1. Disclaimer
The information and materials available on the Energy Flex Platform and provided through the Platform (Content) is not comprehensive and is for general information purposes only. It does not consider your specific needs, objectives or circumstances, and does not constitute, nor is it intended to be, advice in any form (including financial, tax, risk or business advice). While we use reasonable attempts to ensure the accuracy and completeness of the Content, we make no representation or warranty regarding it, to the extent permitted by law. The Content is subject to change without notice. However, we do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.

2. Our disclosures
Our complete terms and conditions are contained below, but some important points for you to know before you become a customer are set out below:

• Your Subscription is subject to a Subscription Period, as set out in your Account. You may cancel your Subscription at any time.
• Personal information is handled in accordance with our privacy policy, available at (https://www.energyflex.com.au/privacy/) and at https://energyflex.com.au/terms-conditions/ and any data relevant to the CDR will be handled in accordance with our CDR policy (https://adatree.com.au/cdrpolicy/).
• You are responsible and liable for the actions of your Authorised Users.
• To the maximum extent permitted by law, our liability under these Terms is limited to 12 months of Fees, and we will not be liable for Consequential Loss, any loss that is a result of a Third-Party, any loss in relation to our access of your property’s switchboard, or any loss or corruption of data.Nothing in these terms limit your rights under the Australian Consumer Law.

3. Introduction

1. These terms and conditions (Terms) are entered into between Energy Flex Pty Ltd ACN 648 480 166 (we, us or our), the Energy Flex platform (Platform) and you, together the Parties and each a Party.
2. We provide a software as a service platform where we analyse your energy data to enhance your energy awareness, enable you to maximise the value of your energy asset(s) and improve your operational outcomes in terms of costs and emissions (Platform).
3. In these Terms, you means the person or entity registered with us as an Account holder.
4. If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

4. Acceptance and Platform Licence

1. These Terms apply from when you sign up for an Account, until the date on which your Account is terminated in accordance with these Terms.
2. You and each Authorised User must be at least 18 years old to use the Platform.
3. We may amend these Terms at any time, by providing written notice to you. By continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment and it adversely affects your rights, you may cancel your Subscription with effect from the date of the change in these Terms by providing written notice to us. If you cancel your Subscription, (a) you will no longer be able to use the Platform on and from the date of cancellation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.
4. If you access or download our mobile application from (1) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.
5. We may use several APIs, including but not limited to; the Consumer Data Right (CDR) API, the Australian Photovoltaic Institute API, AEMO NEMWEB API. Your use of Third-Party APIs may be subject to their terms of use and privacy or CDR policies.
6. Subject to your compliance with these Terms, we grant you and your Authorised Users a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.
7. When using the Platform, you and your Authorised Users must not do or attempt to do anything that is unlawful or inappropriate, including:

• • anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;
  • using the Platform to defame, harass, threaten, menace or offend any person, including using the Platform to send unsolicited electronic messages;
  • tampering with or modifying the Platform (including by transmitting viruses and using trojan horses);
  • using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform; or
  • facilitating or assisting a Third-Party to do any of the in consideration for your compliance with these Terms, we agree to provide you and your Authorised Users with access to the Platform and any other services we agree to provide as set out in your Account.

5. Energy Flex Services

1. In consideration for your compliance with these Terms, we agree to provide you and your Authorised Users with access to the Platform and any other services we agree to provide as set out in your Account.
2. We agree to use our best endeavours to always make the Platform available. However, from time to time we may perform reasonable scheduled and emergency maintenance, and the Platform may be unavailable during the times we are performing such maintenance.
3. Should you be unable to access the Platform, or should you have any other questions or issues impacting on your use and enjoyment of the Platform, you and your Authorised Users must place a request via our support channels or via email to (support@energyflex.com.au). We will endeavour to respond to any support requests in a reasonable period.
4. You acknowledge and agree that the Platform relies on, or interfaces with third-party services that are not provided by us (for example, Adatree) (Third-Party Services). To the maximum extent permitted by law, we shall have no Liability for any Third-Party Services, or any unavailability of the Platform due to a failure of the Third-Party Services.
5. You acknowledge and agree that data loss is an unavoidable risk when using any software. To the extent you input any data into the Platform, you agree to maintain a backup copy of any data you input into the Platform.
6. You agree and consent to us or our personnel accessing your property electrical switchboard to provide you with the Platform and relevant services under these Terms. If you do not agree or consent, you must notify us in writing by emailing us using the contact us details at the end of these Terms. We will notify you prior to our access of your property electrical switchboard.
7. To the maximum extent permitted by law, we shall have no Liability to you for any loss or corruption of data, or any scheduled or emergency maintenance that causes the Platform to be unavailable or any loss or damage in relation to our access of your property’s switchboard
8. Consulting Services: As part of your Subscription, you may choose to make use of our consulting services, available for booking via the Platform. When you choose to use this service, you acknowledge and agree that you will be taken off the Platform to a third party browser to book a time with us and our provision of the services may be dependent on other third party services in accordance with clause 5.4. We may record your conversations with us, where you provide consent and in accordance with our Privacy Policy.
9. By using our service, you agree to receive marketing and informational communications from us. This may include promotional offers, updates, quick-start guides, communication toolkits, and other resources to help you get the most out of our service. You may opt-out of these communications at any time.

