Conditions Of Use

1. Definitions

IP means:

a. patents, trademarks, services marks, design rights (whether registered or unregistered and including any applications for these rights);

b. copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;

c. trade or business names;

d. know-how, confidential information and trade secrets; and

e. moral rights, and any other similar rights or obligations whether registrable or not in any country.

Portal means the CONTRACTS Portal website operated by us at (or any other address that we may use from time to time), any other online portal we may operate, and any functionality we may provide in the course of our business that is materially similar to the CONTRACTS Portal website.

Service means QUU’s Supplier Prequalification Service, which is accessed through the Portal.

QUU means Central SEQ Distributor – Retailer Authority trading as Queensland Urban Utilities.

2. Access and use

2.1 Your access and use of the Service via the Portal is subject to the terms of this Agreement. You agree that this Agreement operates for the benefit of both us and QUU.

2.2 A user name and password is required to access and use the Portal and the Service. You must keep your user name and password details for accessing and using the Portal and the Service confidential and secure against unauthorised use at all times. QUU will not be held responsible for the distribution of and access to your confidential information by an unauthorised third party whom you have given your user name and password details.

2.3 You must notify QUU immediately if you suspect or become aware of any unauthorized use of your account or any other breach of security. You are responsible for any loss, damage, costs or expenses arising out of or in connection with the use (including any improper or unauthorised use) of your user name and password details.

2.4 In relation to any data or information provided by you in respect of the Service, you warrant that the data or information is:

a. current, complete and accurate and not misleading or deceptive; and

b. free of any viruses, worms or any other form of corruptive code which may cause damage or disruption to the Portal, the Service, QUU’s website, or QUU’s business generally.

3. QUU actions

3.1 QUU may at any time and for any reason:

  1. limit your ability to use the Portal or the Service;

  2. terminate this Agreement and your access to the Portal or the Service;

  3. determine the times and periods during which Portal transmissions can take place;

  4. vary the terms and conditions of this Agreement at any time without notice (so the terms and conditions applicable when you next use the Portal or the Service may be different from these terms and conditions); or

  5. review the activities of users of the Portal or the Service to ensure they are meeting the relevant terms and conditions of use.

3.2 On termination of this Agreement, you must immediately cease accessing or using the Portal or the Service.

3.3 You agree that QUU may use and disclose any information provided by you or on your behalf while using the Service for any purpose relating to the performance of QUU’s business functions. QUU reserves the right at all times to disclose any information (including personal information) provided by you in relation to the Service as QUU deems necessary to satisfy any legal or governmental requirement.

4. IP

4.1 The Portal, the Service and their software and contents are subject to IP owned or licensed by us and QUU, as applicable.

4.2 You must not access and use the Portal or the Service other than as permitted under this Agreement or in a manner which breaches any IP owned or licensed by us and QUU.

5. No warranties and limitation of liability

5.1 The Service is provided to you via the Internet on an “as is” and “as available” basis only and for the convenience of QUU.

5.2 Except as specified in this Agreement, neither we nor QUU gives any implied or express warranties or guarantees in relation to the Portal or the Service. All statutory warranties are, to the fullest extent permitted by law, expressly excluded.

5.3 You acknowledge that:

  1. software for the Portal and the Service is not free of errors or defects;

  2. the accessibility and operation of the Portal and the Service relies on internet technologies outside of our and QUU’s control; and

  3. internet communications made via the Portal may be susceptible to interference or interception by third parties.

Neither we nor QUU will be liable to you for:

  1. the security, authenticity, integrity or confidentiality of any transactions and other communications made through the Portal or relating to the Service; or

  2. any unavailability of the Portal or the Service for any reason.

5.4 In no event will we or QUU be liable to you or any other person for any lost profits, lost savings, deletion or corruption of electronically stored information, lost data, or other special, direct, indirect, punitive, consequential, or incidental loss or damage arising out of or in connection with this Agreement, the Portal or the Service.

5.5. The maximum aggregate liability of either of us and QUU to you in respect of any and all claims arising out of or in connection with this Agreement, the Portal or the Service is limited to one (1) Australian dollar.

6. Breach of this Agreement

6.1 If you breach any of this Agreement, you must:

  1. immediately advise QUU of that breach;

  2. immediately stop using the Portal and the Service; and

  3. not use the Portal and the Service again until QUU advises you can.

6.2 You will be responsible for any loss, damage, costs or expenses to any person arising from either any:

  1. breach by you of this Agreement; and

  2. unlawful act or omission by you in relation to, or in the course of using, the Portal and the Service.

7. General

7.1 Your access and use of the Portal or the Service is subject to:

  1. in relation to personal information, QUU’s Information Privacy Policy, which is currently set out on QUU’s public website at: http://www.urbanutilities.com.au/about%20us/corporate%20information/our%20policies; and

  2. QUU’s standard terms and conditions of website use, which are currently set out at http://www.urbanutilities.com.au/website-terms-of-use.

