Schedule 3 Procedures for bid transmission (including automatic rebids and withdrawal of bids) and authentication
(sections 4.9, 4.10 and 4.11)
The aim of these procedures is to ensure that information purporting to represent the instructions of a registered applicant during bidding has actually come from that registered applicant.
Connection to the auction computer system
Each registered applicant will connect with the auction computer system through the ACA’s public network interface using a telephone number supplied to registered applicants by the auction manager, or by electronic communication via the internet.
To log on using a telephone connection, the applicant will need to supply a user ID and password.
Once connection is established, the registered applicant will be able to:
(a) download from the auction computer system a file containing auction results from the auction computer system; or
(b) upload to the auction computer system its bid file during a round.
A registered applicant may need to connect a number of times during a round:
(a) to make bidding instructions; or
(b) to obtain results after the bidding period.
The auction schedule will provide information to registered applicants about when to make these connections.
Encryption of Files for Transmission
The ACA will use ‘public key’ encryption to secure the privacy and integrity of each registered applicant’s bid file as it is transmitted to the ACA. Public key encryption also offers scope to provide sophisticated digital authentication procedures for files that are mathematically improbable to compromise.
Note Public key encryption works on the basis of 2 complementary keys (very large numbers). The 2 keys are mathematically related, but in a way that cannot be easily deduced. One key must be kept private, while the other can be made public. A message encrypted with I part of the key pair can ONLY be decrypted with the other part.
Public key cryptography is implemented by users freely distributing their public key, so that other people can encrypt messages to them with that key. The message can then only be decrypted using the person’s private key which the person alone holds and which the person must protect. For the auction, the ACA will provide all pairs of encryption keys. Each registered applicant will be given a copy of the ACA’s public key and a copy of the applicant’s own private key. The ACA will retain a copy of all public and private keys distributed in the auction.
The ACA will store encryption keys under appropriate security arrangements in the auction centre.
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><tbody><tr style="height:1pt"><td colspan="3" style="width:359.55pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>{print name of witness}</span><span style="width:210.03pt; display:inline-block"> </span><span>{signature of witness}</span></p><p style="font-size:10pt"><span style="font-weight:bold">SIGNED SEALED AND DELIVERED</span><span style="width:22.02pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>for and on behalf of </span><span style="font-weight:bold">(insert company</span><span style="width:37.93pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span style="font-weight:bold">name) </span><span>(ACN _ _ _ ) by</span><span style="width:7.97pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>authority of its directors:</span><span style="width:58.35pt; display:inline-block"> </span><span>)</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:32.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>_________________________________________________</span></p><p style="margin-bottom:18pt; font-size:10pt"><span>(Signature of director)</span></p><p style="font-size:10pt"><span>_________________________________________________</span></p><p style="font-size:10pt"><span>(Print full name of director)</span></p><p style="font-size:10pt"><span>(Signature of</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td colspan="2" style="width:182.65pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>director/secretary)</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:32.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="margin-top:18pt; font-size:10pt"><span>_________________________________________________</span></p><p style="margin-left:1.9pt; text-indent:-1.9pt; font-size:10pt"><span>(Print full name of director/secretary)</span></p></td></tr></tbody></table>
```
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><tbody><tr style="height:1pt"><td colspan="3" style="width:523.45pt; padding:0.7pt; vertical-align:top"><p style="margin-bottom:12pt; font-size:10pt"><span style="font-weight:bold">EXECUTED AS A DEED</span></p><p style="font-size:10pt"><span style="font-weight:bold">SIGNED SEALED </span><span>and </span><span style="font-weight:bold">DELIVERED </span><span>for</span><span style="width:6.08pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>and on </span><span style="font-weight:bold">behalf of </span><span>the </span><span style="font-weight:bold">AUSTRALIAN</span><span style="width:29.72pt; display:inline-block"> </span><span>)</span><span style="width:68.67pt; display:inline-block"> </span><span>_________________________</span></p><p style="text-indent:0.7pt; font-size:10pt"><span style="font-weight:bold">COMMUNICATIONS AUTHORITY </span><span>by</span><span style="width:40.85pt; text-indent:0pt; display:inline-block"> </span><span>)</span><span style="width:32.67pt; text-indent:0pt; display:inline-block"> </span><span>(Signature of signatory)</span></p></td></tr><tr style="height:1pt"><td colspan="3" style="width:523.45pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span style="font-weight:bold"></span></p></td></tr><tr style="height:1pt"><td colspan="3" style="width:523.45pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span style="font-weight:bold"></span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>_____________________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="text-indent:1.9pt; font-size:10pt"><span>(Print full name and title of signatory)</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="text-indent:1.9pt; font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>In the presence of:</span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="text-indent:1.9pt; font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="margin-left:22.5pt; font-size:10pt"><span>_____________________________________</span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>(Signature of witness)</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="margin-left:22.5pt; font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td colspan="2" style="width:266.15pt; padding:0.7pt; vertical-align:top"><p style="text-indent:36.5pt; font-size:10pt"><span>____________________________________________________</span></p><p style="text-indent:36.5pt; font-size:10pt"><span>(Print full name and title of witness)</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td colspan="2" style="width:266.15pt; padding:0.7pt; vertical-align:top"><p style="text-indent:36.5pt; font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td colspan="3" style="width:523.45pt; padding:0.7pt; vertical-align:top"><p style="text-indent:0.25pt; font-size:10pt"><span style="font-weight:bold">SIGNED SEALED </span><span>and </span><span style="font-weight:bold">DELIVERED </span><span>for</span></p><p style="text-indent:0.25pt; font-size:10pt"><span>and on behalf of </span><span style="font-weight:bold">[Insert Compliance Party]</span></p><p style="font-size:10pt"><span>[Insert ACN] by Authority of its directors:</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td colspan="2" style="width:266.15pt; padding:0.7pt; vertical-align:top"><p style="text-indent:36.5pt; font-size:10pt"><span>_____________________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td colspan="2" style="width:266.15pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>(Signature of director)</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="margin-left:1.7pt; text-indent:-1.7pt; font-size:10pt"><span>_______________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="margin-left:1.7pt; text-indent:-1.7pt; font-size:10pt"><span>(Print full name of director)</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="margin-left:1.7pt; text-indent:-1.7pt; font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:59.7pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:205.05pt; padding:0.7pt; vertical-align:top"><p style="margin-left:1.7pt; text-indent:-1.7pt; font-size:10pt"><span>________________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:255.9pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td colspan="2" style="width:266.15pt; padding:0.7pt; vertical-align:top"><p style="text-indent:36.25pt; font-size:10pt"><span>(Signature of director/secretary)</span></p></td></tr></tbody></table>
```
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><tbody><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>__________________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="margin-right:77.95pt; font-size:10pt"><span>(Print full name of director/secretary)</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td colspan="2" style="width:217pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span style="font-weight:bold">SIGNED SEALED </span><span>and </span><span style="font-weight:bold">DELIVERED </span><span>for</span></p><p style="font-size:10pt"><span>and on behalf of </span><span style="font-weight:bold">[Insert Guarantor]</span></p><p style="font-size:10pt"><span>by Authority of its directors:</span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:bottom"><p style="text-indent:21.65pt; font-size:10pt"><span>__________________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td colspan="2" style="width:189.85pt; padding:0.7pt; vertical-align:top"><p style="text-align:right; font-size:10pt"><span>(Signature of director)</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td colspan="2" style="width:189.85pt; padding:0.7pt; vertical-align:top"><p style="text-align:right; font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>_____________________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="margin-right:104.95pt; font-size:10pt"><span>(Print full name of director)</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>______________________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="text-align:right; font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="margin-right:104.95pt; font-size:10pt"><span>(Signature of director/secretary)</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="text-align:right; font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="text-align:right; font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>___________________________________________________</span></p></td></tr><tr style="height:1pt"><td style="width:175.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:40.1pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:148.35pt; padding:0.7pt; vertical-align:top"><p style="margin-right:104.95pt; font-size:10pt"><span>(Print full name of director/secretary)</span></p></td></tr></tbody></table>
```
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><tbody><tr style="height:1pt"><td colspan="2" style="width:349.5pt; padding:0.7pt; vertical-align:top"><p style="margin-bottom:12pt; font-size:10pt"><span style="font-weight:bold">EXECUTED </span><span>by the parties as a Deed</span></p><p style="font-size:10pt"><span style="font-weight:bold">SIGNED SEALED AND DELIVERED</span><span style="width:31.02pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>by</span><span style="width:163.15pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span style="width:173.15pt; font-family:'Lucida Console', monospace; display:inline-block">............................</span><span>)</span></p><p style="margin-left:18pt; font-size:10pt"><span style="width:166.5pt; font-family:'Lucida Console', monospace; display:inline-block">...........................</span><span>)</span></p></td></tr><tr style="height:1pt"><td style="width:168.3pt; padding:0.7pt; vertical-align:top"><p style="text-indent:10.1pt; font-size:10pt"><span>{print full name of Conciliator} Conciliator}</span></p><p style="font-size:10pt"><span>in the presence of:</span></p></td><td style="width:179.8pt; padding:0.7pt; vertical-align:top"><p style="margin-left:63.85pt; font-size:10pt"><span>{signature of</span></p></td></tr><tr style="height:1pt"><td style="width:168.3pt; padding:0.7pt; vertical-align:top"><p style="text-indent:10.1pt; font-size:10pt"><span></span></p></td><td style="width:179.8pt; padding:0.7pt; vertical-align:top"><p style="margin-left:63.85pt; font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:168.3pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span style="width:155.8pt; font-family:'Lucida Console', monospace; display:inline-block">.........................</span></p></td><td style="width:179.8pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:168.3pt; padding:0.7pt; vertical-align:top"><p style="margin-left:18pt; font-size:10pt"><span style="width:166.5pt; font-family:'Lucida Console', monospace; display:inline-block">...........................</span></p><p style="text-indent:10.1pt; font-size:10pt"><span>{print name of witness} witness}</span></p></td><td style="width:179.8pt; padding:0.7pt; vertical-align:top"><p style="margin-left:90.5pt; font-size:10pt"><span>{signature of</span></p></td></tr><tr style="height:1pt"><td style="width:168.3pt; padding:0.7pt; vertical-align:top"><p style="margin-left:18pt; font-size:10pt"><span></span></p></td><td style="width:179.8pt; padding:0.7pt; vertical-align:top"><p style="margin-left:90.5pt; font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td style="width:168.3pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:179.8pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td colspan="2" style="width:349.5pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span style="font-weight:bold">SIGNED SEALED AND DELIVERED</span><span style="width:13.02pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>for and on behalf of </span><span style="font-weight:bold">(the Compliance</span><span style="width:27.82pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span style="font-weight:bold">Party) (</span><span>ACN - - - ) by</span><span style="width:61.48pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>authority of its directors:</span><span style="width:52.3pt; display:inline-block"> </span><span>)</span></p></td></tr><tr style="height:1pt"><td style="width:168.3pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:179.8pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span>________________________</span></p><p style="margin-left:29.5pt; margin-bottom:12pt; font-size:10pt"><span>(Signature of director)</span></p><p style="margin-right:104.95pt; margin-left:29.7pt; font-size:10pt"><span>_________________________________</span></p><p style="margin-left:29.7pt; font-size:10pt"><span>(Print full name of director)</span></p><p style="margin-right:104.95pt; margin-left:29.7pt; font-size:10pt"><span>_________________________________</span></p><p style="margin-right:122.95pt; text-indent:28.8pt; font-size:10pt"><span>(Signature of director/secretary)</span></p></td></tr></tbody></table>
```
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><tbody><tr style="height:1pt"><td style="width:228.8pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:293.25pt; padding:0.7pt; vertical-align:top"><p style="margin-right:100.45pt; text-indent:23.15pt; font-size:10pt"><span>(Print full name of director/secretary)</span></p></td></tr><tr style="height:1pt"><td style="width:228.8pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:293.25pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td></tr><tr style="height:1pt"><td colspan="2" style="width:523.45pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span style="font-weight:bold">SIGNED SEALED AND DELIVERED</span><span style="width:13.02pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>for and on behalf of </span><span style="font-weight:bold">(the Complainant)</span><span style="width:19.47pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>(ACN - - - ) by</span><span style="width:88.24pt; display:inline-block"> </span><span>)</span></p><p style="font-size:10pt"><span>authority of its directors:</span><span style="width:49.35pt; display:inline-block"> </span><span>)</span></p></td></tr><tr style="height:1pt"><td style="width:228.8pt; padding:0.7pt; vertical-align:top"><p style="font-size:10pt"><span></span></p></td><td style="width:293.25pt; padding:0.7pt; vertical-align:top"><p style="margin-right:113.75pt; font-size:10pt"><span>_____________________________</span></p><p style="margin-right:113.95pt; margin-left:26.3pt; font-size:10pt"><span>(Signature of director)</span></p><p style="margin-right:113.95pt; margin-left:26.3pt; font-size:10pt"><span></span></p><p style="margin-right:113.95pt; margin-left:26.3pt; font-size:10pt"><span>____________________________________</span></p><p style="margin-right:113.95pt; margin-left:26.3pt; font-size:10pt"><span>(Print full name of director)</span></p><p style="margin-right:113.95pt; margin-left:26.3pt; font-size:10pt"><span></span></p><p style="margin-right:113.95pt; margin-left:26.3pt; font-size:10pt"><span>_____________________________________________</span></p><p style="margin-right:165.6pt; text-indent:26.65pt; font-size:10pt"><span>(Signature of director/secretary)</span></p><p style="margin-right:165.6pt; margin-left:26.65pt; font-size:10pt"><span></span></p><p style="margin-right:113.95pt; margin-left:26.3pt; font-size:10pt"><span>_____________________________________________</span></p><p style="margin-right:165.6pt; margin-left:26.65pt; font-size:10pt"><span>(Print full name of director/secretary)</span></p></td></tr></tbody></table>
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Schedule Sch 3 - Radiocommunications (Space Licence Allocation) Determination 2001 - Procedures for bid transmission (including automatic rebids and withdrawal of bids) and authentication | Zoe
The ACA will specify 1024 bit keys.
