11Disclosure of Specified Premises Location Information to NBN Co

11 Disclosure of Specified Premises Location Information to NBN Co

(1) Subject to subclause 11(4), the licensee must provide Specified Premises Location Information to NBN Co in respect of active services of the following kinds: (a) standard active services; (b) active services supplied to in train order premises; (c) active services supplied to MDU common areas; (d) active services that are Eligible Special Services of the kind mentioned in subparagraph (b)(i) of the definition of that expression; (e) active services that are Eligible Special Services of the kind mentioned in subparagraph (b)(ii) of the definition of that expression; (f) active services that are Eligible Special Services of the kind mentioned in subparagraph (b)(iii) of the definition of that expression; (g) any other kind of active service (that is not mentioned above) that the licensee, at its discretion, has notified NBN Co in writing is to be a kind of active service; in each case, in respect of each Report Date for that kind of active service, for use or disclosure by NBN Co for the Permitted Purposes. (2) If: (a) a legally binding agreement is in force between the licensee and NBN Co which specifies all of the following matters: (i) the timing for the provision of Specified Premises Location Information; (ii) any limitations or restrictions on the purposes for which NBN Co may use or disclose Specified Premises Location Information; and (iii) any other matter agreed between the licensee and NBN Co in respect of the provision of Specified Premises Location Information (including any matter that this clause provides may be dealt with by way of written notice given by the licensee to NBN Co); (b) a certified copy of the agreement referred to in paragraph (a) has been provided to the ACMA; and (c) the licensee offers to make available, upon reasonable written request by a wholesale customer whose information would otherwise be provided to NBN Co under this clause 11, a copy of the agreement referred to in paragraph (a), the licensee must comply with subclause 11(1) by providing the Specified Premises Location Information to NBN Co in accordance with the terms of that agreement (except that subclause 11(1) will override any term of such agreement to the extent that such a term would otherwise prevent the licensee from complying with subclause 11(1) because a wholesale customer has not consented to disclosure of the Specified Premises Location Information to NBN Co). (3) If a legally binding agreement of the type referred to in subclause 11(2) is not in force, the licensee must provide the Specified Premises Location Information in respect of each Report Date to NBN Co by no later than 10 working days after that Report Date. (4) The licensee is not required to provide Specified Premises Location Information to NBN Co under subclause 11(1): (a) where a legally binding agreement of the type referred to in subclause 11(2) is in force, if and for so long as NBN Co is (or will imminently be) in breach of a material term of that agreement, and as a consequence, the licensee is not required to provide the Specified Premises Location Information to NBN Co under that agreement; (b) where a legally binding agreement of the type referred to in subclause 11(2) is not in force, if and for so long as the licensee, acting reasonably, determines that NBN Co is (or will imminently commence) using or disclosing, the Specified Premises Location Information for a purpose other than a Permitted Purpose, provided the licensee has given NBN Co a reasonable opportunity to cease (or prevent) that use or disclosure; (c) where a legally binding agreement between NBN Co and the licensee under which NBN Co will reimburse the licensee for reasonable, direct and incremental costs associated with modifications to the licensee’s IT systems required to enable the licensee to provide the Specified Premises Location Information to NBN Co is not in force; (d) where a legally binding agreement between the licensee and NBN Co (or another person) under which NBN Co (or another person) will indemnify the licensee for losses or claims arising as a result of use or disclosure by NBN Co of the Specified Premises Location Information in a manner inconsistent with subclauses 11(6) and 11(7) is not in force. (5) The licensee will not be in breach of subclause 11(1) in circumstances where the breach is a breach of subclause 11(3) and that breach is directly caused by an event or circumstance outside of the licensee’s reasonable control provided that (where the breach is reasonably capable of being remedied) the licensee remedies the breach once the relevant event or circumstance ceases. (6) NBN Co may only use or disclose the Specified Premises Location Information: (a) for internal reporting to employees and officers of NBN Co who are involved in disconnection readiness activities; (b) for the purpose of identifying premises with active services that have not yet migrated to the NBN Co fixed-line network by comparing the Eligible Premises contained in Specified Premises Location Information with NBN Co records of: (i) the premises in respect of which NBN Co has received a serviceable order for the provision to a retail service provider of an NBN Service but which are not yet NBN Connected; (ii) premises which are not NBN Serviceable; (c) to guide marketing activities at a rollout region level (e.g. by identifying rollout regions with migrations running behind schedule); (d) for NBN Co or its marketing contractors or sub‑contractors to undertake activities at a premises level limited to sending mail addressed to the “Owner”, “Occupant” or “Resident” of a premises or door‑knocking, outdoor advertising, sending emails to persons receiving services at a premises, telephone communications (including outbound telephone campaigns) with persons at premises which are identified on the medical alarm register, fire alarm register or lift alarm register and such other activities as the licensee and NBN Co may agree: (i) consistent with the public information and education campaign activities described in Schedule 2 to the Information Campaign and Migration Deed; or (ii) to identify premises where any of the following: (A) monitored or non-monitored medical alarm or pendant; (B) elevator phone; (C) monitored or non-monitored fire alarm; (D) monitored or non-monitored security alarm; (E) TTY devices (hearing impaired); (F) EFTPOS machine; (G) automated teller machine; (H) fax machine; (I) similar device or service to those listed above; (other than a device or service that is being supplied using a special service or special service input) is used and which may cease to function if a Copper Service to that premises is disconnected; or (e) to estimate the installation capacity required to complete any remaining migrations, which may involve NBN Co using Specified Premises Location Information in NBN Co’s existing forecast process (which provides NBN Co’s service delivery partners with an activations forecast by month, by SAM or customer service area) but which must not involve disclosure of Specified Premises Location Information to any person that is not a Recipient Entity. (7) NBN Co must not use or disclose Specified Premises Location Information: (aa) for any direct marketing or communications to a person in respect of disconnection of an Eligible Special Service provided to that person at premises using Specified Premises Location Information provided in respect of the Eligible Special Service before the date that is 18 months before the Special Service Disconnection Date for the SS Class in which that Eligible Special Service is included; (a) for direct marketing by NBN Co to promote or sell products or services available over the NBN Co fixed‑line network, or to promote any particular retail service providers; (b) in a campaign that does not support the principle of neutrality in relation to specific retail service providers; influences end‑users regarding their choice of retail service providers; or that promotes, or provides a trigger for end‑users to, churn; except that this does not apply (in the absence of any further conduct) if NBN Co, its marketing contractors or sub‑contractors: (i) refers end‑users to a website that contains a list of retail service providers and their contact details; or (ii) states that end‑users should contact a retail service provider or should contact their preferred retail service provider; (c) for communications addressed to specific individuals (for example, individuals identified by name), except where the individual has separately provided their contact details to NBN Co; (d) by or to any person who is a provider of retail carriage services in Australia, including any retail service provider; (e) to compare or match or attempt to compare or match a premises to an end‑user’s personal details or to any other data (whether or not this constitutes “personal information” under Privacy Laws and whether or not this is done by NBN Co or a person acting on behalf of NBN Co), except for: (i) NBN Co comparing Specified Premises Location Information with the historical footprint list, the fixed footprint list, in train order list, the medical alarm register, fire alarm register or the lift alarm register; or (ii) NBN Co matching the Specified Premises Location Information against the following information in NBN Co’s marketing campaign databases for the purposes of undertaking the activities described in paragraph 11(6)(d) only: (A) contact details and other information provided by a person to NBN Co; (B) the list of premises which are NBN Connected; (C) for each region, NBN Co’s list of retail service providers which are offering NBN based services in that particular region; (D) NBN Co’s lists of excluded premises or SAMs placed on‑hold due to a lack of capacity or other operational reasons; (E) the list of premises in respect of which an order for an NBN Service has been made but the premises are not yet NBN Connected; (F) Australia Post's Postal Address File and Australian Address Reference File; (G) NBN Co information or information obtained from third parties stating whether a premises is classified as business or residential and related profile information for those premises; and (H) the disconnection date which applies to each premises; or (iii) NBN Co matching Specified Premises Location Information of the kind mentioned at paragraph (f) of the definition of that expression in respect of an Eligible Premises against the Special Service Disconnection Date for an Eligible Special Service at that Eligible Premises in NBN Co’s marketing campaign databases for the purposes of undertaking the activities described in paragraph (6)(d); or (iv) as expressly provided for in paragraph (6)(b); (f) to compare or match with any other information provided by the licensee to NBN Co, whether or not in connection with the licensee’s obligations under the Definitive Agreements, except for any of the following: (i) NBN Co comparing the Specified Premises Location Information of the kind mentioned at paragraph (e) of the definition of that expression with information in NBN Co’s medical alarm register, fire alarm register or the lift alarm register; (ii) NBN Co matching the Specified Premises Location Information against any of the following kinds of information in NBN Co’s marketing campaign databases, for the purposes of undertaking the activities described in paragraph (6)(d) only: (A) for each region, NBN Co’s list of retail service providers which are offering NBN based services in that particular region; (B) NBN Co’s lists of excluded premises or SAMs placed on hold due to a lack of capacity or other operational reasons; (C) the list of premises in respect of which an order for an NBN Service has been made but the premises are not yet NBN Connected; (D) NBN Co information or information obtained from the licensee stating whether a premises is classified as business or residential and related profile information for those premises; (iii) NBN Co matching Specified Premises Location Information of the kind mentioned at paragraph (f) of the definition of that expression in respect of an Eligible Premises against the Special Service Disconnection Date for an Eligible Special Service at that Eligible Premises in NBN Co’s marketing campaign databases for the purposes of undertaking the activities described in paragraph (6)(d); (iv) NBN Co comparing or matching Specified Premises Location Information provided by the licensee to NBN Co in an order for wholesale NBN Services only, for the purpose mentioned at paragraph (6)(b); or (g) in any marketing campaign that involves any of the following: (i) messaging in any communications or marketing materials that refers to the licensee and which it has not approved (such approval not to be unreasonably withheld by the licensee), provided that NBN Co will not require the licensee’s approval where: (A) the particular messaging that refers to the licensee has been included in NBN Co’s communications or marketing materials prior to 25 August 2015, provided that NBN Co has given the licensee a copy of the relevant messaging (and related content which is reasonably sufficient to enable the licensee to identify the context in which the particular messaging appeared in the previous NBN Co communications or marketing materials) before NBN Co uses the particular messaging after 22 August 2015; or (B) the licensee has previously approved in writing the particular messaging that refers to the licensee, provided that NBN Co must seek the licensee’s re‑approval (such re‑approval not to be unreasonably withheld by the licensee) for any such messaging if NBN Co changes the context in which such messaging refers to the licensee in a material way; (ii) a breach of law by NBN Co or any of its Recipient Entities; (iii) statements that defame, disparage or criticise the personal or business reputations, practices or conduct, networks or services of the licensee, its Related Entities or any Telstra Representatives; (iv) activities inconsistent with applicable laws (including the Australian Consumer Law and Privacy Laws) and applicable codes published by the ACMA; or (v) activities inconsistent with NBN Co Communications Policies, a copy of which will be provided to the licensee by NBN Co where NBN Co determines, acting reasonably, that such NBN Co Communications Policy is relevant to marketing activities and communications with end users to be undertaken by NBN Co using the Specified Premises Location Information. (8) In this clause 11: