Solar Farm Data Confidentiality Deed Poll
Dated
The Solar Farms described in Schedule 1 (Beneficiaries)
and
[insert Research Body name] (Research Body)
Australian Energy Market Operator Ltd
Level 22, 530 Collins Street
MELBOURNE VIC 3000
TEL: 03 9609 8000
FAX: 03 9609 8080
Contents
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Details
General terms
1Interpretation
1.1Definitions
1.2References to certain general terms
1.3Next day
1.4Headings
1.5Recitals
2Solar Farm Data
2.1Request for access
2.2Approval or rejection
2.3Terms of access
3Confidentiality
3.1Recipient to maintain confidence
3.2Pre-disclosure obligations
3.3Recipient’s responsibility for Representatives’ conduct
3.4Excluded Information
3.5Confidential Information not in public domain
3.6Return, destruction or deletion of Confidential Information
4Injunctive relief
5No reliance
5.1Acknowledgment
5.2No representations or warranties given
5.3Research Body to make its own assessment
6Liability
6.1Liability of Beneficiaries
6.2Indemnity
7Beneficiaries
7.1Beneficiaries are Parties
7.2Becoming a Beneficiary
7.3Removing Beneficiaries
7.4Survival
8Notices and other communications
8.1Form - all communications
8.2Form - communications sent by email
8.3Delivery
8.4When effective
8.5When taken to be received
8.6Receipt outside business hours
9Assignment and novation
9.1By the Research Body
9.2By a Beneficiary
10General
10.1Discretion in exercising rights
10.2Partial exercising of rights
10.3No liability for loss
10.4Approvals and consents
10.5Remedies cumulative
10.6Variation and waiver
10.7Survival
11Governing law
Schedule 1 - Beneficiaries
Schedule 2 - Confidential Information
Signing page
Solar Farm Data Confidentiality Deed Poll / 1Details
Parties / Beneficiary and Research BodyBeneficiaries / Each of the Solar Farms described in Schedule 1 (Beneficiaries)
Research Body / Name / [insert full name of Research Body]
[Please provide details for inclusion here]
ABN / [insert ABN/ACN]
Address / [insert]
Fax / [insert]
Email / [insert]
Attention / [insert]
Recitals / AAEMO, on behalf of the Commonwealth Scientific and Industrial Research Organisation and utilising Commonwealth granted funding, has project managed delivery of a solar energy forecasting system (ASEFS System).
BAEMO permits certain approved organisations such as the Research Body to have access to the ASEFS System and to data accessible through the ASEFS System.
CCertain solar farms may from time to time make confidential data available through the ASEFS System on the terms of this Deed Poll.
DThe Research Body may from time to time request access to such data through the ASEFS System. When such a request is made and access is granted, access to the data is on the terms of this Deed Poll and applicable additional terms agreed to by the Research Body and the relevant solar farm through the ASEFS System.
EEach solar farm supplying its confidential data will be the beneficiary of undertakings made under this Deed Poll by the Research Body, and will be able to enforce such undertakings directly against the Research Body.
FThe list of solar farms that are providing confidential data and are beneficiaries is at Schedule 1 (Solar Farms).
Governing law / Australian Capital Territory
Date of Deed Poll / See Signing page
Solar Farm Data Confidentiality Deed Poll
4 February 2010 / 1
General terms
1Interpretation
1.1Definitions
In this Deed Poll, unless the contrary intention appears, capitalised terms have the meanings given below:
AEMO means the Australian Energy Market Operator Limited, ABN 94 072 010 327, of Level 22, 530Collins Street, Melbourne, Victoria.
Aggregated Information has the meaning given in clauseS2.2(d).
Approved Purpose means the relevant purpose specified in clauseS2.2 as agreed (and, if relevant, amended) in accordance with clause 2.
Authorised Officer of a Party means a director or a secretary of a Party or any other person appointed by a Party to act as an authorised officer for the purposes of this Deed Poll.
Authorised User means a person authorised by the Research Body to access and use the Solar Farm Data in accordance with this Deed Poll, and includes any person appointed by the Research Body as an Authorised Officer of the Research Body. Authorised Users must be employees or officers of the Research Body. Third Parties are not permitted to be Authorised Users.
ASEFS Data means the Solar Farm Data and any other data or information accessed or used by the Research Body through or in connection with its use of the ASEFS System.
ASEFS System has the meaning given in Recital A.
ASEFS System Access and Licence Agreement means the agreement of that name between the Research Body and AEMO. This Deed Poll constitutes Schedule 3 to the ASEFS System Access and Licence Agreement.
Beneficiary means each Solar Farm named in Schedule 1 as varied in accordance with clause 7.
Business Day means a day other than a Saturday, Sunday or public holiday in Canberra, Sydney, Melbourne or Brisbane.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Confidential Information means all Information disclosed or otherwise made available by a Beneficiary to the Research Body under or in connection with this Deed Poll, including:
(a)the information specified in clauseS2.1;
(b)information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of a Beneficiary;
(c)proprietary or confidential information of a third party to whom a Beneficiary owes an obligation of confidentiality which, either orally or in writing, is designated or indicatedas being proprietary or confidential information; and
(d)trade secrets or information that is capable of protection at law as confidential information or is otherwise confidential in nature,
whether the information was:
(a)disclosed orally, in writing or in electronic or machine readable form;
(b)disclosed or created before, on or after the date of this Deed Poll; or
(c)disclosed by a Beneficiary or by any third person.
