AUSTRALIAN/NEW ZEALAND ELECTRICAL EQUIPMENT SAFETY SYSTEM
National Database – Responsible Supplier/Authorised Representative Access
Agreement
Last revised: 26 February 2013
Welcome to the Electrical
Equipment Safety System National Database (the “Database”).
The Database is the property
of Energy Safe Victoria, a body incorporated under the Energy Safe Victoria
Act 2005 (Vic) (ESV), and is administered by the Electrical Safety
Office Queensland, Queensland Department of Justice and Attorney General (“ESO”).
ESO operates the Database on behalf of the Electrical Regulatory Authorities
Council and its members (“ERAC”).
1.
Your use of the Database
1.1
This Access Agreement (“Agreement”)
sets out the terms of use that apply to your use of the Database as:
(a)
a “Responsible Supplier”, as
defined in the Australian/New Zealand Electrical Equipment Safety System Equipment
Safety Rules issued by ERAC as amended from time to time (the “Scheme Rules”);
or
(b)
as an “Authorised Representative”
of a Responsible Supplier.
1.2
This Agreement also applies to any
use of the Database on your behalf by your employees, officers, directors, contractors, agents or other third parties. This Agreement should be
read in conjunction with the Scheme Rules.
1.3
Please read the terms of this
Agreement carefully. These terms apply each time you use the Database. In
order to use the Database as a Responsible Supplier or Authorised
Representative you must accept this Agreement and register with the Database by
clicking the “REGISTER” button below. You must not click the “REGISTER” button
unless you are a Responsible Supplier or Authorised Representative and agree to
the terms of this Agreement.
2.
Limited right to use of the
Database
2.1
ESV owns the Database and grants
you a right to access and use the Database for the purpose of registering electrical
equipment for as long as you maintain a current registration as a Responsible
Supplier in accordance with the Scheme Rules or as an Authorised Representative
(as the case may be).
2.2
You acknowledge and agree that all
rights, including (without limitation) intellectual property rights, in the
Database and any modifications, enhancements or changes to the Database remain
vested in ESV.
3.
General access conditions
3.1
Any costs associated with your
access to, and use of, the Database are your responsibility.
3.2
You must not use the Database
except for the purposes of complying with your obligations as a Responsible
Supplier or as an Authorised Representative.
3.3
You must ensure that all data and
information that you upload or enter into the Database (“Your Data”) is (and
any representations made by Your Data are) at all times correct,
accurate, up to date and compliant with all applicable laws, the Scheme Rules,
the terms of this Agreement and any applicable guidelines or procedures issued
by ERAC from time to time.
3.4
You must not add any information to
the Database that is (or amend any information on the Database so that it is)
inaccurate, false, misleading, fraudulent, defamatory, obscene, indecent,
offensive, discriminatory or harassing.
3.5
You must not knowingly introduce
errors, software viruses or malicious code into, or do anything else to
otherwise damage or compromise the security of the Database.
3.6
In the event that you become or are
made aware that you have entered incorrect or inaccurate data or information
into the Database, you must as soon as practicable:
(a)
notify the ESO and ESV of the
incorrect or inaccurate data or information; and
(b)
at your cost, immediately take all
steps necessary to correct and remedy the incorrect or inaccurate data or
information.
3.7
You acknowledge and agree that:
(a)
ESV and the ESO and any electrical
safety regulator may use Your Data for the purposes of administering the
Electrical Equipment Safety System; and
(b)
any electrical safety regulator or
the Australian Communications and Media Authority may use Your Data for
investigating or enforcing electrical equipment safety, telecommunications,
radiocommunications, electromagnetic compatibility or electromagnetic energy requirements,
whether in connection with this Agreement or otherwise. For the avoidance of
doubt, this includes using Your Data for the purposes of market surveillance
and responding to complaints about unsafe or non-compliant electrical
equipment.
4.
Compliance with ERAC scheme
rules
4.1
In accessing and using the
Database, you must comply with your obligations under the Scheme Rules.
4.2
You represent and warrant to ESV, the
ESO and ERAC that you have and will maintain any documents, records and other
information that you are required to keep under the Scheme Rules in respect of
any information and data that you upload or enter into the Database.
5. Authorised Officer
5.1
Where permitted by the Scheme
Rules, you may appoint an Authorised Officer who may access and use the
Database as your representative.
5.2
You are responsible for your
Authorised Officer and will remain liable for all acts and omissions of your
Authorised Officer. You will be deemed to have received any notice,
information or direction given to your Authorised Officer.
6.
