Terms & Conditions
1. Introduction
1.1 In this document 'we' and 'our' means CarbonetiX and 'you' and 'your' mean the customer.
1.2 This agreement outlines the terms and conditions that apply to any SETS service you have signed up for with us and any associated services ('the Services').
2. Acceptance of these terms and conditions
2.1 You signified acceptance of these terms and conditions when we accepted your order for Services.
3. Commencement of the Agreement
3.1 This agreement commenced on the date we accepted your order for Services.
4 Service availability
4.1 In these terms and conditions 'Service' primarily refers to our operation of SETS on our Server and a connection to and from the Internet.
4.2 We will use our best endeavours to provide continuing availability of SETS but we cannot be liable for service interruptions or down time.
4.3 We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the Service to be offline for more than 30 minutes we will post details of the scheduled maintenance at least 48 hours in advance of the maintenance. If we need to perform unscheduled maintenance that requires the Service to be offline for more than 30 minutes, we will post details of the event after the maintenance has been completed.
5. Customers warranties, liabilities and undertakings
5.1 You agree to indemnify and keep indemnified and hold us harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of SETS, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms.
5.2 You warrant that you will keep secure any passwords used with the Service.
5.3 You further warrant that at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced.
5.4 You also agree that you are solely responsible for dealing with persons who access your data and that you will not refer complaints or inquiries in relation to such data to us.
6. Data
6.1. You must hold, or obtain, consents from all third-party authors for all data and other intellectual property ('Data') entered into SETS under your username, and the uses of such Data pursuant to this clause.
6.2. All intellectual property rights relating to Data entered into SETS under your username shall vest in and remain your property.
6.3. Subject to compliance with privacy legislation, CarbonetiX may use or exploit your Data for any purpose consistent with the general objectives of CarbonetiX and not for any commercial purpose, and you grant to CarbonetiX, and CarbonetiX accepts, a worldwide, irrevocable, non-exclusive, royalty-free, perpetual licence of your Data for those purposes, including the right to sub-licence such rights.
6.4. You acknowledge that your Data may be used and your account identified for reporting by funding bodies that have funded your subscription or where you have an agreement with that body to access your Data and you consent to such use and identification.
6.5. By default, your ‘Privacy’ setting in SETS will be set to ‘Public’. You may be able to change this in the ‘Setup/Maintenance’ section if this does not contradict the terms of your funding body, if applicable. This ‘Public’ privacy setting means that your Data will be displayed on t CO2-e / student graph and on the whole of Australia map and may be identified by your ‘School Name’.
6.6. You indemnify and will at all times keep CarbonetiX and its sub-licensees indemnified against any loss, cost, action, proceeding, claim, damage, expense (including reasonable legal costs and expenses) or liabilities arising out of or otherwise in connection with any breach or alleged breach by you of the intellectual property Rights of any third person, pursuant to this clause.
6.7. For the purposes of this clause 6, Personal Information means information or an opinion (including in a database) whether true or not, and whether recorded in a material form or not, about a natural person whose identity is apparent or can reasonably be ascertained from the information or opinion.
6.8. You must, and must procure that Your employees, agents, officers and subcontractors comply with the Privacy Act 1988 (Cth), any privacy statement issued by CarbonetiX and any other applicable laws and codes dealing with privacy, in relation to any Personal Information collected, used or stored in relation to this Contract.
8. CarbonetiX's Warranties and Liabilities
8.1 We accept liability for the supply of the Services to the extent provided in this agreement.
8.2 We do not warrant that:
" the services provided under this agreement will be uninterrupted or error free;
" the services will meet your requirements, other than as expressly set out in this agreement; or
" the services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of SETS.
8.3 Except as expressly provided to the contrary in this agreement, we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, failure to realise expected savings and any other economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement and/or its subject matter.
8.4 We make or give no express or implied warranties including, without limitation, the warranties of merchantability or fitness for a particular purpose, or arising from a course of dealing, usage or trade practice, with respect to any goods or services provided under or incidental to this agreement. No oral or written information or advice given by us, our resellers, agents, representatives or employees shall create a warranty or in any way increase the scope of the express warranties hereby given, and you may not rely on any such information or advice.