Bidding instruction files
Each bidding instruction file will be prepared in the form of a database following the Microsoft Access 97 specification. Before transmission, the file will be digitally signed. The signature will then be encrypted with the registered applicant’s private encryption key.
Note The digital signature will be calculated by a checksum algorithm that calculates a 128 bit number expressing the whole file. It is so sensitive that the change of a full-stop to a comma will result in a substantially different checksum.
The file itself will then be encrypted using the ACA’s public encryption key. The file and the attached signature will then be transmitted to the ACA’s auction computer system.
On receipt of the file by the auction computer system, the ACA’s auction software will automatically decrypt the file that has been received using the ACA’s private encryption key. It will recalculate the digital signature of the file received, decrypt the digital signature attached to the file with the registered applicant’s public encryption key and compare the 2 signatures. An exact comparison between the received signature and the private encryption signature will indicate that it is highly unlikely that the file has been intercepted or corrupted during transmission.
Once a file has been received and authenticated, the ACA auction computer system will generate a receipt and transmit it to the registered applicant over the connection while it is held open.
A bidding instruction file bearing an authentic signature, prepared with one of the encryption keys provided by the ACA to a registered applicant, will be taken by the ACA as having originated from that registered applicant and from no other person.
Any bidding instruction file that is not in the format described above will not be accepted for processing under any circumstances.
Note In the Deed of Acknowledgment, each applicant will acknowledge that the mechanisms described above and implemented by the ACA are acceptable to authenticate a bid, and that they will be bound by any bid in a bid file that passes the authentication checks using the key provided to them, until they notify the ACA that their keys may have been compromised.
Key handling
When an applicant is registered to participate in an auction, the ACA will assign a 4 digit BIN and a randomly generated 8 character password.
The ACA will generate an encryption key pair for the registered applicant, using a pass-phrase mathematically derived from the registered applicant’s password. The private part of the encryption key pair will be copied to a floppy disk and distributed to the registered applicant, together with the BIN and password. These materials will be distributed by receipted mail or safe-hand courier to the address nominated by the applicant.
One-time transaction code keys
For each registered applicant, the ACA will prepare a list of ‘one-time’ transaction code keys for use by that registered applicant only in authenticating its telephone bids should this be required in an emergency. Each list will contain a minimum of 200 transaction code keys. No two lists will be the same. No two codes will be the same, except as generated by chance.
Each key will consist of 8 randomly generated letters. The case of the letters will not be significant to their use.
Each key will be used once, in the order in which the keys are listed. The ACA will retain a copy of each list and identify that list as having been issued to the registered applicant.
Using Transaction Code Keys
Registered applicants bidding by telephone must identify themselves, to the ACA operator using the next available transaction code key when asked.
Once a transaction code key is used, the registered applicant will strike through that key on the list and note the round and the date and time that it was used.
When the ACA is contacted by a registered applicant wanting to make bidding instructions, the ACA will authenticate the instructions using the transaction code key by:
(a) looking up the list of keys for that registered applicant; and
(b) comparing the key provided by the registered applicant with the next available key on the list.
If the key matches, the instructions will be regarded as authentic.
Once a transaction code key is used by a registered applicant, the ACA will note the round and the time and date that the key was used.
Registered applicants may not re-use a transaction code key or use a key other than the next key in the sequence. Any other key will be regarded as invalid. Any communication containing an invalid key will be ignored. The ACA will advise the registered applicant by telephone that the communication has been ignored, and may suspend the registered applicant’s participation until new transaction code keys can be delivered.
Distributing Encryption and Transaction Code Keys
Encryption and transaction code keys will be distributed by receipted mail or safe-hand courier to the address nominated by the applicant.
If the registered applicant has any suspicion that the integrity of the keys have been compromised in transit, it must advise the ACA immediately so that new keys can be prepared. Depending on the nature of the tampering, replacement keys may be forwarded by receipted mail or by safe-hand courier to the address nominated by the applicant. They may also be held for collection at an ACA office, where they may be collected by the person nominated by the registered applicant as the contact person
for the auction on presentation of the following evidence of identity (one of which must include the signature of the person presenting the identification):
(a) photographic evidence, being a driver’s licence or passport; or
(b) 2 forms of other identification (such as a birth certificate or credit card).
Storing Encryption and Transaction Code Keys
Registered applicants will be responsible for protecting the encryption and transaction code keys from unauthorised use.
The ACA will protect its copy of each registered applicant’s keys by appropriate internal security arrangements. The ACA will restrict access to the area where the keys are being used to authenticate bids to all but persons authorised by the ACA or escorted by a person authorised by the ACA.
If a registered applicant discovers that its encryption or transaction code keys have been compromised (through break-in, unauthorised access or any other reason), the registered applicant must immediately inform the ACA. The ACA will then prepare new keys for that registered applicant and forward them to the registered applicant.
The ACA may at any time issue new encryption and transaction code keys to a registered applicant, or to all registered applicants, if it comes to believe that the integrity of the auction may have been compromised. Applicants must use the new keys.
In the period between a registered applicant notifying the ACA that the keys have been compromised and the ACA providing the registered applicant with replacement keys, the registered applicant’s participation in the auction will be suspended, without incurring a waiver.
DEED OF AGREEMENT
AUSTRALIAN COMMUNICATIONS AUTHORITY
AND
[insert company name]
for the coordination and radio interference management of a satellite network
Table of Clauses
Interpretation
Commencement
Control and Australian presence
Notification of network
Commencement of operation
Interference management
Compliance with directions and Radio Regulations
Charges and GST
ACA not liable for losses
Meetings and correspondence
Radiocommunications licences
Termination of agreement and suppression of notification
Remedies
Waiver
Variation and amendment
Applicable law
Notices
DEED made on the day of 2001
THE AUSTRALIAN COMMUNICATIONS AUTHORITY, a body corporate continued in existence by section 14 of the Australian Communications Authority Act 1997 (‘the ACA’)
AND
[Insert company name here], [insert ACN], and having its registered office at [insert full address] (‘the Satellite Operator’)
RECITALS:
A. The International Telecommunication Union (ITU) has established procedures for the coordination of satellite systems, and the ACA represents Australia in relation to those procedures.
B. The ACA has agreed to notify the Satellite Operator’s satellite network to the ITU, and carry out its coordination, under those procedures and the terms and conditions set out in this Deed.
C. The Satellite Operator has agreed to operate and control its network in accordance with the ITU Radio Regulations and related procedures, and the terms and conditions set out in this Deed.
INTERPRETATION
1.1 In this Deed:
‘Conciliator’ means the person nominated in writing by the ACA to the Satellite Operator to be Conciliator for the purposes of this Agreement;
‘control’ in relation to the network, includes the capability to ensure the station keeping attitude of the satellite, variation of emissions from the network to comply with the notified characteristics and the ability to prevent and rectify harmful interference;
‘coordination’ has the same meaning as it has in the Radio Regulations;
‘Deed’ means this Agreement including the Schedules;
‘Goods and Services Tax’ means ‘GST’ as defined in the A New Tax System (Goods and Services Tax) Act 1999; ‘harmful interference’ has the same meaning as it has in the Radio Regulations;
‘input tax credit’ has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999;
‘ITU’ means the International Telecommunication Union;
‘Master Register’ means the Master International Frequency Register maintained by the ITU in accordance with the Radio Regulations;
‘Radio Regulations’ means the Radio Regulations of the ITU, in force from time to time, including the Articles, Appendices, Resolutions and Recommendations, and ITUR Recommendations incorporated into the Radio Regulations by reference;
‘Satellite Operator’ includes the officers, employees, agents and subcontractors of the Satellite Operator and the Satellite Operator’s successors and assigns;
‘taxable supply’ has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999;
‘tax invoice’ has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999;
‘the ACA’ includes the officers, employees, agents and subcontractors of the ACA;
‘the Act’ means the Radiocommunications Act 1992;
‘the network’ means the satellite network established in the channels assigned to Australia at [152° or 164°] East longitude by Appendix S30 and Appendix S30A of the Radio Regulations and any additions or modifications to that network sent to the ITU by the ACA, including
(a) Notice for space stations in the broadcasting-satellite service under Appendix S30; and
(b) Notice for feeder-link stations in the broadcasting-satellite service under Appendix S30A.
1.2 In this Deed, unless the contrary intention appears:
(a) words importing a gender include any other gender;
(b) words in the singular number include the plural and words in the plural include the singular;
(c) clause and subclause headings, words capitalised or in bold format, and notes in square brackets are for convenient reference only, and have no effect in limiting or extending the language of the provisions to which they refer;
(d) a reference to a clause, subclause, paragraph or Schedule is a reference to the relevant clause, subclause, paragraph or Schedule of this Deed;
(e) a reference to a subclause is a reference to the relevant subclause of the clause in which the reference appears;
(f) where any word or phrase has been given a defined meaning, any other part of speech or other
grammatical form in respect of that word or phrase has a corresponding meaning;
(g) a reference to any statute, legislation (whether primary or subordinate) or ITU filing number is a reference to that statute, legislation or filing number as in force from time to time; and
(h) terms and expressions that are defined in the Act have the meaning given to them by that Act.
COMMENCEMENT
2.1 This Deed commences on the date on which it is made.
CONTROL AND AUSTRALIAN PRESENCE
3.1 The Satellite Operator warrants that:
(a) it has, and will continue to have, the capacity to enter into, and carry out its obligations under, this Deed;
(b) its entering into, or complying with the provisions of this Deed will not, under the terms of any existing contract, deed, arrangement or other understanding, or for any other reason, not previously disclosed to the ACA give rise to the transfer, or potential transfer, of control of the network to another person, or otherwise in any way inhibit the Satellite Operator in complying with its obligations under this Deed;
(c) at the time that radiocommunications transmissions are first made from the network, it will have entered into all agreements necessary to give the Satellite Operator the capacity to carry out its obligations under this Deed.
3.2 The Satellite Operator must not without the prior written consent of the ACA, enter into any contract, deed, arrangement or other understanding, or do any other action or thing, by virtue of which:
(a) a person other than the Satellite Operator may acquire control of the network; or
(b) the Satellite Operator may be prevented from complying with its obligations under this Deed.
3.3 The ACA must not unreasonably withhold its consent under subclause 2.
3.4 It is reasonable for the ACA to withhold its consent under subclause 2 if the person who would otherwise acquire control of the network does not enter into a Deed of Agreement with the ACA for the coordination and radio interference management of the network.
3.5 The Satellite Operator must cause a telecommand, tracking and control facility for the control of the network to be maintained and operated in Australia.
3.6 The ACA and the Satellite Operator agree that the facility specified in subclause 5 may be owned and operated by a person other than the Satellite Operator.