Corporations Act means the Corporations Act 2001 (Cwlth).
Deed Poll means the Details, the General Terms and each of the Schedules, each Approved Purpose agreed in accordance with clause 2, and any document incorporated into this Deed Poll by reference.
Details means the section of this Deed Poll headed Details.
Excluded Information means Confidential Information that:
(a)is in or becomes part of the public domain otherwise than through a breach of this Deed Poll or other obligation of confidentiality owed to a Beneficiary or a third party;
(b)the Research Body can show was already known to it at the time it was disclosed or otherwise made available by a Beneficiary, or by AEMO (unless such knowledge arose from disclosure of information in breach of an obligation owed to or by a third party), or which is independently derived by the Research Body other than in breach of this Deed Poll; or
(c)the Research Body acquires from a third party entitled to disclose it.
General Terms means the section at the beginning of this Deed Poll headed “General terms”.
Government Agency means any Australian governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
Information means all information regardless of its Material Form, relating to or developed in connection with:
(a)the business, technology or other affairs of a Beneficiary;
(b)the Approved Purpose; or
(c)any systems, technology, ideas, concepts, know-how, techniques, designs, specifications, blueprints, tracings, diagrams, models, functions, capabilities and designs, (including computer software, manufacturing processes or other information embodied in drawings or specifications), intellectual property or any other information including information of the type described in clauseS2.1, owned or used by, or licensed to a Beneficiary or a Related Body Corporate of a Beneficiary.
Intellectual Property Rights includes all copyright (including rights in relation to phonograms and broadcasts), all rights in relation to inventions (including patent rights), plan varieties, registered and unregistered trade marks (including service marks), designs, circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but does not include Moral Rights, the rights of performers or rights in relation to Confidential Information.
Loss means any damage, loss, cost or expense (including legal fees on a full indemnity basis).
Material means the subject matter of any category of Intellectual Property Rights as well as documents, equipment, software (including source code and object code versions), goods, information and data stored by any means including all copies and extracts.
Material Form in relation to Information, includes any form (whether visible or not) of storage from which the Information can be reproduced and any form in which the Information is embodied or encoded.
Moral Rights includes the following rights of an author of copyright Material:
(a)the right of attribution of authorship;
(b)the right of integrity of authorship;
(c)the right not to have authorship falsely attributed.
Party means the Research Body or a Beneficiary, and unless a contrary intention appears, a reference to a Party includes all Representatives of the Party.
Related Body Corporate has the meaning given in the Corporations Act.
Representative of a Party includes an employee, officer, agent, auditor, adviser, partner, consultant, joint venturer, contractor or sub-contractor of the Party.
Research Body Proposal has the meaning given in clause 2.1 (Request for access).
Schedule means a schedule to this Deed Poll.
Third Party means any person that is not an officer or employee of the Research Body and includes contractors, secondees and research students.
Solar Farm means a Solar Farm that contributes Solar Farm Data.
Solar Farm Data means data sourced from Solar Farms which may be made available to the Research Body through the ASEFS System on the terms of this Deed Poll.
1.2References to certain general terms
Unless the contrary intention appears, a reference in this Deed Poll to:
(a)(variations or replacement) a document (including this Deed Poll) includes any variation or replacement of it;
(b)(clauses and schedules) a clause or schedule is a reference to a clause in or schedule to this Deed Poll;
(c)(reference to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(d)(law) law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
(e)(singular includes plural) the singular includes the plural and vice versa;
(f)(person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
(g)(executors, administrators, successors) a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;
(h)(two or more persons) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually;
(i)(jointly and individually) an agreement, representation or warranty by two or more persons binds them jointly and each of them individually;
(j)(reference to a group of persons) a group of persons is a reference to any two or more of them jointly and to each of them individually;
(k)(calculation of time) a period of time dating from a given day or the day of an act or event, is to be calculated exclusive of that day;
(l)(reference to a day) a day is to be interpreted as the period of time commencing at midnight and ending 24hours later;
(m)(meaning not limited) the words “include”, “including”, “for example” or “such as”, when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
(n)(time of day) time is a reference to Australian Eastern Standard Time, which is Coordinated Universal Time plus 10 Hours, without daylight saving; and
(o)(reference to any thing) any thing (including any amount) is a reference to the whole and each part of it.
1.3Next day
If an act under this Deed Poll to be done by a Party on or by a given day is done after 5.30pm on that day, it is taken to be done on the next day.
1.4Headings
Headings (including those in brackets at the beginning of paragraphs) are for convenience and do not affect the interpretation of this Deed Poll.
1.5Recitals
The Recitals appearing in the Details are for background purposes only and are not legally binding provisions of this Deed Poll.
