Terms and conditions

LAST UPDATED: 18th November, 2024

1. Purpose and acceptance

(a) The purpose of these terms and conditions (Terms) specifies the rights and obligations of Emerald Energy Pty Ltd (ACN 632 934 322) (Emerald, we, us or our) and the user of the Platform (you or your) in relation to your access to, and use of the:

(i) Platform; and

(ii) Documentation.

(b) By using, browsing or accessing the Platform, you indicate that you have read, understood and agree to be bound by these Terms, together with our Privacy Policy, and any other terms and conditions you may find on the Platform (such as our Delivery and Returns Policy) and agree to abide by them.

(c) We encourage you to read these Terms and contact us by email at [email protected], if you have any questions in relation to the Platform.

(d) If you do not wish to accept these Terms, you must not access or otherwise use the Platform, and the products and services offered on, or via, the Platform.

2. Your obligations

2.1 Access to Platform

(a) You must provide information to us that is true, accurate and not misleading or deceptive. If such information changes, you must promptly notify us at [email protected] or an alternate email address notified by us for this purpose.

(b) At all times, you must (at your cost):

(i) obtain and maintain all hardware, software and communications equipment necessary for you to access and use the Platform, and ensure that they comply with applicable specifications and guidelines set out in the Documentation or otherwise communicated to you from time to time;

(ii) comply with all Relevant Laws; and

(iii) comply with all of our reasonable directions, policies and guidelines as notified from time to time.

(c) Emerald reserves the right (acting reasonably) to impose fees for access to, or use of, certain parts of the Platform. We will provide you with at least 30 days’ notice prior to imposing any fees.

2.2 Access restrictions

You must not access, store, distribute or transmit:

(a) any viruses, worms, trojans, malicious code or similar harmful materials; or

(b) any material, data or content that:

(i) is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any Third Party;

(ii) facilitates illegal activity;

(iii) causes damage or injury to any person or property; or

(iv) corrupts, degrades, disrupts or discredits the operation or functionality of the Platform.

2.3 User restrictions

You must not do, attempt to do, or assist any Third Party to do, any of the following:

(a) adapt, alter, copy, create derivative works from, disassemble, display, distribute, download (except with our written consent), duplicate, frame, mirror, modify, reduce to human readable form, republish, reverse compile, reverse engineer or transmit all or any portion of the Platform by any means;

(b) infringe our Intellectual Property;

(d) engage in illegal behaviour or any the following:

(i) unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network;

(ii) interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;

(iii) use of an internet account or computer without the owner’s authorisation; and

(iv) collecting information by deceit, including internet scamming, password robbery, phishing, security hole scanning and port scanning.

2.4 Competing product

(a) You must not develop, attempt to develop, or assist a Third Party to develop, a product, service or platform that competes with the Platform.

(b) You acknowledge that clause 2.4(a) is a usual covenant within our field of activities and is reasonably necessary to protect our legitimate business interests.

3. Our obligations

3.1 Service obligations and exclusions

(a) Emerald will provide the Services to you.

(b) The obligation under clause 3.1(a) will not apply in the event of:

(i) any non-conformance which is caused, or contributed to, by use of the Platform contrary to our instructions or these Terms;

(ii) modification or alteration of the Platform by any party other than us;

(iii) the unsuitability or malfunction of the network, systems, computer hardware or software being used or accessed by you; or

(iv) an Force Majeure Event.

3.2 Modification and discontinuance of the Services

(a) Emerald may add, modify or discontinue any functionality, feature or any other aspect of the Services (wholly or partly), including in relation to the Platform, at our discretion and without further notice.

(b) Emerald is not liable for any Loss suffered by any person, including you, arising from, or in connection with, any modification or update to the Platform that was made by a person other than us.

(c) Any of the content or information provided on, or via the Platform, our social media pages, or any websites linked to the profiles of Third Parties may be out of date at any given time, and we are under no obligation to update it, unless required to do so by law.

4. Additional Services

Emerald may offer you Additional Services in relation to the Platform from time to time in accordance with these Terms.

5. Availability of products and services

(a) Certain products or services may be available exclusively online through the Platform. These products or services may have limited quantities and are subject to return in accordance with our Delivery and Returns Policy.

(b) Emerald makes every effort to display as accurately as possible the colours and images of our products on the Platform. We cannot guarantee that your computer and/or device monitor’s display of any colour or image will be accurate.

