Sample Access Agreement

1. Interpretation

2. Grant and Scope of Licence

3. Conditions of Licence

4. Licence Fee and Other Charges

5. Duration and Termination of Licence

6. Access

7. Infringement and Indemnity

8. Limitation

9. General

10. Notices

• SCHEDULE 1

1.1     In this Agreement, the terms contained in Schedule 1 have the meanings set out in that Schedule.

2.1     The Bureau grants the User a non-transferable, non-exclusive licence to use the Information and the Licensed Intellectual Property on the terms and conditions set out in this Agreement.

2.2     The User is licensed to:

(a)   access by electronic means the Network during the Access Times; and

(b)   copy and use the Information and the Licensed Intellectual Property for the Approved Purposes.

2.3     The Information made available to the User will be as determined by the Director and may be varied from time to time by the Director without prior notice to the User.  The Director  will provide written reasons for any such variation if so requested by the User.

2.4     The User must treat the Information as private and confidential to the Bureau and must take all reasonable measures to protect the Information from unauthorised use, reproduction, distribution or publication.  The User must not disclose the Information to any person, or use the Information for any purpose, except in accordance with this Agreement.

2.5     Any rights not specifically granted in this Agreement are reserved to the Bureau.  The User does not acquire, by implication or otherwise, any right in or title to any Licensed Intellectual Property.

2.6     Nothing contained in this Agreement is to be construed as overriding, or as granting approval, consent or authorisation under, any laws or legal requirements.

2.7     This Agreement does not cover access to and use of information or Intellectual Property owned by third parties which is stored in the Network.

2.8     Where the User requires Commonwealth Software in order to facilitate the accessing of the Information, the User must, if requested by the Bureau, enter into a software licence agreement in the form provided by the Bureau.

3.1     The grant of the licence in clause 2.1 is subject to the following conditions of use:

(a)   The User will not use, nor will it sell or make available to any person, the Information for the purpose of issuing Independent Forecasts or Warnings unless:

(i)    the additional forecasting elements are not contained in the Forecast issued by the Bureau;

(ii)   the additional forecasting elements are not inconsistent with the Bureau’s Forecast;

(iii)  the Forecast and the additional forecasting elements are presented so as to make it clear that the User and not the Bureau is the source of the additional forecasting elements; and

(iv)  the additional forecasting elements are provided with any relevant Warning issued by the Bureau in the precise terms used by the Bureau;

(b)   Where the Information is reproduced, the User must ensure that it is:

(i)    reproduced accurately;

(ii)   not presented in a way which is, or may be, misleading; and

(iii)  the Bureau is acknowledged as its source in a manner approved by the Bureau;

(c)   Subject to sub-clause 3.1(b)(iii), the User must not, without the prior written consent of the Bureau, use or permit to be used the name of the Commonwealth of Australia or any Commonwealth establishment (including the Bureau) or any words, marks or devices which may imply a connection with the Commonwealth or any Commonwealth establishment;

(d)   The User must not use the Information or Licensed Intellectual Property in a manner which in the opinion of the Bureau would adversely affect the national meteorological service of another country and to that extent will not use, deal with, sell or make available the Information or Licensed Intellectual Property outside Australia and its Territories or in a manner that might have effect outside Australia and its Territories without first obtaining the consent in writing of the Bureau;

(e)   The User must, in exercising its rights and engaging in any activities in relation to this Agreement, comply with all applicable laws and legal requirements; and

(f)    The User must not sub-license or sub-contract any of its rights or obligations under this Agreement without the prior written approval of the Bureau, which approval will not be unreasonably withheld but may be subject to such terms and conditions as the Bureau considers appropriate.  Without limiting the foregoing, the User must ensure that the obligations placed on any sub-licensee or sub-contractor are no less onerous than those placed on the User under this Agreement.

3.2     Nothing in clause 3.1 shall be construed as preventing a User from using or making available the Information or Licensed Intellectual Property for the purpose of issuing to the Media descriptions of actual weather conditions at a given time at a specific location as recorded in the Information or from some source of information independent of the Bureau.

4.1     The User must pay to the Bureau:

• an amount calculated by the Bureau to recover its costs of service and maintenance of provision of continuing access in accordance with the Charging Manual of the Bureau. The User shall be invoiced on an annual basis for these costs and the User shall pay the amount stated in the invoice within 30 days. The charges appearing in the Bureau's Charging Manual may be varied by the Bureau and the Bureau will give the User reasonable notice of any variation relevant to this Agreement ;
• a "once only" establishment charge as set out in Schedule 1 hereto, payable in advance; and
• any costs necessarily incurred or paid to any person or organisation by the Bureau so as to enable the User to access the Information or the Network

4.2     The User must pay all telecommunication charges and maintenance service charges relating to the site of the User’s Terminal Equipment and the point of dissemination of the Information by the Bureau.

4.3     All taxes, stamp duties and other governmental charges payable and coming into existence at any time in respect of this Agreement must be paid by the User.

4.4     The parties must each bear their own costs of and incidental to the negotiation, settlement, preparation and execution of this Agreement.

4.5.   (a) The amount payable to the Bureau under this Agreement calculated under clause

4.1     is GST inclusive, and so includes an amount to cover any  liability of the Bureau for GST on any taxable supplies as defined under the GST Act

 (b)  The Bureau agrees to issue the User with either:

(i)    a tax invoice in accordance with the GST Act; or

(ii)   a document satisfying the minimum information requirements set out in GSTB 1999/1 to entitle a recipient of a taxable supply to claim an input tax credit without holding a tax invoice;

in relation to taxable supplies made under this Agreement.

5.1     This Agreement commences on the Commencement Date and continues until it is:

(a)   terminated by the Bureau under clause 5.2; or

(b)   terminated by either party giving the other party four (4) months’ notice in writing.

Neither party will be entitled to claim for any loss or damage suffered as a result of or arising in connection with the other party exercising its rights under clause 5.1(b).

5.2     If the User:

(a)   breaches clause 3; or

(b)   breaches any of the other obligations on its part (including any obligation to pay any money) and fails to remedy this breach within [  ] days of receiving written notice from the Bureau to remedy the breach;

          the Bureau may terminate this Agreement immediately by written notice to the User.

5.3     On termination, the User must immediately return to the Bureau all equipment belonging to the Bureau, including any Commonwealth Software.

5.4     Termination of this Agreement in accordance with clause 5.2 does not affect the rights of the Bureau to sue for and recover any fees or other amounts then due or to pursue any right of action or remedy which the Bureau may have or be entitled to pursue.  Clauses 7 and 8 survive termination of this Agreement.

6.1     The User must, at its own expense:

(a)   acquire, install, maintain and operate the Terminal Equipment and arrange for the connection and operation of a communications link between the Terminal Equipment and the facilities of the Bureau in consultation with the Bureau;

(b)   arrange for any modification or replacement of the Terminal Equipment or link necessitated by any variation in Bureau facilities or equipment or in the Network; and

(c)   establish and maintain appropriate technical and administrative procedures to protect the Network and the Information against any unauthorised access, alteration, or disclosure.

7.1     If the User becomes aware of any infringement or threatened infringement by a third party of the Licensed Intellectual Property (“Infringement”) , it must immediately notify the Bureau in writing.  Either Party may put forward proposals for dealing with and call a meeting with a view to reaching a decision on action to be taken in relation to the Infringement.

7.2     If the Parties are unable to agree upon a course of action to deal with the Infringement, the Bureau may institute proceedings or defend or make any counterclaim in its own name, or in the name of the User, or jointly with the User.  The User must provide the Bureau with reasonable assistance in such proceedings.

7.3     The User indemnifies the Bureau against all liability, loss, damage or injury (including consequential loss and damage and any legal costs) suffered by any person in connection with this Agreement or the use of the information, including but not limited to any liability, loss, damage or injury arising as a result of:

(a)   any loss of or damage to the Network or any of the Bureau’s equipment;

(b)   any breach of this Agreement, including any:

(i)    unauthorised alteration or adaptation of the Network or the Information; or

(ii)   unauthorised transmission or dissemination of the Information to a third party and any Infringement by that third party;

(c)   any interruption to the continuing operation of the Network;

(d)   the use of, reliance on, or possession of the Information by any person or the existence of errors in the Information; or

(e)   any breach by a sub-licensee or sub-contractor of a sub-licence or sub-contract entered in accordance with clause 3.1(f).

8.1     The Bureau does not give any representation or warranty that:

(a)   the Information contains no errors, is complete or up to date or will not infringe any third party Intellectual Property rights; or

(b)   the flow or provision of the Information from the Network will not be interrupted for whatever reason and for whatever time.

8.2     The User assumes the sole risk of interpreting and applying the Information and the Bureau is not in any way liable for any loss, damage or injury suffered by the User, or any other person, due to the use or possession of the Information or the existence of errors in the Information.

8.3     Subject to conditions or warranties implied by law which are incapable of exclusion, restriction or modification or where to do so is illegal or would render any provision of this Agreement void:

(a)   no warranty is given and no representation is made by the Bureau in relation to the quality, fitness, suitability for any purpose or otherwise;

(b)   the Bureau’s liability to the User for a breach of any condition or warranty is limited to, at the Bureau’s discretion, the replacement of the Information or the payment of the cost of replacing the Information.

9.1     This Agreement represents the entire understanding and agreement between the Parties and supersedes any prior proposal, representation or agreement, written or oral.  This Agreement may be modified only by agreement in writing signed by both parties.

9.2     Failure or delay by the Commonwealth in enforcing any provision of the Agreement does not mean that the Commonwealth no longer regards that provision as binding.  A waiver by the Commonwealth of a breach of a provision of this Agreement does not constitute a waiver of any other breach of the Agreement.

9.3     The User must not assign, charge, offer for security or otherwise deal with, either in whole or in part, the benefit or burden of this Agreement without the prior written consent of the Commonwealth, which consent may be withheld by the Commonwealth at its absolute discretion.

9.4     Any provision of this Agreement that is unlawful, void or for any reason unenforceable will be deemed severable from, and will in no way affect the validity or enforceability of, the remaining provisions of the Agreement.

9.5     This Agreement is governed by, and construed in accordance with, the laws of the State of Victoria and the parties agree to submit to the non-exclusive jurisdiction of the courts of the State.

10.1   Any notice, request or other communication to be given or served pursuant to this Agreement must be in writing and delivered by hand or sent by prepaid post or facsimile transmission to the Address for Notices specified in the Schedule.

10.2   A notice, request or other communication is deemed to have been given or duly served if:

(a)   delivered by hand, upon delivery;

(b)   in sent by prepaid post, upon the expiration of three (3) days after the date on which it was sent;

(c)   by facsimile transmission, upon the sender’s facsimile machine recording that the facsimile has been properly transmitted to the recipient’s facsimile number.

Item 2

Forecasts and Warnings

1.       Warnings of severe weather conditions, or conditions that may endanger life or property, namely Warnings issued in respect of tropical cyclones; floods, storms, gales and strong winds for coastal and ocean waters;  gales and squalls, severe thunderstorms and dust storms for land areas;  weather conducive to the spread of bushfires;  frost which may damage vines and fruit;  weather which may lead to diseases in crops;  weather which may lead to losses of new-born lambs and newly shorn sheep,  seismic sea waves,  and weather conditions with potential for air pollution.

2.       Forecasts on a State and Territory, district, capital and major provincial city basis, of basic weather conditions (precipitation, temperature, humidity, wind and cloud cover).

3.       Forecasts of wind and sea state for oceans and coastal waters and for some bays, harbours and inland waters.

4.       Forecasts for cane-firing, haymaking, grape harvesting and forest litter control burnings and of air pollution potential and UV radiation index.

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