Authorised Representative
6.1
If you are a Responsible Supplier:
(a)
you may register an Authorised
Representative through your Database account to access the Database for the
purposes set out in clause 6.1(b). You must not nominate any entity to act as
your Authorised Representative unless that entity has registered as an
Authorised Representative in accordance with the terms of this Agreement;
(b)
an Authorised Representative
appointed pursuant to clause 6.1 may do the following on your behalf:
(i)
register electrical equipment to
your account;
(ii)
modify your account contact
details;
(iii)
modify the details of electrical
equipment registered to your account; and
(iv)
upload documents to your account;
(c)
you are responsible for the actions
of your Authorised Representative and will remain liable for all acts and
omissions of your Authorised Representative;
(d)
any data or information that your
Authorised Representative uploads or enters into the Database on your behalf will
be deemed to be Your Data;
(e)
you will be deemed to have received
any notice, information or direction given to your Authorised Representative;
and
(f)
you and your Authorised
Representative will be liable on a joint and several basis for any act or
omission by your Authorised Representative on your behalf which would
constitute a breach of this Agreement if done (or not done) by you.
6.2
If you are an Authorised
Representative:
(a)
where a Responsible Supplier has
registered you as their Authorised Representative, you may do any of the actions
listed in clause 6.1(b) on their behalf;
(b)
in accessing the Database as an
Authorised Representative for a Responsible Supplier:
(i)
you must act in good faith and in
accordance with the instructions of the Responsible Supplier;
(ii)
you must not do (or fail to do)
anything that would cause the Responsible Supplier to breach the Scheme Rules, the
terms of this Agreement (as entered into between the Responsible Supplier, ESO,
ESV and ERAC) and any applicable guidelines or procedures issued by ERAC from
time to time; and
(iii)
you must not knowingly introduce
errors into or do anything else to otherwise damage or compromise the security
of the Responsible Supplier’s Database account or any data or information
associated with the Responsible Supplier in the Database.
6.3
You acknowledge and agree that the ESO
may change the list of permitted actions in clause 6.1(b) from time to time by
written notice to you.
7.
Security Codes
7.1
Upon completing your registration
in accordance with this Agreement, you will be issued with a user name and password
for your account (Security Code). The password that you are issued with
upon registration is temporary, and you must change it when you first access
the Database.
7.2
You must not use any Security Code
other than your own to access or use the Database. You must not impersonate
another person when accessing or using the Database. If you are an Authorised
Representative you must only use your own Security Code and must not use the
Security Code of any Responsible Supplier that you act for.
7.3
You must ensure your individual
Security Code is kept secure and confidential at all times.
7.4
You are responsible for any use of
the Database which occurs through use of your Security Code. If you become
aware of any unauthorised access or use of your Security Code you must
immediately:
(a)
notify the ESO; and
(b)
change the relevant
Security Code to prevent unauthorised access to the Database.
8.
Security Obligations
8.1
You must ensure that the Database
is kept secure from unauthorised access, use or modification. You must ensure
that you do not engage in any activity which puts the security or integrity of
the Database at risk.
8.2
You must comply with all laws, the
terms of this Agreement and all guidelines, directions and procedures issued by
ESV, the ESO and ERAC from time to time in using the Database.
8.3
You must not interfere with or
disrupt the integrity or performance of the Database or attempt to gain
unauthorised access to the Database or the systems or networks on which the
Database is hosted.
8.4
ESV may suspend any or all access
to, or use of, the Database if there is an actual, threatened or suspected
breach of security, including any unauthorised access or use of any Security
Code, the Database or any user account. You acknowledge and agree that any such
suspension of the Database is without any liability to ESV or the ESO.
9.
Privacy
9.1
You must ensure that you comply
with all applicable privacy,
spam control and data protection laws (including but not limited to the Privacy
Act 1988 (Cth) and Spam Act 2003 (Cth)) in relation to any
collection, storage, access, use or disclosure of personal information by you
arising from or in connection with this Agreement.
9.2
You must do all things necessary in regards to your own privacy
policies or notices and under any applicable privacy laws to ensure that ESV
and the electrical safety regulators can store and use Your Data as contemplated by this Agreement.
10.
Fault Reporting
10.1You must
report any fault, interruption, defect or malfunction in the Database to the
ESO as soon as possible after becoming aware of such fault, interruption,
defect or malfunction.
10.2No
maintenance, support or other services are provided under this Agreement.
However, to the extent that you wish to raise technical queries regarding the
Database these enquiries must be directed to the ESO.
11.
