Terms & Conditions

TERMS OF USE

  1. ACCEPTANCE OF TERMS

1.1.

ESP Ltd or its relevant subsidiary company that provides energy meter data services ("ESP") provides the online energy management reports and dashboard application called [Phantom Analytics], with or as part of that system ("Phantom Analytics") and the Internet site ([http://phantomanalytics.co.nz/]) to access [Phantom Analytics] (together "the Service"). By using the Service:

         >       the individual using the Service ("the User") agrees he or she is bound by these Terms of Use;

         >       if the individual using the Service is an authorised representative of another person (including, to avoid doubt and without limit, a company), the individual confirms that he/she has the authority to bind the other person and binds the other person to these Terms of Use as "the User" for the purpose of these Terms of Use.

 

1.2.

If the User does not agree to these Terms of Use, the User must immediately cease accessing or using the Service. These Terms of Use are for the benefit of ESP.

 

  1. GENERAL

2.1. Amendments to the Terms of Use

These Terms of Use may be amended in whole or in part by ESP from time to time. Amendments to these Terms of Use are effective upon the posting of the amended Terms of Use on this website. The User is responsible for ensuring that it is familiar with the latest Terms of Use. By continuing to use this website following such an amendment, you agree to be bound by the amended Terms of Use.

2.2. Use of Service

The User may only access or use the Service:

   >    if it is a party to a written agreement ("the Service Agreement") with ESP or a person authorised by ESP to grant access to the Service;

   >    only for the purposes set out in that Agreement.

 

  1. AUTHORISATION

3.1. Authorisation

ESP authorises the User, a non-exclusive and non-transferable basis, to access and use the Service to use the online [Phantom Analytics] for the sole purpose of accessing and using, in accordance with the Service Agreement, the electricity metering information made available under that Agreement ("the Authorisation").

3.2. Security of user name and password

The Service is available and the Authorisation is granted on an individual user basis via the provision of individual user names (the User's existing email address) and passwords. The User is responsible for keeping the user name and password secure. In particular, the User agrees:

>       not to permit any other person to use their assigned user name and password combination;

>       not to disclose, or provide to any other person, their assigned user name and password combination;

>       to notify ESP immediately upon the User becoming aware of disclosure of the user name and password combination to a third party.

 

3.3. Termination

ESP may (at its discretion) terminate a User's Authorisation if ESP considers that the User is contravening any law, acting in a manner harmful to the interests of ESP or is breaching these Terms of Use or the Service Agreement. Further, the Authorisation terminates immediately on the expiry, repudiation or termination of the Service Agreement.

3.4. Other Limitations

The Authorisation does not entitle the User to receive from ESP hard-copy documentation, technical user support, telephone assistance, or enhancements or updates to the Service.

  1. RESTRICTIONS

4.1.

Except as otherwise expressly permitted in these Terms of Use, the User must not (and must not directly or indirectly allow or cause a third party to do the following):

  1. use the Service other than for the purpose of accessing and using the information made available under the Service Agreement;
  2. modify or create any derivative works of or from the Service, including translation or localisation
  3. decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Service;
  4. redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Service, including making available the Service or any part of it to any third party for any purpose;
  5. merge all or any part of the Service with any other software, product or service;
  6. remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Service;
  7. publish any results of benchmark tests run on the Service to a third party without ESP's prior written consent;
  8. attempt to disrupt or undermine the security and integrity of the Service or any of ESP's computing systems or networks; or
  9. use the Service for any illegal purpose or in contravention of any applicable law.

 

  1. WARRANTY

5.1. Access to the Service

ESP will use its best endeavours to provide the User with 24 hour by 7 day access to the Service via the Internet subject to necessary downtime to maintain (whether planned or unplanned) the Service or its underlying systems.

5.2. Use of the Service

Subject to clause 5.1, the Service is provided on an "as is" basis. ESP makes no representations or warranties of any kind, express or implied, as to the operation of the Service or the information, content, materials or products included as part of the Service. To the full extent permissible by applicable law, ESP disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.

5.3 Consumer Guarantees Act 1993

If the User is acquiring the Service for the purposes of a business, the User agrees that the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of the Service or these Terms of Use.

  1. LIMITATION OF LIABILITY AND INDEMNITY

6.1. Limitation of Liability

To the maximum extent permitted by law, any and all liability of ESP and its licensors and suppliers to the User or any other person under or in connection with the Service, these Terms of Use or the User's use or inability to use the Service is excluded regardless of whether such liability arises in contract, tort (including but not limited to negligence), equity, breach of statutory duty or otherwise, and is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limit, loss of profits, data, business or anticipated savings, general and special damages, and consequential and incidental loss.

6.2. Indemnity

The User shall indemnify and keep indemnified ESP from and against any claim, loss, proceeding, damage or liability incurred or suffered by ESP or made by, payable to or caused to any third party, and from and against any cost or expense (including any legal cost and expense), arising out of or in connection with any breach by the User of these Terms of Use.

  1. ADVERTISING

7.1.

The Service may contain online banner advertisements and links to other websites. Responsibility for the content of advertisements and those other websites rests solely with the advertiser. The placement of these advertisements and links on the Service does not constitute ESP's recommendation or endorsement of the advertised product or service. Each advertiser is solely responsible for any representation made in connection with its advertisement or with the website linked to the Service.

  1. OWNERSHIP

8.1.

ESP (or its licensors or suppliers, as the case may be) owns all proprietary and intellectual property rights (including, to avoid doubt and without limit, copyright) in and to the Service, including [Phantom Analytics] and all other software and other material underlying and forming part of the Service. All intellectual property rights are reserved.

  1. OTHER CONDITIONS

9.1. Law

         These Terms of Use and the use of the Service are governed by New Zealand law and the User submits to the non-exclusive jurisdiction of the Courts of New Zealand.

         To avoid doubt, ESP will comply with any local laws in a territory within which it is operating to the extent that it is required to do so in order to provide the Service in that territory, including (without limit) laws regulating meter data service providers and privacy.

9.2. Severability

If any one or more provision of these Terms of Use is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of these Terms of Use shall not be affected or impaired by it in any way.

9.3. Force Majeure

Without prejudice to clause 5.1, ESP has no liability for any lack of performance, unavailability or failure of the Service, or for any failure of ESP to comply with these Terms of Use where the same arises from any cause beyond the reasonable control of ESP.

9.4. Waiver

No failure or delay on ESP's part to enforce its rights under these Terms of Use shall constitute a waiver of those rights.

9.5. Disclaimer and Privacy Policy

Please familiarise yourself with our Disclaimer and Privacy Policy which form part of these Terms of Use. These documents are available on this website and in [Phantom Analytics]. In the event of conflict or disagreement between these Terms of Use and the Privacy Policy, the Terms of Use will prevail. In the event of conflict or disagreement between these Terms of Use and the Disclaimer, the Disclaimer will prevail.