DCH Connection and Access Licence Agreement
About this Agreement
(1) The Data Clearing House (DCH) is a cloud-based data storage and data management platform maintained by CSIRO that supports near real-time data analytics and equipment control services in relation to connected buildings and Building Systems (Hub) and is made available to authorised users at www.dataclearinghouse.org (website).
(2) The Hub is accessible using a web-based graphic user interface via the website (Portal).
(3) You may only access the Portal and the associated services if you accept these terms.
(4) After acceptance of these terms, CSIRO will provide access to you to store your Building Data on the Hub and allow you to nominate users who are authorised by you to access Data and other services provided by CSIRO via the Portal, in accordance with the terms of this Agreement.
1 Definitions
1.1 In this Agreement, unless the context requires otherwise, the words in the first column in the table below have the meanings given to them in the second column.
Defined term
Meaning
Account
the Controller’s account to access the Service.
Agreement
this document and attachments or other documents incorporated into this document by reference.
API
an ‘application programming interface’, being a software intermediary that allows the Building Systems to provide Building Data to the Hub and allows the Hub to export Hub Data in a format that the Building Systems can use in the manner contemplated under this Agreement.
Building Data
information uploaded into the Hub by the Controller that is identifiable by reference to the Building and/or the Building Systems.
Building Systems
the systems that control the building services such as HVAC&R, lighting, fire, security and lifts, and battery and onsite power generation, and related systems located in the Building that are (or may be) connected to the Hub under this Agreement.
Confidential Information
information disclosed by one party to the other party that a person in the position of the receiving party would reasonably understand to be confidential, including but not limited to information relating to:
(a) the Data;
(b) Intellectual Property of either party;
(c) the terms of this Agreement;
but does not include information:
(d) already rightfully known to the receiving party at the time of disclosure by the other party;
(e) created by a party independently of other party’s Confidential Information; or
(f) in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.
Connection
the connection of the Building Systems to the Hub as contemplated under this Agreement, including such connections as may be set out in your Account from time to time.
Controller or you
the person or organisation that registered an Account, being the person or organisation who has authority to Connect the Building Systems to the Hub and to provide the Building Data to CSIRO.
CSIRO
means Commonwealth Scientific and Industrial Research Organisation (ABN 41 687 119 230).
Data
each of the Building Data, Hub Data and Third-party Data, and all or some of them as the context requires.
Designated Representatives
a person designated by the Controller, in accordance with the terms of this Agreement, to provide or access Data or otherwise exercise any of the rights of the Controller under this Agreement.
Fee
any amount (if any) payable by the Controller to CSIRO under this Agreement as stipulated by CSIRO from time to time in accordance with its terms.
Fee Free Period
means twelve (12) months from the date of registration of the Account or such later date agreed in writing by CSIRO.
Hub
the DCH platform maintained by CSIRO, being a cloud-based data storage and data management platform that supports near real-time data analytics and equipment control services.
Hub Data
data maintained by CSIRO on the Hub and made available to the Controller and/or its Nominated Users. Hub Data may include or be merged with other Data.
Intellectual Property
means all present and future rights conferred by statute, common law, or equity, in or in relation to copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other proprietary rights arising from intellectual activity in the business, industrial, scientific or artistic fields, whether created before or after the date of this Agreement, whether in Australia or otherwise, and whether or not registrable, registered or patentable.
Loss
any losses, damages, costs (including legal costs) or expenses, arising from or in relation to any claims, demands, proceedings, and other liability.
Nominated Users
people who are nominated permitted users of the Services authorised by the Controller to access and use the Services, and who have been supplied a ‘user identification’ and password by the Controller (or by CSIRO at the Controller’s request) and any other person that the Controller permits to use the Services in accordance with this Agreement. Nominated Users will include any Designated Representatives.
Personal Information
has the meaning given to that term in the Privacy Act 1988 (Cth).
Personnel
an employee, agent, officer, director or related entity of that person or of a related body corporate of that person, and in the case of the Controller, Personnel includes any Nominated Users.
Portal
a web-based graphic user interface that allows Nominated Users to access Data hosted on the Hub.
Privacy Law
the Privacy Act 1988 (Cth) and any code registered under the Privacy Act or Australian Privacy Principles.