8.5 Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the services will be limited to the charges paid by you in respect of the services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.
8.6 In no event will we be liable to you for any loss of contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.v
8.7 In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 (Cth) nothing contained in this agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this agreement, where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to the Act, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specified in this agreement) to:
" the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
" the repair of the goods or payment of the cost of having the goods repaired;
" the supplying of the Services again; or
" the payment of the cost of having the Services supplied again.
8.8 We specifically exclude any warranty as to the accuracy or quality of information received by any person via your username and in no event will we be liable for any loss or damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any loss or damage to your data stored on the Server.
9. Suspension and Termination of the Service
9.1 We may suspend or terminate your account if you breach any of these terms and conditions, or if we deem that your have acted maliciously toward the system.
9.2 From time to time we may have to suspend or disconnect the service without notice or deny your access to the Service during any technical failure, modification or maintenance involved in the Service. We will use reasonable endeavours to procure the resumption of the services as soon as reasonably practicable. In these circumstances you will remain liable for all charges due throughout the period of suspension.
9.3 If your account has been suspended or terminated due to your breach, reactivation of your account will be completely at our discretion. If we agree to reactivate your account, we will require payment in full of all outstanding amounts and payment of a reactivation fee.
9.4 If you wish to terminate your account with us for any reason you may do so by giving us 30 days notice in writing. If we wish to terminate your Service for reasons other than a breach of these conditions, we can do so by giving you 30 days written notice. In these circumstances, we will refund any remaining unused credit on your account.
9.5 If your account is closed for whatever reason you must pay all outstanding charges immediately.
9.6 We are under no obligation to provide you with a copy of your data if we have suspended or terminated your access to the service for your breach. If we provide you with a copy of your data in such circumstances, we are entitled to charge a fee for service.
10. Fees, charges and payments
10.1 All charges payable by you or you funding body to us for the Services will be in accordance with the relevant scale of charges and rates published in the pricing section by us on our website and will be due and payable within fifteen days of receipt of our invoice. The price of the package we provide you will remain fixed for the period covered by the payment; that is monthly. After that time you will be billed at the rates current on our website at the time the Service is renewed.
10.2 If you or your funding body exceed our fifteen day credit terms, you access to the service will be terminated.
10.3 Prices published on our web site are exclusive of any government taxes or charges unless otherwise noted. And thus 10% will be added to the price.
10.4 The provision of services is contingent upon our having received payment in full from you in respect of the Services we provide. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, at our discretion, to suspend the provision of Services to you.
10.5 No refunds will be given for unused portions of payments in advance unless the account has been terminated due to our breach of these terms and conditions or we exercise our rights under clause 9.4.
11. Archiving and backup your data
11.1 We will archive your data on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to re-enter your data. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient data recovered from our backups.
12. Ownership of server equipment
12.1 Unless otherwise agreed, you obtain no rights to the hardware and other infrastructure and facilities used by us to deliver the Service.
13. Severability
13.1 If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.
14. Assignment
14.1 You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.
15. Changes to Terms
15.1 We may change the terms and conditions of this agreement at any time. Details of our current terms will always be available on our website. here. This agreement is dated August 2008.
16. Entire Agreement
16.1 These terms and conditions constitute the entire agreement between CarbonetiX and you. It supersedes all prior agreements, understandings and representations whether oral or written.
17. Governing Law
17.1 These terms and conditions are governed by the laws in force in the Australian Capital Territory. Both parties agree to submit to the exclusive jurisdiction of the Courts of that Territory.
18. Notifications & Communications
18.1 All notifications under this agreement will be by email or phone to your nominated address/number. By entering into this agreement you agree to receive other email communications of a marketing and promotional nature unless you opt out of our mailing list. You will not be able to opt-out of critical service notifications, renewal, billing and account notifications, scheduled downtime notifications or any other communications deemed to be an essential part of our service to you.
19. No Questions Asked Money Back Guarantee
19.1 At any time during the first six months of usage, you can ask for your money back in full, no questions asked. After the six monthly peroid has expired the "No Questions Asked Money Back Guarantee" is void and all other terms layed down in this agreement apply.