3.7 The Satellite Operator must at all times remain a company which is incorporated in Australia, carries on business in Australia, and has its central management and control in Australia.
3.8 The Satellite Operator must take all reasonable steps to ensure that, when and where feasible, launch vehicles that commence their flight in Australia are used to establish and replenish the network.
3.9 For subclause 8, in determining what is feasible, the ACA will have regard to:
(a) technical issues, including launch vehicle capability, availability and reliability;
(b) commercial issues, including cost, risk and convenience; and
(c) any other matter it considers relevant.
3.10 The Satellite Operator must take all reasonable steps to maximise opportunities for the Australian communications industry in domestic and international markets.
3.11 The Satellite Operator must cause or make reasonable endeavour to cause the network to be placed in orbit at [152° or 164°] East longitude within 5 years of the commencement of this Deed.
NOTIFICATION OF NETWORK BY THE ACA
4.1 If the Satellite Operator has not breached its obligations under this Deed, the ACA must provide satellite notification and coordination services to be agreed between the ACA and the Satellite Operator.
4.2 The satellite notification and coordination services to be provided under subclause 1 may include participation in coordination meetings both within and outside Australia, and will include:
(a) forwarding to the ITU within the time limits set down in the Radio Regulations, correct and substantially error free correspondence from the Satellite Operator; and
(b) the checking of all coordination and notification correspondence from the Satellite Operator for compliance with the Radio Regulations and Australian Government policy; and
(c) return of non-compliant correspondence to the Satellite Operator for rectification within agreed timelines.
COMMENCEMENT OF OPERATION
5.1 The Satellite Operator:
(a) may operate the network to establish whether the Satellite Operator will, at all times, be able to comply with any directions referred to in subclause 3; and
(b) must not otherwise operate all or any part of the network without the ACA’s prior written consent or until the network is permanently recorded in the Master Register; and
(c) for the avoidance of doubt, the Satellite Operator must not operate the network to provide a service without the written consent of the ACA or until the network is permanently recorded in the Master Register.
5.2 The ACA may not unreasonably withhold its consent.
5.3 For subclause 2, it is reasonable for the ACA to withhold its consent if the Satellite Operator does not demonstrate that it will, at all times, be able to comply with any directions in relation to the operation of the network that the ACA may reasonably be expected to give to the Satellite Operator for the purposes of containing or eliminating harmful interference.
5.4 For subclause 2, it is unreasonable for the ACA to withhold its consent if it does not, where practicable, consult with the Satellite Operator before withholding that consent.
5.5 The directions referred to in subclause 3 include directions to immediately remove harmful interference, possibly by the cessation of transmission, and directions in relation to:
(a) the variation of transponder RF power output;
(b) occupied bandwidth;
(c) assigned frequency;
(d) station keeping;
(e) beam pointing accuracy;
(f) footprint contours.
5.6 The ACA will act in good faith to assist permanent recording of the network in the Master Register.
5.7 The ACA and the Satellite Operator agree that operation of the network may result from the operation of more than one satellite at the same time or at different times during the operational life of the network.
5.8 Nothing in subclause 7 shall be taken to relieve the Satellite Operator or any other party of any obligations they may have under the Space Activities Act 1998.
INTERFERENCE MANAGEMENT
6.1 The Satellite Operator must take all reasonable steps to ensure that the network does not cause harmful interference.
6.2 If a person complains to the Satellite Operator, or the Satellite Operator otherwise believes, that transmissions from the network have caused, are causing, or are likely to cause, harmful interference, the Satellite Operator must, as soon as practicable, provide the ACA with:
(a) a copy of the complaint, if any; and
(b) an engineering assessment of the nature and extent of that harmful interference.
6.3 If a person complains to the ACA that transmissions from the network have caused, are causing, or are likely to cause, harmful interference the ACA must, as soon as practicable, provide the Satellite Operator with a copy of the complaint.
6.4 For the purposes of this clause, a person who makes a complaint in accordance with subclause 2 or subclause 3, whether a legal person or a natural person, is the Complainant.
6.5 The Satellite Operator must use its best endeavours to appropriately resolve complaints, or the occurrence of harmful interference, and the ACA acknowledges that in some cases the
ACA may agree that no action at all need be taken by the Satellite Operator to resolve the complaint.
6.6 In seeking to so resolve or eliminate harmful interference, the Satellite Operator must follow the same policies and coordination procedures as the ACA might reasonably be expected to apply in such circumstances.
6.7 The Satellite Operator must advise the ACA if it cannot resolve a complaint of harmful interference.
6.8 Where subclause 7 applies and Part 4.3 of the Act does not apply, the ACA may:
(a) by notice in writing given to the Satellite Operator, appoint a Conciliator familiar with radiocommunications or satellite coordination procedures, for the purposes of the complaint; and
(b) invite the Complainant to take part in a conciliation to be conducted by the Conciliator.
6.9 A Conciliator appointed under paragraph 8(a) may decide not to inquire into a complaint of harmful interference if the Conciliator believes that:
(a) the matter is trivial;
(b) the complaint is frivolous or vexatious or was not made in good faith; or
(c) the interests of the Complainant have not been, are not being or are not likely to be affected by the harmful interference.
6.10 A Conciliator appointed under paragraph 8(a) must not inquire into a complaint of harmful interference if the Complainant:
(a) does not wish the inquiry to be made or continued (as the case may be);
(b) does not enter into an agreement with the Conciliator for the conduct of the conciliation that is substantially in the same terms as:
(i) the agreement in Schedule 2; or
(ii) such other conciliation agreement as may, from time to time, be agreed between the Conciliator, the Satellite Operator and the Complainant;
(c) does not agree to pay one-half of the Conciliator’s fees and any other costs of the conciliation reasonably incurred by the Conciliator.
6.11 Unless subclause 9 or subclause 10 apply, the ACA must require a Conciliator appointed under paragraph 8(a) to:
(a) inquire into the alleged harmful interference; and
(b) try to effect settlement of the matter; and
(c) if the Conciliator cannot effect a settlement – as soon as practicable, give to the ACA a written report setting out:
(i) the Conciliator’s recommendations for resolving the matter; and
(ii) the reasons for those recommendations.
6.12 In carrying out functions under subclause 11 the Conciliator:
(a) may obtain information from such persons, and make such inquiries, about the subject matter of the conciliation as he or she thinks fit; and
(b) must not make a recommendation to the ACA that is adverse to the Satellite Operator unless it has given the Satellite Operator an opportunity to make submissions in relation to the matter to which the recommendation relates.
6.13 The Conciliator may give the Satellite Operator a written direction to attend, at a time and place specified in the notice, a conference to be presided over by the Conciliator for the purposes of conducting an inquiry into, or trying to effect a settlement of, a complaint of harmful interference.
6.14 The Satellite Operator must not, without reasonable excuse:
(a) fail to attend as required by the direction;
(b) fail to attend and report from day-to-day unless excused or released from further attendance, by the Conciliator;
(c) fail to cooperate in the conciliation process; or
(d) withhold information from the Conciliator or the Complainant that is necessary for, or reasonably incidental to, settlement of the complaint of harmful interference.
6.15 For the purposes of subclause 14, it would be unreasonable for the Satellite Operator to refuse to provide confidential information if the party to whom the information would be given is prepared to enter into a deed of confidentiality in relation to that information with the Satellite Operator in the form of the agreement at Schedule
6.16 The Satellite Operator must enter into an agreement with the Conciliator for the conduct of the conciliation that is substantially in the same terms as:
(a) the agreement in Schedule 2; or
(b) such other conciliation agreement as may, from time to time, be agreed between the Conciliator, the Satellite Operator and the Complainant.
6.17 The Satellite Operator must pay one-half of the Conciliator’s fees and any other costs of the conciliation reasonably incurred by the Conciliator.
6.18 For the avoidance of doubt, the Satellite Operator is not required by this Deed to pay the costs incurred by the Complainant in relation to the conciliation.
6.19 If the Conciliator does not resolve a complaint of harmful interference, and the ACA is reasonably satisfied that it is necessary to do so in order to prevent harmful interference, or the risk of harmful interference, the ACA may issue a written direction to the Satellite Operator.
6.20 Where subclause 19 applies, the ACA may give a direction to the Satellite Operator:
(a) to take action, or to refrain from taking action, in relation to the operation of the network; or
(b) to do, or to refrain from doing, any other thing; within a specified period.
6.21 In issuing a direction the ACA must have regard to the Conciliator’s report, if any.
6.22 If the ACA issues a direction to the Satellite Operator, it must give the Satellite Operator notice of its reasons for that direction.
6.23 The ACA and the Satellite Operator acknowledge that certain information relating to the network, which may be requested from the Satellite Operator, is or may be governed by the USA Arms Export Control Act, the International Traffic Arms Regulation and/or the USA Export Administration Act (‘the Export Control Laws’). To the extent such information is governed by the Export Control Laws, a license issued pursuant to the Export Control Laws may be required prior to the disclosure of the information and the Satellite Operator agrees to use its reasonable best efforts to obtain or procure an appropriate licence.
6.24 Nothing in subclause 23 will relieve the Satellite Operator of its obligation to take all reasonable steps to ensure that the network does not cause harmful interference.
6.25 If the Export Control Laws allow certain information to be provided to the ACA but restrict further dissemination of the information, the ACA agrees, except as otherwise required by Australian law, not to disseminate the information other than:
(a) as is expressly permitted by the Export Control Laws; or
(b) as may be specified by the Satellite Operator in a
notice to the ACA.
6.26 The Satellite Operator acknowledges and agrees that nothing in subclause 25 should be taken to limit the operation of Australian law.
6.27 The ACA and the Satellite Operator agree that following any amendment to, or substitution, consolidation or re-enactment of, the Export Control Laws, the parties will as soon as practicable meet and in good faith discuss and use best efforts to agree on any amendments to this Deed which are required or desirable.
COMPLIANCE WITH DIRECTIONS AND RADIO REGULATIONS
7.1 The Satellite Operator must not knowingly or recklessly contravene:
(a) a direction issued to the Satellite Operator by the ACA under this Deed; or
(b) a direction issued to the Satellite Operator by the ACA in accordance with section 212 of the Act.
7.2 The ACA and the Satellite Operator must comply with the provisions of the Radio Regulations.
CHARGES AND GST
8.1 The Satellite Operator acknowledges that the ACA will provide it with notification and coordination services on a commercial basis in accordance with section 8 of the Australian Communications Authority Act 1997.
8.2 The Satellite Operator and the ACA will later, and from time to time, agree on the terms and conditions, including as to fees, on which the notification and coordination services referred to in subclause 1 will be provided by the ACA.
8.3 The Satellite Operator acknowledges that it will, in addition to the fees and other consideration, pay to the ACA the amount of all Goods and Services Tax chargeable on any taxable supply made by the ACA to the Satellite Operator under this Deed.
8.4 The ACA will provide the Satellite Operator with all necessary tax invoices to enable the Satellite Operator to claim any input tax credits in relation to the Goods and Services Tax paid.
8.5 The Satellite Operator must pay all ITU cost recovery charges for the production of Special Sections for the network within 5 months of the issue to it of an invoice by the Finance Department of the ITU.
ACA NOT LIABLE FOR LOSSES
9.1 This clause survives the expiration or termination of this Deed.
9.2 The Satellite Operator indemnifies, and must keep indemnified, the ACA from and against all loss (including legal costs and expenses on a solicitor/own client basis) or liability incurred or suffered by the ACA arising from:
(a) any negligent, wilful or unlawful act or omission by the Satellite Operator, its officers, employees or agents, in connection with this Deed; or
(b) any breach by the Satellite Operator of its obligations or warranties under this Deed; or
(c) the compliance by the Satellite Operator with a properly issued direction.
9.3. The Satellite Operator’s liability to indemnify the ACA under subclause 2 will be reduced proportionately to the extent that any negligent act or omission of the ACA contributed to
that loss or liability.
9.4 The Satellite Operator agrees and acknowledges that the ACA will not be liable to the Satellite Operator for any loss or liability that the Satellite Operator directly or indirectly incurs as a result of the Satellite Operator complying with a direction properly issued to the Satellite Operator by the ACA under this Deed, by reason only that the ACA issued that direction to the Satellite Operator.
