IP AUSTRALIA B2B ONLINE TRANSACTION SYSTEM AGREEMENT

Transcription

1 IP AUSTRALIA B2B ONLINE TRANSACTION SYSTEM AGREEMENT Name of Customer: (The Customer) A.C.N. A.B.N. IPA Customer Number Telephone Fax Physical Address Postcode Mail Address Postcode Name of the Customer s IPA-B2B System Administrator System Administrator Phone / Mobile System Administrator The Commonwealth of Australia acting through and represented by IP Australia (IP Australia) and the Customer, in consideration for use of IP Australia s IPA-B2B system, agree to comply with the attached IPA-B2B Online Transaction System Conditions of Use as amended from time to time in accordance with the Conditions of Use. The Customer acknowledges and agrees that the Direct Debit Request Service Agreement and the Customer s completed Direct Debit Request conditions precedent to this Online Transaction System Agreement and apply to and form part of this agreement. Commercial-in-Confidence Page 1

2 This agreement is dated / /20 Signed for and on behalf of IP Australia by its duly authorised officer: Name and title of authorised officer: Signature of IP Australia s Authorised Officer: In the presence of: Name and title of Witness: Signature of Witness: Signed for and on behalf of the Customer in accordance with The Corporations Act 2001, Section 125(5): Name and title of authorised officer: Signature of the Customer s Authorised Officer: In the Presence of: Name and title of Witness: Signature of Witness: Commercial-in-Confidence Page 2

3 Introduction and Scope 1. These Conditions of Use apply to specified types of communications and transactions (Messages) between the Customer and IP Australia via IP Australia s IPA- B2B system (IPA- B2B). 2. A detailed description of IPA-B2B and its associated processes is contained in the B2B Installation and Configuration Guide and B2B Operations Guide, available on the IP Australia website. This documentation forms part of these Conditions of Use and may be updated from time to time in accordance with clause 38 below. 3. The Customer agrees to use IPA-B2B wherever possible for all Messages (as defined in clause 1), except as may otherwise be agreed with IP Australia. 4. These Conditions of Use bind both the Customer and IP Australia. Implementation and use of IPA-B2B 5. Any software and material provided to the Customer by IP Australia as part of IPA-B2B must be used by the Customer only for the purposes of IPA-B2B and in accordance with these Conditions of Use and the terms of any licence accompanying the software or otherwise advised to the Customer. Customers may be required to install software updates from time to time as requested by IP Australia and within prescribed timeframes specified by IP Australia. 6. The Customer must provide all other facilities and equipment that it needs to access or use IPA-B2B, which without limitation will include suitable computing and communications equipment, relevant digital signature keys and certificates of a type accepted by IP Australia, and access to the Internet. The Customer must comply with the terms of any third party agreement relating to any such facility or equipment. 7. IP Australia will advise the Customer of hardware, software and minimum required standards for necessary items and provide such other information as may be reasonably necessary to assist the Customer in implementing its IPA-B2B access. IP Australia will advise the customer of potential issues that may arise relating to incompatibility due to system or software upgrades. 8. All Messages sent between the parties must comply with the IPA B2B Instructions provided as a separate document along with this IPA B2B agreement to the Customer by IP Australia. 9. Before implementing IPA-B2B into production* the Customer must carefully test and evaluate (both technically and operationally) all relevant aspects of IPA-B2B to ensure that it operates to the Customer s satisfaction and fully meets the Customer s requirements. The Customer must successfully achieve all test outcomes advised by IP Australia prior to production use of IPA- B2B. * When IPA-B2B system is built and is made available to be used by IPA B2B customers to transact with IP Australia in a non-test environment and the transaction has effect under the relevant IP Legislation (Patent, Trade Mark, Design, and Plant Breeder s Rights). 10. The Customer must establish, maintain and observe appropriate internal policies and procedures to ensure that its use of IPA-B2B is properly supervised, administered and controlled, including without limitation to matters in relation to security and user access. Commercial-in-Confidence Page 3