Privacy Policy
CSIRO’s privacy policy which is available on the Website or as amended by CSIRO from time to time.
Services
the provision of and access to the Hub, the Hub Data and the Portal and any service provided by CSIRO that is incidental to or necessary for the provision or support of those services.
Supplementary Terms
has the meaning given in clause 18.
Support and Maintenance terms
the ‘Support and Maintenance terms’ as separately provided to the Controller by CSIRO, and as updated or amended by CSIRO from time to time.
Third-party Data
data provided or made available by third parties and provided by CSIRO as part of the Hub Data or otherwise used under the terms of this Agreement.
website
means www.dataclearinghouse.org.
1.2 Additional terms that are used and defined elsewhere in this Agreement have the meanings given to them there.
2 Connection to the Hub
2.1 CSIRO will use reasonable endeavours to facilitate the Controller’s Connection of the Building Systems to the Hub.
2.2 CSIRO’s assistance in facilitating Connection of the Building Systems to the Hub may include: (a) making API’s available to assist in the streaming or uploading of Building Data to the Hub;
(b) making API’s available to assist in the streaming or downloading of Hub Data to the Building Systems and/or the software systems of Nominated Users;
(c) providing access to the Hub’s native communication brokers;
(d) providing access to the Hub’s FTP servers;
(e) providing access to Hub specific schema format;
(f) creating custom data decoders; and
(g) providing access to Portal for registering the building and associated data sources.
2.3 CSIRO will maintain the Portal and provide Portal access to allow Nominated Users to access Hub Data via the permissions granted on the Controller’s Account.
2.4 CSIRO will provide ‘permission’ functionality so a Controller can authorise Nominated Users to access the Controller’s Account, so the Controller can make Data available to the Nominated Users.
3 Licence
3.1 CSIRO grants to the Controller a non-transferrable, non-exclusive and revocable licence to use the Services for its internal business purposes, subject to the terms and conditions of this Agreement.
3.2 CSIRO will use its reasonable endeavours to provide the Controller with access to the Services as soon as practicable after the Controller has registered an Account.
4 Designated Representatives and Nominated Users
4.1 The Controller:
(a) will nominate one or more ‘Designated Representatives’ and provide their names and contact details to CSIRO and provide notification of any change to these details (including transfer of Designated Representatives’ responsibilities to other individuals); and
(b) may nominate people as Nominated Users who have a need to access the Hub and/or the Portal to Connect the Building Systems to the Hub and/or to view, retrieve or access the Data for the Services. The number of Nominated Users will be limited to 5, or such other number as may be approved by CSIRO from time to time.
4.2 Designated Representatives will represent the Controller for the purposes of Connecting the Building Systems to the Hub and exercising the Controller’s rights under this Agreement.
4.3 The Controller will ensure its Nominated Users comply with the terms of this Agreement.
5 Maintenance, updates and changes to the Services
5.1 Maintenance and Updates
(a) CSIRO reserves the right to modify or update the Services from time to time.
(b) CSIRO will use its best endeavours to conduct any scheduled maintenance at a time that is least likely (in its reasonable opinion) to adversely impact the provision of the Services and Nominated Users.
(c) CSIRO will inform the Controller of any planned modification or update to any software forming part of the Services within a reasonable time prior to the updated software being published, and where a modification or update is expected to impact the utilisation of the Hub in a significant manner CSIRO will endeavour to provide at least 14 days prior notice.
(d) CSIRO will use reasonable endeavours to ensure that any future version of software forming part of the Services is backwards compatible with at least the most recent previous version, but the parties acknowledge that this may not always be possible.
5.2 Support and Maintenance
(a) If any support and maintenance and other professional services are to be provided in addition to the provision of access to the Services as set out in this Agreement, they will be provided in accordance with the agreed Support and Maintenance terms. Other than as expressly agreed between the parties, CSIRO has no obligation to provide you with any other services.
(b) It is acknowledged that the Services may be provided by third party providers engaged by CSIRO. Additional terms (if any) required by third party providers will be included in the annexures to this Agreement, and if so attached will form part of this Agreement, but only to the extent that such additional terms impose any obligation on the Controller and its Nominated Users.
(c) Where any Services are to be provided by third party providers, any issues regarding such Services will be managed under this Agreement and CSIRO may nominate the first point of contact for any enquiry regarding any aspect of such Services.