MEETINGS AND CORRESPONDENCE
10.1 This clause applies to specified correspondence and specified meetings about the network for the purposes of:
(a) effecting coordination with or obtaining the agreement of other administrations in accordance with the procedures established by Appendix S30 and Appendix S30A of the Radio Regulations;
(b) ensuring that the network does not cause harmful interference in accordance with the procedures establish by clause 6, Part 4.3 of the Act or Article S15 of the Radio Regulations.
10.2 The ACA may attend any specified meeting relating to the network.
10.3 If requested in writing by the ACA, the Satellite Operator must, at its own expense, give the ACA copies of:
(a) all records held by the Satellite Operator of specified meetings about the network; and/or
(b) all specified correspondence held by the Satellite Operator about the network.
10.4 The Satellite Operator may request, in writing, that an ACA officer attend a specified meeting about the network.
10.5 The ACA may, in its absolute discretion, agree to one of its officers attending such a specified meeting.
10.6 The Satellite Operator must pay all costs incurred by the ACA in complying with a request under subclause 4, including travel and accommodation expenses which will be worked out in accordance with the relevant provisions of the ACA’s Certified Agreement made under the Workplace Relations Act 1996 as in force from time to time.
RADIOCOMMUNICATIONS LICENCES
11.1 The Satellite Operator acknowledges that the ACA can only issue, renew, vary, suspend or cancel radiocommunications licences in accordance with Chapter 3 of the Act.
11.2 The Satellite Operator acknowledges that other radiocommunication services operate in the 17.3-18.1 GHz frequency range in Australia.
11.3 The Satellite Operator acknowledges that:
(a) the ACA currently intends that use of the frequency ranges specified in subclause 2 by the network will be on a shared basis with other radiocommunication services in accordance with relevant ACA licensing policies and frequency assignment guidelines; and
(b) the policies of the ACA may change from time to time.
TERMINATION OF AGREEMENT AND SUPPRESSION OF NOTIFICATION
12.1 This subclause and subclauses 12.2, 12.3 and 12.6 apply if the ACA, at any time after the date on which the network comes into operation:
(a) reasonably considers that the Satellite Operator has breached subclause 3.1, 3.2, 3.5, 3.7, 3.8, 3.10,
3.11, 5.1, 6.1, 6.2, 6.5, 6.6, 6.7, 6.14, 6.16, 6.17, 7.1 7.2, 8.3, 8.5, 10.3 or 10.6; or
(b) reasonably considers that the Satellite Operator is, for any reason, not likely to be able to comply with its obligations under this Deed with respect to the causing of harmful interference.
12.2 Where subclause 1 applies, the ACA may by notice in writing to the Satellite Operator, require the Satellite Operator to remedy the relevant breach or default within 30 days from the date that the notice is sent to the Satellite Operator.
12.3 Where subclause 2 applies, if the breach or default is not remedied to the reasonable satisfaction of the ACA within 30 days from the date that the notice is sent to the Satellite Operator, the ACA may by notice in writing to the Satellite Operator terminate this Deed.
12.4 Where subclause 3 applies, any notice of termination made in writing by the ACA will take effect 30 days from the date that the notice is sent to the Satellite Operator.
12.5 The Satellite Operator may by notice in writing to the ACA, terminate this Deed;
(a) because the ACA has entered into a Deed of Agreement with another person for the coordination and radio interference management of the network;
(b) because the network has reached the end of its operational life;
(c) because it has abandoned the network; or
(d) for convenience.
12.6 Where subclause 5 applies, any notice of termination made in writing by the Satellite Operator will take effect 60 days from the date that the notice is sent to the ACA.
12.7 Where subclause 3 or subclause 5 applies, the Satellite Operator acknowledges that the ACA may:
(a) suppress the ITU notification of the network; or
(b) enter into a Deed of Agreement with another person for the coordination and radio interference management of the network.
12.8 For the avoidance of doubt, the ACA must not enter into a Deed of Agreement with another person for the coordination and radio interference management of the network unless:
(a) subclause 3 or subclause 5 apply; or
(b) the Satellite Operator has asked the ACA to enter into a Deed of Agreement with another person.
REMEDIES CUMULATIVE
13.1 The rights and remedies provided under this Deed are cumulative and not exclusive of any rights or remedies provided by law or any other such right or remedy.
13.2 Subject to the other provisions of this Deed, the rights and obligations of the ACA and the Satellite Operator under this Deed are in addition to and not in derogation of any other right or obligation between the parties under any other deed or agreement or contract to which they are parties.
13.3 The Satellite Operator and the ACA acknowledge that either party may take legal proceedings against the other party or third parties if there is any actual, threatened or suspected breach of this Deed, including proceedings for an injunction to restrain such breach.
WAIVER
14.1 No waiver by the ACA or the Satellite Operator of a breach of any obligation or provision contained or implied in this Deed will operate as a waiver of another breach of the same, or of any other obligation or provision contained or implied in this Deed.
14.2 None of the provisions of this Deed shall be taken either at law or in equity to have been varied, waived, discharged or released by the ACA or the Satellite Operator unless by the express consent in writing of the ACA or the Satellite Operator.
VARIATION AND AMENDMENTS
15.1 No term or provision of this Deed may be amended or varied unless such amendment or variation is reduced to writing and executed by the ACA and the Satellite Operator in the same manner as this instrument.
APPLICABLE LAW
16.1 This Deed shall be governed and construed in all respects in accordance with the law of the Australian Capital Territory as in force from time to time and the parties agree, subject to the jurisdiction of the High Court of Australia, that the Courts of that Territory shall have exclusive jurisdiction to entertain any action in respect of, or arising out of, this Deed.
NOTICES
17.1 Any notice, request or other communication to be given or served under this Deed must be in writing and dealt with as follows:
(a) if given by the Satellite Operator to the ACA - addressed and forwarded to the ACA, for the
attention of the person indicated for this purpose in Schedule 3, and at the address indicated in Schedule 3, or as otherwise notified in writing by the ACA;
(b) if given by the ACA to the Satellite Operator - addressed and forwarded to the Satellite Operator, for the attention of the person indicated for this purpose in Schedule 3, and at the address indicated in Schedule 3, or as otherwise notified by the Satellite Operator in writing.
17.2 Any such notice, request or other communication shall be delivered by hand or sent by pre-paid security post or facsimile, to the address of the party to which it is sent.
17.3 Any notice, request or other communication will be deemed to be received:
(a) if delivered personally, on the date of delivery;
(b) if sent by prepaid security post, on the day that the acknowledgment of delivery is completed by the recipient; and
(c) if sent by facsimile, on the business day next following the day of dispatch providing that the sender receives an “OK” code in respect of the transmission and is not notified by the recipient by close of business of the next business day following the day of dispatch that the transmission was illegible.
EXECUTED AS A DEED
SIGNED SEALED and DELIVERED )
for and on behalf of the AUSTRALIAN )
COMMUNICATIONS AUTHORITY by )
_________________________
(Signature of signatory)
(Print full name and title of signatory)
in the presence of:
_________________________
(Signature of witness)
(Print full name and title of witness)
SIGNED SEALED and DELIVERED for )
and on behalf of [insert company )
name] (insert ACN) by )
authority of its directors: )
_____________________________________________
(Signature of director)
_____________________________________________
(Print full name of director)
___________________________________
(Signature of director/secretary)
___________________________________
(Print full name of director/secretary)
SCHEDULE 1
(Subclause 6.15)
DEED OF CONFIDENTIALITY
BY THIS DEED DATED THE day of
BETWEEN Party A (‘the Recipient’)
AND Party B (‘the Provider’)
Recitals:
A. For the purposes of conducting a conciliation or otherwise gathering information or conducting investigations, the parties have agreed that they will comply with the terms of this Deed.
B. In the course of the above conduct, the Recipient may become aware of information, belonging to or in the possession of the Provider, that is confidential or that is personal information under the Privacy Act 1988 (Cth),
C. improper use or disclosure of that information would severely damage the Provider’s ability to perform its commercial functions.
D. The Provider requires, and the Recipient agrees, that it is necessary to take all reasonable steps (including the execution of this Deed) to ensure that the Provider’s confidential information is kept confidential and that personal information is protected.
Recitals
The Parties acknowledge the truth and accuracy of the Recitals in every particular.
Interpretation
2.1 Definitions
In the interpretation of this Deed unless the contrary intention appears or the context otherwise requires or admits the following expressions will have the following meanings:
“Agreement” means the Deed Of Agreement between the Australian Communications Authority and [insert company name] for the Coordination and Radio Interference Management of a Satellite Network, executed on [date of execution];
“confidential information” means information that:
(a) is by its nature confidential;
(b) is designated by the Provider as confidential; or
(c) the Recipient knows or ought to know is confidential; and includes:
(d) information comprised in or relating to any Intellectual Property Rights of the Provider;
(e) any information relating to the financial position of the Provider and in particular includes information relating to the assets or liabilities of the Provider and any other matter that does or may affect the financial position or reputation of the Provider;
(f) information relating to the internal management and structure of the Provider, and includes information relating to the personnel, policies and strategies of the Provider;
(g) any information relating to the policies, strategies, practices and procedures of the Provider;
(h) any information in the Provider’s possession relating to the Provider’s clients or suppliers, and like information; but does not include information which:
(i) is or becomes public knowledge other than by breach of this Deed or by any other unlawful means;
(j) is in the possession of the receiving party without restriction in relation to disclosure prior to the date of receipt from the disclosing party;
(k) has been independently developed or acquired by the receiving party; or
(l) is in respect of ideas, concepts, know-how, techniques or methodologies where disclosure is permitted under the Agreement;
“Intellectual Property Rights” includes all copyright and neighbouring rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs, confidential information (including trade secrets and know how) and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
“notice” means notice in writing given in accordance with this Deed;
“personal information” means, for the purposes of the Privacy Act 1988 (Cth) and this Deed, information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
“writing” means any mode of representing or reproducing words, figures, drawings or symbols in a visible form.
2.2 General
Unless the contrary intention appears;
(a) monetary references are references to Australia currency;
(b) the clause and subclause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
(c) a cross reference to a clause number is a reference to all its subclauses;
(d) words in the singular number include the plural and vice versa;
(e) words importing a gender include any other gender;
(f) a reference to a person includes a partnership and a body whether corporate or otherwise;
(g) a reference to a clause or subclause is a reference to a clause or subclause of this Deed; and
(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
Non Disclosure
3.1 The Recipient must not disclose the confidential information to any person without the prior written consent of the Provider.
3.2 The Provider may grant or withhold its consent in its absolute and unfettered discretion.
3.3 If the Provider grants its consent, it may impose conditions on that consent. In particular, but without limiting the generality of the preceding sentence, the Provider may require that the Recipient procure the execution of a deed in these terms by the person to whom the Recipient proposes to disclose the confidential information.
3.4 If the Provider grants consent subject to conditions, the Recipient must comply with those conditions.
3.5 The obligations of the Recipient under this Deed will not be taken to have been breached where the confidential information is legally required to be disclosed.
Restriction on Use
The Recipient will use the confidential information only for the purpose of its dealings with the Provider (whether directly or indirectly).
Privacy
5.1 The Recipient undertakes:
(a) not to access, use, modify, disclose or retain any personal information he or she has acquired through the performance of the Agreement, except for the purpose of performing the Agreement; and
(b) in addition to any direction as to particular measures specified by the Provider, take all reasonable measures to ensure that any personal information held in connection with the Agreement is protected against loss, unauthorised access, use, modification or disclosure and against other misuse.
5.2 The Recipient acknowledges that:
(a) any unauthorised and intentional access, destruction, alteration, addition or impediment to access or usefulness of personal information stored in any Provider computer is an offence under Part VIA of the Crimes Act 1914 which may attract a substantial penalty, including imprisonment; and
(b) the publication or communication by the Recipient of any fact or document which has come to his or her knowledge or into his or her possession or custody by virtue of the performance of the Agreement (other than to a person to whom the Recipient is authorised to publish or disclose the fact or document) may be an offence under sections 70 or 79 of the Crimes Act 1914, punishment for which may involve imprisonment.
Reserved.
Powers of the Provider
7.1 The Provider may demand (without needing to reduce the demand to writing) the delivery up to the Provider of all documents in the possession or control of the Recipient containing confidential information or personal information or which are the property of the Provider.
7.2 The Recipient must immediately comply with a demand under this clause 7.
7.3 If the Provider makes a demand under this clause 7, and the Recipient has placed or is aware that documents are beyond his or her possession or control, then the Recipient must provide full particulars of the whereabouts of the documents, and the identity of the person in whose custody or control they lie.
