19Archives Act

19 Archives Act  19.1 The Registrar agrees to comply with Part V and related provisions of the Archives Act 1983 as if it were a Commonwealth agency in respect of all records held by the Registrar in relation to the Registration Services.  19.2 The Registrar agrees to comply with any direction of the ACMA for the purpose of transferring Commonwealth records to the National Archives of Australia or providing the National Archives of Australia with full and free access to those records.  19.3 This clause 19 will continue to have effect after the termination of this Deed. 20. Compliance with Laws  20.1 The Registrar must in carrying out its obligations in connection with this Deed comply with the provisions of any relevant statutes, regulations, by‑laws and requirements of any Commonwealth, State, Territory or local authority, including: 1. the Crimes Act 1914; 2. the Criminal Code Act 1995; 3. the Racial Discrimination Act 1975; 4. the Sex Discrimination Act 1984; 5. the Disability Discrimination Act 1992; 6. the Electronic Transactions Act 1999; and 7. any other applicable legislation dealing with electronic transactions. 21. Compliance with Standards and Validation of Registrations  21.1 In carrying out its obligations under this Deed the Registrar must comply with the Australian Standard on Records Management AS4390 (including requirements to keep registration records safe, secure and filed in a logical order) and any other applicable Australian Standards notified to the Registrar by the ACMA.  21.2 The provision of the Registration Services must substantially comply with world’s best practice in the provision of comparable services.   22. Warranties  22.1 The Registrar warrants that:  (a) use by the Commonwealth or the ACMA (including its officers, employees, agents and subcontractors) of any material created and then provided by the Registrar to the ACMA under this Deed will not infringe the Intellectual Property rights or Moral Rights of any person; and  (b) the Registrar will perform its responsibilities under this Deed in a manner that does not infringe the Intellectual Property rights or Moral Rights of the Commonwealth or any third party.  22.2 The Registrar warrants and represents to the ACMA that:  (a) the Registrar’s execution, delivery and performance of this Deed will not constitute:  (i) a violation of any judgment, order or decree;  (ii) a default under any contract by which it or any of its assets are bound; or  (iii) an event that would, with notice or lapse of time, or both, constitute such a default;  (b) the Registrar is duly constituted or registered as a corporation under the Corporations Act 2001;  (c) the constituting documents of the Registrar empower the Registrar to enter into this Deed and to do all things which it can reasonably contemplate will be required by this Deed;  (d) all necessary corporate approvals have been obtained by the Registrar to render this Deed binding on, and legally enforceable against, the Registrar in accordance with its terms;  (e) it will immediately notify the ACMA of the occurrence of, or the pending or threatened occurrence of, an event of which it is aware that may cause or constitute a breach of any of the representations, warranties or covenants contained or made in connection with this Deed, including without limitation, any event that may result in a material adverse change in the business of the Registrar or may affect the financial viability of the Registrar’s business;  (f) it has disclosed to the ACMA prior to the execution of this Deed details of any litigation or proceeding whatsoever, actual or threatened, against the Registrar that may have an adverse effect on the ability of the Registrar to provide the Registration Services and these disclosures are true and correct as at execution; and  (g) any additional issues of the kind described in paragraph (f) that arise from time to time subsequent to the execution of this Deed will be disclosed by the Registrar to the ACMA at all relevant times throughout the term of this Deed. 23. Indemnity  23.1 The Registrar indemnifies at all times and holds harmless the Commonwealth and the ACMA (including its employees, agents or subcontractors) from and against any loss or liability (including legal costs) that may be or is incurred by the Commonwealth or the ACMA as a result of a claim made or threatened by a third party where that loss or liability was caused by:  (a) a breach of this Deed;  (b) a wilful, unlawful or negligent act or omission, in connection with this Deed by the Registrar, its employees, agents or subcontractors; or  (c) an item provided by the Registrar to cabling providers infringing the Intellectual Property rights of a third party.  23.2 Where the Commonwealth or the ACMA wishes to rely on this indemnity it must give the Registrar written notice as soon as practicable after suffering the loss or liability.  