5.3 System availability
CSIRO will use its best endeavours to ensure that the Services are available to connect to at least 95% of the time in each month.
5.4 Suspension of access
(a) CSIRO may suspend access to the Services:
(i) to carry out the maintenance services;
(ii) to carry out modifications or updates to the Service, including the uploading of software updates;
(iii) to preserve data and integrity;
(iv) in the event of a security breach;
(v) if the server malfunctions; or
(vi) in the event of third-party service outages.
(b) Suspension of access to the Services will continue until the maintenance services, modifications or updates are carried out, the problem or breach is rectified, or until otherwise agreed in writing between the parties.
6 Controller obligations and warranty
6.1 The Controller warrants to CSIRO that it has the capacity to enter this Agreement and authority to Connect the Building Systems to the Hub and to share Building Data in the manner contemplated under the terms of the Agreement. The Controller agrees to indemnify CSIRO against any third-party claim brought in relation to the Controller’s breach of the warranties provided in this clause.
6.2 CSIRO will provide you with the necessary username and passwords to enable you and your Designated Representatives and Nominated Users to access the Hub and use Data stored on the Hub and to administer and manage those username and passwords.
6.3 You are responsible for all acts and omissions of your Personnel’s use of the Hub. You must ensure that your Personnel that access the Hub do so in accordance with this Agreement, including compliance with the terms of use and any directions provided in relation to the use of the Hub. You must implement procedures and measures to ensure that any of your Personnel are informed of their obligations:
(a) to prevent unauthorised persons access to the Hub or to any Data stored on the Hub;
(b) to not facilitate or allow unauthorised persons to access the Hub or to any Data stored on the Hub;
(c) to notify you and CSIRO of any unauthorised access to the Hub or unauthorised use of any Data;
(d) to not use the Hub in any way that may impair the availability or accessibility to the Hub;
(e) to not attempt to override any security or protective measures embedded in the Hub;
(f) to protect the integrity of the Hub or to secure CSIRO’s proprietary rights to the Hub;
(g) to comply with all reasonable directions given by CSIRO Personnel as to the use of any access codes, passwords or other security measures implemented by CSIRO to protect the integrity of the Hub; and
(h) to act in any way that does not breach any terms of this Agreement and the terms of use, or use the Hub for any illegal, fraudulent or inappropriate purpose.
6.4 During the term of this Agreement, the Controller must:
(a) not to do anything which will or is likely to have an adverse effect on the Services or CSIRO;
(b) not make any representations in relation to the use of the Services that is materially inconsistent with information provided to the Controller by CSIRO;
(c) not publish or otherwise communicate any review of, or information about, the Services (which is not publicly available) to any third party without the prior written consent of CSIRO, except as specifically provided for in an agreement with CSIRO, including this Agreement.
6.5 The Controller will:
(a) be responsible for its Personnels’ compliance with this Agreement;
(b) be responsible for the accuracy and quality of Building Data, and the lawfulness of the means by which the Controller acquires Building Data;
(c) be responsible for the Controller’s use of Building Data with the Services, and the interoperation of any applications the Controller uses with the Services; and
(d) use commercially reasonable efforts to prevent unauthorised access to or use of Hub Data, Third-party Data, the Services and related software, and notify CSIRO promptly of any such unauthorised access or use.
7 CSIRO’s obligations
7.1 Subject to the Controller complying with its obligations set out in this Agreement, CSIRO will:
(a) develop, host and maintain the Services;
(b) provide any agreed ‘Support and Maintenance’ services; and
(c) use reasonable commercial endeavours to meet or exceed any agreed service levels.
7.2 Third Party Control
The Controller agrees and accepts that the Services are or may be from time to time operated from servers owned and controlled by a third party (including Amazon Web Services). As such, the Controller acknowledges that certain functions may be out of CSIRO’s control, including databases and application infrastructure, and that unless contrary to law CSIRO is not responsible for any event or action caused by any third party contemplated in this clause 7.2.
7.3 Security Responsibilities
CSIRO will take reasonable steps to ensure that the Services are secure from unauthorised access consistent with generally accepted industry standards.
