Your use of the Data, Services, and Software Products is conditional upon you, the “Customer”, agreeing to the terms set out below. By clicking “I Accept” on the electronic commercial license registration form or by paying your annual subscription fee for our Data, Services and Software Products, you confirm that you have read and accepted the terms. Acceptance will bind you to the terms. If you do not unconditionally accept the terms, you must not click “I Accept” or make payment of your annual subscription fee, you must not use the Data or Services or Software Products, and you must return or destroy/delete all copies of the Data in your possession or control (if any).

LICENCE

1. Phanalytics Pty. Ltd. grants to the Customer a non-exclusive, non-transferable licence to use the Data and Services on the following basis:
a) the Customer may use the Data and Services for its own internal information purposes only;

2. Except as expressly set out in clause 1, the Customer may not sell, sub-license, license, assign, make available, distribute, display, or transmit any Data or Services of Software to any person.

INTELLECTUAL PROPERTY

3. The Customer acknowledges that all Intellectual Property in the Data and Services and Software Products is owned by Phanalytics Pty. Ltd. or the party that the data was originally sourced from.  In addition, any Intellectual Property created as a result of Customer feedback in relation to our Data and Services and Software Products will be owned by Phanalytics Pty. Ltd.

WARRANTIES, LIABILITY AND INDEMNITIES

4. Phanalytics Pty. Ltd. will carry out its obligations under this agreement to the best of its knowledge and experience, using due diligence and care, and at all times exercising a reasonable degree of skill, competence and professionalism. Phanalytics Pty. Ltd. will use reasonable endeavours to ensure that the Data is accurate, complete, current and available.

5. Except as expressly set out in this agreement, or to the extent any warranty, representation or guarantee implied by law cannot be excluded, Phanalytics Pty. Ltd. gives no warranties, representations or guarantees in relation to the Data or Services or Software Products, and (without limiting the above) Phanalytics Pty. Ltd. gives no warranty, representation or guarantee that the Data or Services or Software Products will be accurate, complete, current, always available or fit for any particular purpose.

6. To the fullest extent permissible under law, Phanalytics Pty. Ltd. will not be liable to the Customer or any third party for any damages, losses or expenses (including any indirect, consequential or punitive losses or damages or any amounts for loss of income or profits) of any kind (arising in contract, tort or otherwise) suffered or incurred:
a) as a result of any failure of the Data or Services or Software Products to be accurate, complete, current, always available or fit for any particular purpose;
b) in connection with the Customer’s use of, inability to use, or reliance on, the Data or Services; or
c) as a result of any act or omission by the Customer.

7. If for any reason Phanalytics Pty. Ltd. or any of its Related Parties is liable to the Customer in connection with the Data or Services or Software Products, the aggregate liability of Phanalytics Pty. Ltd. and its Related Parties to the Customer (whether in contract, tort or otherwise) is limited to the total subscription fees (if any) for the relevant Services paid by the Customer.

8. The Customer indemnifies Phanalytics Pty. Ltd. and its Related Parties against any damages, losses or expenses suffered or incurred by Phanalytics Pty. Ltd. or its Related Parties as a result of a claim by a third party as a result of a breach by the Customer of this agreement.

SUBSCRIPTIONS

9. Phanalytics Pty. Ltd. may, prior to the expiry of your annual subscription, notify of changes to your subscription rate for our Data or Services or Software Products applicable to the following subscription year, giving you the Customer 30 days written notice via email. You as the Customer, may choose to not renew your current subscription once it reaches expiry, or choose to renew your subscription for another year based on the new rate or a mutually agreed rate.

10. The minimum subscription period for any Service is 12 months. The Customer will pay the relevant subscription fee in advance in such instalments as apply to the relevant Service and the Customer’s chosen payment method. A subscription for any Service will continue indefinitely after the first 12 months of the subscription provided that the Customer continues to pay the relevant subscription fee instalments in advance.

11. Phanalytics Pty. Ltd. may, at any time and without notice to the Customer, terminate or suspend a subscription for a Service if:
a) the Customer fails to pay when due any instalment of the subscription fee for the Service;
b) the Customer commits or threatens to commit any other material breach of this agreement; or
c) the relevant Data ceases to be available to Phanalytics Pty. Ltd., or Phanalytics Pty. Ltd. ceases to have the right to provide it to the Customer, for any reason.
Termination or suspension of a subscription under paragraph (a) or (b) of this clause within the first 12 months of the subscription will not relieve the Customer of its obligation to pay the relevant subscription fee for the full 12 month period. Any outstanding subscription fee for the terminated or suspended subscription will become immediately payable. Termination as a result of paragraph (c) of this clause will result in Phanalytics Pty. Ltd. refunding to the Customer the subscription fees for the remainder of the 12 month period.

12. If the Customer has chosen to pay subscription fees for a Service automatically by credit card, Phanalytics Pty. Ltd. will store the Customer’s credit card details and use them only for the purpose of processing the Customer’s subscription fee payments for the Service.

13. Phanalytics Pty. Ltd. reserves the right to use your registration information for marketing purposes relating to our products.

AMENDMENTS

14. Phanalytics Pty. Ltd. may amend the terms of this agreement from time to time. Phanalytics Pty. Ltd. will notify the Customer of any amendment to the terms, following which the Customer may choose to terminate its subscription for any affected Service on notice to Phanalytics Pty. Ltd. (within 30 days), with the right to a refund of subscription fees for the remainder of the 12 month period.

GENERAL

15. This agreement records the entire agreement between the parties relating to the Data and Services and supersedes all previous arrangements, understandings, representations and agreements, whether written or oral, relating to the Data and Services and Software Products.
16. This agreement is governed by the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria in respect of all matters relating to this agreement.
17. The Customer may not assign any of its rights or obligations under this agreement without the prior written consent of Phanalytics Pty. Ltd.. Phanalytics Pty. Ltd. may assign its rights and obligations under this agreement to a related company of Phanalytics Pty. Ltd. without the Customer’s consent.
18. If any provision of this agreement is or becomes invalid or unenforceable, that provision will be deemed deleted from this agreement. The invalidity or unenforceability of that provision will not affect the other provisions of this agreement, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
19. Any waiver by either party of any of its rights or remedies under this agreement will be effective only if it is recorded in writing and signed by a duly authorised representative of that party.
20. The rights and remedies provided in this agreement are cumulative and not exclusive of any rights or remedies provided by law.
21. In this agreement the following terms have the meanings set out below unless the context requires otherwise:

“Data” means a dataset or information provided by Phanalytics Pty. Ltd. via mobile software applications developed by Phanalytics Pty. Ltd, or any other medium;

“Intellectual Property” means copyright, all rights in relation to inventions, patents, registered and unregistered trade marks (including logos), registered and unregistered designs, domain names, rights in computer software and databases, circuit layouts, confidential information, and all other intellectual property rights anywhere in the world;

“Related Parties” means all and any employees, agents, suppliers, contractors and related companies of the relevant party; and

“Service” means Phanalytics Pty. Ltd.’s provision of Data to the Customer.  This includes the provision of alert/notification services that are pushed to our Software Products.

“Software Products” means any computer or mobile software created by Phanalytics Pty. Ltd.

ADDITIONAL TERMS OF USE

All data provided by Sparky Pro is sourced from AEMO (Australian Energy Market Operator).  Please see link to their respective Legal Notices which also form part of this terms & conditions agreement.  (http://www.aemo.com.au/About-AEMO/Legal-Notices)