SimbleSense Standard Terms and Conditions of Use

Simble Solutions Ltd (“Simble”) provides a service that provides Internet access to a cloud-hosted energy meter monitoring and reporting service described in these Terms (“SimbleSense”). SimbleSense is also available via a mobile app which you can download from the iTunes and the Google play store and which is licensed to you for the purposes of accessing SimbleSense.

Simble operates SimbleSense and makes it available to its authorised customers. These Terms and Conditions of Use (“Terms”) state the terms that govern use of SimbleSense by any person.

The terms “you” or “your” refer to the person using SimbleSense for any reason. By using SimbleSense, you verify your agreement to the Terms. If you do not accept the Terms, you must not use SimbleSense.

Simble may amend or modify these Terms at any time and will post the updated Terms and a notice of the changes on SimbleSense at https://www.simblegroup.com/simblesense/termsandconditions.

When next you log in, you will be required to agree to the new Terms in order to continue to use it. Simble may in some circumstances agree to certain special conditions in a formal agreement that incorporates these Terms by reference and any such special conditions will take priority over these Terms to the extent of any inconsistency.

  1. Purpose of SimbleSense
    1. SimbleSense is a service and associated database that retrieves, stores, transmits and interprets energy meter usage data. SimbleSense provides you with access to energy meter monitoring data via the internet, either through a portal or SimbleSense Application Programming Interface (“API”) in the manner set out in the product descriptions posted at its website.
  2. Grant of licence in and access to SimbleSense
    1. You acknowledge that SimbleSense including its “look and feel” (e.g. text, graphics, images, logos and icons), photographs, content, notices and other material are protected under copyright, trademark and other intellectual property laws and treaties, and all such intellectual property rights are owned or licensed by Simble.
    2. Simble grants to you a revocable, non-transferable and non-exclusive licence to access and use SimbleSense in accordance with these Terms. If you are an employer, subject to clause 5.2, you may sub-licence your rights under these Terms to your employees and sub-contractors strictly for your internal business purposes only, provided each sub-licensee is aware of these Terms and that they must not authorise any other person to use SimbleSense.
    3. Other than as explicitly stated in this clause, these Terms do not grant you the right to grant access to SimbleSense, and you must not distribute, rent, loan, lease, sell, sublicense, transfer or otherwise exploit all or part of SimbleSense, or any rights granted by these Terms to any other person. You must not modify, translate, adapt, arrange, or create any adaptation or modification to SimbleSense for any purpose. Any rights not expressly granted in these terms are reserved by Simble and its licensees.
  3. Energy Meters
    1. To use SimbleSense requires a compatible energy meter from a third party energy meter provider.
    2. You are responsible for arranging, or ensuring that the relevant energy user has arranged, the procurement and installation of a compatible energy meter from a third party energy meter provider that is compatible with and is supported by the SimbleSense system. You may have been given access to and be using SimbleSense as a result of the purchase of an energy meter.
    3. In addition to these Terms, your use of the energy meters will be governed by the terms of the energy meter provider and if you are monitoring the energy use of someone other than you, your agreement with that third party.
    4. Simble makes no representations or warranties about and has no liability or responsibility to you or an energy meter provider for any breach or alleged breach, claim or action arising from or in connection with the energy meter provider’s terms or any agreement you reach when you monitor the energy usage of someone else.
  4. Additional Services
    1. From time to time, you may request Simble to supply, or Simble may offer to supply to you (or may arrange for a third party to supply to you), additional services (“Additional Services“).
    2. Before supplying any Additional Services to you, Simble will confirm to you in writing:
      1. the nature of the Additional Services that it will supply; and
      2. any additional fees and applicable terms and conditions that will apply to the Additional Services.
    3. These terms will apply to those Additional Services except to the extent that any additional terms and conditions are expressly agreed for such Additional Services.
  5. Your Responsibilities
    1. You:
      1. are responsible for your compliance with these Terms;
      2. must immediately notify Simble and any relevant authorities if you become aware of any use of SimbleSense that is, or is likely to be, illegal or threatening to the health or safety of any person;
      3. must keep your user name and password secure, prevent unauthorised access to or use of SimbleSense, and notify Simble promptly of any such unauthorised access or use; and
      4. must only use SimbleSense in accordance with applicable laws and government regulations.