4 Electronic Transaction Documents and Signatures 11. IP Australia s IPA-B2B generated records of the time of lodgement / receipt or other matters are conclusive evidence of the time of lodgement / receipt or relevant matter in the absence of proof to the contrary. 12. The time of receipt of a Message by IP Australia is the time when the last data byte of a Message is received by the IP Australia Webserver. 13. The Customer consents to receiving Messages from IP Australia, including in response to any Message sent by the Customer to IP Australia using IPA-B2B. The Customer is deemed to have received a return Message from IP Australia within 2 days of the Customer sending its Message to IP Australia unless the Customer notifies IP Australia that it has not received any such return Message or notification. In all other cases, the time of receipt by the Customer of a Message sent by IP Australia using IPA-B2B is described at clause Where the Customer does not receive a return Message from IP Australia within the timeframe stated in clause 14, it is the Customer's responsibility to resubmit the Message to IP Australia via IP-B2B. IP Australia disclaims all and any liability arising from the Customer's failure to take such remedial action under this clause. 15. IP Australia s processing of Messages may result in part of the message, or the entire Message being rejected as invalid. IP Australia will inform the Customer, either electronically via IPA-B2B or in writing, that part of the message, or the entire Message has been rejected. In that case, if the Message or the part of it is resubmitted, then its receipt will be taken to be the time of receipt of the original Message under clause An electronic transaction document that has been electronically signed by a party using a method, digital signature key and authenticated via valid certificate complying with requirements set out in the IP Australia B2B Installation and Configuration Guide, available on the IP Australia website is deemed to be legally signed by the party. Operation of IPA-B2B 17. The Customer may only use IPA-B2B strictly in accordance with these Conditions of Use and all IPA B2B Instructions provided as a separate document along with this IPA B2B agreement to the Customer by IP Australia. 18. The Customer must ensure that all members of its personnel having access to IPA- B2B observe these Conditions of Use and are appropriately skilled and at all times adequately trained in respect of all relevant aspects of IPA-B2B. 19. IPA-B2B has been implemented in a technical environment which is designed to provide high availability and to be reasonably fault tolerant. The target availability is 24 hours per day, 7 days per week other than during defined maintenance windows advised to the Customer (or as advised via IP Australia s Website). However, the Customer acknowledges and agrees that its use of IPA-B2B is on an as is, as available basis only. IP Australia will use its best efforts to inform the Customer as soon as possible of any outage that might materially affect the Customer s normal use of IPA-B2B provided that IP Australia will not be liable for delay to transactions or disruption to the Customer s business or operations arising directly or indirectly from any such outage (whether or not the outage was notified to the Customer by IP Australia in a timely manner or at all). It is in the Customer s best interests to ensure that it has adequate contingency plans to protect the integrity of its business operations and ensure it can proceed despite any disruption or delay occurring in respect of IPA-B2B. 20. IP Australia may alter or, where there is reasonable cause, suspend IPA-B2B at any time. Where reasonable, IP Australia will give 30 days (or such shorter period as the specific circumstances may reasonably require) prior notice of such action. Commercial-in-Confidence Page 4

5 21. The Customer must promptly notify IP Australia if the Customer discovers or suspects any error or malfunction in IPA-B2B. 22. The Customer agrees to provide information and details relating to their operating environment on reasonable notice where this is reasonably necessary to identify, confirm, investigate and rectify any errors or difficulties arising in relation to IPA-B2B. Security 23. The Customer acknowledges a separate document along with this IPA B2B agreement has been received that details the security infrastructure that forms part of IPA-B2B. IP Australia will provide further information where it is reasonably required. Although IP Australia considers that these security precautions, when properly implemented and controlled by the Customer, are suitable given the nature of IPA-B2B, it cannot guarantee that IPA-B2B is secure and that it cannot be compromised. The Customer needs to form its own view on the adequacy of security in respect of IPA-B2B for its purposes and to take appropriate action to ensure the potential risks to the Customer are minimised in the event that unauthorised use or a breach of security of any kind occurs. 24. The Customer must take all reasonable action to protect and maintain the security of all access, authentication or security information and devices relating to IPA-B2B including without limitation: customer and user IDs, passwords and private keys. In the event that new user IDs, passwords or private keys are required to be issued, the Customer accepts that there may be delays in IPA-B2B system availability. 25. The Customer must take all reasonable action to prevent and detect unauthorised use of IPA- B2B originating within or via the Customer. 26. The Customer must immediately notify IP Australia if it knows, or suspects, that access or authentication security information has been compromised or any other kind of unauthorised use or security breach has occurred. Support 27. IP Australia support for technical and business matters relating to IPA-B2B transactions will be available between the hours of 9:00 am and 5:00 pm A.C.T. time, Monday to Friday, excluding ACT and national public holidays, and designated shut-down periods in accordance with IP Australia s holiday close-down provisions as specified on the IP Australia Website and Official Notices. In the event of a business continuity issue IP Australia will be available to provide assistance and business support during the above timeframes. 28. IP Australia provides IPA-B2B technical support to deal with technical and operational IPA- B2B issues only. Technical support applies only to IPA-B2B software developed by IP Australia and not any additional third party software that may be used by the Customer. Fees and payment 29. IP Australia s standard fees, (including any late fees, fees payable for international transactions, and any applicable discounts, for example for electronic lodgement) charges and penalties, as per fee schedules* corresponding to the IP legislation, apply to lodgements and other transactions made by the Customer via IPA-B2B. The Customer authorises IP Australia to direct debit its account for all fees, charges and penalties in accordance with the Direct Debit Request and Direct Debit Service Agreement. * Fee schedule listing: Commercial-in-Confidence Page 5

