Terms of Use

1.           Definitions and interpretation

1.1         Definitions

In this Agreement the following expressions have the following meanings:

Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday in Sydney , New South Wales .

Service means:

(a)           The .php file that enables You to access the Software via the Website;

(b)           Any upgrades or new versions of the Service available for use via the Website.

Software means the computer software program known as "Formbay" accessible via the Service and for the avoidance of doubt, Software does not include any third party software.

Territory means Australia .

Website means any URL via which the hosted Software is being served by FormBay to You.

1.2         Interpretation

(a)           A reference to a person includes any other entity recognised by law and vice versa.

(b)           Headings, underlinings, marginal notes and indexes are only included for ease of reference and do not affect interpretation.

(c)           A reference to any legislation or legislative provision includes any modifying, consolidating or replacing legislation or legislative provisions from time to time, and includes all regulations, rules and other statutory instruments issued under the legislation.

(d)           A reference to a document (including these Terms of Use) is to that document as varied, novated, ratified or replaced from time to time.

(e)           References to parties, clauses, schedules, annexures or exhibits are references to parties, clauses, schedules, annexures or exhibits to these Terms of Use unless otherwise stated.

(f)            References to months and years mean calendar months and years.

(g)           Words denoting the singular number include the plural, and vice versa.

(h)           Where any word or phrase is given a defined meaning any other grammatical form of that word or phrase has a corresponding meaning.

(i)            No rule of construction or interpretation applies to the disadvantage of a party because that party prepared these Terms of Use.

1.3         Severing any void term

If any part of these Terms of Use is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down so as to be valid and enforceable. If this is not possible, and that part does not go to the essence of these Terms of Use, that part will be severed from these Terms of Use and the rest of these Terms of Use continues to have full force and effect so as to give effect to the intention of the parties.

2.           Licence to use the Service

2.1         FormBay grants you a non-exclusive, non-transferable licence to access and use the Service for the purposes of processing "Small Scale Technology Certificates" under the Renewable Energy (Electricity) Act 2000 in the Territory, in accordance with these Terms of Use.

2.2         Any documents or reports generated by Your use of the Service must only be used for the purpose outlined in clause 2.1 .

2.3         The Service must only be used in accordance with these Terms of Use.

3.           Your obligations

3.1         You must:

(a)           ensure that any data entered onto the Service by You is accurate and reliable;

(b)           keep up-to-date with the operation and any updates to the Service;

(c)           be aware of, agree to and abide by terms and conditions of the Service and all variations as notified from time to time;

(d)           maintain the confidentiality of the Service;

(e)           act professionally, and not do anything that will or that is likely to bring FormBay into disrepute;

(f)            promptly notify FormBay if You believe or suspect that the Service has been compromised or is being used in a manner that breaches these Terms of Use;

(g)           maintain the confidentiality of Your Service username and password, and accept full responsibility for all activities that occur under Your username.  Where the correct username and password are provided, FormBay is entitled to assume that the access is by You, or authorised by You, and You indemnify FormBay completely against any claim of loss or damage that results from wrongful, fraudulent or other access (using the correct username or password) to the Service;

(h)           make Your own enquiries into the laws applying in each jurisdiction in which You use the Service to ensure Your use of the Service is lawful; and

(i)            prevent other people from accessing or using the Service.

3.2         You must not do, and You must not authorise or encourage any third party to do, any of the following:

(a)           copy, redistribute or resell any element of the Service, or any object, item or material created by Your use of the Service, or permit or purport to permit any person to copy, redistribute or resell any element of the Service;

(b)           use the Service for any illegal, fraudulent or inappropriate purpose;

(c)           use the Service in any other way that violates any of the items as described in the list of ‘Prohibited Actions’ and ‘Spam’ as outlined in the Schedule;

(d)           alter, remove or otherwise interfere with any permissions applied by another user;

(e)           interfere with or construct Your own system to access the information on the Service; or

(f)            act in any way that violates this Agreement.

3.3         You acknowledge and agree to each of the following:

(a)           the Service is only provided to You for so long as you abide by the Terms of Use;

(b)           FormBay has the right to copy, use, manipulate or otherwise deal with any and all data provided to it by You as part of Your use of the Service, and You warrant that FormBay's use of the data pursuant to this clause does not infringe the rights of any third party;

(c)           the Service may be subject to technical limitations such as network coverage and third party service availability;

(d)           the Service is provided on an AS IS and AS AVAILABLE basis and FormBay makes no warranties or guarantees in respect of uptime for Your data, content or the Service;

(e)           FormBay expressly assumes no responsibility for, without limitation, backing up Your data, damage to Your data. You are responsible for ensuring that you have any necessary back up documentation;

(f)            due to the nature of the Service, FormBay does not promise that it will be continuous, accessible at all times or fault-free;

(g)           FormBay reserves the right to modify, suspend or discontinue any part of the Service with or without notice at any time and without any liability to You; and

(h)           You are solely responsible for the content of any documents that You upload to the Service and FormBay takes no responsibility for the accuracy of that content of these uploaded documents.

