Terms and Conditions
General Terms and Conditions
Araya Pictures Pty Ltd (ACN 138 046 563) trading as “Energesse” (the “Provider” or “us” or “we” or “our”) is a provider of technology services under the “Energesse” brand name. All services provided by the Provider shall hereinafter be referred to as the “Services”, including services provided via the Provider’s website https://www.energesse.com or https://pxme.com.au (the “Energesse Platform”).
These General Terms and Conditions (“General Terms”) and any other terms and conditions notified by the Provider shall apply in respect of the use of the Services, including the Energesse Platform, by any customers, subscribers or users of the Provider (“Subscribers” or “you”).
Where you have been authorised and/or invited to use the Energesse Platform because of authorisation by a Subscriber to which you are affiliated and/or associated (for example, you are an employee or staff member of a Subscriber who has authorised you to access the Energesse Platform as part of the Subscriber’s use of the Services), these General Terms will apply to your use of the Energesse Platform to the maximum extent which they are applicable, including paragraphs 2 (Definitions and interpretation), 3 (Nature of the Services) (other than paragraphs 3.4 to 3.6), 4 (Subscription), 6 (Warranties and Limitations), 7 (Termination) (other than any requirements that you pay any fees, charges and/or expenses), 8 (Intellectual Property) and 9 (Confidentiality). Finally, and in this respect, all references to “Subscriber” in these General Terms shall be read as a reference to you.
- Effect of Terms
- any other principal terms and conditions notified by the Provider in writing to the Subscriber as being applicable to the Services (“Principal Terms”), such as principal terms and conditions set out in any proposal document or letter of agreement issued by the Provider; and
- our “Privacy Policy” at https://www.energesse.com/privacy-policy/,
- there is any conflict between the content of these Terms and the content of the Website or any information provided to the Subscriber by the Provider, these Terms shall prevail (unless expressly provided otherwise by the Provider); and
- there is any conflict between the Principal Terms and these General Terms, the Principal Terms shall prevail.
- Definitions and interpretation
- In these General Terms, unless the context otherwise requires or permits:
- where any word or phrase is given a defined meaning, then other parts of speech and grammatical forms of that word or phrase will have a corresponding meaning;
- references to the singular includes the plural and vice versa;
- reference to parties means the parties to these Terms and to a party means a party to these Terms;
- references to a party will include as the context requires that party’s respective agents, representatives, advisors, subcontractors, executors, administrators and successors;
- references to a successor to a party includes its successors, assigns and licensees and all further successors, assigns and licensee of the relevant party or such successors, assigns or licensees;
- references to these Terms includes any annexures, appendices and schedules to these Terms and any other document expressly incorporated as part of these Terms;
- references to these Terms include references to these Terms as varied from time to time in accordance with these Terms;
- references to any legislation or legislative provision will include modifying, consolidating, or replacing legislation or legislative provisions;
- references to a “breach of warranty” includes that warranty not being complete, true or accurate;
- references to “$”, “AUD$”, “A$”, “Australian Dollars” or “dollars” is a reference to the lawful tender for the time being and from time to time of the Commonwealth of Australia;
- the words “including” and “includes” and similar words are not words of limitation;
- every covenant, provision, representation, warranty, obligation or an agreement applying to, binding or given by more than one person will bind them jointly and each of them severally;
- a requirement to do any thing includes a requirement to cause that thing to be done and a requirement not to do any thing includes a requirement to prevent that thing being done;
- a provision of these Terms is not to be construed adversely against a party solely on the ground that the party or its solicitors were responsible for the preparation of these Terms or of a particular provision of these Terms; and
- if the day on which any act, matter or thing is to be done under or pursuant to these Terms is not a Business Day, that act, matter or thing may be done on the next Business Day.
- Nature of the Services
- a requirement included in these Terms that is more complex than what was originally assessed through early discussions between the Provider and the Subscriber with respect to the Services to be provided by the Provider;
- a new requirement outside the scope of these Terms;
- an assumption stated in these Terms is incorrect or untrue; or
- An unforeseen risk to project delivery timeline/cost arises (e.g. unavailable Customer resource issues, unforeseen project delays, delay in receiving data, change in critical Customer resources).
- Subscription
- Fees and Expenses
- Warranties and Limitations
- Termination
- Upon termination (including expiration) of the Subscription for whatever reason:
- the Subscriber must pay the Provider any fees, charges and expenses, including the Fees and Expenses (including Expenses that have been incurred or committed to by the Provider), due and payable to the Provider under these Terms promptly; and
- the Subscriber must do all things reasonably necessary, and as reasonably directed by the Provider, to stop using the Services; and
- certain rights, obligations and warranties in these Terms which are expressly stated or otherwise intended to apply after the termination or expiry of these Terms shall survive such termination or expiry, including 6 (Warranties and Limitations), 8 (Intellectual Property), 9 (Confidentiality) and 10 (Dispute Resolution).
- Intellectual Property
- providing the Services to the Subscriber, including provision of the Subscriber Content to any person or contractor that assists the Provider with the provision of the Services;
- to maintain, improve and/or rectify any issues with the Services (including to assess whether there has been a breach of these Terms);
- benchmarking against other Subscribers, in a de-identified manner and
- for any other purpose as set out in the Terms;
- copy, license, sell, distribute, publish, communicate to the public, store or reproduce, decompile, reverse-engineer, disassemble, or otherwise convert the Provider Content (excluding any Subscriber Content incorporated in the Provider Content) or any Third Party Content by any means; or
- transmit or upload any harmful effects to the Energesse Platform, including, without limitation, by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” “hacking,” “hijack” or “crashing”, or test (or attempt to test) the security or vulnerability of the Energesse Platform or the software and systems used by the Provider to provide the Services; and
- Confidentiality
- Dispute Resolution
- Force Majeure
- the Affected Party notifies the Other Party in writing as soon as reasonably practical of the occurrence of the Force Majeure Event and the nature and likely duration of its impact upon the Other Party;
- the Affected Party where practicable takes all reasonable steps to mitigate the impact of the Force Majeure Event on the Other Party and in particular continues to perform those obligations affected by the Force Majeure Event but whose performance has not been rendered impossible to the highest standard reasonably practicable in the circumstances; and
- the Affected Party resumes normal performance of all affected obligations as soon as the impact of the Force Majeure Event ceases, and notifies the Other Party in writing of such resumption.
- Miscellaneous