8 Fees and Payment
8.1 CSIRO will not charge Fees for Connection to the Hub during the Fee Free Period.
8.2 After expiry of the Fee Free Period, CSIRO reserves the right to charge Fees for Connection to the Hub for accessing Hub Data and/or support services by giving notice to the Controller in accordance with clause 8.3.
8.3 If CSIRO wishes to introduce a Fee or change the Fee(s) payable under this Agreement it must first give notice to the Controller at least three months before the Fee will take effect. The Fee will come into effect from the date provided in the notice.
8.4 Without limiting any other termination rights under this Agreement, the Controller may terminate this Agreement at any time after receiving a notice under clause 8.3 before the date provided in the notice for the Fee to come into effect.
8.5 All invoices issued by CSIRO are to be paid within thirty (30) days after the date of the invoice.
8.6 The Fee must be paid to CSIRO in full, without any deduction, withholding, set-off or counterclaim for taxes, excises or duties. If any taxes, excises or duties are imposed then you will bear and pay all deductions and withholdings of any taxes, excises or duties directly to the relevant authorities, and separately pay CSIRO enough to ensure CSIRO receives the full amount of the Fee on the due date.
8.8 GST
Where, under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related Acts, a goods and services tax (GST) is payable on any supply made by the supplier of a taxable supply under or in the performance of this Agreement, the amount payable by the recipient of that supply under this Agreement will be increased by the amount of such GST.
9 Confidential Information
9.1 A party will not, without the prior written approval of the other party, use or disclose the other party’s Confidential Information except as, and to the extent, required to perform its obligations under this Agreement. Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related entities, solicitors, auditors, insurers and accountants.
9.2 Each party will take all reasonable steps to ensure that its Personnel, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
9.3 Each party must promptly notify the other, giving full details known to it immediately upon becoming aware of any actual, suspected, likely or threatened:
(a) breach by any person of any obligation in relation to the Confidential Information; or
(b) theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
9.4 Each party undertakes to use reasonable care and to implement appropriate security practices to prevent any unauthorised copying, use or disclosure of the other’s Confidential Information. For the purposes of this clause, ‘reasonable care’ includes all measures that a party would ordinarily use to protect its own information of a similar kind.
9.5 A party may disclose the other party’s Confidential Information if required by law, but only to the extent of the requirement and after appropriate action is taken to protect the form and content of the disclosure.
9.6 Without limiting clause 9.5, CSIRO may disclose such information (on a confidential basis):
(a) to the extent necessary to comply with a requirement or request of its responsible government Minister or a House of Parliament or Committee of Parliament; or
(b) to a responsible authority if CSIRO, acting reasonably, deems the information to expose or relate to a potential risk to public or environmental health and safety.
9.7 Confidential Information is to be kept confidential for a period of 5 years following the termination or expiry of this Agreement.
10 Data Use
10.1 Building Data
(a) As between the parties, the Building Data remains the property of the Controller and CSIRO may only use the Building Data in accordance with the terms of this Agreement.
(b) The Controller grants CSIRO a non-exclusive licence to the Building Data solely for the purpose of performing its obligations under this Agreement. Any Building Data that the Controller or its Nominated Users provides to CSIRO is and will remain the property of the Controller or its licensors.
(c) CSIRO will not make the Building Data available to any person except in accordance with this Agreement, without the prior consent of the Controller.
10.2 Return of Building Data
If requested by the Controller, CSIRO will promptly return any Building Data in its possession. Where Building Data is serviced in a multi-tenanted environment, or it is otherwise impractical to return the Building Data, CSIRO will ensure the security of the Building Data until it can be irretrievably deleted or destroyed. Nothing here affects CSIRO’s ongoing right to use non-identifiable data under clause 10.4.
10.3 Security Responsibilities
CSIRO will take reasonable steps to ensure that the Services are secure from unauthorised access consistent with generally accepted industry standards.
10.4 Use of data for research and development purposes
(a) The Controller grants to CSIRO a right to use data derived from the Building Data for research and development purposes, provided that the relevant data is in a de-identified form (containing no Personal Information and not referable to the Building).
(b) For the purposes of this clause ‘research and development purposes’ may include:
(i) carrying out internal research;
(ii) carrying out collaborative research and development activities with a third party;
(iii) providing funded research services to a third party;
(iv) running public competitions for the development of building-services algorithms;
(v) development of new products and services;
provided, that where research and development involves a third party, the data shared with that third party is limited to aggregated processed data only, and will not include any raw data (irrespective of whether it has been de-identified).