Database Maintenance
11.1You
acknowledge and agree that ESV may suspend access to, and use of, the Database
in order to perform scheduled work on the Database, undertake urgent repairs or
maintenance, or where required to do so by law. Where possible and
practicable, ESV will use reasonable endeavours to provide you with reasonable
prior notice of any such interruption or suspension.
11.2You
acknowledge and agree that any interruption or suspension of the Database is
without any liability to ESV or the ESO.
12.
No Warranties
12.1You
acknowledge that the Database is provided on an “as is” basis and that your use
of the Database is solely at your own risk. ESV and the ESO make no guarantees or representations:
(a)
as to the availability or
performance of the Database;
(b)
about the content of the data or
information in the Database, including any warranties that such data or
information is complete, accurate or does not infringe any person’s rights,
including intellectual property rights; or
(c)
that the Database will be error
free.
12.2Equipment
certificates and other information in the Database may change and it is your
responsibility to check the currency of information from time to time and do
all such things as are necessary to comply with your obligations under this
Agreement and the Scheme Rules.
13.
Liability
13.1You
acknowledge and agree that the ESO and ESV (and their respective officers,
agents or employees) have no liability in contract or in tort (including
negligence) or otherwise for any loss or damage (including indirect, special
and consequential loss or damage) which may be suffered or incurred by you or
any member of the public arising directly or indirectly as a result of your use
(or use by your Authorised Officer) of the Database, including any loss or
damage arising from:
(a)
any breach of this Agreement;
(b)
termination of this Agreement;
(c)
any unavailability of, or any
defect in, the Database or any information uploaded by you to the Database;
(d)
the contents of the Database; or
(e)
approval, registration or
deregistration of any equipment or any other information made available via the
Database concerning such equipment or any other third party.
13.2You are solely
responsible for the accuracy and quality of Your Data (including where Your
Data is uploaded to the Database by any entity on your behalf).
13.3You indemnify
and keep indemnified ESV, the ESO and their respective employees, officers and
agents (those indemnified) from and against any loss, damages, costs
(including reasonable legal costs), expenses or liability incurred or suffered by
those indemnified arising from or in connection with your use of the Database, any
breach (whether by act or omission) of this Agreement by you or any breach of
the Scheme Rules by you.
14.
Force Majeure
14.1A party will
not be liable for any delay or failure to perform its obligations under this Agreement
if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused
by Force Majeure, the performance of that party’s obligations will be suspended
while the Force Majeure continues.
15.
Termination
15.1ESV or the ESO
may terminate this Agreement immediately if:
(a)
you breach a material provision of
this Agreement;
(b)
you breach a non-material provision
of this Agreement that is not remedied within 10 days of a request from ESV or
the ESO to do so; or
(c)
the Database is made permanently
unavailable or discontinued for any reason.
15.2Upon
termination of this Agreement:
(a)
all of your rights to use and
access the Database will immediately terminate; and
(b)
except for any rights or
obligations which have accrued prior to termination or which by their nature
extend beyond termination, each party will have no further obligation to the
other party under this Agreement.
16.
Survival
16.1Without
limiting any other provision of this Agreement, clauses 3.7, 6, 8, 9, 13, 15 and
any other obligations in this Agreement which, by their nature, are continuing
will survive the termination or expiry of this Agreement.
17.
General
17.1The ESO and
ESV may amend or update the terms of this Agreement from time to time by
providing you with written notice. You will be taken to agree to such amended
or updated terms if you continue to use the Database after receipt of that
notice.
17.2A single or
partial exercise or waiver by a party of a right relating to this Agreement
does not prevent any other exercise of that right or the exercise of any other
right.
17.3Except as expressly
stated otherwise in this Agreement, the rights of a party under this Agreement
are cumulative and are in addition to any other rights of that party.
17.4This Agreement
is governed by and is to be construed in accordance with the laws applicable in
Victoria. Each party irrevocably and unconditionally submits to the non
exclusive jurisdiction of the courts exercising jurisdiction in Victoria and
any courts which have jurisdiction to hear appeals from any of those courts and
waives any right to object to any proceedings being brought in those courts.
17.5You must not
assign or deal with any right under this Agreement without the prior written
consent of the ESO and ESV. Any purported dealing in breach of this clause is
of no effect.
17.6This Agreement
contains the entire understanding between the parties as to the subject matter
of this Agreement. No oral explanation or information provided by any party to
another affects the meaning or interpretation of this Agreement or constitutes
any collateral agreement, warranty or understanding between the parties.
17.7This Agreement
is not intended to create a partnership, joint venture or agency relationship
between the parties.