WEBSITE USE TERMS AND CONDITIONS
The Company provides the EQ esco website and services. Use of the Site and Services are subject to these Terms of Service.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
(a) ABN means Australian Business Number.
(b) Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Terms of Service.
(c) Assessment means a certification of the energy rating of a building.
(d) Assessor means an energy rating assessor qualified to provide Assessments.
(e) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(f) Company means EQ esco Pty Ltd, ABN 17 614 754 666.
(g) Corporations Act means the Corporations Act 2001 (Cth).
(h) Fee means a fee charged by the Company for use of the Site.
(i) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(k) Privacy Act means the Privacy Act 1988 (Cth).
(m) Quote means a quote from an Assessor of the estimated cost to provide an Assessment.
(n) Request means a request for a Quote submitted via the Site.
(o) Services means the Services provided to a User via the Site, but does not include any consultation services provided by the Company.
(p) Site means the website operated by the Company accessible at http://eqesco.com, and includes the Services where implied by context.
(q) Special Conditions means any special conditions to this Agreement made pursuant to these Terms of Service.
(r) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(s) User means any person that uses the Services.
1 USING THE SITE
(a) The User agrees that all use of the Site is subject to these Terms of Service.
(b) Users under the age of 18 must not use the Site without their parent or legal guardian’s consent. Only persons over the age of 18 may submit a Request.
(c) The Company may restrict access to the Site from any location.
(d) The Company may restrict access to the Site where it cannot, in its absolute discretion, verify the User’s identity.
(e) The User’s licence to access the Site as a User shall be ongoing unless terminated by the Company in accordance with these Terms of Service.
(a) The Company operates the Site, which allows a User to submit a Request by supplying information relative to a building they wish to obtain an Assessment in order to receive a Quote.
(b) The Company may request information from a User in a Request such as:
i The User’s name, email address, telephone number;
ii Address of the building;
iii Type and condition of building;
iv Area of the building;
v Ownership details;
vi Type of Assessment required;
vii Any other information that can assist Assessors to provide accurate Quotes for the User.
(c) The Company provides the Services and any Quote or recommendation free of charge to the User.
(d) The User acknowledges that the Company provides all information contained in a Request to suitably qualified Assessors for the purposes of obtaining a Quote.
(e) Assessors will provide Quotes directly to Users.
(f) The Company makes no representation and does not guarantee that a User will receive a Quote as the result of submitting a Request.
2.1 A User accepts and agrees that:
(a) The User uses the Site and Services at their own risk.
(b) The User authorises the Company to provide the information collected from the User in a Request to Assessors in order to obtain a Quote.
(c) The Company may receive fees and/or commissions from third parties (including Assessors) for services that are advertised or made available through the Site or Services.
(d) While the Company makes best endeavours to arrange high quality Quotes, the Company makes no warranty or representation as to the quality, or fitness for purpose of any Assessor or their services.
(e) An Assessor may impose such conditions on a Quote as the Assessor may determine.
(f) The Company takes no responsibility for any harm or loss suffered by a User as a result of using any Assessor’s services. If a User suffers loss or harm as a result of using an Assessor, the User agrees that:
i The User shall have no recourse against the Company; and
ii The relevant Assessor remains responsible for any such loss or harm, including where applicable under Australian Consumer Law.
(g) Any dispute that may arise between a User and an Assessor must be dealt with between the User and the relevant Assessor. Under no circumstance shall the Company perform a dispute resolution role between a User and an Assessor.
3 GENERAL CONDITIONS
(a) The User agrees to abide by the terms of this Agreement in its:
i Use of the Site; and
ii Access to the Services
(b) Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using the Site and Services.
(c) This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of the Services the next time the User accesses the Site.
(a) By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use the Site for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
(b) The Company may issue the licence to the User on the further terms or limitations as it sees fit.
(c) The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User. the Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
The User agrees that it shall only use the Site for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
By accepting the terms of this Agreement the User agrees that the Company shall provide access to the Site to the best of its abilities, however it accepts no responsibility for ongoing access to the Site.
(a) Security. The Company takes the security of the Site and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
(b) Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
(c) Storage. The Company stores data on servers based in the USA according to accepted industry standards. If the User requires its User Data to be stored in a different location, the Company may charge the User a fee to do so.
(d) Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.
3.7 Intellectual Property
(a) Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the Site.
(c) The Site. The User agrees and accepts that the Site is the Intellectual Property of the Company and the User further warrants that by using the Site the User will not:
i Copy the Site or the services that it provides for the User’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Site or any documentation associated with it.
(d) Content. All content submitted to the Company, whether via the Site or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Site.
3.8 Disclaimer of Third Party Services & Information
(a) The User acknowledges that the Site is dependent on third-party services, including but not limited to:
i Banks, credit card providers and merchant gateway providers;
ii Telecommunications services;
iii Hosting services;
iv Email services; and
v Analytics services.
(b) The User agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of the Site due to third-party services; or
ii Information contained on any linked third party website.
3.9 Liability & Indemnity
(a) The User agrees that it uses the Site at its own risk.
(b) The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
(c) The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with the Site, including any breach by the User of these Terms of Service.
(d) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use the Site, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise.
(e) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
(a) Either party may terminate this Agreement by giving the other party 1 month’s written notice.
(b) Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
(c) Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 3.8, 3.11 and 3.12 survive termination of this Agreement.
3.11 Dispute Resolution
(a) If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute; and
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
3.12 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The User may not assign or otherwise create an interest in this Agreement.
(g) The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
(a) Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
(b) Prevalence. To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
(d) Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
(e) Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
(g) Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
Last Update: 28 November 2016