11 Privacy
11.1 Each party must comply with any obligations it may have under Privacy Law and any other relevant laws relating to the collection, storage and use of Personal Information in carrying out its obligations under this Agreement and in connection with the use of the Services.
11.2 The Controller agrees and consents to CSIRO’s handling of Personal Information provided to CSIRO by the Controller in accordance with CSIRO’s Privacy Policy. CSIRO may change the Privacy Policy at any time by giving notice to the Controller by publishing the Privacy Policy on its Website.
11.3 The parties acknowledge that it should not be necessary for either party to include any Personal Information in the Data. The Controller warrants that it will not include any Personal Information in the Building Data without having first obtained the consent of the person the subject of that information for the relevant information to be used in the manner contemplated under this Agreement and the Controller will indemnify and hold harmless CSIRO in respect of any claim arising from a breach of this warranty.
11.4 When the Controller is granted access to its Account, or when a Designated Representative or Authorised User is granted access, that person’s username will be identified in the Portal via an email address. You must ensure that this information is accurate and current.
12 Intellectual Property
12.1 All Intellectual Property rights in relation to the Hub, the Hub Data, the Portal, and any software or application interfaces used to Connect the Building Systems to the Hub (collectively, CSIRO Materials) are owned or used under licence by CSIRO. You do not have the right to sub-license, sell, rent, or distribute any of the CSIRO Materials or the right to release the Hub Data on the internet or any other public communication network. If you wish to obtain any further rights to make use of the Hub Data or other CSIRO Materials you must negotiate with CSIRO for a separate agreement.
12.2 Any Third-party Data made available to you by CSIRO is provided solely for the purposes of your use in accordance with the terms of this Agreement and remains the property of the provider of that Third-party Data.
12.3 Infringement
If the Controller becomes aware of any infringement or threatened infringement of any Intellectual Property rights described in clause 12.1, the Controller will give notice to CSIRO including particulars of the infringement of which it is aware.
13 Use of CSIRO name
You must not use CSIRO's name (that is, "CSIRO" or "Commonwealth Scientific and Industrial Research Organisation") in a manner that suggests that CSIRO endorses or is associated with your business, products or services. In no case may you use CSIRO's logo without first receiving CSIRO's prior written consent.
14 Representations, warranties and disclaimers
14.1 While all due care has been taken, CSIRO provides the CSIRO Materials (as defined in clause 12.1) 'as is' and any use of the CSIRO Materials is at your own risk. CSIRO does not warrant that the CSIRO Materials will be bug free or that their operation will be uninterrupted or error free or that they will be compatible with any application, program or software not specifically identified as compatible by CSIRO.
14.2 The Controller acknowledges and accepts that it is the Controller’s sole responsibility to ensure that the functionality of the Hub and the Hub Data meet the Controller’s requirements.
14.3 CSIRO does not warrant the accuracy of any Hub Data and your use of any Hub Data (or its provision to anyone else) is entirely at your own risk.
14.4 Exclusion of implied warranties
(a) Except as expressly stated in this warranty clause, CSIRO makes no warranties of any kind, and specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
(b) This Agreement does not exclude or limit any right or liability implied into it by law (including the Competition and Consumer Act 2010) where to do so would contravene the law or cause this Agreement to be void (‘non-excludable consumer warranties’).
(c) CSIRO's liability to you for breach of any term of the Agreement or of any non-excludable consumer warranties is (to the extent permitted by law) limited to, at CSIRO's option: in the case of any goods supplied, repairing or replacing the relevant goods; and in the case of any services provided, to re-performing the relevant services or refunding the relevant portion of the Fee.
15 Termination
15.1 This Agreement commences when you accept the terms of this Agreement and will continue unless terminated in accordance with its terms.
15.2 Either party may terminate this Agreement without fault by giving the other party at least 90 days’ written notice.
15.3 If a party (defaulting party) breaches this Agreement the other party may give a notice to the defaulting party requiring it to remedy the breach within 30 days (or such longer period as the notifying party considers to be reasonable). If the defaulting party does not remedy the breach within the period provided in the notice, then the other may terminate this Agreement immediately by written notice.