(c) Emerald reserves the right, but are not obligated, to limit the sales of our products or services to any person, geographic region, or jurisdiction. We may exercise this on a case-by-case basis.

(d) Emerald reserves the right to limit the quantities of products or services that we offer.

(e) All descriptions of products or product pricing are subject to change at any time without notice, at our reasonable discretion.

(f) Emerald reserves the right to discontinue any product at any time.

6. Orders and payments

(a) All orders placed via the Platform are subject to confirmation and acceptance by us.

(b) Emerald reserves the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same credit card and/or orders that use the same billing and/or shipping address.

(d) Emerald reserves the right to amend any of our prices from time to time without notice to you.

(e) After you place an order and your payment has been processed by us, we will email you a copy of your receipt as confirmation.

(f) Our products ordered via the Platform are shipped to you via third party delivery companies.

(g) The title in any goods does not pass to you until we have received the full payment amount for any such goods from you.

(h) If:

(i) there are any products missing from your order;

(ii) your order is marked as delivered but has not yet arrived; or

(iii) your order contains products that are found to be damaged or broken on delivery,

please refer to our Delivery and Returns Policy for more information.

7. Intellectual Property and licences

7.1 General

(a) The following aspects of the Platform, Documentation, our site and social media pages are protected by copyright, trade mark and other intellectual property laws: information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, databases and control features (collectively, IP Content).

(b) Nothing in these Terms assigns, transfers or grants any right, title or interest in or to a party’s Intellectual Property, other than as expressly stated in these Terms.

(c) You acknowledge and agree that we own all Intellectual Property subsisting in, or otherwise underlying, the Platform, Documentation, IP Content, Third Party Content, User Generated Content, our site and social media pages.

(d) Any opinions, advice, statements, services, offers, or other information or content expressed or made available by visitors, users or third parties are those of the respective author, distributor or advertiser, and not us.

(e) You must not submit, publish or upload any data or information onto the Platform unless expressly permitted and specified on the Platform.

7.2 Licence

(a) Emerald grants you a non-exclusive, personal, non-transferable and non-sub-licensable licence to access and use the:

(i) Platform; and

(ii) Documentation,

solely for your personal reference and you may draw the attention of others within your organisation to material posted on the Platform.

(b) You must not use, copy, modify or reproduce any part of the materials or code on, or contained within, the Platform, or any of our social media pages, for commercial purposes without obtaining an express licence to do so from us.

8. User Generated Content and Third Party Content

(a) Users of the Platform may also upload or publish content (including user comments and reviews) on the Platform (User Generated Content).

(b) The Platform may, from time to time, provide you with access to, and use of, third party content, services and products (Third Party Content).

(i) Third Party Content; or

(ii) User Generated Content,

appearing on or via the Platform or our site or social media pages, or any websites linked to the profiles of Third Parties.

(d) Emerald disclaims all liability and responsibility arising from any reliance placed on such products, services, Third Party Content and User Generated Content (and any products and services provided from or via the Third Party Content) by:

(i) any visitor to the Platform or our social media pages, or any websites linked to the profiles of Third Parties; or

(ii) anyone who may be informed of any of its contents,

and we make no representations or warranties that use of any of the foregoing will not infringe intellectual property rights of any third parties.

(e) The Third Parties (and their advertisers) and users of the Platform are responsible for the accuracy of all representations made in any Third Party Content or User Generated Content advertised, displayed or listed on, or via, the Platform, our social media pages, or any websites linked to the profiles of Third Parties.

(f) We may, but are under no obligation to, monitor the Third Party Content or User Generated Content. To the extent permitted by law, we do not:

(i) warrant that the products or services, Third Party Content or User Generated Content displayed, listed or offered on, or via the Platform, our social media pages, or any websites linked to the profiles of Third Parties, are accurate, complete, reliable, current or error-free; or

(ii) make warranties about the standard or quality of any of the products, services, Third Party Content or User Generated Content offered or displayed on, or via the Platform, our social media pages, or any websites linked to the profiles of Third Parties.

(g) You agree to make your own enquiries to verify information displayed on, or via, the Platform, our social media pages, or any websites linked to the profiles of Third Parties and to assess the suitability of products or services before you purchase.

(h) You accept the risk of purchasing products or services advertised, displayed, or listed by a Third Party or user of the Platform on, or via, the Platform, our social media pages, or any websites linked to the profiles of Third Parties.