23.3 The Commonwealth indemnifies the Registrar from and against any loss or liability that may be or is incurred by the Registrar as a result of a direction given by the ACMA to the Registrar under clause 8.3.  23.4 Each indemnity in this Deed is a continuing indemnity, separate and independent from the other obligations of the Parties, and survives termination and repudiation of this Deed. 24. Moral Rights  24.1 If the Registrar, its officers, employees, agents or subcontractors, either jointly or individually, are authors of works made or to be made in the course of performing this Deed, which entitles them individually or jointly to certain Moral Rights under Part IX of the Copyright Act 1968, then the Registrar either individually or jointly is deemed to have given its consent in writing by this Deed to acts or omissions of the Commonwealth and the ACMA which would otherwise infringe a Moral Right of each of them individually or jointly.  The Registrar warrants and acknowledges that it is its sole responsibility to obtain all written consents if required under Part IX of the Copyright Act 1968, and relieves the Commonwealth and the ACMA of any liability, financial or otherwise.  24.2 For the purposes of this clause 24, “attributable acts” or “specified acts” of infringement in relation to Moral Rights under Part IX of the Copyright Act 1968 means the following classes or types of acts or omissions by or on behalf of the Commonwealth and the ACMA:  (a) those which would, but for this clause 24, infringe the author’s right of attribution of authorship;  (b) those which would, but for this clause 24, infringe the author’s right of integrity of authorship; but does not include those which would infringe the author’s Moral Right against false attribution.  24.3 The Registrar indemnifies the Commonwealth and the ACMA from and against any legal liability, claim, loss or damage (including legal costs) arising directly or indirectly through any claim of infringement of any Moral Rights by the Registrar, its officers, employees, agents, approved subcontractors and/or authorised personnel on account of the provision and performance of the Registration Services under this Deed. 25. Termination  25.1 Each of the following is a Default Event:  (a) the Registrar commits a breach of this Deed which is capable of being remedied but the breach continues for more than 14 days after the Registrar is given a notice by the ACMA requiring the breach to be remedied;  (b) the Registrar commits a breach of this Deed which cannot be remedied, which breach is, in the reasonable opinion of the ACMA, a serious breach of this Deed;  (c) a controller or a managing controller is appointed in respect of the whole or any part of the assets or undertakings of the Registrar;  (d) a summons or other process seeking orders which, if granted, would render the Registrar an externally‑administered body corporate or insolvent under administration, is filed and is not withdrawn within 14 days;  (e) a Conflict of Interest arises in the performance of the Registrar’s obligations under this Deed which, in the reasonable opinion of the ACMA, significantly affects the interests of the ACMA.  25.2 Without limiting clause 5 and without prejudice to any other right or remedy that the ACMA has, if any Default Event occurs the ACMA may terminate this Deed by giving 30 days’ written notice to the Registrar.  25.3 After a period of 6 months from the Commencement Date, a Party may terminate this Deed at any time by giving 3 months’ written notice to each of the other Parties. 26. Consequences of Termination  26.1 If the Registrar:  (a) receives a Termination Notice under clause 25.2 or 25.3; or  (b) issues a Termination Notice under clause 25.3; then, from the date it receives or issues the Notice, the Registrar must:  (c) not accept any further applications for registration from cabling providers;  (d) continue to provide the other Registration Services in accordance with this Deed until transfer under paragraph (e);  (e) co‑operate with the ACMA and any relevant third parties to achieve a seamless transfer of cabling provider registrations, the Database and the Registration Services to another accredited registrar of Registration Services;  (f) apart from the version of the Database transferred under paragraph (e) and unless the ACMA otherwise directs, return all copies of the Database (including derivatives of it) to the ACMA.  26.2 The ACMA may give written directions to the Registrar that are within the scope of the Rules and reasonably relate to clauses 26.1 (c) to (f) on any matter arising out of the termination of this Deed and the Registrar must comply with those directions.  26.3 If this Deed is terminated, the accrued rights of the Parties remain unaffected except to the extent that the Parties expressly agree otherwise. 