You agree that, by accessing and using the Portal and the Service, you have read the Information Privacy Policy and the terms and conditions of website use, understood their contents and consented to their requirements.

7.2 To the extent of any inconsistency, this Agreement, the Information Privacy Policy and the terms and conditions of website use prevail over each other in that order of precedence.

7.3 This Agreement must be interpreted in such manner as to be effective and valid under applicable law. If any term of this Agreement is held to be prohibited by or invalid under applicable law, that term is ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

7.4 This Agreement is governed by the laws applicable in the State of Queensland, Australia. The parties submit to the exclusive jurisdiction of the courts of that State.

7.5 This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior communications in connection with that subject matter. The parties acknowledge that, except as expressly stated in this Agreement, they have not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to this Agreement.

 

 

OPEN WINDOWS SOFTWARE PTY LIMITED (ACN 007 086 348)

End User License Agreement

These are the terms on which Open Windows Software Pty Limited (ACN 007 086 348) of 635 Glenferrie Road, Hawthorn, Victoria, 3122, Australia (referred to as we, our and us in the Agreement) licenses you (referred to as you and your in the Agreement) to use the Portal. By accessing or using the Portal, you are agreeing to the following terms. If you do not agree with the following terms, do not access or use the Portal.

1. Definitions

IP means:
  • patents, trade marks, services marks, design rights (whether registered or unregistered and including any applications for these rights);
  • copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
  • trade or business names;
  • know-how, confidential information and trade secrets; and
  • moral rights, and any other similar rights or obligations whether registrable or not in any country.
Portal means the SRM Portal website operated by us at (or any other address that we may use from time to time), any other online portal we may operate, and any functionality we may provide in the course of our business that is materially similar to the SRM Portal website.

2. Authorisation

2.1 In consideration of you complying with this Agreement, we authorise you to access and use the Portal. This authorisation continues until terminated in accordance with this Agreement.
2.2 In the event that we make available to you an enhancement, extension or modification to the Portal, add-on component, other web service and/or supplement (whether in conjunction with providing support or otherwise), the terms of this Agreement will apply.

3. No warranties

3.1 The Portal has not been developed to meet your individual requirements and is supplied on an “as is” basis. A failure of any part or the whole of the Portal to be suitable for your requirements will not give rise to any right or claim against us.
3.2 You acknowledge that online services in general are not free of errors or defects and agree that the existence of any errors or defects in the Portal will not constitute a breach of this Agreement.

4. Intellectual Property (IP)

4.1 You acknowledge that you obtain no IP in the Portal. As between us, all IP in the Portal vests in us.
4.2 You must not (except to the extent permitted by any law that cannot be excluded):
  • copy, modify, enhance or reproduce the Portal, in whole or in part;
  • reverse-engineer, reverse-translate, disassemble, de-compile, or otherwise attempt to derive source code to the Portal;
  • incorporate, embed, combine, merge or bundle the Portal with any other hardware or software (except to the extent strictly necessary to use it in accordance with its intended purpose and these terms);
  • use the Portal other than for your internal business purposes; and
  • directly or indirectly permit any third party to access the Portal, to obtain a sub-license of the Portal or otherwise to do any of the above without our express written consent.

5. Termination

5.1 We may terminate this Agreement immediately by notice if you breach this Agreement and fail to remedy the breach within 14 days of becoming aware of the breach.
5.2 On termination of this Agreement, you must immediately cease accessing or using the Portal.