(i) Any opinions, warranties, representations, advice, statements, products, services, offers, Third Party Content, User Generated Content or other information, displayed, advertised, listed or made available by a Third Party or users of the Platform are those of the respective author, advertiser or distributor, and not us.

(j) We reserve the right to modify or remove any Third Party Content or User Generated Content at any time, but we are under no obligation to do so.

9. Content guidelines

(a) You must only publish Third Party Content or User Generated Content (as the situation permits):

(i) for which you hold all necessary rights, licences and consents to publish on, or via, the Platform;

(ii) that are factually accurate and up-to-date;

(iii) if containing opinion, that contain genuinely-held opinion; and

(iv) that comply with all applicable laws, regulations, rules, codes or other legal obligations.

(b) You must not publish any Third Party Content or User Generated Content (as the context permits) that:

(i) are in a language other than English;

(ii) contain confidential information;

(iii) are, or could reasonably be considered to be, vulgar, offensive, inappropriate, indecent or obscene, pornographic or sexually explicit, harassing, threatening or abusive, inflammatory, hateful or disparaging, seditious, blasphemous, in breach of another person’s privacy (such as by disclosing personal or identifying details of another person without authorisation) or otherwise objectionable according to the dictates of good taste and social acceptability (including by promoting, advocating, or seeking to incite racial hatred or discrimination based on race, sex, disability, age, religion, nationality, sexual orientation or an unlawful or illegal act);

(iv) are inaccurate, misleading or deceptive or fraudulent (including as a result of you having impersonated another person or misrepresented your identity);

(v) are defamatory or harmful to another in any way, including by causing unreasonable embarrassment, annoyance, distress or alarm to another individual, including us or our employees;

(vi) are illegal or unlawful, including as a result of their infringement or contravention of intellectual property, or other rights or laws, regardless of their source;

(vii) contain any viruses or malware, including keystroke loggers or other spyware, or similar computer code, files or programs designed to adversely affect, interrupt, destroy or limit the operation or functionality of any computer software or hardware or telecommunications equipment in any way;

(viii) include unauthorised, unsolicited or undisclosed advertising or promotional materials, including excessive commercial references;

(ix) are misleading, deceptive or fraudulent statements, including by improperly holding themselves out as being or relating to decrees or announcements by governmental, statutory, or municipal authorities;

(x) are designed to give the impression that the Third Party Content or User Generated Content originates from us;

(xi) are aimed at disparaging or damaging the reputation or goodwill of our business, the Platform, our social media pages, or any of our directors, officers, affiliates, employees, partners and representatives, and third parties connected to us; or

(xii) constitute or comprise any other material whatsoever which contravenes these Terms.

(c) By publishing or listing Third Party Content or User Generated Content on, or via, the Platform, or our social media pages, all right, title, and interest in the Third Party Content or User Generated Content (and all intellectual property rights contained therein) will automatically vest in us absolutely.

10. Third party websites

(a) The Platform or any Third Party Content or User Generated Content may link to other websites, services, products or resources and they may contain links to the Platform. In this regard:

(i) they are not under our control and are not maintained by us;

(ii) we are not responsible, and accept no responsibility, for them, or for any loss or damage that may arise from your use of them (notwithstanding anything else);

(iii) we only provide such links for your information and convenience; and

(iv) we do not imply any endorsement of them or any association with their owners, operators or advertising material (as the context permits).

(b) Your linking to or from these sites, or use of, or reliance on, such websites, resources, products or services is at your own risk. You should carefully review the terms and conditions and privacy policies of all off-Platform pages and other websites or third party suppliers that you visit or transact with.

11. Linking to our Platform

(a) You may link to our homepage, provided you obtain our prior written consent. You can request our consent by sending us an email at [email protected].

(b) Your links must not damage our reputation or take advantage of it, and you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

(d) The Platform must not be framed on any other site, and you may not create a link to any part of the Platform other than the home page. We reserve the right to withdraw linking permission without notice.

12. Usernames and passwords

(a) You do not need to register or login to the Platform in order to view certain content and information on the Platform, including Third Party Content and User Generated Content.

(b) If you wish to purchase any products or services, or access certain services such as the Emerald App, via the Platform, you must create an account with us (Account).

(c) Your Account will be operated by an email address and password. We will provide you with a username and password (Credentials), which must not be shared with any other person for any reason whatsoever.