15.4 If requested in writing by the Controller, CSIRO will make available to the Controller for download, within 90 days after the effective date of termination of this Agreement, a file in an excel or CSV file format of the Building Data or such other form as CSIRO reasonably determines. After such 90-day period, CSIRO will have no obligation to maintain or provide any Building Data and may delete all Building Data in CSIRO’s systems or otherwise in CSIRO’s possession or under CSIRO’s control, except to the extent that it is not lawful to do so. For the avoidance of doubt, CSIRO will not be liable for any Loss or damages for the Controller’s failure to retrieve the Building Data within the required time.
15.5 Termination does not affect or limit our ability to claim damages or other compensation for breach of this Agreement or our rights at law. You agree that damages may not be appropriate as an exclusive remedy in respect of all breaches of this Agreement and we will be entitled to seek and obtain an injunction to prevent any alleged breach of this Agreement, in addition to any right to recover damages.
16 Dispute Resolution
16.1 Any dispute, controversy, difference or claim arising out of or in connection with this Agreement and/or the subject matter of this Agreement, including any question concerning its formation, validity, interpretation, performance, breach and/or termination (a Dispute), must be dealt with in accordance with this clause.
16.2 Notice of Dispute
The party claiming that a Dispute exists must give the other party written notice of the Dispute, together with details of the nature of the Dispute, the relevant facts giving rise to the Dispute and, if applicable, the quantum claimed. The Notice of Dispute must state that it is a Notice of Dispute prepared in accordance with this clause.
16.3 Elevation of Dispute
Within 30 days of the service of the Notice of Dispute senior executives of the parties (in the case of CSIRO, the head of the relevant Division, and in the case of the Controller, its Chief Executive Officer), or their delegates who have appropriate authority to resolve the Dispute, will meet in Brisbane (or such other place as may be agreed, including by video conference) in an effort to resolve the Dispute. Each party will bear its own costs of that meeting, including any travel and accommodation costs incurred by its representatives.
16.4 Referral for Mediation
If the Dispute is not resolved in accordance with clause 16.3 within thirty (30) days of service of the Notice of Dispute, then the party that served the Notice of Dispute must refer the Dispute to mediation in accordance with, and subject to, Resolution Institute Mediation Rules.
16.5 Referral to Arbitration
(a) If the Dispute is not settled within 30 days of referral to mediation (unless such period is extended by agreement of the parties), it shall be and is hereby submitted to arbitration in accordance with, and subject to, Resolution Institute Arbitration Rules.
(b) Unless the parties agree upon an arbitrator, either party may request a nomination from the Chair of Resolution Institute. Unless otherwise agreed, the arbitration is to take place in Sydney, Australia.
16.6 Determination
(a) The parties agree to request the arbitrator to make their determination within 90 days after the Dispute was referred to arbitration.
(b) The parties and the arbitrator(s) shall treat as confidential and shall not disclose to a third party without the other party’s prior written consent all matters relating to the arbitration, including the subject matter of the arbitration, the award, materials and documents created for the purpose of the arbitration and documents produced by another party in the arbitration and not in the public domain, except:
(i) for the purpose of making an application to any competent court to enforce the award;
(ii) if necessary to obtain legal or financial advice;
(iii) if required by law; or
(iv) in the case of CSIRO, disclosure to its responsible government Minister or in response to a request by a House of Parliament or a Committee of Parliament.
16.7 Nothing in this clause 16 prevents:
(a) any party from seeking urgent injunctive or similar interim relief from a competent court; and/or
17 General
17.1 Interpretation
In this Agreement:
(a) Reference to:
(i) the singular includes the plural and the plural includes the singular;
(ii) a person includes a body corporate;
(iii) a party includes the party’s executors, administrators, successors and permitted assigns;
(iv) a thing includes the whole and each part of it separately;
(v) a statute, regulation, code or other law or a provision of any of them includes:
(1) any amendment or replacement of it; and
(2) another regulation or other statutory instrument made under it, or made under it as amended or replaced; and
(vi) dollars means Australian dollars unless otherwise stated.
(b) “Including” and similar expressions are not words of limitation.
(c) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(d) Headings, captions and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.
(e) A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.