    2. If you authorise any other person to use SimbleSense, or any person gains access to SimbleSense as a consequence of your negligent act or omission, then you agree that you are fully responsible for the actions of that person and any failure by that person to comply with these Terms. You agree to indemnify, defend and hold harmless Simble, its respective officers, directors, employees, suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including reasonable legal fees) asserted by person arising from or in connection with you authorising any person to use SimbleSense, or such use arising as a consequence of your negligent act or omission.
  6. Fees
    1. Access to use SimbleSense is granted on a subscription basis, and subject to clause 6.3, you will be charged an annual fee in advance for that access (“SimbleSense Access Fee”).
    2. The SimbleSense Access Fee is required to be paid during the registration process to use SimbleSense and once paid, a code (“SimbleSense Access Code”) will be provided in order to enable access to your account. You can directly pay the SimbleSense Access Fee to obtain the SimbleSense Access Code or it may be provided to you by an approved SimbleSense reseller.
    3. You may have an arrangement with the supplier of the energy meter or some other party that gives you a SimbleSense Access Code to use SimbleSense. Your use of that SimbleSense Access Code means that the SimbleSense Access Fee has been paid on your behalf by that third party and you are still bound by these Terms.
    4. You are required to pay all taxes applicable to the supply of SimbleSense and any Additional Services in your jurisdiction, and the value of any SimbleSense Access Fee and fees for Additional Services may be increased on an Simble invoice by the value of, without limitation, any GST, VAT, consumption tax or sales tax.
    5. You acknowledge that Simble may terminate or suspend your access to SimbleSense at any time if the SimbleSense Access Fee has not been paid.
  7. Restrictions on your use of SimbleSense
    1. You must not (and must not permit or direct any third party to):
      1. circumvent or modify any security mechanisms employed by Simble in SimbleSense;
      2. reverse engineer, decompile, or disassemble SimbleSense;
      3. imply any affiliation or endorsement of you or any organisation by Simble, except with consent in writing;
      4. operate SimbleSense as a bureau service;
      5. use SimbleSense to store or transmit any viruses, trojan horses, backdoors or similar types of code designed to disrupt or interrupt any computer system or service, including SimbleSense;
      6. interfere with or disrupt the integrity or performance of SimbleSense or any transaction being conducted through SimbleSense, or any other person’s use of SimbleSense;
      7. attempt to gain unauthorised access to SimbleSense or its related systems or networks, or any part of them;
      8. interfere with or disrupt the servers or networks connected to SimbleSense, or disobey any requirements, procedures, policies or regulations of networks connected to SimbleSense;
      9. use any automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of SimbleSense; or
      10. pretend that you are or represent someone else, or impersonate any other person.
    2. If Simble determines, in its sole discretion, that you are not complying with any of the above conditions or Terms, Simble may terminate your licence to use and access SimbleSense.
    3. Simble will co-operate with relevant authorities in the investigation of any illegal, or suspected illegal, activity associated with any person’s use of SimbleSense.
  8. No reliance
    1. You acknowledge that although Simble will use its reasonable endeavours and due care and skill to determine that the content on SimbleSense is accurate and up-to-date, including all data displayed, Simble does not warrant that such content will be complete, uninterrupted or error free.
    2. You acknowledge and agree that:
      1. you are solely liable and responsible for your business and other activities, and your performance and compliance with laws;
      2. SimbleSense, is prepared on a general basis and may not be appropriate or complete for your specific circumstances or requirements; and
      3. SimbleSense is designed to assist you in the monitoring of energy usage, which may include identifying areas where energy usage can be reduced but is not designed nor intended to guarantee such energy savings.
  9. Your Data and Backups
    1. To the extent that any legal rights (including all intellectual property rights) exist in the data Simble obtains from an energy meter (whether the meter is yours or someone has given you permission to use SimbleSense to access data stored in a meter), (“Customer Data“), nothing in this Agreement affects those rights. You acknowledge Customer Data will be processed, stored, reproduced, transmitted and used by Simble to operate SimbleSense (the “purpose”). You grant to Simble a perpetual, irrevocable, royalty free, sub-licenseable, transferrable license to use, reproduce, modify and adapt Customer Data for the purpose. To the extent that you obtain Customer Data from another party warrant that you have obtained from that party these rights and you will, on request from Simble, provide such documents as are reasonably necessary to satisfy it that you have those rights.
