Terms of Service

1. About these Terms

1.1 These Terms of Service (Terms) govern your access to and use of the Utilified Utility Management System (UMS) and related services (collectively, the Service) provided by Utilified Pty Ltd (ACN 669 848 373) (Utilified, we, us, our).

1.2 By creating an account, accessing or using the Service, you agree to be bound by these Terms. If you are accepting on behalf of an organisation, you represent that you have authority to bind that organisation.

1.3 We may update these Terms from time to time. We will notify you of material changes at least 30 days before they take effect by email or notice within the Service. Your continued use after the effective date constitutes acceptance. If you do not agree, you may terminate your account under clause 9.

1.4 These Terms are governed by the laws of Victoria, Australia.

2. Definitions

In these Terms, unless the context requires otherwise:

3. The Service

3.1 Grant of access

We grant you a non-exclusive, non-transferable right to access and use the Service during the Term, solely for your internal business purposes, in accordance with these Terms and the Documentation.

3.2 Our obligations

We will:

• provide the Service in accordance with these Terms and the Service Levels;
• use commercially reasonable endeavours to make the Service available 24 hours a day, 7 days a week, except for scheduled maintenance and Force Majeure Events;
• provide reasonable technical support during Business Hours (9:00 am to 5:00 pm Melbourne time on Business Days); and
• implement and maintain reasonable security measures to protect Customer Data.

3.3 Your obligations

You will:

• ensure your Authorised Users comply with these Terms;
• be responsible for the accuracy and legality of all Customer Data;
• keep all login credentials secure and confidential;
• comply with all applicable laws in your use of the Service; and
• provide us with reasonable cooperation to deliver the Service.

3.4 Authorised Users

You must not exceed the number of Authorised Users included in your Plan. You are responsible for all acts and omissions of your Authorised Users.

4. Acceptable Use

4.1 Restrictions

You must not, and must ensure your Authorised Users do not:

• copy, modify, reverse engineer, decompile or create derivative works of the Service or Documentation;
• sublicense, sell, resell, transfer or make the Service available to any third party;
• use the Service for any unlawful purpose or in breach of these Terms;
• store or transmit malicious code, viruses or harmful data through the Service;
• interfere with or disrupt the integrity or performance of the Service;
• attempt to gain unauthorised access to the Service or its related systems; or
• use the Service to develop a competing product or service.

4.2 Suspension

If you breach this clause 4, we may suspend your access to the Service after giving you 5 Business Days' written notice (or immediately if the breach poses an imminent risk to security or other users). We will restore access promptly once the breach is remedied.

5. Free Trial

5.1 We may offer a free trial for a period specified at sign-up (Trial Period). During the Trial Period, the Service is provided "as is" without any service level commitments.

5.2 At the end of the Trial Period, your Account will automatically convert to a paid subscription on the Plan you selected, unless you cancel before the Trial Period ends.

5.3 We may modify or discontinue free trials at any time without notice.

5.4 Clauses 10 (Warranties) and 11 (Liability) apply during the Trial Period, except that our total aggregate liability for any claim arising during a Trial Period is limited to $100 AUD.

6. Fees and Payment

6.1 Fees. You must pay the Fees for your selected Plan. Fees are published on our website or as otherwise agreed. Unless stated otherwise, all Fees are payable monthly in advance.

6.2 Payment method. You authorise us to charge the payment method you provide at sign-up. You must keep your payment details current.

6.3 Late payment. If you fail to pay any amount by the due date, we may charge interest on the overdue amount at the Reserve Bank of Australia official cash rate plus 4% per annum, calculated daily.

6.4 GST. All Fees are exclusive of GST unless stated otherwise. If GST is payable on a supply under these Terms, you must pay the GST amount in addition to the Fees, provided we issue a valid tax invoice.

6.5 Fee changes. We may change the Fees by giving you at least 30 days' written notice before the start of your next billing period. If you do not accept the revised Fees, you may cancel your Account before the new Fees take effect.

6.6 Suspension for non-payment. If any amount remains unpaid for more than 14 days after the due date, we may suspend your access to the Service until all outstanding amounts are paid.

6.7 No refunds. Fees are non-refundable except where required by Australian Consumer Law or as expressly stated in these Terms.

7. Intellectual Property and Data

7.1 Our IP. We (and our licensors) own all Intellectual Property in the Service, Documentation and any improvements. Nothing in these Terms transfers ownership of our Intellectual Property to you.

7.2 Your data. You retain all rights in your Customer Data. You grant us a non-exclusive, royalty-free licence to use, copy, store and process Customer Data solely to provide the Service.