7.4 In this clause 7, “documents” includes any form of storage of information, whether visible to the eye or not.
7.5 The Recipient acknowledges that the Provider may take legal proceedings against the Recipient or third parties if there is any actual, threatened or suspected breach of this Deed, including proceedings for an injunction to restrain such breach.
Conflict of Interest
8.1 The Recipient warrants that before entering into this Deed it has disclosed to the Provider all the past, current and anticipated interests of the Recipient which may conflict with or restrict the Recipient in performing conciliation in relation to the Agreement fairly and independently.
8.2 If during the term of this Deed a conflict of interest arises, or appears likely to arise, the Recipient undertakes to notify the Provider immediately in writing and to take such steps as the Provider may reasonably require to resolve or otherwise deal with the conflict.
Reserved.
No Exclusion of Law or Equity
This Deed must not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the confidentiality of the confidential information.
Waiver
11.1 No waiver by the Provider of one breach of any obligation or provision of this Deed will operate as a waiver of another breach of the same or of any other obligation or provision of this Deed.
11.2 None of the provisions of this Deed will be taken either at law or in equity to have been varied waived discharged or released by the Provider unless by its express consent in writing.
Remedies Cumulative
12.1 The rights and remedies provided under this Deed are cumulative and not exclusive of any rights or remedies provided at law or in equity or by any other right or remedy.
12.2 Subject to the other covenants of this Deed, the rights and obligations of the parties pursuant to this Deed are in addition to and not in derogation of any other right or obligation between the parties under any other deed or agreement to which they are parties.
Variations and Amendments
No term or provision of this Deed may be amended or varied unless such amendment or variation is reduced to writing and signed by the parties to this Deed in the same manner as this instrument.
Applicable Law
This Deed will be governed and construed in all respects in accordance with the law of the Australian Capital Territory in force from time to time and the Parties agree, subject to the jurisdiction of the High Court of Australia, that the courts of that Territory shall have exclusive jurisdiction to entertain any action in respect of, or arising out of, this Deed.
EXECUTED by the parties as a Deed
SIGNED SEALED AND DELIVERED)
for and on behalf of the Provider )
by......................... )
{print full name of signatory} ) {signature of signatory}
{insert office of signatory} )
in the presence of: )
............................. )
{print name of witness} ) {signature of witness}
for and on behalf of the Recipient )
by......................... )
{print full name of signatory} ) {signature of signatory}
..........................)
{insert office of signatory} )
in the presence of: )
............................. )
{print name of witness} ) {signature of witness}
SCHEDULE 2
(Subclauses 6.10 and 6.16)
CONCILIATION AGREEMENT
APPOINTMENT OF CONCILIATOR
Reserved.
ROLE OF CONCILIATOR
The Conciliator will be neutral and impartial. The Conciliator will assist the parties to attempt to resolve the Dispute by helping them to:
* systematically isolate the issues in dispute;
* develop options for the resolution of these issues;
* explore the usefulness of these options; and
* meet their interests and needs.
The Conciliator may meet with the parties together or separately.
The Conciliator will not:
* give legal or other professional advice to any party; or
* impose a result on any party; or
* make decisions for any party.
The Conciliator will not accept an appointment in relation to any proceedings concerning the Dispute.
Neither party will take action to cause the Conciliator to breach Clause 5.
CONFLICTS OF INTEREST
The Conciliator must prior to the commencement of the conciliation disclose to the parties to the best of the Conciliator’s knowledge any prior dealings with any of the parties as well as any interest in the Dispute.
If in the course of the conciliation the Conciliator becomes aware of any circumstances that might reasonably be considered to affect the Conciliator’s capacity to act impartially, the Conciliator must immediately inform the parties of these circumstances. The parties will then decide whether the conciliation will continue with that Conciliator or with a new Conciliator appointed by the parties.
COOPERATION BY THE PARTIES
The parties must cooperate in good faith with the Conciliator and each other during the conciliation.
CONDUCT OF THE PRELIMINARY CONFERENCE
As part of the conciliation the Conciliator will schedule a preliminary conference at a time and venue convenient to the parties to establish a timetable for the conciliation.
The Conciliator, the parties and their representatives who are to attend the conciliation session must attend the preliminary conference.
AUTHORITY TO SETTLE AND REPRESENTATION AT THE CONCILIATION SESSION
The parties must attend the conciliation with authority to settle by any means or within any range that can reasonably be anticipated.
At the conciliation each party may have one or more other persons, including legally qualified persons, to assist and advise them.
COMMUNICATION BETWEEN THE CONCILIATOR AND THE PARTIES
Any information disclosed to a Conciliator in private is to be treated as confidential by the Conciliator unless the party making the disclosure states otherwise.
CONFIDENTIALITY OF THE CONCILIATION
The parties and the Conciliator will not disclose to anyone not involved in the conciliation any information or document given to them during the conciliation unless required by law to make such a disclosure.
The parties and the Conciliator agree that subject to Clauses 20 and 21, the following will be privileged and will not be disclosed in, or be the subject of a subpoena to give evidence or to produce documents, in any proceedings in respect of the Dispute:
16.1 Any settlement proposal whether made by a party or the Conciliator.
16.2 The willingness of a party to consider any such proposal.
16.3 Any statement made by a party or the Conciliator during the conciliation.
16.4 Any information made by a party or the Conciliator during the conciliation.
TERMINATION OF THE CONCILIATION
A party may terminate the conciliation at any time after consultation with the Conciliator.
The Conciliator may terminate the Conciliator’s involvement in the conciliation if, after consultation with the parties, the Conciliator feels unable to assist the parties to achieve resolution of the Dispute.
SETTLEMENT OF THE DISPUTE
If settlement is reached at the conciliation, the terms of the settlement must be written down and signed by the parties before they leave the conciliation.
ENFORCEMENT OF THE SETTLEMENT AGREEMENT
Any party may enforce the terms of the settlement agreement by judicial proceedings.
For the purposes of Clause 20, any party may call evidence of the settlement agreement including evidence from the Conciliator and any other person engaged in the conciliation.
EXCLUSION OF LIABILITY AND INDEMNITY
The Conciliator will not be liable to a party for any act or omission in the performance of the Conciliator’s obligations under this agreement unless the act or omission is fraudulent.
The parties together and separately indemnify the Conciliator against any claim for any act or omission in the performance of the Conciliator’s obligations under this agreement unless the act or omission is fraudulent.
THE COST OF THE CONCILIATION
The parties will each be liable to the Conciliator for one half of the Conciliator’s fees described in the Schedule under this agreement and all the other costs of the conciliation described in the Schedule, and will bear their own costs.
If the conciliation does not result in an agreement to resolve the Dispute, the costs of the conciliation will be costs in the cause, ie. costs of the conciliation (including those of the legal representatives to attend the conciliation) will be treated as part of the overall costs in any subsequent court proceedings which are generally payable by the losing party.
EXECUTED by the parties as a Deed
by )
)
..................... )
{print full name of Conciliator} {signature of
Conciliator}
in the presence of:
{print name of witness} {signature of witness}
for and on behalf of the AUSTRALIAN )
COMMUNICATIONS AUTHORITY by )
)
)
........................ )
{print full name of signatory} {signature of signatory}
{insert office of signatory}
in the presence of:
SCHEDULE
(Clause 24 of CONCILIATION AGREEMENT)
Conciliator’s fees and costs
SCHEDULE 3
(Clause 17.1)
ADDRESSES FOR SERVICE OF NOTICES
For paragraph 17.1(a) of the Deed, notices must be for the attention of:
The Manager
Space Systems Team
Radiofrequency Planning Group
For paragraph 17.1(a) of the Deed, the address for notices is:
The Australian Communications Authority
Purple Building
Benjamin Offices
Chan Street
Belconnen
ACT 2617
For paragraph 17.1(b) of the Deed, notices must be for the attention of:
[Insert name or title of Satellite Operator contact]
For paragraph 17.1(b) of the Deed, the address for notices is:
[Insert company name and address of the Satellite Operator]
DEED OF AGREEMENT
AUSTRALIAN COMMUNICATIONS AUTHORITY
AND
[COMPLIANCE PARTY]
AND
[GUARANTOR]
for the coordination and radio interference management
of a satellite network
Table of Clauses
Interpretation
Commencement
Control and Australian presence
Notification of network
Commencement of operation
Interference management
Compliance with directions and Radio Regulations
Charges and GST
ACA not liable for losses
Meetings and correspondence
Radiocommunications licences
Termination of agreement and suppression of notification
Remedies
Waiver
Variation and amendment
Applicable law
Notices
DEED made on the day of 2001
The AUSTRALIAN COMMUNICATIONS AUTHORITY, a body corporate continued in existence by Section 14 of the Australian Communications Authority Act 1997 (‘the ACA’)
AND
[COMPLIANCE PARTY] [Insert ACN] having its registered office at [Insert full address] (‘the Compliance Party’)
AND
[GUARANTOR] [Insert ACN] having its registered office at [Insert full address] (‘the Guarantor’)
RECITALS:
A. The International Telecommunication Union (ITU) has established procedures for the coordination of satellite systems, and the ACA represents Australia in relation to those procedures.
B. The Guarantor intends to establish the network with the assistance of a Satellite Owner, a Satellite Operator and the Compliance Party to provide radiocommunications services to places outside Australia and to places in Australia.
C. The ACA has agreed to notify the network to the ITU on behalf of the Compliance Party, and carry out its coordination, under the ITU procedures and the terms and conditions set out in this Deed.
D. The Compliance Party has agreed to cause the network to be operated and controlled in accordance with the ITU
Radio Regulations and related procedures, and the terms and conditions set out in this Deed.
INTERPRETATION
1.1 In this Deed:
‘Compliance Party’ includes the officers, employees, agents and subcontractors of the Compliance Party and the Compliance Party’s successors and assigns;
‘Conciliator’ means the person nominated in writing by the ACA to the Compliance Party to be Conciliator for the purposes of this Deed;
‘control’ in relation to the network, includes the capability to ensure the station keeping attitude of a satellite, variation of emissions from the network to comply with the notified characteristics, and the ability to prevent and rectify harmful interference;
‘coordination’ has the same meaning as it has in the Radio Regulations;
‘Deed’ means this agreement including the Schedules;
‘Goods and Services Tax’ means ‘GST’ as defined in the A New Tax System (Goods and Services Tax) Act 1999;
‘harmful interference’ has the same meaning as it has in the Radio Regulations;
‘input tax credit’ has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999;
‘ITU’ means the International Telecommunication Union;
‘Master Register’ means the Master International Frequency Register maintained by the ITU in accordance with the Radio Regulations;
‘Radio Regulations’ means the Radio Regulations of the ITU, in force from time to time, including the Articles, Appendices, Resolutions and Recommendations, and ITUR Recommendations incorporated into the Radio Regulations by reference;
‘Satellite Operator’ means an entity which operates all or any part of the network and which is at all times responsible to the Guarantor by virtue of ownership, control, or specific contractual obligation with respect to the operation of the network or any part thereof (including any one or more satellite(s)), including the entity’s successors, assigns, and contractor(s), for the correct and proper operation of all or any part of the network, and in particular, with respect to the compliance with any directives and rulings issued by the ACA or other regulatory body which may have jurisdiction over the operation of the network. OR
‘Satellite Operator’ means an entity which operates all or any part of the network and which is at all times majority owned and controlled, either directly or indirectly, by the Guarantor and includes the entity’s successors and assigns. A Satellite Operator may also be a Satellite Owner;
‘Satellite Owner’ means an entity which owns or has the control of all or any part of the network, including the entity’s successors, assigns, and contractor(s), and is responsible to the Guarantor for the provision of satellite capacity by virtue of ownership, control, or specific contractual obligation, such capacity being provided in accordance with and subject to the jurisdiction of the ACA and/or other applicable regulatory body or bodies. OR
‘Satellite Owner’ means an entity which owns all or any part of the network and which is at all times majority owned and controlled, either directly or indirectly, by the Guarantor and includes the entity’s successors and assigns. A Satellite Owner may also be a Satellite Operator;
‘taxable supply’ has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999;
‘tax invoice’ has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999;
‘the ACA’ includes the officers, employees, agents and subcontractors of the ACA;
‘the Act’ means the Radiocommunications Act 1992;
‘the network’ means the satellite network established in the channels assigned to Australia at [152° or 164°] East longitude by Appendix S30 and Appendix S30A of the Radio Regulations and any additions or modifications to that network sent to the ITU by the ACA, including
(a) Notice for space stations in the broadcasting-satellite service under Appendix S30; and
(b) Notice for feeder-link stations in the broadcasting-satellite service under Appendix S30A.
