapted by SpendWatt for any reason including to ensure Your Data does not infringe these Terms.  To the extent that You have any moral rights (pursuant to the Copyright Act 1968 (Cth)) in Your Data, by agreeing to these Terms, You provide an irrevocable and unconditional consent in favour of SpendWatt, its Service Providers, successors, assignees, licensees and any other person authorised by any of them to use, modify or deal with Your Data (whether or not currently in existence) to: 

(i) perform, exhibit, reproduce, adapt and communicate any part of Your Data in any medium and anywhere in the world without attributing You or any other person as an author of or contributor to that content;  

(ii) do any act or omission that would constitute a derogatory treatment of Your Data;  

(iii) make any use of Your Data that may falsely attribute authorship of Your Data to another person;  

(iv) delete, adapt or change any of Your Data in any way, including by addition to or subtraction from Your Data; or 

(v) combine or juxtapose Your Data with anything else.  

(h) Where Your Data uploaded to the SpendWatt Platform contains material from third parties, You warrant that You have obtained the moral rights consents described in clause 8(g) from such third parties.

(i) You represent and warrant that:

(i) Your Data posted, uploaded, published, submitted or transmitted through the SpendWatt Platform is accurate, reliable and complete; 

(ii) neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or SpendWatt's use of Your Data (or any portion of it) on, through or by means of the SpendWatt Platform or otherwise will infringe a third party’s Intellectual Property Rights, or result in the breach of any applicable Law; 

(iii) other Users may access and use the Data on the SpendWatt Platform; 

(iv) You will not provide any Data that includes or incorporates any Personal Information or Confidential Information of another person (including a User) without the consent of that other person; and 

(v) when using any Data that includes or incorporates any Personal Information or Confidential Information of another person (including a User), You have obtained that other person's consent to use such Data in accordance with these Terms. 

(j) You acknowledge and agree that SpendWatt may, but has no responsibility to:  

(i) access or examine any of Your Data and at its discretion monitor, move, remove, block, modify, edit, refuse to upload or disable access to Your Data which it considers, in its sole discretion, to breach any Law or these Terms or to be otherwise unacceptable; and

(ii) make and retain back-up copies of any Data, and You agree to keep and maintain a separate back-up copy of any Data uploaded to, or downloaded from, the SpendWatt Platform if You require access to them for longer than SpendWatt's usual retention period. 

(k) You understand that SpendWatt does not guarantee any confidentiality with respect to Your Data uploaded to the SpendWatt Platform. 

(l) You acknowledge and agree that SpendWatt is under no obligation to take legal action in relation to commencing, defending, enforcing, settling or compromising (as appropriate) any infringement or Claim relating to Your Intellectual Property Rights in Your Data.  

9. Proposals

(a) You acknowledge and agree that:

(i) the SpendWatt Platform is only a tool for assisting in the generation of Proposals and SpendWatt is not responsible for the preparation of Proposals themselves; 

(ii) Proposals are based upon and generated from Data and are estimates only, and may not take into account all considerations and factors applicable to a Project Option; 
any visualisations included in Proposals are indicative only; 

(iii) any financial forecasts, cost savings or energy consumption savings included in the Proposals are indicative only; 

(iv) You and other Users must not rely on the Proposals and/or the recommendations set out in the Proposals without regard to other considerations, professional advice or further due diligence; 

(v) SpendWatt makes no representation or guarantee that the Proposals are accurate, reliable or complete or that the User will achieve particular results by relying on the Proposals;  
without limiting these Terms, if You are an Administrator or Operator, in preparing Proposals through the SpendWatt Platform or responding to Proposals prepared through the SpendWatt Platform,

(vi) You are responsible for verifying any calculations on which the Proposal is based or has been prepared, and for ensuring that You are able to supply any products or services listed in a Proposal in the manner described therein and for the amounts set out therein before committing to any contract resulting from the Proposal or providing the products and/or services set out in the relevant Proposal; and 

(vii) You may create, prepare, view, download, export or share the Proposals at Your sole risk and discretion. 

(b) The SpendWatt Platform may automatically send Users email notifications in relation to a functionality of the SpendWatt Platform.  For example, the SpendWatt Platform will send email notifications of invitations to create an Account on the SpendWatt Platform or to reset an Account password.  You acknowledge and agree that these email notifications contain factual information only and as such, do not constitute electronic commercial messages under the Spam Act 2003 (Cth).   

(c) If You are an End User or Operator, You agree that any contract resulting from a Proposal for the supply of any products or services is between the relevant End User (or other recipient of the Proposal) and Operator and You release SpendWatt in respect of any Claims relating thereto.  

10. Acceptable Use

You:

(a) will comply with all reasonable directions in relation to the SpendWatt Platform notified by SpendWatt; 

(b) will, and require Your users to, use reasonable efforts to prevent unauthorised access to or use of the SpendWatt Platform, and notify SpendWatt promptly of any such unauthorised access or use;

(c) are responsible for the accuracy, quality and legality of Your Data;

(d) are responsible for all acts and omissions of users of Your Account as if they were Your acts and omissions;

(e) are responsible for providing the services and equipment necessary to make use of the SpendWatt Platform, which includes, without limitation, internet connectivity;

(f) must use the SpendWatt Platform only in accordance with these Terms and applicable Laws;

(g) must not interfere with, undermine or disrupt the integrity or performance of the SpendWatt Platform;

(h) except as expressed otherwise in these Terms, must not resell, rent, loan, sub-license, lease, distribute or license the use of, or attempt to grant any rights to, the SpendWatt Platform to any third party, including but not limited to using the SpendWatt Platform to operate a service bureau;

(i) must not use the SpendWatt Platform to store or transmit infringing, fraudulent or otherwise unlawful material or otherwise use the SpendWatt Platform in a manner which is unlawful or would infringe the rights of another person (including any Intellectual Property Rights);

(j) must not introduce to the SpendWatt Platform, or use the SpendWatt Platform to, store or transmit a Malicious Code;

(k) must not attempt to gain unauthorised access to the SpendWatt Platform or its related systems or networks; and

(l) must not copy, reproduce, translate, decompile, reverse-engineer, modify, vary or otherwise deal with the SpendWatt Platform or any computer code underlying the SpendWatt Platform (except as may be expressly permitted by these Terms). 

11. Fees

(a) Our Fees which may be payable in relation to a particular Account type are set out on the SpendWatt Platform and may be changed from time to time. Any such change will be considered an update to these Terms for the purposes of the "Updates to Terms and Conditions" section above.

(b) SpendWatt is entitled to invoice You directly for the relevant Fees payable by You. You will pay all invoices within 30 Business Days following receipt of the relevant invoice. We may also make available facilities for You to pay any Fees online.

(c) If You dispute any Fees hereunder, You must notify SpendWatt in writing within 30 days of receiving the relevant invoice, failure of which will result in a waiver by You of any Claim relating to the disputed Fees.

12. GST

(a) In this clause 12 only, the expressions Consideration, Input Tax Credit, Recipient, Supply, Supplier, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act.

(b) Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with these Terms are exclusive of GST.

(c) If GST is imposed on any Supply made under or in accordance with these Terms:

(i) the Recipient of the Taxable Supply must pay to 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; and

(ii) payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with these Terms.

(d) If these Terms require a party (the First Party) to pay for, reimburse, set off or contribute to any Loss or outgoing (Adjustment Amount) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:

(i) the amount of the Adjustment Amount net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Adjustment Amount (Net Amount); and

(ii) 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. Suspension and Termination

(a) SpendWatt may at any time limit, suspend or terminate Your access (including restricting access) to the SpendWatt Platform or any feature of the SpendWatt Platform for any reason (including due to Your breach or alleged breach of these Terms) in its sole discretion and without notice to You.

(b) You acknowledge and agree that should SpendWatt exercise the rights referred to in clause 13(a), Your Data will be de-identified and aggregated and SpendWatt may use the de-identified and aggregated Data in accordance with the licence set out in clause 8(d).

(c) You acknowledge and agree that should we archive, suspend or delete your Account or terminate the provision of the SpendWatt Platform at any time:

(i) your Data will be de-identified and aggregated;

(ii) any Data may be lost, and we are not responsible for any Loss of such Data or Loss of access to such Data; and

(iii) we may use the de-identified and aggregated Data as set out in clause 8(d). 

(d) This clause 13, clauses 6, 8(d), 14, 15, 16, 17, 18 and 19 will survive termination of Your access to the SpendWatt Platform in accordance with clause 13(a) and will continue to SpendWatt's benefit and be enforceable by it. 

14. Confidentiality 

(a) Subject to clauses 14(b) and 14(c), the Receiving Party must:

(i) keep the Confidential Information confidential and not directly or indirectly disclose, divulge or communicate any Confidential Information to, or otherwise place any Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;

(ii) take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control;

(iii) only use the Confidential Information for the purposes of performing, and to the extent necessary to perform, its obligations under these Terms;

(iv) not memorise, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under these Terms; and

(v) take all reasonable steps to ensure that any person to whom the Receiving Party is permitted to disclose Confidential Information under clause 14(c) complies at all times with the Terms of this clause 14(a) as if that person were a Receiving Party.