(d) In relation to your Account, you undertake that you will:

(i) change your password promptly after being issued with the Credentials and on a regular basis;

(ii) provide only accurate and complete registration information, and update that information if it changes in order to keep it current, complete and accurate;

(iii) create only 1 account on the Platform, and you will remain responsible for anything that happens through your Account; and

(iv) not impersonate another account holder or provide false identity information to gain access to or use the Platform.

(e) You acknowledge that you are solely responsible for:

(i) maintaining the confidentiality of your Credentials; and

(ii) all access and use of the Platform that results from any person using the Credentials.

(f) Please notify us immediately if:

(i) you become aware that your Account or Credentials is being used without authorisation; or

(ii) there is any other security breach relating to your Account or Credentials.

13. Personal information

(a) Any personal information provided by you is processed by us in accordance with our Privacy Policy.

(b) By using the Platform and providing any personal information, you:

(i) consent to such processing; and

(ii) warrant on a continuing basis that all information provided is true and accurate.

14. Confidential Information

You must:

(a) keep our Confidential Information strictly confidential; and

(b) not make any independent use of, disclose, communicate or publish to anyone else any of our Confidential Information, unless that disclosure or use is required by law.

15. Acknowledgements

You acknowledge and agree that:

(a) the Services are provided strictly for informational purposes and are not to be relied upon for any other purpose, such as safety or emergency purposes;

(b) the Services do not constitute, and are not a replacement for, any safety or emergency product or service, such as a smoke alarm system;

(d) you are responsible for, and accept all risk associated with, your use of the Services.

16. Liability

16.1 General

(a) The IP Content, User Generated Content or Third Party Content displayed on or via the Platform, our site or social media pages, any websites linked to the profiles of Third Parties or any other links in relation to the products or services contained therein are provided ’as is’.

(b) It is your responsibility to determine that the Platform:

(i) meets your personal needs; and

(ii) is suitable for the purposes for which it is used.

16.2 Non-excludable Obligations

(a) To the extent that you acquire goods or services from us as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including rights in relation to consumer guarantees) that cannot be excluded, restricted or modified by agreement.

(b) Nothing in these Terms operate to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:

(i) contravene that statute; or

(ii) cause any term of this Agreement to be void,

(Non-excludable Obligation).

16.3 Exclusion of liability

Except in relation to Non-excludable Obligations, we, and our directors, officers, affiliates, employees, partners and representatives will not be liable to you or any other person, however arising (and whether arising under statute, in tort (for negligence or otherwise)), breach of contract or otherwise, even if foreseeable) for any:

(a) personal injury, death or Loss or damage;

(b) Loss or damage to any property belonging to you or any other person,

arising in any way out of, or in connection with, these Terms (or any breach of it), the Services, our products, the Platform or the Documentation, including where such Loss arises from a Force Majeure Event.

16.4 No warranties or guarantees

Except in relation to Non-excludable Obligations:

(a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom or law are expressly excluded under these Terms; and

(b) we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency, fitness for purpose or security of the Services, Platform (including the IP Content, User Generated Content or Third Party Content) or Documentation.

17. Suspension and termination

(a) Emerald may, at any time and at our discretion, with or without cause or any notice to you, terminate, suspend or block your access to:

(i) any Account or Credentials (whether chosen by you or allocated by us);

(ii) the Platform (or our social media pages or any websites linked to the profiles of Third Parties); and

(iii) any products and services offered on, or via the Platform, our social media pages, or any websites linked to the profiles of Third Parties.

(b) Cause for such suspension or termination may include:

(i) breaches or violations of these Terms, our policies and guidelines (including our Privacy Policy), and any other agreements entered into between the parties;

(ii) requests by a court or law enforcement or other government agency or regulatory body;

(iii) discontinuance of the Platform or any websites linked to the Platform (or any part of them); or

(iv) unexpected technical or security issues or problems.

(c) You agree that all such suspensions or terminations shall be made at our discretion, and we will not be liable to you or any third party for any such suspension or termination.

18. Force Majeure Event

Emerald will have no liability to you or any other person if we are prevented from or delayed in performing our obligations under these Terms by a Force Majeure Event.

19. General

19.1 Notices

(a) A notice, agreement, consent, direction, waiver, or similar given or required under these Terms must be in writing and in English. Notices may be given and received electronically.

19.2 No waiver

A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.

19.3 Severability

If any part of these Terms is or becomes invalid or unenforceable under any Relevant Law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.

19.4 Entire agreement

(a) These Terms, our Privacy Policy, and any documents referred to in them, and other terms and conditions you may find on our Platform (such as our Delivery and Returns Policy) constitutes the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter, whether written, oral or partly written and partly oral.