4.           Security

4.1         You must promptly notify FormBay of any actual or suspected breach of security related to the Services, including, but not limited to, unauthorised use of Your password or account.

4.2         You are responsible for the security of Your password, log-in or access details or other security measures.  You are responsible for all electronic communications and other information entered through or under user IDs, passwords, access numbers or account numbers.  You must not disclose any security measures to any other person and must keep those details confidential. 

4.3         To help ensure the security of Your password or account, You must sign out from Your account at the end of each session.

5.           Intellectual Property Rights

5.1         You acknowledge that FormBay owns all right, title and interest in and to the Service, including without limitation all intellectual property rights (the FormBay Rights), and the FormBay Rights are protected by intellectual property laws. Accordingly, You must not copy, reproduce, alter, modify, reverse engineer or create derivative works from the Service. You must not use any robot, spider, other automated device, or manual process to monitor any content from, hosted by or that is otherwise available using the Service. The FormBay Rights include rights to the Service developed and provided by FormBay, all software associated with the Service and the Brand Features (see below). The FormBay Rights do not include third-party content (such as Your data) used as part of Service.

5.2         Any use of FormBay’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features (Brand Features) by You must be only in connection with the Service and in compliance with the Agreement.  You must not alter any Brand Features or copyright notices that are posted by FormBay in connection with the Service.

6.           Disclosure of information

If disclosure of any information provided by You to FormBay, or by FormBay to You, is or may be required by law or regulatory authority, the party under the obligation must immediately notify the other party of that fact.  If the other party objects to the disclosure on the basis that it is not required by law, the party must act in accordance with any reasonable written legal opinion provided to it by the other party, or the other party’s legal advisors. 

7.           Suspension of the Website

  • FormBay may from time to time without notice suspend the Website or disconnect or deny you access to the Website during any technical failure, modification or maintenance involved in the Website. FormBay will use its reasonable endeavours to procure the resumption of the Website as soon as reasonably practicable.

8.           Warranties and indemnity

8.1         You warrant to the best of Your knowledge that the materials and information provided to FormBay  for the purposes of providing the Services:

(a)           are true, correct and current;

(b)           are able to be disclosed by You;

(c)           does not infringe the rights of any third party;

(d)           is able to be legally provided to FormBay and its disclosure does not breach any law or any obligation (whether of confidence or otherwise) owed to any person;

(e)           You have all necessary right, power and authority to enter into these Terms of Use and to perform the acts required of You under these Terms of Use.

8.2         You acknowledge that You have not relied upon or been induced by any representation by FormBay and FormBay makes no warranty or representation as to:

(a)           the results that may be obtained through the Service;

(b)           the accuracy, reliability or otherwise of any information obtained through the Service; or

(c)           the Service or network being uninterrupted, timely or error free.

8.3         You indemnify and keep indemnified FormBay and its officers, employees, agents, subsidiaries and affiliates against all claims (including third party claims), demands, damages, costs (including legal costs), penalties or suits arising out of or consequential upon Your use of the Service and any breach of any warranty or other term of these Terms of Use.

9.           Limitation of Liability

9.1         To the extent permissible by law FormBay excludes any liability:

(a)           for any failure of performance, error, omission, interruption, deletion, defect or delay in transmission or operation, or

(b)           for any injury, loss or damage arising out of provision of the Services,

provided that FormBay does not exclude any such liability if it arises as a result of FormBay's failure to take reasonable steps to guard against and use its best endeavours to immediately rectify any of the matters referred to in this clause 9.1 of which FormBay is aware.

9.2         To the fullest extent permissible at law, FormBay is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in anyway connected with the provision of or failure to provide the Service or otherwise arising out of the Service, whether based on contract, negligence, strict liability or otherwise, even if FormBay has been advised of the possibility of damages.

9.3         You expressly agree that use of the Service at Your own risk. To the extent allowed by law, FormBay's liability for breach of a term implied into these Terms of Use by any law is excluded.

9.4         FormBay gives no warranty in relation to the Service provided or supplied.  Under no circumstances is FormBay or any of its carriers or suppliers liable or responsible in any way to You or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Service including its form, content and timeliness of delivery, including, without limitation, for and in relation to any of the following:

(a)           any Service supplied to You;

(b)           any delay in supply of the Service;

(c)           any failure to supply the Service;

(d)           any technical or non-technical failure; or

(e)           any content or information accessed via the Service with or without Your authorisation.

9.5         The Australian Competition and Consumer Act 2010 may imply certain conditions, guarantees and warranties into these Terms of Use. To the extent permitted by law those conditions or warranties are expressly excluded.  Where they cannot be excluded and where liability can be limited, FormBay’s liability (if any) arising from the breach of those conditions, guarantees and warranties is limited, in FormBay’s sole discretion, to the supply of the Service again or cost of re-supplying the Service again.