(f) If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
17.2 Updates to the terms of this Agreement
(a) CSIRO reserves the right to modify or update the terms of this Agreement from time to time.
(b) We will use our best endeavours to give you 90 days’ notice of any substantial changes to the terms of this Agreement. Where we update the terms of this Agreement, the Account will be suspended until such time as the Controller accepts the new terms of the Agreement.
17.3 Notices
(a) All notices under this Agreement must be in written form.
(b) A notice by CSIRO to you may be delivered via your registration email address.
(c) A notice by you to CSIRO may be delivered via email to contact.dch@csiro.au.
(d) If delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day in that place.
17.4 Unforeseen Event
A party will not be in breach of its obligations under this Agreement to the extent that it is prevented from performing an obligation due to an event that is beyond its reasonable control (unforeseen event), and to the extent that a party is delayed performing its obligations by such unforeseen event, the time for performing that obligation will be extended by the period of delay that is attributable to the unforeseen event.
17.5 Further assurance
(a) Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.
(b) The parties will each establish all Building Systems necessary for the proper and effective conduct and management of all their obligations under this Agreement.
17.6 Severability
If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
17.7 Assignment
(a) Subject to clause 17.7(b), a party may not assign or otherwise deal with this Agreement except with the prior written consent of the other party, not to be unreasonably withheld or delayed.
(b) CSIRO may at any time assign any of its rights or obligations under this Agreement to a Related Body Corporate or to a person who has acquired all, or substantially all of the business related to CSIRO’s operation and maintenance of the Hub and the Portal.
17.8 Relationship
Nothing contained in this Agreement is to be deemed to create a partnership, joint venture, agency, employment, fiduciary or other relationship between the parties or their Personnel.
17.9 Sub-contractors
The Controller acknowledges and agrees that CSIRO may subcontract any of its obligations of this Agreement to a third party (or multiple third parties) without notification to or consent from the Controller.
17.10 Co-operation
The parties will act reasonably to cooperate in all matters relating to this Agreement, but their rights and responsibilities under this Agreement remain unchanged unless the parties agree in writing to change them.
17.11 Variation
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
17.12 Waiver
A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
17.13 Costs and outlays
Each party must pay its own costs and outlays in respect of the negotiation, preparation and execution of this Agreement.
17.14 Consents and approvals
If anything in this Agreement is subject to the consent or approval of a party then, unless expressly stated otherwise, that consent or approval may be given or withheld at the absolute discretion of that party.
17.15 Governing law and jurisdiction
The law of the State of New South Wales governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and the Commonwealth of Australia. CSIRO makes no representations that the Portal complies with the laws of any country outside Australia. If you access the Portal in a jurisdiction other than New South Wales, Australia, you are responsible for compliance with the laws of that jurisdiction, to the extent that they apply.
18 Supplementary Terms
18.1 Digital Infrastructure Energy Flexibility (DIEF) project (DIEF Project)
(a) This clause applies where the Controller has entered into a Collaborative Project Agreement (CPA) with CSIRO in relation to the DIEF Project and ceases to apply after the Completion Date.
(b) Defined terms in this clause that are not defined in this Agreement, will have the meanings given to those terms in the CPA.
(c) In accordance with the terms of the CPA, CSIRO makes the Portal available to the Controller to carry out the Project Activities in accordance with the terms of this Agreement and further agrees, not to charge Fees for the Controller’s Connection to the Hub during the period up to the Completion Date.
(e) This clause prevails to the event of any inconsistency with any other clause in this Agreement.
18.2 International Clean Innovation Researcher Networks (ICIRN) project (ICIRN Project)
(a) This clause applies where the Controller has entered into a Subcontract (ICIRN Subcontract) with CSIRO in relation to the ICIRN Project and ceases to apply after the ICIRN Completion Date.
(b) Defined terms in this clause that are not defined in this Agreement, will have the meanings given to those terms in the ICIRN Subcontract.
(c) In accordance with the terms of the ICIRN Subcontract, CSIRO makes the Portal available to the Controller to carry out the Project Activities in accordance with the terms of this Agreement and further agrees, not to charge Fees for the Controller’s Connection to the Hub during the period up to the Completion Date.
(e) This clause prevails to the event of any inconsistency with any other clause in this Agreement.
Version 1.1 (October 2023)