(b) Each party acknowledges that, in entering into these Terms, neither of us relies on, and subsequently will have any remedies for, any representation or warranty that is not set out in these Terms.

(c) Emerald may assign or sublicense any of our rights or obligations under these Terms at any time without obtaining your consent.

19.5 Relationship

No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship, is intended or created between you and us by these Terms.

19.6 Governing law and jurisdiction

(a) These Terms are governed by the laws in force in New South Wales, Australia.

(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia and waives any right to claim that those courts are an inconvenient forum.

20. Definitions and interpretation

20.1 Definitions

(a) Account has the meaning in clause 12(b).

(b) Additional Services means any services we may provide you which are additional to the Services including any complementary or premium services.

(d) Confidential Information means all information of a confidential, commercially sensitive or valuable nature including Intellectual Property of a party, financial, sales, customer, employee or supplier information, processes, statements, trade secrets, marketing plans, data, other than information that is public or information previously disclosed to the receiving party on a non-confidential basis.

(e) Consequential Loss means any of the following:

(i) incidental, special, remote or unforeseeable loss or damage;

(ii) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss, damage or corruption of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing;

(iii) costs incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a Third Party; or

(iv) loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a Third Party.

(f) Credentials has the meaning in clause 12(c).

(g) Documentation means the manuals, user guides and other documents made available to you by us relating to the Services, including any updates, replacements, revisions and additions to such documentation, provided or made available by us from time to time.

(h) Force Majeure Event means an act, event, omission or accident beyond our reasonable control, including strikes, lock-outs or other industrial disputes, failure of, delay or interruption to, or interference with, a utility service or transport or telecommunications network, failure of transmission of data, false alarms, act of God, fire, flood, storm, earthquake, other physical natural disaster or extreme weather conditions, or any other conditions which would be expected to place at risk your health or safety or that of any other person, sabotage, war, riot, civil commotion, acts of terrorism or hostilities, a quarantine, epidemic, pandemic, outbreak or recurrence of a contagious disease or virus, or any derivative or mutation of such viruses or disease, or the threat or perceived threat of any of these, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, a state of emergency has been declared by an authority, accident, breakdown of plant or machinery or default of hosting or data centre providers or other suppliers or sub-contractors and shortage of supplies, equipment and materials.

(i) Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over these Terms or a party.

(j) Intellectual Property means the business names, copyright, patents, trade marks, trade names, designs and similar industrial, commercial and intellectual property and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world, regardless of the form and whether or not registered or registrable.

(k) IP Content has the meaning in clause 7.1(a).

(l) Loss means any liability, loss, injury, illness, damage, cost or expense, including legal costs on a full indemnity basis and Consequential Loss.

(m) Maintenance Release means a release of the Platform which adds functionality to, or otherwise amends or upgrades, the Platform, but which does not constitute a New Version.

(n) New Version means any version of the Platform containing significant differences from previous versions as to be generally accepted as a new product.

(o) Platform means:

(i) the downloadable and/or non-downloadable software operated by us and promoted by reference to the name ‘Emerald’ or any other name updated from time to time, and used to access, measure and report on electricity use, including the Emerald App, website at www.emerald.com.au, [email protected], database, system and server software;

(ii) any Maintenance Releases and New Versions; and

(iii) all Intellectual Property contained in the above.

(p) Relevant Law means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which any part of these Terms is performed, or governing the Services or a party at any time.

(q) Services means:

(i) granting access to the Platform and the Documentation to you in accordance with these Terms; and

(ii) any incidental services provided by us as we deem necessary to provide.

(r) Third Party means a party other than a party to these Terms.

(s) Third Party Content has the meaning in clause 8(b).

(t) Third Party Product means any software, product, service or material (including any related Intellectual Property) provided by a Third Party.

(u) User Generated Content has the meaning in clause 8(a).

20.2 Interpretation

In the interpretation of these Terms, unless stated otherwise:

(a) a reference to a party is to a party to these Terms;

(b) a reference to a person includes a natural person or legal entity;

(d) words such as ‘including’ do not limit the preceding words;

(e) all grammatical forms of defined terms have a corresponding meaning;

(f) a provision of these Terms must not be construed against a party on the basis that party was responsible for preparing it; and

(g) these Terms will prevail to the extent of any inconsistency with any other terms and conditions on our Platform.