(b) The obligations of confidentiality under clause 14(a) do not apply to any disclosure of Confidential Information by the Receiving Party that is necessary to comply with any court order or applicable Law if, to the extent practicable and as soon as reasonably possible, the Receiving Party:

(i) notifies the Disclosing Party of the proposed disclosure;

(ii) consults with the Disclosing Party as to its content; and

(iii) uses reasonable endeavours to comply with any reasonable request by the Disclosing Party concerning the proposed disclosure.

(c) A Receiving Party may disclose Confidential Information to any Related Entity, employee, agent, contractor, officer, professional adviser, banker, auditor or other consultant of the Receiving Party (each a Recipient) only if the disclosure is made to the Recipient strictly on a "need to know basis" and, prior to the disclosure:

(i) the Receiving Party notifies the Recipient of the confidential nature of the Confidential Information to be disclosed; and

(ii) the Recipient undertakes to the Receiving Party (for the benefit of the Disclosing Party) to be bound by the obligations in this clause 14 as if the Recipient were a Receiving Party in relation to the Confidential Information to be disclosed to the Recipient.

(d) The Receiving Party is liable for any breach of this clause 14 by a Recipient as if the Recipient were a Receiving Party in relation to the Confidential Information disclosed to the Recipient.

(e) Each party must promptly notify the other party if it becomes aware of any unauthorised access, use or disclosure of all or any part of the Confidential Information and must give that other party all reasonable assistance in connection with any Claim which it may institute in connection with that unauthorised access, use or disclosure.

(f) Immediately on the written request of the Disclosing Party or on termination, a Receiving Party must:

(i) cease the use of all Confidential Information of or relating to the Disclosing Party (or any Related Entity of the Disclosing Party);

(ii) deliver to the Disclosing Party all documents and other materials in its possession or control containing, recording or constituting that Confidential Information or, at the option of the Disclosing Party, destroy, and certify to the Disclosing Party that it has destroyed, those documents and materials; and

(iii) upon delivery of the Confidential Information under clause 14(f)(ii), permanently delete that Confidential Information from all electronic media on which it is stored, so that it cannot be restored. 

15. Privacy 

(a) Any Personal Information submitted by You (whether Personal Information of You or another individual which You have the necessary consents to provide) to SpendWatt is subject to and may be handled in accordance with its Privacy Policy. The Privacy Policy forms part of these Terms. You agree that, by using the SpendWatt Platform or communicating with SpendWatt, You have read the Privacy Policy, understood its contents and consented to its requirements.

(b) You must not upload any Personal Information of another individual to the SpendWatt Platform unless You first make them aware of the Privacy Policy and have their consent to upload such Personal Information. 

16. Indemnity

(a) You agree and acknowledge that You will fully indemnify SpendWatt in respect of all Loss and Claims howsoever arising (including from any Service Providers), whether at common law (including negligence) or under statute, in connection with:

(i) any breach of these Terms;

(ii) Your use of the SpendWatt Platform, including any wrongful, wilful or negligent act or omission;

(iii) Your communications with SpendWatt;

(iv) any Claims made by any other User; or

(v) any Claims made by any recipient of a Proposal prepared by You.

(b) SpendWatt agrees to indemnify You against any and all Loss and Claims arising out of any allegation by a third party that Your or Your Users’ use of the SpendWatt Platform in accordance with these Terms infringes the Intellectual Property Rights of that third party, subject always to clauses 16(c) and 16(d).

(c) Clause 16(b) will not apply to the extent the infringement is caused by You failing to:

(i) promptly provide SpendWatt with written notice of such a Claim against You;

(ii) give SpendWatt sole control of the defence and settlement of such a Claim against You; or

(iii) provide SpendWatt with all reasonable assistance in relation to the defence and settlement of such a Claim.

(d) If a Claim is made by a party alleging Your or Your users' use of the SpendWatt infringes that party's Intellectual Property Rights, SpendWatt will, at its option either:

(i) modify or replace the SpendWatt Platform so that it becomes non-infringing; or

(ii) procure for SpendWatt the right to continue using the SpendWatt Platform.  

17. Warranties and Limitation of Liability 

(a) Each party warrants that:

(i) it has full legal capacity and power to enter into these Terms and to carry out the transactions contemplated by these Terms; and

(ii) it has obtained or will obtain all licences, permits and third party authorisations necessary for it to perform its obligations under these Terms.

(b) Subject to clause 17(c), any representation, warranty, condition, guarantee or undertaking that would be implied in these Terms by Law, trade, custom or usage is excluded to the maximum extent permitted by Law.

(c) Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on by the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement.