6. LIMITATION OF LIABILITY AND INDEMNITY

6.1 NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONSUMER GUARANTEE, RIGHT OR REMEDY CONFERRED ON YOU BY THE AUSTRALIAN CONSUMER LAW, SCHEDULE 2 OF THE COMPETITION AND CONSUMER ACT 2010 (CTH), OR ANY OTHER APPLICABLE LAW, THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT.
6.2 TO THE EXTENT PERMITTED BY LAW (INCLUDING THE AUSTRALIAN CONSUMER LAW, SCHEDULE 2 OF THE COMPETITION AND CONSUMER ACT 2010 (CTH)):
  • IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, DELETION OR CORRUPTION OF ELECTRONICALLY STORED INFORMATION, LOST DATA, OR OTHER SPECIAL, DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PORTAL OR OTHER PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
  • OUR AGGREGATE LIABILITY UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PORTAL OR OTHER PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO TEN THOUSAND AUSTRALIAN DOLLARS.
6.3 YOU ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY SET OUT IN THIS AGREEMENT, AND THAT THESE FORM AN ESSENTIAL BASIS OF THE BARGAIN REACHED BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SPECIFIED IN CLAUSE 6 WILL SURVIVE AND APPLY EVEN IF ANY CLAUSE IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THIS, NOTHING CONTAINED IN THIS AGREEMENT WILL LIMIT OUR LIABILITY FOR OUR OWN WILLFUL OR WANTON CONDUCT.
6.4 YOU MUST INDEMNIFY US IN RESPECT OF ALL LOSS, DAMAGES AND EXPENSES AND ALL CLAIMS AND DEMANDS MADE BY A THIRD PARTY ARISING OUT OF ANY OF THE FOLLOWING:
  • YOUR BREACH OF THIS AGREEMENT; AND
  • ANY NEGLIGENT, WILLFUL OR FRAUDULENT CONDUCT BY YOU, YOUR EMPLOYEES, REPRESENTATIVES OR AGENTS.
6.5 EXCEPT AS IMPOSED BY THE AUSTRALIAN CONSUMER LAW, SCHEDULE 2 OF THE COMPETITION AND CONSUMER ACT 2010 (CTH) OR ANY OTHER APPLICABLE LAW THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT AND SUBJECT TO CLAUSE 6.5:
  • WE MAKE NO WARRANTY OR REPRESENTATION TO YOU AS TO THE PERFORMANCE OR OPERATION OF THE PORTAL OR ANY OTHER PRODUCTS OR SERVICES; AND
  • WE MAKE NO OTHER WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO US, THE PORTAL OR OTHER PRODUCTS OR SERVICES PROVIDED BY US AND ANY CONDITION OR WARRANTY WHICH WOULD OTHERWISE BE IMPLIED IN THIS AGREEMENT IS HEREBY EXCLUDED.
6.6 TO THE FULLEST EXTENT PERMITTED BY LAW, OUR LIABILITY FOR ANY BREACH OF A NON-EXCLUDABLE GUARANTEE REFERRED TO IN THIS CLAUSE 6 WILL BE LIMITED, AT OUR OPTION, TO ONE OR MORE OF THE FOLLOWING:
  • IF THE BREACH RELATES TO GOODS:
    • THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS;
    • THE REPAIR OF SUCH GOODS;
    • THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR
    • THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND
  • IF THE BREACH RELATES TO SERVICES:
    • THE SUPPLYING OF THE SERVICES AGAIN; OR
    • THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
6.7 DESPITE ANY OTHER PROVISION IN THIS AGREEMENT, WE DO NOT EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY OR PHYSICAL DAMAGE TO PROPERTY TO THE EXTENT THAT THE SAME ARISES DIRECTLY FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES.

7. General

7.1 Entire agreement
  • Subject to clauses 7.1(b), (c) and (d) below, this Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior communications in connection with that subject matter. The parties acknowledge that, except as expressly stated in this Agreement, they have not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to this Agreement.
  • Any personal information submitted by you to us, whether via the Portal or otherwise, is subject to and will be handled in accordance with our privacy policy. The privacy policy forms part of these terms and is currently set out at: http://www.openwindows.com.au/privacy_policy. You agree that, by using the Portal, you have read the privacy policy, understood its contents and consented to its requirements.
  • If you access or use the Portal or any other website operated by us, then you are also subject to our terms and conditions of website use that are currently set out at: http://www.openwindows.com.au/terms_of_use. You agree that, by this access or use, you have agreed to the terms and conditions of website use. For your information and without limiting the application to you of the entirety of the terms and conditions of website use, applicable terms and conditions include the following provisions as currently set out at: http://www.openwindows.com.au/terms_of_use
    • Section 2 – Changes to the Website
    • Section 3 – Accounts
    • Section 4 – Passwords
    • Section 5 – Changes to our offerings
    • Section 6 – Content
    • Section 7 – Access and communication
    • Section 11 – Links
    • Section 13 – Website licence and use
    • Section 14 – Prohibited users
    • Section 15 – Termination of your access to the Website
  • To the extent of any inconsistency, these terms, the privacy policy and the terms and conditions of website use prevail over each other in that order of precedence.
7.2 This Agreement may only be amended in writing that has been either signed or expressly agreed upon by both parties.
7.3 Each party warrants that it has the authority, power and capability to enter into and to perform its obligations under this Agreement and that its obligations under this Agreement are binding and enforceable.
7.4 Neither party will be liable for any failure to perform its obligations under this Agreement (other than an obligation to pay money) if the party is prevented from doing so by any cause beyond its reasonable control.
7.5 Each term of this Agreement must be interpreted in such manner as to be effective and valid under applicable law. If any term of this Agreement is held to be prohibited by or invalid under applicable law, that term is ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
7.6 A term of this Agreement may not be waived except in writing signed by the party granting the waiver. The waiver by a party of a breach by another party of any term of this Agreement does not operate as a waiver of another or continuing breach by that party of that term or any other term of this Agreement.
7.7 You must not assign or novate any of your rights or obligations under this Agreement without our prior written consent (which we may withhold in our absolute discretion). We may assign or novate any of our rights or obligations under this Agreement to any person by notice to you.
7.8 This Agreement is governed by the laws applicable in the State of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State.
7.9 No term of this Agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation.
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