6. Accounts

1. You must register on the Platform and create an account (Account) to access the Platform’s features and have a Subscription with us. Each Authorised User will require a login that is linked to your Account in order to access the Platform.
2. You may register for an Account using your Apple, Google or Facebook account (Single Sign-On Account). If you sign in to your Account using a Single Sign-On Account, you authorise us to access information from your Single Sign-On Account including your name and contact information.
3. You must provide basic information when registering for an Account including your name or business name, contact name and email address and you must choose a username and password. You acknowledge and agree that as part of this process, we may collect and store the retailer’s name and the registered email address you provide for completing your CDR data consent.
4. All personal information you and your Authorised Users provide to us will be treated in accordance with our Privacy Policy. Any information you and your Authorised Users provide to us in relation to the CDR will be managed in accordance with our Privacy Policy and CDR policy.
5. You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer or provide it to others except for your Authorised Users.
6. You are responsible for keeping your Account details and your username and password confidential. You are liable for all activity on your Account, including purchases made using your Account details, any data sharing or communications that have been created or sent, and any activity by one of your Authorised Users. Each Authorised User is responsible for keeping their login details confidential. You agree to immediately notify us of any actual or suspected unauthorised use of your Account.
7. When you create an Account, you may also be prompted to select a subscription (Subscription). If you elect to proceed with Subscription, you may choose between different types of Subscription with different services as set out on our Platform.
8. You may also have multiple Subscriptions, one applicable to you in your individual capacity and another for you regarding your business

7. Authorised Users

1. If set out in your Account, you may be permitted to invite a limited number of users to the Platform, who will be permitted to access and use the Platform under your Account (Authorised Users). We agree to provide you with the number of Authorised Users as set out in your Account.
2. The Authorised Users will have permission to access certain features of the Platform and your Account, as detailed in your Account.
3. You will ensure that each Authorised User complies with these Terms. You are responsible and liable for the acts or omissions of your Authorised Users.

8. Subscriptions

1. Where you proceed with Subscription, you may purchase a monthly Subscription (Subscription Period) by paying the Subscription fees outlined on the Platform (Fees) in advance, on a monthly basis or some other recurring interval disclosed to you prior to your payment of the Fees (Billing Cycle).
2. On the expiry of the Subscription Period, your Subscription will be automatically renewed for subsequent 1 month periods (each a Renewal Period), unless either Party provides written notice before the end of the Subscription Period or the end of the then-current Renewal Period (as applicable) that it does not wish to renew.
3. You may choose to engage with our Platform as a free user. Free users may also choose to upgrade to a Subscription in accordance with the “Changes to your Subscription” clause below.
4. The payment methods we offer for the applicable Fees are set out on the Platform. We may offer payment through a Third-Party provider for example, Stripe or PayPal. You acknowledge and agree that we have no control over the actions of the Third-Party provider, and your use of the Third-Party payment method may be subject to additional terms and conditions.
5. You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated Third-Party payment processor to debit your account in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account for which you provide details.
6. We do not store any credit card details, and all payment information is collected and stored through our Third-Party payment processor.
7. Changes to your Subscription: If you wish to transition from a free Account to a Subscription, or suspend or change your Subscription (for example, by choosing different services , or varying the number of Authorised Users associated with your Account), you must provide notice to us through your Account or via email (at support@energyflex.com.au) that you wish to suspend or vary your Subscription at least 24 hours before the end of the current Billing Cycle. If by varying your Subscription you incur a higher Fee, we will charge you for the increase in the Fees on a pro-rata basis for the remainder of the period until the start of the next Billing Cycle, and you will have access to the additional Subscription features from the date you make such payment.
8. The Fees are only refundable and cancellable in accordance with your Consumer Law Rights and these Terms.
9. We may need to change what is available as part of your Subscription and/or the Platform (for example, the inclusions, exclusions, updated features) from time to time. If we change what is available, we will provide you with at least 30 days’ notice of the change. After the notice period has lapsed, we will apply the changes. If the changes adversely affect your enjoyment of the Subscription and/or the Platform, you may cancel your Subscription or Account with effect from the date we apply the changes by providing written notice to us. If you cancel, (a) you will no longer be able to use the Platform on and from the date of cancelation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.
10. We may need to change the Fees from time to time. If we change the Fees, we will provide you with 30 days’ notice of the change. After 30 days, we will apply the updated Fee to your Subscription. If the updated Fee is not acceptable to you, you may cancel your Subscription in accordance with the ‘Cancellation of Subscriptions’ clause.

9. Our Intellectual Property

1. You acknowledge and agree that any Intellectual Property or content (including copyright and trademarks) available on the Platform, the Platform itself, and any algorithms or machine learning models used on the Platform (Our Intellectual Property) will always vest, or remain vested, in us.
2. If you are a business, we authorise you to use Our Intellectual Property solely for your internal business use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any Third-Party. Use must be limited to Authorised Users on devices that are controlled or approved by you.
3. If you are an individual, we authorise you to use Our Intellectual Property solely for your personal use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any Third-Party. You may only access Our Intellectual Property on your personal device, and you may not use Our Intellectual Property for any commercial purpose.
4. You must not, without our prior written consent:
   • copy, in whole or in part, any of Our Intellectual Property;
   • reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any Third-Party; or
   • breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.
5.  This clause will survive the termination or expiry of these Terms.