(d) To the fullest extent permitted by Law, the liability of SpendWatt for a breach of a non-excludable guarantee referred to in the above clause is limited to:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

(e) Subject to clause 17(c), to the full extent permitted by Law, SpendWatt is not liable to You for any Consequential Loss arising out of or in relation to these Terms.

(f) Subject to this clause 17, the maximum aggregate liability of SpendWatt for all Losses and Claims arising out of or in connection with these Terms, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of $100.00. 

(g) Either party's liability under or in connection with these Terms will be reduced by the extent, if any, to which the other party contributed to the relevant Losses.

(h) Both parties must take reasonable steps to mitigate any Losses it suffers as a result of a breach by the other party of these Terms.

(i) SpendWatt will not have any liability to any party (including You) in relation to:

(i) the accuracy, completeness or reliability of the Data or Proposals; or

(ii) any act or omission, where such act or omission is specified required by a direction to us from a regulatory body purporting to exercise its functions or powers.

(j) SpendWatt will not have any liability for Loss (including under a warranty or indemnity) suffered by You to the extent caused or contributed to by:

(i) a use of the SpendWatt Platform in combination with materials or services not supplied to You by SpendWatt;

(ii) a use of the SpendWatt Platform in breach of these Terms;

(iii) enhancements, adaptions, translations or modifications of the SpendWatt Platform by a person other than SpendWatt (or its Service Providers);

(iv) faults, malfunctions or defects in any third party material or third party software; or

(v) telecommunications or power failure or fault or defective network or internet connection affecting You or Your Users, or affecting SpendWatt, provided that SpendWatt takes reasonable steps to mitigate the relevant disruption.  

18. Dispute resolution

(a) If any dispute, controversy or claim arises between the parties arising out of, relating to or in connection with these Terms, including any question regarding its existence, validity or termination, a party may deliver to the other party a written notice which sets out:

(i) the nature of the dispute; and

(ii) the relief or remedy that the party seeks.

(b) The parties agree that if a dispute arises out of or relates to these Terms, a party may not commence any legal proceedings relating to the dispute unless it has complied with the provisions of this clause 18 except to seek urgent equitable or interlocutory relief. The procedures in this clause 18 will be completed within 40 Business Days from the giving of notice referred to in clause 18(a). After expiry of this time, a party may commence legal proceedings relating to the dispute.

(c) When a dispute arises between the parties in relation to these Terms, then:

(i) all amounts payable by You to SpendWatt which are not in dispute must be paid in accordance with these Terms;

(ii) if the parties cannot resolve the dispute within 10 Business Days after notice has been given, then the dispute is to be referred to the respective chief executive officers or their nominees of each party (jointly referred to in the remainder of this clause 18 as Chief Executive Officers) for resolution; and

(iii) if the Chief Executive Officers cannot resolve the dispute within 10 Business Days after referral, then the parties must submit the dispute to a mediator for consideration in accordance with the Mediation Rules of the Resolution Institute, which Rules are taken to be incorporated into these Terms. 

(d) Each party must pay its own internal and legal costs in relation to complying with this clause 18. The mediator's costs are to be shared equally between the parties. 

19. General provisions

(a) These Terms and our Privacy Policy contain the entire understanding between the parties concerning the subject matter of these Terms and supersede, terminate and replace all prior agreements and communications between the parties.

(b) These Terms, and any provision of these Terms, is not to be construed to the disadvantage of a party because that party was responsible for its preparation.

(c) A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by these Terms does not operate as a waiver of that power or right.  A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these Terms.  A waiver of a breach does not operate as a waiver of any other breach.

(d) Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.

(e) These Terms bind and benefit the parties and their respective successors and permitted assigns under clause 19(f).

(f) You cannot assign or otherwise transfer the benefit of these Terms without SpendWatt's prior written consent. SpendWatt is permitted to assign or otherwise transfer the benefit of these Terms without Your prior consent.

(g) You consent to SpendWatt contacting You by electronic means including through email.

(h) These Terms are governed by and must be construed in accordance with the Laws in force in the State of Victoria, Australia. The Parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, its performance or subject matter.

(i) Unless these Terms expressly provide otherwise:

(i) each indemnity in these Terms survives the expiry or termination of these Terms; and

(ii) a party may recover a payment under an indemnity in these Terms before it makes the payment in respect of which the indemnity is given.

(j) Unless these Terms expressly provide otherwise, nothing in these Terms may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary. 

(k) Where any failure or delay in the performance of obligations under these Terms (other than an obligation to make payment) is caused, directly or indirectly, by a Force Majeure Event:

(i) the Affected Party must as soon as practicable give the other party written notice of that fact;

(ii) the Affected Party is not liable for that failure or delay; and

(iii) Affected Obligations under these Terms are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event.

June 2024