6 Patent fee schedule: Schedule 7 of the Patent Regulations 1991 Trade Mark fee schedule: Schedule 9 of the Trade Marks Regulations 1991 Design fee schedule: Schedule 4 of the Design Regulations 2004 Plant Breeder s Rights fee schedule: Plant Breeder s Rights Regulations 1994 Termination 30. The Customer may terminate its use of IPA-B2B at any time by giving IP Australia not less than 14 days prior written notice. 31. Unless otherwise agreed with IP Australia, if the Direct Debit Request Service Agreement referred to in clause 2 ceases or is terminated, the IPA-B2B Online Transaction System Agreement will also terminate. Any outstanding fees with relation to the use of IPA- B2B must be paid in full by the Customer to IP Australia. 32. If the Customer breaches this agreement, IP Australia may give it a notice setting out the details of the breach and require the Customer to rectify it within 14 days unless another timeframe is specified. If the Customer fails to rectify the breach within the specified period IP Australia may immediately terminate the Customer s use of IPA-B2B by providing it with written notice that this has occurred. 33. IP Australia may suspend the Customer s use of IPA-B2B, or the use of any of the Customer s users, if IP Australia considers it necessary to protect its interests or those of any other person while it investigates any technical or operational issue or breach of security or possible breach of this agreement or while any such breach is being rectified by the Customer. 34. IP Australia may also terminate the Customer s use of IPA-B2B for its own reasons and without fault on the part of the Customer providing that IP Australia gives the Customer not less than 60 days prior written notice. 35. If IP Australia terminates the Customer s use of IPA-B2B for any reason, IP Australia will process any Messages received before the date of termination. However IP Australia will not accept any Messages for processing after the date of termination. 36. The Customer must promptly comply with IP Australia's reasonable directions in relation to its use of software or other material provided for the purposes of the Customer accessing the IPA- B2B following cessation or termination of this agreement. Amendment 37. IP Australia may vary these Conditions of Use from time to time by giving the Customer not less than 7 days prior written notice. By continuing to use IPA-B2B, the Customer agrees to be bound by the terms current as at that time. Liability and indemnity 38. While IP Australia will use reasonable efforts to rectify any issues with IPA-B2B it is aware of, IPA-B2B is being made available "as is" and free of charge. To the extent permitted by law, IP Australia: a) makes no representations or warranties express or implied in relation to the operation or effectiveness of IPA-B2B including the use of any software or other material provided to the Customer by IP Australia as part of IPA-B2B; and Commercial-in-Confidence Page 6