7.3 Data protection. We will comply with all applicable Privacy Laws in our handling of Personal Information. We will implement and maintain appropriate technical and organisational measures to protect Customer Data. Our obligations regarding data processing are further set out in Schedule 2 (Data Processing Agreement).

7.4 Data breach notification. If we become aware of a data breach (as defined in the Privacy Act 1988 (Cth)) involving Customer Data, we will notify you without undue delay and in any event within 72 hours of becoming aware of the breach, providing details of the nature of the breach, the data affected, and the steps we are taking to address it.

7.5 Data return. On termination, we will make your Customer Data available in a commonly used electronic format upon request. We may delete Customer Data 90 days after termination unless otherwise agreed in writing.

8. Confidentiality

8.1 Each party agrees not to disclose the other party's Confidential Information to any third party without prior written consent, except:

• to employees, officers or advisers who need to know, provided they are bound by equivalent confidentiality obligations;
• as required by law, regulation or court order; or
• to professional advisers on a confidential basis.

8.2 Survival. Confidentiality obligations under this clause survive termination for a period of 3 years, or indefinitely in respect of trade secrets.

9. Term and Termination

9.1 Term. These Terms commence when you create an Account and continue until terminated.

9.2 Renewal. Paid subscriptions automatically renew for successive periods equal to your billing cycle (monthly or annual) unless you cancel before the end of the current period.

9.3 Cancellation by you. You may cancel your Account at any time through the Service or by emailing us. Cancellation takes effect at the end of your current billing period. No refund applies for the remaining period, except as required by Australian Consumer Law.

9.4 Termination by us for cause

We may terminate these Terms by written notice if:

• you commit a material breach and fail to remedy it within 30 days of written notice;
• you fail to pay any amount due for more than 30 days after the due date;
• you become insolvent, enter liquidation, have a receiver or administrator appointed, or cease to carry on business; or
• a Force Majeure Event prevents you from performing your obligations for more than 60 continuous days.

9.5 Consequences of termination

On termination:

• your right to access the Service ceases immediately;
• each party must return or destroy the other's Confidential Information;
• we will comply with clause 7.5 regarding data return; and
• clauses 2, 6, 7, 8, 10, 11 and 12 survive termination.

10. Warranties

10.1 Our warranties

We warrant that:

• we have the authority to enter into and perform these Terms;
• the Service will be performed with reasonable care and skill;
• we will use commercially reasonable endeavours to ensure the Service does not contain viruses or malicious code; and
• to the best of our knowledge, the Service does not infringe any third party's Intellectual Property.

10.2 Your warranties

You warrant that:

• you have the authority to enter into these Terms (and to bind your organisation if applicable);
• you have obtained all necessary consents for the Customer Data, including any Personal Information; and
• your use of the Service will comply with all applicable laws.

10.3 Disclaimer

Except as expressly stated in these Terms, all warranties, conditions and representations (whether express or implied, statutory or otherwise) are excluded to the maximum extent permitted by law. Nothing in these Terms excludes, restricts or modifies any guarantee, condition, warranty or right implied or imposed by legislation (including the Australian Consumer Law) which by law cannot be excluded.

11. Liability

11.1 Limitation. To the maximum extent permitted by law, neither party will be liable to the other for any indirect, incidental, special, consequential or punitive damages, or any loss of profits, revenue, data, goodwill or business opportunity.

11.2 Cap. Subject to clause 11.4, each party's total aggregate liability under or in connection with these Terms will not exceed the total Fees paid or payable by you in the 12 months immediately preceding the event giving rise to the claim.

11.3 IP indemnity. We will indemnify you against any Loss arising from a third-party claim that your use of the Service in accordance with these Terms infringes a third party's Intellectual Property, provided you promptly notify us, give us sole control of the defence, and provide reasonable cooperation.

11.4 Unlimited liability

Nothing in these Terms limits either party's liability for:

• death or personal injury caused by negligence;
• fraud or fraudulent misrepresentation;
• breach of confidentiality obligations under clause 8; or
• any liability that cannot be limited or excluded by applicable law (including the Australian Consumer Law).

12. Force Majeure

Neither party will be liable for any failure or delay in performing its obligations to the extent caused by a Force Majeure Event, provided the affected party promptly notifies the other and uses reasonable endeavours to mitigate the effects.

13. Dispute Resolution

13.1 Negotiation. If a dispute arises, the parties must first attempt to resolve it by good-faith negotiation. Either party may start this process by giving written notice identifying the dispute.

13.2 Mediation. If the dispute is not resolved within 20 Business Days, either party may refer it to mediation administered by the Australian Disputes Centre in Melbourne, Victoria.

13.3 Court proceedings. A party must not commence court proceedings unless it has complied with clauses 13.1 and 13.2, except where the party seeks urgent interlocutory relief.

14. General

14.1 Notices. Notices under these Terms must be in writing and may be given by email to the address associated with your Account (for notices to you) or to support@utilified.com (for notices to us). A notice sent by email is deemed received when the sender receives confirmation of delivery.

14.2 Entire agreement. These Terms (including the Schedules) constitute the entire agreement between the parties regarding the Service and supersede all prior agreements and understandings.

14.3 Amendment. We may amend these Terms in accordance with clause 1.3. No other amendment is effective unless agreed in writing by both parties.

14.4 Waiver. A waiver of any right is only effective if in writing. Failure to exercise a right does not waive it.

14.5 Severability. If any provision is held invalid, the remaining provisions continue in full force.

14.6 Assignment. Neither party may assign these Terms without the other's prior written consent, except that we may assign to a related body corporate or in connection with a merger or acquisition.

14.7 Governing law. These Terms are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.

14.8 Relationship. Nothing in these Terms creates a partnership, joint venture, agency or employment relationship.

Schedule 1 – Service Levels

Availability

We will use commercially reasonable endeavours to ensure the Service is available at least 99.5% of the time during each calendar month, measured 24/7, excluding scheduled maintenance.

Scheduled Maintenance

Scheduled maintenance will be performed during off-peak hours (10:00 pm to 6:00 am Melbourne time) wherever possible. We will give at least 48 hours' notice of scheduled maintenance that may affect availability.

Support Response Times

Service Credits

If we fail to meet the 99.5% availability target in any calendar month, you are entitled to a service credit of 5% of the monthly Fees for each full 1% below target, up to a maximum of 25% of the monthly Fees for that month. Service credits are applied to your next invoice and are your sole remedy for downtime.

Data Backup

We perform daily automated backups of Customer Data and retain backups for at least 30 days. We test backup restoration procedures at least quarterly.

Security

We implement and maintain industry-standard security measures including:

• encryption of data in transit (TLS 1.2 or above) and at rest (AES-256);
• multi-factor authentication for administrative access;
• regular security assessments and penetration testing; and
• documented incident response procedures.

Schedule 2 – Data Processing Agreement

1. Scope and Roles

1.1 For the purposes of the Privacy Laws, you are the data controller (or equivalent) and we are the data processor (or equivalent) in respect of Customer Data processed under these Terms.

1.2 We will only process Customer Data for the purpose of providing the Service and as otherwise instructed by you in writing.

2. Our Obligations

We will:

• process Customer Data only on your documented instructions, unless required by law;
• ensure that persons authorised to process Customer Data are bound by appropriate confidentiality obligations;
• implement the technical and organisational security measures described in Schedule 1;
• not engage any sub-processor without your prior written consent (which must not be unreasonably withheld). We will maintain a list of approved sub-processors and notify you of any proposed changes at least 30 days in advance;
• taking into account the nature of the processing, assist you in responding to data subject requests under the Privacy Laws;
• assist you in meeting your obligations under the Privacy Laws in relation to security of processing, notification of data breaches, and data protection impact assessments;
• at your choice, delete or return all Customer Data on termination (subject to clause 7.5 of the Terms); and
• make available to you all information necessary to demonstrate compliance with this Schedule and allow for audits and inspections.

3. Data Breach

3.1 If we become aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Customer Data, we will:

• notify you without undue delay and in any event within 72 hours;
• provide sufficient information to enable you to meet your obligations under the Notifiable Data Breaches scheme in the Privacy Act 1988 (Cth);
• cooperate with you and take reasonable steps to assist in the investigation, mitigation and remediation of the breach; and
• not inform any third party without first obtaining your prior written consent, unless required by law.

4. Sub-processors

4.1 A current list of our approved sub-processors is available on request.

4.2 If you reasonably object to a new sub-processor, we will use reasonable endeavours to make available an alternative. If no alternative is available, either party may terminate the affected Service on 30 days' written notice.

5. International Transfers

We will not transfer Customer Data outside Australia without your prior written consent. If a transfer is agreed, we will ensure appropriate safeguards are in place.

6. Data Location

Customer Data is hosted in Australia (AWS Sydney, ap-southeast-2). We will not change the hosting location without giving you at least 30 days' written notice.

7. Audit

Upon reasonable notice (at least 20 Business Days), and no more than once per year, you may audit our compliance with this Schedule. Audits will be conducted during Business Hours and must not unreasonably interfere with our operations. You will bear the costs of any audit.

8. Term

This Schedule applies for the duration of the Terms and survives termination to the extent we continue to process Customer Data.