2Solar Farm Data
2.1Request for access
(a)The Research Body may from time to time request access to Solar Farm Data through the ASEFS System (Research Body Proposal).
(b)The Research Body Proposal must:
(i)identify the particular Solar Farm Data to which access is being requested, and the relevant Solar Farm supplying the data; and
(ii)if required by the Research Body, specify any proposed variation to the Approved Purpose, including whether the Research Body proposes to publish Solar Farm Data in the form of Aggregated Information.
2.2Approval or rejection
The Solar Farm may:
(a)approve the Research Body Proposal without amendment, in which case AEMO will permit the Research Body to have access to the Solar Farm Data;
(b) approve the Research Body Proposal with amendments, in which case the Research Body will be required to agree to such amendments before being granted access to the Solar Farm Data; or
(c)reject the Research Body Proposal, in which case access to the Solar Farm Data will not be granted.
2.3Terms of access
(a)Where a Research Body Proposal is approved, the Research Body will be permitted to access, use and disclose the relevant Solar Farm Data on the terms of this Deed Poll consistent with the Approved Purpose agreed by the Solar Farm under clause 2.2.
(b)The Research Body will be bound by and must act in accordance with the Approved Purpose agreed by the Solar Farm under clause 2.2. The relevant Beneficiary will be entitled to rely on any such agreement made through the ASEFS System, whether or not the person purporting to agree on behalf of the Research Body was in fact an Authorised Officer of the Research Body.
(c)The Approved Purpose agreed by the Solar Farm under clause 2.2will, for the purposes of this Deed Poll as between the Research Body and the relevant Solar Farm, replace in its entirety that Approved Purpose specified in clause S2.2.
3Confidentiality
3.1Recipient to maintain confidence
The Research Body agrees to:
(a)maintain the confidential nature of the Confidential Information;
(b)not disclose or otherwise provide any Confidential Information to any person except:
(i)in accordance with clause 3.2);
(ii)if required to do so by law or in connection with legal proceedings relating to this Deed Poll; or
(iii)with the consent of the relevant Beneficiary;
(c)not use, disclose or reproduce any Confidential Information for any purpose other than for purposes permitted by this Deed Poll;
(d)establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure and use the same degree of care a prudent person would use to protect that person’s confidential information; and
(e)immediately notify the relevant Beneficiary of any potential, suspected or actual breach of this Deed Poll in respect of that Beneficiary’s Confidential Information.
3.2Pre-disclosure obligations
Before disclosing any Confidential Information to any of its Authorised Users, the Research Body must:
(a)inform AEMO of the name and title of those Authorised Users to whom it is to be disclosed; and
(b)ensure that each Authorised User is made fully aware of the confidential nature of all Confidential Informationand the terms of this Deed Poll.
3.3Recipient’s responsibility for Representatives’ conduct
The Research Body must procure that its Representatives (whether or not still employed or engaged by the Research Body) do not do or omit to do anything which if done or omitted to be done by the Research Body, would be a breach of the Research Body’s obligations under this Deed Poll or an obligation of confidence owed to a Beneficiary.
3.4Excluded Information
Clauses 3.1, 3.2 and 3.6 do not apply to the Excluded Information.
3.5Confidential Information not in public domain
The Parties acknowledge that Confidential Information is not regarded as being in the public domain by reason only of the fact that some portion of it is public or that information is publicly available which, together with other information, could be used to produce any Confidential Information.
3.6Return, destruction or deletion of Confidential Information
The Research Body must (at its own expense):
(a)return by delivering to the relevant Beneficiary or its nominee (or, at the option and direction of the relevant Beneficiary, destroy) all documents and other Materials in any medium which contain or refer to any Confidential Information of a Beneficiary (whether or not those documents and other Materials were created by the Beneficiary) and which are in the possession, power or control of the Research Body or any of its Representatives; and
(b)delete any Confidential Information of a Beneficiary that has been entered into a computer, database or other electronic means of data or information storage by the Research Body or any of its Representatives,
on the earlier of:
(c)written demand by AEMO or the relevant Beneficiary;
(d)termination of this Deed Poll or of a right of access to the Beneficiary’s data; or
(e)the time the Confidential Information is no longer required for purposes permitted under this Deed Poll.
4Injunctive relief
The Research Body acknowledges and agrees that:
(a)the Confidential Information constitutes valuable and proprietary information of:
(i)the relevant Beneficiary and its creation or acquisition involved expenditure, time and effort on the part of the Beneficiary; or
(ii)third parties to which the Beneficiary owes an obligation of confidence;
(b)damages are not a sufficient remedy for the relevant Beneficiary for any breach of this Deed Poll; and
(c)the relevant Beneficiary is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach by the Research Body or by any of its Representatives, in addition to any other remedies available to it at law.
5No reliance
5.1Acknowledgment
The Research Body acknowledges and agrees that:
(a)none of the Beneficiaries nor any of their Representatives give any assurances as to the degree of care or diligence used in compiling or preparing the Confidential Information; and
(b)this Deed Poll does not grant to the Research Body or its Representatives any licence or other right in relation to the Confidential Information except as expressly provided in this Deed Poll.