    2. If you acquire from Simble a service including backups and data recovery, then Simble will use its best commercial efforts to create backups or otherwise maintain data recovery mechanisms for any Customer Data in the manner specifically agreed with you. However, Simble relies on energy meters and the public internet to collect Customer Data and does not guarantee that it will have a complete copy of Customer Data at any time, nor does it guarantee that SimbleSense will operate uninterrupted or error free. You acknowledge that Simble will have no liability to you or any third party under any circumstances resulting from any loss of Customer Data.
    3. You acknowledge that Simble (or its licensors) own all of the intellectual property rights in the databases and proprietary systems which form part of SimbleSense or that arise or are created from the operation of SimbleSense and nothing in these Terms gives you any title, claim or right in or to SimbleSense or any part of it.
  10. Support Services
    1. Simble does not warrant that the SimbleSense will operate uninterrupted or error free, however Simble will use reasonable commercial efforts to enable you to use SimbleSense during business hours in Sydney. Subject to clause 10.2, you may contact Simble at any time during the support hours specified by Simble to request support with any aspect of your use of SimbleSense. Simble will make reasonable commercial efforts to resolve your support request within a reasonable time.
    2. You acknowledge that Simble has no responsibility for any maintenance or support of any energy meters. Any problems, defects or issues with an energy meter are the sole responsibility of the energy meter provider.
  11. Usage Restrictions and Availability
    1. You understand and agree that the internet is a public communications network that cannot be controlled by Simble, and any data intended to be delivered to you by means of SimbleSense may be delayed or may not be delivered.
    2. You agree that Simble is not liable for any delays, failure to deliver, or misdirected delivery of any data, for any errors in the content of data, or for any actions taken or not taken by you or any third party in reliance on data.
    3. SimbleSense may be subject to access or other restrictions on use or availability.
    4. You acknowledge that your access and use of SimbleSense may be interrupted from time to time for any reason, including without limitation, the malfunction of equipment, updates to SimbleSense, maintenance or repair of SimbleSense or other actions that Simble, in their sole discretion, may elect to take.
    5. Simble will make reasonable efforts to provide you with advance notice of any changes that may affect your use of SimbleSense.
  12. Suspension
    1. Subject to clause 13.2, Simble may temporarily suspend your access to SimbleSense if Simble reasonably determines that:
      1. you are using SimbleSense in breach of these Terms; or
      2. there is a threat or attack on SimbleSense or other event that may create a risk to SimbleSense, you or any other user of SimbleSense.
    2. Simble will make reasonable efforts to provide information to you about the reasons for any suspension, and updates regarding resumption of your access to SimbleSense following any suspension.
    3. Simble is not liable for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any suspension of SimbleSense.
  13. Termination
    1. Simble may terminate SimbleSense, or any part of SimbleSense, at any time. We will use commercially reasonable endeavours to provide you with reasonable notice of the termination of SimbleSense. You acknowledge that Simble’s sole liability to you for termination of SimbleSense (except where such termination arises from a breach of these Terms by you) will be to provide you with a pro rata refund of any fees paid in advance by you (not applicable if you paid no fee because you used an access code) with access to your data in accordance with clause 13.2.
    2. If your access to any part of SimbleSense is suspended or terminated at any time for any reason, you will be provided with a reasonable opportunity to extract your data from any affected OSP App in an industry standard format.
    3. You may terminate your access to SimbleSense at any time, but if you do so you acknowledge that any SimbleSense Access Fees you have paid in advance will not be refunded, and Simble has no further liability to you.
    4. Clauses 9, 14, 15, 17, 18 and 19, and any other provision of these Terms which by its nature should survive termination, will survive termination, expiration or repudiation of these Terms.
  14. Limitation of Liability
    1. Other than warranties, conditions, rights or guarantees implied by relevant legislation, the exclusion of which from an agreement would contravene a statute or cause part or all of this agreement to be void (“Non-Excludable Rights”), Simble provides you with SimbleSense “as is”, and Simble does not warrant uninterrupted use or operation of SimbleSense, or that any data sent by or to you will be transmitted in uncorrupted form or within a reasonable amount of time. Except for any Non-Excludable Rights, Simble disclaims all representations, warranties and conditions of any kind, whether express, implied or written, oral, contractual or statutory.
    2. Except for liability in relation to breach of any Non-Excludable Rights and liability referred to in clause14.3, Simble’s maximum aggregate liability to you in contract, including for one or more breaches of any express term or terms of these Terms, tort (including negligence), statute or otherwise, is limited to an amount equal to the total amount paid by you to Simble in connection with SimbleSense in the 12 month period before the event giving rise to liability arises. For liability in relation to breach of any Non-Excludable Rights, to the extent permitted by applicable law, Simble’s liability is limited, at its option, to the cost of repairing or replacing any defective goods, or supplying again or paying the cost of having supplied again any defective services.
    3. Except for Non-Excludable Rights, in no event will Simble be liable for any special, incidental, indirect, punitive or consequential damages whatsoever, including, but not limited to, damages for loss of profits or revenues, loss of confidential or other information, business interruption, personal injury, loss of privacy, corruption or loss of data, failures to transmit or receive data or any other pecuniary loss whatsoever arising out of or in any way related to the use of or inability to use SimbleSense or otherwise in connection with any provision of these Terms, even if Simble has been advised of the possibility of such damages.
    4. You acknowledge that the energy meters are supplied by the relevant energy meter provider, and Simble has no responsibility or liability for any claim made by you, or any loss or damage suffered by you, arising from use of any energy meter. You agree to indemnify, defend and hold harmless Simble, its respective officers, directors, employees, suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including reasonable legal fees) asserted by you or any third party due to or arising from or in connection with the use of any energy meter.
    5. You agree to indemnify, defend and hold harmless Simble, its respective officers, directors, employees, suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including reasonable legal fees) asserted by you or any third party due to or arising from or in connection with Simble’s use of the Customer Data, including without limit a failure by you to obtain the rights referred to in clause 9.1 above.
  15. Confidentiality and Data Protection
    1. Each party must maintain the confidentiality of the other party’s confidential information (which includes without limitation all information disclosed by one party to the other party in circumstances where an obligation of confidence can or should reasonably be implied) and will not without the prior written consent of the other, use, disclose, copy or modify the other party’s confidential information (or permit others to do so) other than as necessary for the performance of its rights and obligations under these Terms. Each party must take all precautions reasonably necessary to prevent any unauthorised use, disclosure, copying, publication or dissemination of the other party’s confidential information, including at a minimum those taken by that party to protect its own confidential information.
    2. You acknowledge that Simble may disclose to energy meter providers so much of your confidential information as is necessary for Simble to properly supply SimbleSense to you.
    3. Simble will take reasonable commercial measures to protect the security and integrity of SimbleSense and Customer Data processed by means of SimbleSense.
    4. Simble will:
      1. comply at all times with applicable privacy and data protection laws; and
      2. take all reasonable steps to protect the security and integrity of information that can be used to establish the identity of an individual, sensitive information about an individual and your confidential information.
  16. Notices from Simble
    1. You agree that you will receive all notices required under these Terms electronically, by any means reasonably nominated by Simble from time to time, including without limitation by email, by posting on our website or by means of SimbleSense.
  17. Assignment
    1. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of Simble.
    2. Without notice to you, Simble may assign or novate these Terms in their entirety and you hereby give your consent to any such assignment or novation.
  18. Miscellaneous
    1. These Terms are the entire agreement between You and Simble relating to SimbleSense and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to SimbleSense, or any other subject matter covered by these Terms.
    2. Any part or all of any clause of these Terms that is illegal or unenforceable must be severed from these Terms and will not affect the continued operation of the remaining provisions of this agreement
    3. Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.
  19. Governing Law and Forum for Disputes
    1. This Agreement, and your relationship with Simble, is governed by the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia, and any dispute resolution procedure or legal proceedings in connection with these Terms or SimbleSense must be conducted in New South Wales, Australia.

This Agreement consists of the all pages, the referenced terms and conditions, and any incorporated exhibits or attachments. The parties have read and understand this Agreement and agree to be bound by its terms and conditions.

SIMBLE SOLUTIONS LTD:

Level 2, 383 George Street,
Sydney NSW 2000
Australia