7 b) excludes all liability to the Customer in respect of any loss or damage whatsoever that the Customer suffers, or may suffer, no matter how arising (including negligence), that is directly or indirectly related to its use of, or access, to IPA-B2B, including without limitation: i. the transmission of a Message to or from IP Australia; ii. the use of any software or other material provided to the Customer by IP Australia as part of IPA-B2B; and iii. any Messages not being received due to IPA-B2B being unavailable or otherwise not functioning properly. 39. The Customer indemnifies IP Australia against any loss, damage, cost, expense, claim, proceeding or liability of any kind that IP Australia (or IP Australia personnel) may incur to any third party arising out of the Customer s use (including unauthorised use) of or access to IPA- B2B including the use of any software or other material provided to the Customer by IP Australia, or the lawful exercise of IP Australia s rights under this agreement, except to the extent that any such third party loss, damage, cost, expense, claim, proceeding or liability arises solely from the authorised use of infringing third party software that has been provided to the Customer by IP Australia as part of IPA-B2B. Privacy 40. Insofar as the Customer submits Messages via IPA-B2B containing the personal information of clients, the Customer must obtain the consent of its client to the handling of the client s personal information in accordance with this clause 40. The personal information collected by IPA-B2B is collected for the purposes of the IP legislation, or Freedom of Information requests under the Freedom of Information Act Any personal information provided by the Customer will be used to process the Customer s request and for any other purposes for which the Customer has provided the relevant information. IP Australia may also contact the Customer via to request feedback on IP Australia s products and services. All personal information collected by IP Australia is protected by the Privacy Act 1988 (the Privacy Act) and handled in accordance with IP Australia's Privacy Policy, which contains relevant information, including: how to seek access to and correction of the personal information IP Australia holds; how to make a complaint about a breach of the Privacy Act and how IP Australia will deal with that complaint; and IP Australia's Privacy Contact Officer details. Personal information collected for purposes of IP legislation may be used and disclosed for the purposes of oppositions proceedings, including to other relevant parties. IP Australia may disclose any personal information collected to the World Intellectual Property Organization (WIPO) in Geneva, Switzerland for the purposes of any international Intellectual Property Rights (IP Rights) agreements, treaties or conventions. Once personal information is provided to WIPO, IP Australia has no control over its subsequent use and disclosure. IP Australia may publish any of the following information: names; addresses; employment details (if applicable); and Commercial-in-Confidence Page 7

8 details of the IP Right in the relevant Official Journal, Register, and IP Australia's online IP Rights databases. IP Australia may also make entire completed documents available in a downloadable format on our online IP Rights databases. Once information is available on the internet, IP Australia has no control over its subsequent use and disclosure. Information (including personal information) held in IP Australia's online IP Rights databases is available for purchase, subject to our terms and conditions. Consent and other matters By providing any information via the B2B System, the Customer must have obtained consent from the client to their personal information being: handled in accordance with this clause 40 and IP Australia s privacy policy; and disclosed to overseas recipients as provided in this clause 40. The Customer must ensure that the client is aware that when personal information is disclosed to overseas recipients, IP Australia will not be accountable for any subsequent use under the Privacy Act, nor is the client able to seek redress under that Act, for the actions of any overseas recipient. IP Australia will not otherwise use or disclose personal information without the consent of the client, unless authorised or required by or under law. The Customer may provide a post office box address or other address if the client does not want their residential address to be published. Notices 41. The Customer must appoint and notify IP Australia of the details of its nominated IPA-B2B Administrator, who the Customer has duly authorised to bind it in respect of all matters related to IPA-B2B and this agreement. If the details of the Customer s IPA-B2B Administrator change, the Customer must immediately notify IP Australia in writing. 42. IP Australia may send notices to the Customer by delivering them to the Customer s IPA- B2B Administrator at the , fax, postal or physical address nominated by the Customer. IP Australia may also give notice to the Customer of matters that apply to IPA-B2B users or groups of users generally by way of notices posted on the B2B page of IP Australia s website. 43. Notices to IP Australia must be delivered to IP Australia s address for notices as notified to the Customer, currently: a) sending written correspondence to: IP Australia, PO Box 200, WODEN ACT 2606; 44. Without prejudicing any other way of establishing that receipt and delivery of notices has occurred, receipt will be deemed to have occurred when: a) an has been received into the relevant electronic mail box, whether the has been read or not; b) a letter has been received via the standard postal service, whether the letter has been read or not; or c) IP Australia has posted a notice on the IP Australia website. 45. Electronic notices are deemed to be in writing for the purposes of this agreement. Commercial-in-Confidence Page 8

9 Applicable law This agreement is governed by the laws in force in the Australian Capital Territory and the parties submit to the non-exclusive jurisdiction of that Territory. Commercial-in-Confidence Page 9