10. Your Data

1. You own all data, information or content you and your Authorised Users upload into the Platform (Your Data).
2. You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data to:
   • communicate with you (including to send you information we believe may be of interest to you);
   • supply the Platform to you and otherwise perform our obligations under these Terms;
   • diagnose problems with the Platform;
   • enhance and otherwise modify the Platform;
   • perform Analytics;
   • develop other services, provided we de-identify Your Data; and
   • as reasonably required to perform our obligations under these Terms.
3. You agree that you are solely responsible for all Your Data that you and your Authorised Users make available on or through the Platform. You represent and warrant that:
   • you are either the sole and exclusive owner of Your Data or you have all rights, licences, consents and releases that are necessary to grant to us the rights in Your Data (as contemplated by these Terms); and
   • neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or our use of Your Data on, through or by means of our Platform will infringe, misappropriate or violate a Third-Party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
4. To the extent permitted by law, you acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You acknowledge and agree that we own all rights in the Analytics, and that we may use the Analytics for our own internal business purposes, provided that the Analytics do not contain any identifying information.
5. Except as acknowledged by these Terms and at law, we do not endorse or approve, and are not responsible for, any of Your Data.
6. You acknowledge and agree that the performance of the Platform is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Platform.
7. This clause will survive the termination or expiry of these Terms.

11. Warranties

1. You represent, warrant and agree that:
   • you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;
   • there are no legal restrictions preventing you from accepting these Terms; and
   • all information and documentation that you provide to us in connection with these Terms is true, correct and complete.

12. Australian Consumer Law

1. Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).
2. If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
3. Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
4. This clause will survive the termination or expiry of these Terms.

13. Liability

1. Despite anything to the contrary, to the maximum extent permitted by law:
   • neither Party will be liable for Consequential Loss;
   • each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel (including a Party’s Authorised Users), including any failure by that Party to mitigate its losses; and
   • our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you in the 12 months immediately preceding the act, event or omission giving rise to the Liability (and where there has been less than 12 months of Fees paid or where no Fee has been paid, an amount equal to the average cost of 12 months of Fees calculated on a pro rata basis having regard to the amount of Fees paid and the period of time).
2. This clause will survive the termination or expiry of these Terms.

14. Termination

1. Cancellation of Subscriptions: You may request to cancel your Subscription or access to the Platform at any time by notifying us via email, or via your Account. If you cancel within 14 days after creating your Account you will receive a full refund for any Fees paid. After the first 14 days, your cancellation will take effect from the end of the current Billing Cycle, or if you have a free account the cancellation will take effect 30 days after notification of your intent to cancel.
2. A Subscription or free Account will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
   • the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
   • the Defaulting Party is unable to pay its debts as they fall due.
3. Should we suspect that you are in breach of these Terms, we may suspend your access to the Platform while we investigate the suspected breach.
4. Upon expiry or termination of your Subscription or free Account:
   • we will remove your access to the Platform; and
   • where we terminate your Subscription or free Account as a result of your unrectified default, you also agree to pay us our reasonable additional costs directly arising from such termination, including recovery fees.
5. Where termination is due to our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.
6. Termination will not affect any rights or liabilities that a Party has accrued under these Terms.
7. This clause will survive the termination or expiry of these Terms.

15. Notice Regarding Apple

1. To the extent that you are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.
2. Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform.
3. If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.
4. Apple is not responsible for addressing any claims by you or any Third-Party relating to our mobile application or your use of our mobile application, including but not limited to: (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
5. Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our mobile application infringes that Third-Party’s intellectual property rights.
6. You agree to comply with any applicable Third-Party terms when using our mobile application.
7. Apple and Apple subsidiaries are Third-Party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a Third-Party beneficiary of these Terms.
8. You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

16. General

1. Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
2. Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other Third-Party.
3. Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
4. Entire Terms: Subject to your Consumer Law Rights, these Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
5. Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided the Party seeking to rely on the benefit of this clause, as soon as reasonably practical, notifies the other party in writing about the Force Majeure Event and the extent to which it is unable to perform its obligations and uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
6. Governing law: These Terms are governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
7. Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
8. Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines, including the Consumer Data Right.
9. Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
10. Third-Party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a Third-Party website linked from the Platform, such Third-Party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain Third-Party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) Third-Party links are Affiliate Links.

17. Definitions

1. Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission, and/or, any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data. The Parties agree that your obligation to pay us the Fee under these Terms will not constitute “Consequential Loss”.
2. Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control.
3. Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trademarks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
4. Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a Third-Party or a party to these Terms or otherwise.

For any questions or notices, please contact us at:

Energy Flex Pty Ltd
ABN 95 648 480 166

Email: support@energyflex.com.au

Last update: 13^th March 2024

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