1.2 In this Deed, unless the contrary intention appears:
(a) words importing a gender include any other gender;
(b) words in the singular number include the plural and words in the plural include the singular;
(c) clause and subclause headings, words capitalised or in bold format, and notes in square brackets are for convenient reference only, and have no effect in limiting or extending the language of the provisions to which they refer;
(d) a reference to a clause, subclause, paragraph or Schedule is a reference to the relevant clause, subclause, paragraph or Schedule of this Deed;
(e) a reference to a subclause is a reference to the relevant subclause of the clause in which the reference appears;
(f) where any word or phrase has been given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning;
(g) a reference to any statute, legislation (whether primary or subordinate) or ITU filing number is a reference to that statute, legislation or filing number as in force from time to time; and
(i) terms and expressions that are defined in the Act have the meaning given to them by that Act.
COMMENCEMENT
2.1 This Deed commences on the date on which it is made.
CONTROL AND AUSTRALIAN PRESENCE
3.9 The Compliance Party warrants that:
(d) it has, and will continue to have, the capacity to enter into, and carry out its obligations under, this Deed;
(e) its entering into, or complying with the provisions of this Deed will not, under the terms of any existing contract, deed, arrangement or other understanding, or for any other reason, not previously disclosed to the ACA give rise to the transfer, or potential transfer, of ownership of the network to a party other than a Satellite Owner or operational control of the network to a party other than a Satellite Operator, or otherwise in any way inhibit it in complying with its obligations under this Deed;
(f) at the time that radiocommunications transmissions are first made from the network, it will have entered into all agreements necessary to give it the capacity to carry out its obligations under this Deed.
3.10 The Compliance Party and the Guarantor must not without the prior written consent of the ACA, enter into any contract, deed, arrangement or other understanding, or do any other action or thing, by virtue of which:
(a) a person other than a Satellite Owner may acquire ownership of all or any part of the network; or
(b) a person other than a Satellite Operator may acquire operational control of all or any part of the network; or
(c) the Compliance Party may be prevented from complying with its obligations under this Deed.
3.11 The ACA must not unreasonably withhold its consent under subclause 2.
3.12 It is reasonable for the ACA to withhold its consent under subclause 2 if the person who would otherwise acquire ownership or operational control of all or any part of the network does not enter into a Deed of Agreement with the ACA for the coordination and radio interference management of the network.
3.13 The Compliance Party must cause a telecommand, tracking and control facility for the control of the network to be maintained and operated in Australia.
3.14 The ACA and the Compliance Party agree that the facility specified in subclause 5 may be owned and operated by a person other than the Compliance Party.
3.7 The Compliance Party must at all times remain a company which is incorporated in Australia, carries on business in Australia, and has its central management and control in Australia.
3.8 The Compliance Party must take all reasonable steps to ensure that, when and where feasible, launch vehicles that commence their flight in Australia are used to establish and replenish the network.
3.9 For subclause 8, in determining what is feasible, the ACA will have regard to:
(a) technical issues, including launch vehicle capability, availability and reliability;
(b) commercial issues, including cost, risk and convenience; and
(c) any other matter it considers relevant.
3.10 The Compliance Party must take all reasonable steps to maximise opportunities for the Australian communications industry in domestic and international markets.
3.11 The Compliance Party must cause or make reasonable endeavour to cause the network to be placed in orbit at [152° or 164°] East longitude within 5 years of the commencement of this Deed.
3.12 Subject to subclauses 13 and 14, the Guarantor guarantees the performance by the Compliance Party of any obligations which, expressly or by implication under this Deed, the Compliance Party is required to discharge under this Deed or the Compliance Party is required to cause to be discharged by a Satellite Owner or a Satellite Operator.
3.13 If the ACA considers that the Compliance Party has failed to discharge, or has failed to cause a Satellite Owner or a Satellite Operator to discharge, any obligation which the ACA reasonably considers to be required of the Compliance Party or the Satellite Owner or the Satellite Operator under this Deed, the ACA will notify the Compliance Party and the Guarantor (‘the Notified Parties’) of the alleged failure and specify a period of not less than 21 days (‘the Cure Period’) in which the alleged failure is to be remedied and/or for the Notified Parties to make representations to the ACA on the alleged failure (which the ACA shall consider in good faith).
3.14 If the alleged failure is not remedied or a satisfactory explanation is not received from any Notified Party within
the Cure Period, the ACA may make demand on the Guarantor under subclause 12 by providing written notice to the Guarantor of the obligations to be performed by the Compliance Party or the Satellite Owner or the Satellite Operator. Within 14 days of receipt of such notice the Guarantor will undertake, or procure the undertaking of, the Compliance Party’s obligations or the Satellite Owner’s obligations or the Satellite Operator’s obligations.
NOTIFICATION OF NETWORK BY THE ACA
4.3 If the Compliance Party and the Guarantor have not breached their obligations under this Deed, the ACA must provide satellite notification and coordination services to be agreed between the ACA and the Compliance Party.
4.4 The satellite notification and coordination services to be provided under subclause 1 may include participation in coordination meetings both within and outside Australia, and will include:
(d) forwarding to the ITU within the time limits set down in the Radio Regulations, correct and substantially error free correspondence from the Compliance Party; and
(e) the checking of all coordination and notification correspondence from the Compliance Party for compliance with the Radio Regulations and Australian Government policy; and
(f) return of non-compliant correspondence to the Compliance Party for rectification within agreed timelines.
COMMENCEMENT OF OPERATION
5.1 The Compliance Party:
(a) may cause the network to be operated to establish whether the Compliance Party will, at all times, be able to comply with any directions referred to in subclause 3; and
(b) must not otherwise cause the network or any part of the network to be operated without the ACA’s prior written consent or until the network is permanently recorded in the Master Register; and
(c) for the avoidance of doubt, the Compliance Party must not cause the network to be operated to provide a service without the written consent of the ACA or until the network is permanently recorded in the Master Register.
5.2 The ACA may not unreasonably withhold its consent.
5.5 For subclause 2, it is reasonable for the ACA to withhold its consent if the Compliance Party does not demonstrate that it will, at all times, be able to comply with any directions in relation to the operation of the network that the ACA may reasonably be expected to give to the Compliance Party for the purposes of containing or eliminating harmful interference.
5.6 For subclause 2, it is unreasonable for the ACA to withhold its consent if it does not, where practicable, consult with the Compliance Party before withholding that consent.
5.7 The directions referred to in subclause 3 include directions to immediately remove harmful interference, possibly by the cessation of transmission, and directions in relation to:
(a) the variation of transponder RF power output;
(b) occupied bandwidth;
(c) assigned frequency;
(d) station keeping;
(e) beam pointing accuracy;
(f) footprint contours.
5.8 The ACA will act in good faith to assist permanent recording of the network in the Master Register.
5.9 The ACA, the Compliance Party, and the Guarantor agree that operation of the network may result from the operation
of more than one satellite at the same time or at different times during the operational life of the network.
5.10 Nothing in subclause 7 shall be taken to relieve the Compliance Party, the Guarantor, a Satellite Operator, or a Satellite Owner of any obligations they may have under the Space Activities Act 1998.
INTERFERENCE MANAGEMENT
6.1 The Compliance Party must take all reasonable steps to ensure that the network does not cause harmful interference.
6.2 If a person complains to the Compliance Party, or the Compliance Party otherwise believes, that transmissions from the network have caused, are causing, or are likely to cause, harmful interference, the Compliance Party must, as soon as practicable, provide the ACA with:
(a) a copy of the complaint, if any; and
(b) an engineering assessment of the nature and extent of that harmful interference.
6.3 If a person complains to the ACA that transmissions from the network have caused, are causing, or are likely to cause, harmful interference the ACA must, as soon as practicable, provide the Compliance Party with a copy of the complaint.
6.4 For the purposes of this clause, a person who makes a complaint in accordance with subclause 2 or subclause 3, whether a legal person or a natural person, is the Complainant.
6.5 The Compliance Party must use its best endeavours to appropriately resolve complaints, or the occurrence of harmful interference, and the ACA acknowledges that in some cases the ACA may agree that no action at all need be taken by the Compliance Party to resolve the complaint.
6.6 In seeking to so resolve or eliminate harmful interference, the Compliance Party must follow the same policies and coordination procedures as the ACA might reasonably be expected to apply in such circumstances.
6.7 The Compliance Party must advise the ACA if it cannot resolve a complaint of harmful interference.
6.8 Where subclause 7 applies and Part 4.3 of the Act does not apply, the ACA may:
(a) by notice in writing given to the Compliance Party, appoint a Conciliator familiar with radiocommunications or satellite coordination procedures, for the purposes of the complaint; and
(b) invite the Complainant to take part in a conciliation to be conducted by the Conciliator.
6.9 A Conciliator appointed under paragraph 8(a) may decide not to inquire into a complaint of harmful interference if the Conciliator believes that:
(d) the matter is trivial;
(e) the complaint is frivolous or vexatious or was not made in good faith; or
(f) the interests of the Complainant have not been, are not being or are not likely to be affected by the harmful interference.
6.10 A Conciliator appointed under paragraph 8(a) must not inquire into a complaint of harmful interference if the Complainant:
(c) does not wish the inquiry to be made or continued (as the case may be);
(d) does not enter into an agreement with the Conciliator for the conduct of the conciliation that is substantially in the same terms as:
(iii) the agreement in Schedule 2; or
(iv) such other conciliation agreement as may, from time to time, be agreed between the
Conciliator, the Compliance Party and the Complainant;
(d) does not agree to pay one-half of the Conciliator’s fees and any other costs of the conciliation reasonably incurred by the Conciliator.
6.11 Unless subclause 9 or subclause 10 apply, the ACA must require a Conciliator appointed under paragraph 8(a) to:
(a) inquire into the alleged harmful interference; and
(b) try to effect settlement of the matter; and
(c) if the Conciliator cannot effect a settlement – as soon as practicable, give to the ACA a written report setting out:
(i) the Conciliator’s recommendations for resolving the matter; and
(ii) the reasons for those recommendations.
6.12 In carrying out functions under subclause 11 the Conciliator:
(a) may obtain information from such persons, and make such inquiries, about the subject matter of the conciliation as he or she thinks fit; and
(b) must not make a recommendation to the ACA that is adverse to the Compliance Party unless it has given the Compliance Party an opportunity to make submissions in relation to the matter to which the recommendation relates.
6.13 The Conciliator may give the Compliance Party a written direction to attend, at a time and place specified in the notice, a conference to be presided over by the Conciliator for the purposes of conducting an inquiry into, or trying to effect a settlement of, a complaint of harmful interference.
6.14 The Compliance Party must not, without reasonable excuse:
(a) fail to attend as required by the direction;
(b) fail to attend and report from day-to-day unless excused or released from further attendance, by the Conciliator;
(c) fail to cooperate in the conciliation process; or
(d) withhold information from the Conciliator or the Complainant that is necessary for, or reasonably incidental to, settlement of the complaint of harmful interference.
6.15 For the purposes of subclause 14, it would be unreasonable for the Compliance Party to refuse to provide confidential information if the party to whom the information would be given is prepared to enter into a deed of confidentiality in relation to that information with the Compliance Party in the form of the agreement at Schedule
6.16 The Compliance Party must enter into an agreement with the Conciliator for the conduct of the conciliation that is substantially in the same terms as:
(a) the agreement in Schedule 2; or
(b) such other conciliation agreement as may, from time to time, be agreed between the Conciliator, the Compliance Party and the Complainant.
6.17 The Compliance Party must pay one-half of the Conciliator’s fees and any other costs of the conciliation reasonably incurred by the Conciliator.
6.18 For the avoidance of doubt, the Compliance Party is not required by this Deed to pay the costs incurred by the Complainant in relation to the conciliation.
6.19 If the Conciliator does not resolve a complaint of harmful interference, and the ACA is reasonably satisfied that it is necessary to do so in order to prevent harmful interference, or the risk of harmful interference, the ACA may issue a written direction to the Compliance Party.