27. Dispute Resolution  27.1 Subject to clause 27.4, before resorting to external dispute resolution mechanisms, the Parties shall attempt to settle by negotiation any dispute in relation to this Deed including by referring the matter to personnel who may have authority to intervene and direct some form of resolution.  27.2 If a dispute is not settled by the Parties within 15 Business Days of a Party first sending to the other Party written notice that they are in dispute, the dispute may be the subject of court proceedings or may be submitted to some alternative dispute resolution mechanism as may be agreed in writing between the Parties.  27.3 Notwithstanding the existence of a dispute, each Party shall continue to perform its obligations under this Deed.  27.4 A Party may commence court proceedings relating to any dispute arising from this Deed at any time where that Party seeks urgent interlocutory relief. 28. Variation of Deed  28.1 This Deed shall not be varied except by agreement in writing signed by the Parties to this Deed. 29. Assignment  29.1 A Party may not assign in whole or in part this Deed without the prior written consent of the other Parties. 30. Waiver  30.1 The failure of a Party to enforce any of its rights under this Deed shall in no way be interpreted as a waiver of its rights under this Deed. 31. Entire Agreement  31.1 This Deed constitutes the entire agreement between the Parties and supersedes all prior representations, statements, understandings, or agreements, whether verbal or in writing, relating to the subject matter of this Deed. 32. Subcontracting  32.1 The Registrar may not subcontract any part of the provision of the Registration Services apart from:  (a) providing communications and mailings to cabling providers of information relevant to their registration; and  (b) maintenance of the Database; without the prior written approval of the ACMA.  32.2 If the ACMA consents to work being performed by a subcontractor the Registrar:  (a) is in no way relieved from performing its obligations under this Deed;  (b) must ensure that the subcontractor is aware of the provisions of this Deed relevant to the work to be performed by the subcontractor; and  (c) must include a right of termination of the kind in clause 25.  32.3 The ACMA has the power to reasonably request withdrawal and replacement of any subcontractor. 33. Applicable Law and Jurisdiction  33.1 This Deed shall be subject to and construed in accordance with the laws in force in the Australian Capital Territory.  33.2 The parties to this Deed submit to the jurisdiction of the Supreme Court of the Australian Capital Territory and the Federal Court of Australia. 34. Conflict of Interest  34.1 The Registrar warrants that, to the best of its knowledge and after making diligent inquiries, at the date of execution of this Deed no Conflict of Interest exists or is likely to arise in the performance of its obligations under this Deed.  34.2 The Registrar must promptly notify the ACMA if a Conflict of Interest arises, or appears likely to arise, during the course of this Deed, and must take any action directed by the ACMA to avoid or minimise such conflict. 35. Survival of Clauses  35.1 If this Deed is terminated for any reason, those clauses that are necessary for the Parties to effectively exercise their rights, and discharge their obligations and responsibilities to each other so as to comply with clauses 11, 16, 17, 19, 22, 23, 26, 30, 33, 36 and 38 (and any other provision which expressly or by implication from its nature is intended to continue) will survive the termination of this Deed. 36. Insurance  36.1 The Registrar must, for so long as any obligations remain in connection with this Deed, effect and maintain the following insurance with an insurance company approved by the ACMA:  (a) a broad form public liability policy to the value of at least $20 million in respect of each claim;  (b) professional indemnity insurance to the value of at least $10 million in respect of each claim; and  (c) worker’s compensation insurance in accordance with applicable legislation.  36.2 On request, the Registrar must produce to the ACMA a certificate evidencing that the Registrar has effected and renewed a particular insurance policy, such as a certificate of currency. 37. Severability  37.1 Each provision of this Deed and each part of this Deed shall, unless the context otherwise necessarily requires it, be read and construed as a separate and severable provision or part.  37.2 If any provision or part thereof is void or otherwise unenforceable for any reason then that provision shall be read and construed as if the severed provision or part had never existed. 38. Liability  38.1 While the primary relationship under this Deed is between the Commonwealth as represented by the Chief Executive of the ACMA and the Registrar, it is acknowledged that the Registrar is controlled by the Controlling Entities that are Parties to this Deed, and the Controlling Entities agree that, despite any statement to the contrary in this Deed, they will each be jointly and severally liable with the Registrar for any breach of this Deed by the Registrar (including any breach of clauses 26.1(c) to (f) after the receipt or issue of a Termination Notice).  38.2 Without limiting clause 38.1, the Controlling Entities’ joint and several liability includes:  (a)  all costs associated with transferring the Database to another accredited registrar if this is necessary as a result of a breach of this Deed by the Registrar; and  (b)  losses, damages and expenses of the Commonwealth and the ACMA resulting from a breach of this Deed by the Registrar. 39. Notices  39.1 Any notice, advice, undertaking or agreement given under this Deed must be in writing.  39.2 The address for service of notice of each Party is as follows (unless otherwise advised by the relevant Party): Address of the ACMA: The Australian Communications and Media Authority Level 32, 360 Elizabeth Street Melbourne Victoria 3000 Address of Registrar: [insert address]   Address of Controlling Entities: [insert address]  39.3 A notice under this Deed is deemed to have been given:  (a) if it is delivered by hand or registered post – on the date upon which it is delivered and a receipt obtained;  (b) if it is delivered by ordinary post – 4 days after it is posted if not returned undelivered;  (c) if transmitted by facsimile transmission – when the sender receives confirmation of a successful transmission; and  (d) if transmitted by email – when the sender receives confirmation that the email has been opened.  39.4 If delivery of a notice occurs on a day on which business is not normally conducted in the place of receipt, or it is received later than 4.00 pm local time, it will be deemed to be given on the next Business Day. EXECUTED AS A DEED   - SIGNED SEALED AND DELIVERED for and on behalf of[insert name and ACN/ABN details]by authority of the Directors: - (Print name of Director) (Print name of Director/Secretary)   | <br> <br>(Signature of Director) | <br> <br>(Signature of Director/Secretary) | | --- | --- |         SIGNED SEALED AND DELIVERED ) for and on behalf of the ) COMMONWEALTH OF AUSTRALIA by )  ) [Insert name details] ) .....................................  [Insert position details]       Signature Australian Communications and Media Authority ABN 55 386 169 386 in the presence of: .................................................................  ................................... (Print witness name)  Signature of witness # Schedule 4 Cabling Registration Declaration Open/Restricted/Lift (Schedule 1, subclause 7(2)(b) and subclause 9(a) and (b))   I, [name]......................................................................................................, make the following declaration under subclause 9(a) of Schedule 1 to the Telecommunications Cabling Provider Rules 2014. Part 1 – Declaration I have read the explanatory guide to the Telecommunications Cabling Provider Rules 2014 (the Rules) and understand my rights and responsibilities under the Rules. I declare that I will comply with the Rules. I declare that I am aware of the relevant requirements for the specific type of cabling work (and any applicable specialised competencies) in relation to which I am applying for a registration as a registered cabling provider. Note The effect of the Rules is that open cabling work, restricted cabling work and lift cabling work may only be performed by a registered cabling provider or a person working under the supervision of a registered cabling provider.   I declare that the information provided by me in this application is true and correct in every detail and I understand that the information provided may be subject to audit. I also declare that the enclosed supporting documents are true copies of the original documents. Part 2 – Declaration of relevant cabling experience (For applicants whose training pathway requires 360 hours (Open Cabling Work) or 80 hours (Restricted Cabling Work) of cabling experience [delete Part 2 (Declaration of relevant cabling experience) if it is inapplicable]   I declare that I have attained the relevant cabling experience for the type of cabling work that I will perform, or supervise the performance of.   I acknowledge that relevant cabling experience means experience in the installation of cabling such as telecommunications, electrical, data, security alarm, fire alarm, or lift cables, and does not include: (i) the design or supervision of cabling work; or (ii) cabling work performed using pre‑terminated cabling, such as extension leads and patching.   Signed:  ............................................................................................. * Giving false or misleading information is a serious offence.     # Schedule 5 Accreditation Procedures for Cabling Provider Registrars (subsection 3.1(5) and subsection 6.3(1))