10.       Waiver

A failure or delay by FormBay to exercise a power or right under these Terms of Use does not operate as a waiver of that power or right, and the exercise of a power or right by FormBay does not preclude its future exercise or the exercise of any other power or right.

11.       Notices

11.1      A notice or other communication connected with these Terms of Use (Notice) has no legal effect unless in writing.

11.2      In addition to any other method of service provided by law, the Notice may be:

(a)           sent by prepaid ordinary mail to the address for services of the addressee in the Contract Details, if the address is in Australia and the Notice is sent from within Australia ;

(b)           sent by email to the address stated in the Contract Details;

(c)           sent by facsimile to the facsimile number of the addressee in the Contract Details;

(d)           delivered to the address for service of the addressee in the Contract Details; or

(e)           posted at the Website.

11.3      If the Notice is sent or delivered in a manner provided by clause 11.2 it must be treated as given to and received by the party to which it is addressed:

(a)           if mailed from within Australia to an address in Australia , on the 2nd Business Day (at the address to which it is mailed) after mailing;

(b)           if sent by email before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt;

(c)           if sent by facsimile before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or

(d)           if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

11.4      Despite clause 11.3

(a)           a facsimile is not treated as given or received unless at the end of the transmission the sender’s facsimile machine issues a report confirming the transmission of the number of pages in the Notice; and

(b)           a facsimile is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 3 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given and received, whichever is later.

11.5      If a Notice is served by a method which is provided by law but is not provided by clause 11.2 , and the service takes place after 5.00pm on a Business Day, or on a day that is not a Business Day, it must be treated as taking place on the next Business Day.

11.6      A Notice sent or delivered in a manner provided by clause 11.2 must be treated as validly given to and received by the party to which it is addressed even if:

11.7      A party may change its address for service or facsimile number by giving Notice of that change to each other party.

12.       Dispute Resolution

All questions or disputes relating to the Service including these terms should be submitted to FormBay in writing. FormBay will endeavour to resolve any disputes expeditiously. All interpretations of these Terms of Use of Service shall be at FormBay's sole discretion. FormBay's error is not a breach of these terms of Service.

13.       Amendments

13.1      FormBay may vary these terms at any time by general notice on a page of the internet referred to on the home page of the Website.

13.2      These terms constitute the Agreement in its entirety and supersede prior agreements.

14.       Governing Law

The law in New South Wales governs this Terms of Service and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales .

 

  • SCHEDULE

Prohibited Acts

In addition to those acts listed in these Terms of Use, the following acts are prohibited in using or in connection with the Service:-

  • ·          Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content.
  • ·          Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature.
  • ·          Transmit content or use the Service that in the opinion of FormBay acting reasonably may be considered harmful to or inappropriate for minors.
  • ·          Impersonate another person (via the use of an email address or account) or otherwise misrepresent Yourself or the source of any email or communication.
  • ·          Use FormBay to violate the legal rights (such as rights of privacy and publicity) of others.
  • ·          Promote, encourage or participate in illegal or unlawful activity.
  • ·          Interfere without cause in the reasonable enjoyment by other FormBay  Users of the Service.
  • ·          Create multiple user accounts, create user accounts by automated means or otherwise engage in false, fraudulent, deceptive or misleading conduct in respect of user identity.
  • ·          Sell, trade, resell, transfer or otherwise attempt to dispose of, or otherwise exploit any content on the Service for any unauthorised commercial purpose.
  • ·          Modify, adapt, translate, or reverse engineer any portion of the Service
  • ·          Remove any copyright, trade mark or other proprietary rights notices contained in or on the Service.
  • ·          Reformat or frame any portion of any web page that is part of the Service.
  • ·          Create third party software without the permission of FormBay.
  • ·          Communicate with the Service through other users other than the FormBay approved users.
  • ·          Misrepresent FormBay or the Service as being associated with content with another website, web service, software service, software or other service without FormBay’s prior permission.

Spam

You are prohibited from generating or facilitating unsolicited commercial communication ("spam"). Such activity includes, but is not limited to

  • ·          sending communication in violation of Australia 's Spam Act 2003 or any other applicable anti-spam law;
  • ·          imitating or impersonating another person or email address or FormBay's account, or creating false accounts for the purpose of sending spam;
  • ·          data mining any web property (including FormBay) to find email addresses or accounts;
  • ·          sending unauthorised mail or communication via open, third-party servers;
  • ·          sending emails or communication to users who have requested to be removed from a mailing list or Your contact list;
  • ·          selling, exchanging or distributing to a third party the email addresses of any person without such person's knowing and continued consent to such disclosure;
  • ·          sending unsolicited emails or communications to significant numbers of email addresses or accounts belonging to individuals and/or entities with whom You have no pre-existing relationship.