6.20 Where subclause 19 applies, the ACA may give a direction to the Compliance Party:
(a) to take action, or to refrain from taking action, in relation to the operation of the network; or
(b) to do, or to refrain from doing, any other thing; within a specified period.
6.21 in issuing a direction the ACA must have regard to the Conciliator’s report, if any.
6.22 If the ACA issues a direction to the Compliance Party, it must give the Compliance Party notice of its reasons for that direction.
6.23 The ACA and the Compliance Party acknowledge that certain information relating to the network, which may be requested from the Compliance Party, is or may be governed by the USA Arms Export Control Act, the International Traffic Arms Regulation and/or the USA Export Administration Act (‘the Export Control Laws’). To the extent such information is governed by the Export Control Laws, a license issued pursuant to the Export Control Laws may be required prior to the disclosure of the information and the Compliance Party agrees to use its reasonable best efforts to obtain or procure an appropriate licence.
6.24 Nothing in subclause 23 will relieve the Compliance Party of its obligation to take all reasonable steps to ensure that the network does not cause harmful interference.
6.25 If the Export Control Laws allow certain information to be provided to the ACA but restrict further dissemination of the information, the ACA agrees, except as otherwise required by Australian law, not to disseminate the information other than:
(a) as is expressly permitted by the Export Control Laws; or
(b) as may be specified by the Compliance Party in a notice to the ACA.
6.26 The Compliance Party acknowledges and agrees that nothing in subclause 25 should be taken to limit the operation of Australian law.
6.27 The ACA and the Compliance Party agree that following any amendment to, or substitution, consolidation or re-enactment of, the Export Control Laws, the parties will as soon as practicable meet and in good faith discuss and use best efforts to agree on any amendments to this Deed which are required or desirable.
COMPLIANCE WITH DIRECTIONS AND RADIO REGULATIONS
7.1 The Compliance Party must not knowingly or recklessly contravene:
(a) a direction issued to the Compliance Party by the ACA under this Deed; or
(b) a direction issued to the Compliance Party by the ACA in accordance with section 212 of the Act.
7.2 The ACA and the Compliance Party must comply with the provisions of the Radio Regulations.
CHARGES AND GST
8.1 The Compliance Party acknowledges that the ACA will provide it with notification and coordination services on a commercial basis in accordance with Section 8 of the Australian Communications Authority Act 1997.
8.2 The Compliance Party and the ACA will later, and from time to time, agree on the terms and conditions, including as to
fees, on which the notification and coordination services referred to in subclause 1 will be provided by the ACA.
8.3 The Compliance Party acknowledges that it will, in addition to the fees and other consideration, pay to the ACA the amount of all Goods and Services Tax chargeable on any taxable supply made by the ACA to the Compliance Party under this Deed.
8.4 The ACA will provide the Compliance Party with all necessary tax invoices to enable the Compliance Party to claim any input tax credits in relation to the Goods and Services Tax paid.
8.5 The Compliance Party must pay all ITU cost recovery charges for the production of Special Sections for the network within five months of the issue to it of an invoice by the Finance Department of the ITU.
ACA NOT LIABLE FOR LOSSES
9.1 This clause survives the expiration or termination of this Deed.
9.2 The Compliance Party indemnifies, and must keep indemnified, the ACA from and against all loss (including legal costs and expenses on a solicitor/own client basis) or liability incurred or suffered by the ACA arising from:
(c) any negligent, wilful or unlawful act or omission by the Compliance Party, its officers, employees or agents, in connection with this Deed; or
(d) any breach by the Compliance Party of its obligations or warranties under this Deed; or
(e) the compliance by the Compliance Party with a properly issued direction.
9.3. The Compliance Party’s liability to indemnify the ACA under subclause 2 will be reduced proportionately to the extent
that any negligent act or omission of the ACA contributed to that loss or liability.
9.4 The Compliance Party and the Guarantor agree and acknowledge that the ACA will not be liable to them for any loss or liability that they directly or indirectly incur as a result of the Compliance Party complying with a direction properly issued to the Compliance Party by the ACA under this Deed, by reason only that the ACA issued that direction to the Compliance Party.
MEETINGS AND CORRESPONDENCE
10.1 This clause applies to specified correspondence and specified meetings about the network for the purposes of:
(a) effecting coordination with or obtaining the agreement of other administrations in accordance with the procedures established by Appendix S30 and Appendix S30A of the Radio Regulations;
(b) ensuring that the network does not cause harmful interference in accordance with the procedures establish by clause 6, Part 4.3 of the Act or Article S15 of the Radio Regulations.
10.2 The ACA may attend any specified meeting relating to the network.
10.3 If requested in writing by the ACA, the Satellite Operator must, at its own expense, give the ACA copies of:
(a) all records held by the Satellite Operator of specified meetings about the network; and/or
(b) all specified correspondence held by the Satellite Operator about the network.
10.4 The Satellite Operator may request, in writing, that an ACA officer attend a specified meeting about the network.
10.5 The ACA may, in its absolute discretion, agree to one of its officers attending such a specified meeting.
10.6 The Satellite Operator must pay all costs incurred by the ACA in complying with a request under subclause 4, including travel and accommodation expenses which will be worked out in accordance with the relevant provisions of the ACA’s Certified Agreement made under the Workplace Relations Act 1996 as in force from time to time.
RADIOCOMMUNICATIONS LICENCES
11.1 The Compliance Party acknowledges that the ACA can only issue, renew, vary, suspend or cancel radiocommunications licences in accordance with Chapter 3 of the Act.
11.2 The Compliance Party and the Guarantor acknowledge that other radiocommunication services operate in the 17.3-18.1 GHz frequency range in Australia.
11.3 The Compliance Party and the Guarantor acknowledge that:
(a) the ACA currently intends that use of the frequency ranges specified in subclause 2 by the network will be on a shared basis with other radiocommunication services in accordance with relevant ACA licensing policies and frequency assignment guidelines; and
(b) the policies of the ACA may change from time to time.
TERMINATION OF AGREEMENT AND SUPPRESSION OF NOTIFICATION
12.1 This subclause and subclauses 12.2, 12.3 and 12.8 apply if the ACA, at any time after the date on which the network comes into operation:
(a) reasonably considers that the Compliance Party has breached subclause 3.1, 3.2, 3.5, 3.7, 3.8, 3.10, 3.11, 5.1, 6.1, 6.2, 6.5, 6.6, 6.7, 6.14, 6.16, 6.17, 7.1, 7.2, 8.3, 8.5, 10.3 or 10.6; or
(b) reasonably considers that the Compliance Party is, for any reason, not likely to be able to comply with its obligations under this Deed with respect to the causing of harmful interference; or
(c) reasonably considers that the Guarantor has breached subclause 3.14.
12.2 Where subclause 1 applies, the ACA may by notice in writing to the Compliance Party, require the Compliance Party to remedy the relevant breach or default within 30 days from the date that the notice is sent to the Compliance Party.
12.3 Where subclause 2 applies, if the breach or default is not remedied to the reasonable satisfaction of the ACA within 30 days from the date that the notice is sent to the Compliance Party, the ACA may by notice in writing to the Compliance Party terminate this Deed.
12.4 Where subclause 3 applies, any notice of termination made in writing by the ACA will take effect 30 days from the date that the notice is sent to the Compliance Party.
12.5 The Compliance Party may by notice in writing to the ACA, terminate this Deed:
(e) because the ACA has entered into a Deed of Agreement with another person for the coordination and radio interference management of the network;
(f) because the network has reached the end of its operational life;
(g) because it has abandoned the network; or
(h) for convenience.
12.6 Where subclause 5 applies, any notice of termination made in writing by the Compliance Party will take effect 60 days from the date that the notice is sent to the ACA.
12.7 For the purposes of subclause 5, a notice from the Compliance Party may be considered by the ACA to be a notice from any or all of the Compliance Party, a Satellite Owner, a Satellite Operator and/or the Guarantor.
12.8 Where subclause 3 or subclause 5 applies, the Compliance Party and the Guarantor acknowledge that the ACA may:
(a) suppress the ITU notification of the network; or
(b) enter into a Deed of Agreement with another person for the coordination and radio interference management of the network.
12.9 For the avoidance of doubt, the ACA must not enter into a Deed of Agreement with another person for the coordination and radio interference management of the network unless:
(a) subclause 3 or subclause 5 apply; or
(b) the Compliance Party has asked the ACA to enter into a Deed of Agreement with another person.
REMEDIES CUMULATIVE
13.1 The rights and remedies provided under this Deed are cumulative and not exclusive of any rights or remedies provided by law or any other such right or remedy.
13.2 Subject to the other provisions of this Deed, the rights and obligations of the ACA, the Compliance Party, and the Guarantor under this Deed are in addition to and not in derogation of any other right or obligation between the parties under any other deed or agreement or contract to which they are
parties.
13.3 The Compliance Party, the Guarantor and the ACA acknowledge that any party may take legal proceedings against any other party or third parties (including a Satellite Operator or Satellite Owner) if there is any actual, threatened, or suspected breach of this Deed, including proceedings for an injunction to restrain such breach.
WAIVER
14.1 No waiver by the ACA, the Compliance Party, or the Guarantor of a breach of any obligation or provision contained or implied in this Deed will operate as a waiver of another breach of the same or similar type, or of any other obligation or provision contained or implied in this Deed.
14.2 None of the provisions of this Deed shall be taken either at law or in equity to have been varied, waived, discharged or released by the ACA, the Compliance Party, or the Guarantor unless by the express consent in writing of the ACA, the Compliance Party, or the Guarantor.
VARIATION AND AMENDMENTS
15.1 No term or provision of this Deed may be amended or varied unless such amendment or variation is reduced to writing and executed by the ACA, the Guarantor, and the Compliance Party in the same manner as this instrument.
APPLICABLE LAW
16.1 Subject to subclause 2, this Deed shall be governed and construed in all respects in accordance with the law of the Australian Capital Territory as in force from time to time and the parties agree, subject to the jurisdiction of the High Court of Australia, that the Courts of that Territory shall have exclusive jurisdiction to entertain any action in respect of, or arising out of, this Deed.
16.2 The Guarantor’s submission to the jurisdiction of the Courts of the Australian Capital Territory is hereby limited to, and is only to be in respect of, any demand or claim on, or other matter relating to, the guarantee provided by the Guarantor under subclause 3.11 of this Deed.
NOTICES
17.1 Any notice, request or other communication to be given or served under this Deed must be in writing and dealt with as follows:
(a) if given by the Compliance Party to the ACA - addressed and forwarded to the ACA, for the attention of the person indicated for this purpose in Schedule 3, and at the address indicated in Schedule 3, or as otherwise notified in writing by the ACA;
(b) if given by the ACA to the Compliance Party - forwarded to the Compliance Party, for the attention of the person indicated for this purpose in Schedule 3, at the address indicated in Schedule 3, or as otherwise notified by the Compliance Party in writing;
(c) if given by the ACA to the Guarantor - addressed and forwarded to the Guarantor, for the attention of the person indicated for this purpose in Schedule 3, and at the address indicated in Schedule 3, or as otherwise notified in writing by the Guarantor.
17.2 Any such notice, request or other communication shall be delivered by hand or sent by pre-paid security post or facsimile, to the address of the party to which it is sent.
17.3 Any notice, request or other communication will be deemed to be received:
(a) if delivered personally, on the date of delivery;
(b) if sent by prepaid security post, on the day that the acknowledgment of delivery is completed by the recipient; and
(c) if sent by facsimile, on the business day next following the day of dispatch providing that the sender receives an “OK” code in respect of the transmission and is not notified by the recipient by close of business of the next business day following the day of dispatch that the transmission was illegible.
SCHEDULE 1
(Clause 6.15)
DEED OF CONFIDENTIALITY
BY THIS DEED DATED THE day of
BETWEEN Party A (‘the Recipient’)
AND Party B (‘the Provider’)
Recitals:
A. For the purposes of conducting a conciliation or otherwise gathering information or conducting investigations, the parties have agreed that they will comply with the terms of this Deed.
B. in the course of the above conduct, the Recipient may become aware of information, belonging to or in the possession of the Provider, that is confidential or that is personal information under the Privacy Act 1988 (Cth),
C. Improper use or disclosure of that information would severely damage the Provider’s ability to perform its commercial functions.
