End User License Agreement (EULA)
Following is a copy of the End User License Agreement (EULA) as agreed to by Responsible Suppliers and Authorised Representatives upon initial registration and renewal of registration.
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, Office of Industrial Relations (formerly Queensland, Department of Justice and Attorney-General) (“ESO”). ESO operates the Database for, and on behalf of, the Electrical Equipment Safety System (EESS) participating jurisdictions and their Electrical Safety Regulators (Participating Regulator).
1. Your use of the Database
a) a “Responsible Supplier”, as defined in the Australian/New Zealand Electrical Equipment Safety System Equipment Safety Rules issued by the ESO 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.
3.2 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 the EESS Standing Committee of Officials (EESS-SCO) 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 Participating Regulators may use Your Data for the purposes of administering the Electrical Equipment Safety System; and
b) any Participating Regulator or the Australian Communications and Media Authority may use Your Data for investigating or enforcing electrical equipment safety, telecommunications, radio communications, 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 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 the Participating Regulators 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 and any applicable guidelines or procedures issued by the EESS-SCO 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 the EESS-SCO 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.
9.1 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 Participating Regulators can store and use Your Data as contemplated by this Agreement.
10. Fault Reporting
10.1 You 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.
10.2 No 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
11.1 You 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.
11.2 You acknowledge and agree that any interruption or suspension of the Database is without any liability to ESV or the ESO.
12. No Warranties
12.1 You 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.
12.2 Equipment 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.
13.1 You 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.
13.2 You 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).
13.3 You 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
14.1 A 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.
15.1 ESV 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.
15.2 Upon 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.
16.1 Without 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.
17.1 The 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.
17.2 A 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.
17.3 Except 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.
17.4 This 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.
17.5 You 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.
17.6 This 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.
17.7 This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.