D. The Provider requires, and the Recipient agrees, that it is necessary to take all reasonable steps (including the execution of this Deed) to ensure that the Provider’s confidential information is kept confidential and that personal information is protected.
Recitals
The Parties acknowledge the truth and accuracy of the Recitals in every particular.
Interpretation
2.1 Definitions
In the interpretation of this Deed unless the contrary intention appears or the context otherwise requires or admits the following expressions will have the following meanings:
“Agreement” means the Deed Of Agreement between the Australian Communications Authority and [insert company name(s)] for the Coordination and Radio Interference Management of a Satellite Network, executed on [date of execution];
“confidential information” means information that:
(a) is by its nature confidential;
(b) is designated by the Provider as confidential; or
(c) the Recipient knows or ought to know is confidential; and includes:
(d) information comprised in or relating to any Intellectual Property Rights of the Provider;
(e) any information relating to the financial position of the Provider and in particular includes information relating to the assets or liabilities of the Provider and any other matter that does or may affect the financial position or reputation of the Provider;
(f) information relating to the internal management and structure of the Provider, and includes information relating to the personnel, policies and strategies of the Provider;
(g) any information relating to the policies, strategies, practices and procedures of the Provider;
(h) any information in the Provider’s possession relating to the Provider’s clients or suppliers, and like information; but does not include information which:
(i) is or becomes public knowledge other than by breach of this Deed or by any other unlawful means;
(j) is in the possession of the receiving party without restriction in relation to disclosure prior to the date of receipt from the disclosing party;
(k) has been independently developed or acquired by the receiving party; or
(l) is in respect of ideas, concepts, know-how, techniques or methodologies where disclosure is permitted under the Agreement;
“Intellectual Property Rights” includes all copyright and neighbouring rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs, confidential information (including trade secrets and know how) and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
“notice” means notice in writing given in accordance with this Deed;
“personal information” means, for the purposes of the Privacy Act 1988 (Cth) and this Deed, information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
“writing” means any mode of representing or reproducing words, figures, drawings or symbols in a visible form.
2.2 General
Unless the contrary intention appears:
(a) monetary references are references to Australia currency;
(b) the clause and subclause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
(c) a cross reference to a clause number is a reference to all its subclauses;
(d) words in the singular number include the plural and vice versa;
(e) words importing a gender include any other gender;
(f) a reference to a person includes a partnership and a body whether corporate or otherwise;
(g) a reference to a clause or subclause is a reference to a clause or subclause of this Deed; and
(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
Non Disclosure
3.6 The Recipient must not disclose the confidential information to any person without the prior written consent of the Provider.
3.7 The Provider may grant or withhold its consent in its absolute and unfettered discretion.
3.8 If the Provider grants its consent, it may impose conditions on that consent. In particular, but without limiting the generality of the preceding sentence, the Provider may require that the Recipient procure the execution of a deed in these terms by the person to whom the Recipient proposes to disclose the confidential information.
3.9 If the Provider grants consent subject to conditions, the Recipient must comply with those conditions.
3.10 The obligations of the Recipient under this Deed will not be taken to have been breached where the confidential information is legally required to be disclosed.
Restriction on Use
The Recipient will use the confidential information only for the purpose of its dealings with the Provider (whether directly or indirectly).
Privacy
5.1 The Recipient undertakes:
(c) not to access, use, modify, disclose or retain any personal information he or she has acquired through the performance of the Agreement, except for the purpose of performing the Agreement; and
(d) in addition to any direction as to particular measures specified by the Provider, take all reasonable measures to ensure that any personal information held in connection with the Agreement is protected against loss, unauthorised access, use, modification or disclosure and against other misuse.
5.2 The Recipient acknowledges that:
(c) any unauthorised and intentional access, destruction, alteration, addition or impediment to access or usefulness of personal information stored in any Provider computer is an offence under Part VIA of the Crimes Act 1914 which may attract a substantial penalty, including imprisonment; and
(d) the publication or communication by the Recipient of any fact or document which has come to his or her knowledge or into his or her possession or custody by virtue of the performance of the Agreement (other than to a person to whom the Recipient is authorised to publish or disclose the fact or document) may be an offence under sections 70 or 79 of the Crimes Act 1914, punishment for which may involve imprisonment.
Reserved.
Powers of the Provider
7.1 The Provider may demand (without needing to reduce the demand to writing) the delivery up to the Provider of all documents in the possession or control of the Recipient containing confidential information or personal information or which are the property of the Provider.
7.2 The Recipient must immediately comply with a demand under this clause 7.
7.3 If the Provider makes a demand under this clause 7, and the Recipient has placed or is aware that documents are beyond his or her possession or control, then the Recipient must provide full particulars of the whereabouts of the documents, and the identity of the person in whose custody or control they lie.
7.4 in this clause 7, “documents” includes any form of storage of information, whether visible to the eye or not.
7.5 The Recipient acknowledges that the Provider may take legal proceedings against the Recipient or third parties if there is any actual, threatened or suspected breach of this Deed, including proceedings for an injunction to restrain such breach.
Conflict of Interest
8.1 The Recipient warrants that before entering into this Deed it has disclosed to the Provider all the past, current and anticipated interests of the Recipient which may conflict with or restrict the Recipient in performing conciliation in relation to the Agreement fairly and independently.
8.2 If during the term of this Deed a conflict of interest arises, or appears likely to arise, the Recipient undertakes to notify the Provider immediately in writing and to take such steps as the Provider may reasonably require to resolve or otherwise deal with the conflict.
Reserved.
No Exclusion of Law or Equity
This Deed must not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the confidentiality of the confidential information.
Waiver
11.1 No waiver by the Provider of one breach of any obligation or provision of this Deed will operate as a waiver of another breach of the same or of any other obligation or provision of this Deed.
11.2 None of the provisions of this Deed will be taken either at law or in equity to have been varied waived discharged or released by the Provider unless by its express consent in writing.
Remedies Cumulative
12.1 The rights and remedies provided under this Deed are cumulative and not exclusive of any rights or remedies provided at law or in equity or by any other right or remedy.
12.2 Subject to the other covenants of this Deed, the rights and obligations of the parties pursuant to this Deed are in addition to and not in derogation of any other right or obligation between the parties under any other deed or agreement to which they are parties.
Variations and Amendments
No term or provision of this Deed may be amended or varied unless such amendment or variation is reduced to writing and signed by the parties to this Deed in the same manner as this instrument.
Applicable Law
This Deed will be governed and construed in all respects in accordance with the law of the Australian Capital Territory in force from time to time and the Parties agree, subject to
the jurisdiction of the High Court of Australia, that the courts of that Territory shall have exclusive jurisdiction to entertain any action in respect of, or arising out of, this Deed.
EXECUTED by the parties as a Deed
SIGNED SEALED AND DELIVERED )for and on behalf of the Provider )
by............................ )
..........................{print full name of signatory} )
{signature of signatory}
{insert office of signatory} )
in the presence of: )
.............................{print name of witness} )
{signature of witness}
SIGNED SEALED AND DELIVERED)for and on behalf of the Recipient )
by............................ )
..........................{print full name of signatory} )
{signature of signatory}
{insert office of signatory} )
in the presence of: )
............................. )
..........................{print name of witness} )
{signature of witness}
SCHEDULE 2
(Clauses 6.10 and 6.16)
CONCILIATION AGREEMENT
APPOINTMENT OF CONCILIATOR
Reserved.
ROLE OF CONCILIATOR
The Conciliator will be neutral and impartial. The Conciliator will assist the parties to attempt to resolve the Dispute by helping them to:
* systematically isolate the issues in dispute;
* develop options for the resolution of these issues;
* explore the usefulness of these options; and
* meet their interests and needs.
The Conciliator may meet with the parties together or separately.
The Conciliator will not:
* give legal or other professional advice to any party; or
* impose a result on any party; or
* make decisions for any party.
The Conciliator will not accept an appointment in relation to any proceedings concerning the Dispute.
Neither party will take action to cause the Conciliator to breach Clause 5.
CONFLICTS OF INTEREST
The Conciliator must prior to the commencement of the conciliation disclose to the parties to the best of the Conciliator’s knowledge any prior dealings with any of the parties as well as any interest in the Dispute.
If in the course of the conciliation the Conciliator becomes aware of any circumstances that might reasonably be considered to affect the Conciliator’s capacity to act impartially, the Conciliator must immediately inform the parties of these circumstances. The parties will then decide whether the conciliation will continue with that Conciliator or with a new Conciliator appointed by the parties.
COOPERATION BY THE PARTIES
The parties must cooperate in good faith with the Conciliator and each other during the conciliation.
CONDUCT OF THE PRELIMINARY CONFERENCE
As part of the conciliation the Conciliator will schedule a preliminary conference at a time and venue convenient to the parties to establish a timetable for the conciliation.
The Conciliator, the parties and their representatives who are to attend the conciliation session must attend the preliminary conference.
AUTHORITY TO SETTLE AND REPRESENTATION AT THE CONCILIATION SESSION
The parties must attend the conciliation with authority to settle by any means or within any range that can reasonably be anticipated.
At the conciliation each party may have one or more other persons, including legally qualified persons, to assist and advise them.
COMMUNICATION BETWEEN THE CONCILIATOR AND THE PARTIES
Any information disclosed to a Conciliator in private is to be treated as confidential by the Conciliator unless the party making the disclosure states otherwise.
CONFIDENTIALITY OF THE CONCILIATION
The parties and the Conciliator will not disclose to anyone not involved in the conciliation any information or document given to them during the conciliation unless required by law to make such a disclosure.
The parties and the Conciliator agree that subject to Clauses 20 and 21, the following will be privileged and will not be disclosed in, or be the subject of a subpoena to give evidence or to produce documents, in any proceedings in respect of the Dispute:
16.1 Any settlement proposal whether made by a party or the Conciliator.
16.2 The willingness of a party to consider any such proposal.
16.3 Any statement made by a party or the Conciliator during the conciliation.
16.4 Any information made by a party or the Conciliator during the conciliation.
TERMINATION OF THE CONCILIATION
17. A party may terminate the conciliation at any time after consultation with the Conciliator.
The Conciliator may terminate the Conciliator’s involvement in the conciliation if, after consultation with the parties, the Conciliator feels unable to assist the parties to achieve resolution of the Dispute.
SETTLEMENT OF THE DISPUTE
If settlement is reached at the conciliation, the terms of the settlement must be written down and signed by the parties before they leave the conciliation.
ENFORCEMENT OF THE SETTLEMENT AGREEMENT
Any party may enforce the terms of the settlement agreement by judicial proceedings.
For the purposes of Clause 20, any party may call evidence of the settlement agreement including evidence from the Conciliator and any other person engaged in the conciliation.
EXCLUSION OF LIABILITY AND INDEMNITY
The Conciliator will not be liable to a party for any act or omission in the performance of the Conciliator’s obligations under this agreement unless the act or omission is fraudulent.
The parties together and separately indemnify the Conciliator against any claim for any act or omission in the performance of the Conciliator’s obligations under this agreement unless the act or omission is fraudulent.
THE COST OF THE CONCILIATION
The parties will each be liable to the Conciliator for one half of the Conciliator’s fees described in the Schedule under this agreement and all the other costs of the conciliation described in the Schedule, and will bear their own costs.
If the conciliation does not result in an agreement to resolve the Dispute, the costs of the conciliation will be costs in the cause, ie. costs of the conciliation (including those of the legal representatives to attend the conciliation) will be treated as part of the overall costs in any subsequent court proceedings which are generally payable by the losing party.
SCHEDULE
(Clause 24 of CONCILIATION AGREEMENT)
Conciliator’s fees and costs
SCHEDULE 3
(Clause 17.1)
ADDRESSES FOR SERVICE OF NOTICES
For paragraph 17.1(a) of the Deed, notices must be for the attention of:
The Manager
Space Systems Team
Radiofrequency Planning Group
For paragraph 17.1(a) of the Deed, the address for notices is:
The Australian Communications Authority
Purple Building
Benjamin Offices
Chan Street
Belconnen ACT 2617
Australia
For paragraph 17.1(b) of the Deed, notices must be for the attention of:
[Insert name or title of Compliance Party contact]
For paragraph 17.1(b) of the Deed, the address for notices is:
[Insert address for Compliance Party contact]
For paragraph 17.1(c) of the Deed, notices must be for the attention of:
[Insert name or title of Guarantor]
For paragraph 17.1(c) of the Deed, the address for notices is: