AWEFS System Access and Licence Agreement
Dated
AustralianEnergyMarket Operator Limited (AEMO)
and
[insert Research Body name] (Research Body)
Australian Energy Market Operator Ltd
Level 22, 530 Collins Street
MELBOURNE VIC 3000
TEL: 03 9609 8000
FAX: 03 9609 8080
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Details
General terms
1Interpretation
1.1Definitions
1.2References to certain general terms
1.3Next day
1.4Headings
1.5Recitals
2AEMO System access
2.1Access Fees
2.2Grant of access to the AEMO System
2.3AEMO IT Security Policy
2.4Authorised Officers of the Research Body
2.5Authorised Users
2.6Availability
2.7Security requirements
2.8Records created by AEMO
2.9Telecommunications and third party software
3ANEMOS Software and AWEFS Data use
3.1Terms of access
3.2Separate agreements
4Access to AWEFS Data
4.1AWEFS Data available through the AWEFS System
4.2Request for access
4.3Amending the list of Beneficiaries
5Invoicing and payment
5.1Payment of fees
5.2Taxes
5.3Evidence of payment
5.4GST
6Intellectual Property
6.1Reservation of rights
6.2Infringement of third party rights
6.3Infringement Claims
6.4Legal Services Directions
6.5Association with AEMO
7Confidentiality
7.1Recipient to maintain confidence
7.2Pre-disclosure obligations
7.3Recipient’s responsibility for Representatives’ conduct
7.4Excluded Information
7.5Confidential Information not in public domain
7.6Return, destruction or deletion of Confidential Information
8Injunctive relief
9No reliance
9.1Acknowledgment
9.2No representations or warranties given
9.3Research Body to make its own assessment
10Liability
10.1AEMO’s Liability
10.2Indemnity
11Termination
11.1Termination for breach
11.2Termination for convenience
12Force majeure
12.1Force Majeure Event
12.2Procedure for Force Majeure Events
12.3Termination
13Disputes
13.1Negotiation
13.2Escalation
13.3Mediation
13.4Appointment of mediator
13.5Termination of mediation
13.6No proceedings
14National Electricity Law
15Notices and other communications
15.1Form - all communications
15.2Form - communications sent by email
15.3Form - communications via the AWEFS System
15.4Delivery
15.5When effective
15.6When taken to be received
15.7Receipt outside business hours
16Assignment and novation
17General
17.1Discretion in exercising rights
17.2Partial exercising of rights
17.3No liability for loss
17.4Benefit
17.5Approvals and consents
17.6Remedies cumulative
17.7Variation and waiver
17.8Indemnities
17.9Survival
17.10Counterparts
18Governing law
Schedule 1 - Confidential Information
Schedule 2 - Confidentiality Undertaking
Schedule 3 - Wind Farm Data Confidentiality Deed Poll
Schedule 4 - ANEMOS Software Sublicence terms
Schedule 5 - ECMWF Data Sublicence terms
Annexure to Schedule 5 – Form of DWD Data Licence
Schedule 6 - Access Fees and Term
Signing page
AWEFS System Access and Licence Agreement / 1Details
Parties / AEMO and Research BodyAEMO / Name / Australian Energy Market OperatorLimited
ABN / 94 072 010 327
Address / Level 22
530 Collins Street
MELBOURNE VIC 3000
Fax / 03 9609 8080
Email /
Attention / Group Manager Legal
AEMO Authorised Officer / Name of Authorised Officer / Tjaart Van Der Walt
Position held / Manager Operational Forecasting
Address / PO Box 2516
MANSFIELD QLD 4122
Email /
Telephone / 07 3347 3017
Fax / 07 3347 3200
Research Body / Name / [insert full name of Research Body]
[Please provide details for inclusion here]
ABN / [insert ABN]
Address / [insert]
Fax / [insert]
Email / [insert]
Attention / [insert]
Research Body Authorised Officer / Name of Authorised Officer / [insert]
[Please provide details for inclusion here]
Position held / [insert]
Address / [insert]
Email / [insert]
Telephone / [insert]
Fax / [insert]
Recitals / AAEMO, on behalf of the Commonwealth and utilising Commonwealth granted funding, has project managed delivery of:
(a)Wind energy forecasting software and systems (Australian Wind Energy ForecastingSystemorAWEFS);
(b)Confidential data provided by wind farms accessible via the AWEFS System (Wind Farm Data); and
(c)other data accessible via the AWEFS System, including data provided by the European Centre for Mid-Range Weather Forecasts (ECMWF).
BThis Agreement sets out the terms on which AEMO will make the AWEFS System and the data available to the Research Body.CThe Research Body requires, and will be granted access to the AWEFS System and to the data, on the terms of this Agreement.
DAccess to Wind Farm Data is subject to the terms of the Wind Farm Data Confidentiality Deed Poll contained inSchedule 3, which is entered into between the Research Body and the relevant wind farms directly.
Governing law / Australian Capital Territory
Commencement Date / The date on whichthe last party has signed this document.
AWEFS System Access and Licence Agreement / 1
General terms
1Interpretation
1.1Definitions
The following words have these meanings in this Agreement unless the contrary intention appears:
Access Fees means the fees described in Schedule 6 payable by the Research Body to AEMO for access to the AWEFS System and the AWEFS Data.
Aggregated Informationhas the meaning given in the Wind Farm Data Confidentiality Deed Poll.
Agreement means the Details, the General Terms and each of the Schedules, the completed NEMNet Application Form and any document incorporated into this Agreement by reference.
Amount of the Consideration means:
(a)the amount of any payment in connection with a supply; and
(b)in relation to non-monetary consideration in connection with a supply, the GST Exclusive Market Value of that consideration as reasonably determined by the Party making the supply.
ANEMOS Shell means the software of that name that is the central software provided to AEMOby the Vendor and to which AEMO grants access via the AEMO System.
ANEMOS Software means the Software procured under the ANEMOS Software Procurement Agreement that is licensed to the Research Body on the terms of this Agreement.
ANEMOS Software Procurement Agreement means the agreement of that name between AEMO (known then as National Electricity Market Management Company, orNEMMCO) and the Vendor, executed on or around 15 May 2007.
ANEMOS Software Sublicence has the meaning given in clause 3.1(a).
Approved Purposehas the meaning given in the Wind Farm Data Confidentiality Deed Poll.
ARMINESmeans the Association pour la Recherche at le Devéloppement des Méthodes et Processus Industriels, of Boulevard Saint-Michel, 60, Paris, 06 75272, France.
Australian Energy Market means any market in Australia established by or under the authority of a State, Territory or Commonwealth government for the purposes of supplying, receiving, trading, buying, selling, or managing energy.
Authorised Officer means a director or a secretary of a Party or any other person appointed by a Party to act as an authorised officer for the purposes of this Agreement.
Authorised User means a person authorised by the Research Body to access and use the AWEFS System and the AWEFS Data in accordance with this Agreement, and includes any person appointed by the Research Body as an Authorised Officer of the Research Body.Authorised Users must be employees or officers of the Research Body. Third Parties are not permitted to be Authorised Users.
AWEFS Data means any data or information accessed or used by the Research Body through or in connection with its use of the AWEFS System, including the Meteorological Data and the Wind Farm Data, and includes any additional data provided as contemplated by clause 4.
AWEFS System has the meaning given in Recital A.
Beneficiary has the meaning given in the Wind Farm Data Confidentiality Deed Poll.
Business Day means a day other than a Saturday, Sunday or public holiday in Canberra, Sydney, Melbourne or Brisbane.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Commencement Date means the date of this Agreementas specified in the Details.
Commonwealth means the Commonwealth of Australia including all its administrative departments but excluding any public or private body or agency being separate legal entities.
Confidential Information means all Information disclosed or otherwise made available by AEMO to the Research Body under or in connection with this Agreement, including:
(a)the information specified in Schedule 1;
(b)information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of AEMO or a Licensor;
(c)proprietary or confidential information of a third party to whom AEMO owes an obligation of confidentiality which, either orally or in writing, is designated or indicatedas being proprietary or confidential information; and
(d)trade secrets or information that is capable of protection at law as confidential information or is otherwise confidential in nature,
whether the information was:
(a)disclosed orally, in writing or in electronic or machine readable form;
(b)disclosed or created before, on or after the date of this Agreement; or
(c)disclosed by AEMO, by a Licensor, or by any other third party.
Corporations Act means the Corporations Act 2001 (Cth).
Details means the section at the beginning of this Agreementheaded “Details”.
Documentation means the documentation provided by AEMO in respect of the Software.
ECMWF means the European Centre for Mid-Range Weather Forecasts.
ECMWF Data means the data supplied by ECMWF and provided on the terms of the ECMWF Data Sublicence.
ECMWF Data Sublicencehas the meaning given in clause 3.1(c).
Excluded Information means Confidential Information that:
(a)is in or becomes part of the public domain otherwise than through a breach of this Agreementor other obligation of confidentiality owed to AEMO, or to a Licensor or other third party;
(b)the Research Body can show was already known to it at the time it was disclosed or otherwise made available by AEMO (unless such knowledge arose from disclosure of information in breach of an obligation owed to or by a third party), or was independently derived by the Research Body other than in breach of this Agreement; or
(c)the Research Body acquires from a third party entitled to disclose it.
Force Majeure Event means:
(a)natural disaster, governmental intervention, war, fire, flood, explosion, theft of material items, civil commotion, armed hostilities, act of terrorism, revolution;
(b)blockade, picket, embargo, strike, lock-out, sit-in, “work to rule” or any other industrial or trade dispute to the extent to which those things do not involve employees of the Party claiming relief;
(c)adverse weather or disease; or
(d)any event including any act or omission of any third party (other than a subcontractor) beyond its reasonable control that could not reasonably be planned for or avoided.
General Terms means the section at the beginning of this Agreementheaded “General Terms”.
Government Agency means any Australian governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
GST means the tax imposed by the GST Act and the related imposition Acts of the Commonwealth.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST Exclusive Market Value has the meaning given in the GST Act.
Information means all information regardless of its Material Form, relating to:
(a)the business, technology or other affairs of AEMO or a Licensor;or
(b)any systems, technology, ideas, concepts, know-how, techniques, designs, specifications, blueprints, tracings, diagrams, models, functions, capabilities and designs, (including computer software, manufacturing processes or other information embodied in drawings or specifications), intellectual property or any other information including information of the type described in Schedule1, owned or used by, or licensed to AEMO or a Related Body Corporate of AEMO.
Input Tax Credit has the meaning given in the GST Act.
Intellectual Property Rights includes all copyright (including rights in relation to phonograms and broadcasts), all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), designs, circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but does not include Moral Rights, the rights of performers or rights in relation to Confidential Information.
Licensor means the Vendor, each Wind Farm, each Meteorological Data Provider and any other person providing AWEFS Data.
Loss means any damage, loss, cost or expense (including legal fees on a full indemnity basis).
Material means the subject matter of any category of Intellectual Property Rights as well as documents, equipment, software (including source code and object code versions), goods, information and data stored by any means including all copies and extracts.
Material Form in relation to Information, includes any form (whether visible or not) of storage from which the Information can be reproduced and any form in which the Information is embodied or encoded.
Meteorological Data means AWEFS Data (other than Wind Farm Data) sourced from a Meteorological Data Provider.
Meteorological Data Provider means any entity providing Meteorological Data that may be made available by AEMO through the AWEFS System on the terms of this agreement.
Moral Rights includes the following rights of an author of copyright Material:
(a)the right of attribution of authorship;
(b)the right of integrity of authorship;
(c)the right not to have authorship falsely attributed.
National Electricity Rules means the statutory rules by that name made in accordance with the NEL.
National Electricity Law or NEL means the law set out in the National Electricity (South Australia) Act 1996 (SA) (Act) and incorporated by statute in each of the participating jurisdictions of the NEM as defined in section 5 of the Act.
NEM means the National Electricity Market as that term is defined in the NEL.
AEMO IT Security Policymeans AEMO’s Policy 020113 entitled “Market Management Systems Access Policy and Procedure”published from time to time by AEMO on its website at in respect of the security arrangements applicable to access to and use of AEMO’s computer systems. AEMO will provide a copy of the AEMO IT Security Policy to the Research Body and will notify the Research Body of any amendments to the policy.
AEMOSystem means the combination of AEMO’s equipment and software through and by means of which access is granted to the AWEFS System, the ANEMOS Software and the AWEFS Data.
Overspeed means Overspeed Gmbh and Co. KG, of Marie-Curie-Str. 1, D-26129 Oldenburg, Germany.
PC Model means the software provided by the Vendor intended to run on the Research Body’s hardware and that can be used as the base platform to interact with the ANEMOS Shell.
Party means the Research Body or AEMO, and unless a contrary intention appears, a reference to a Party includes all Representatives of the Party.
Permitted Purpose means the purpose of improving and providing better energy forecasts for Australian Energy Markets.
Related Body Corporate has the meaning given in the Corporations Act.
Representative of a Party includes an employee, officer, agent, auditor, adviser, partner, consultant, joint venturer, contractor or sub-contractor of the Party.
Schedule means a schedule to this Agreement.
Software means the PC Model and the ANEMOS Shell provided by the Vendor.
Sublicence has the meaning given in clause 3.1.
Source Code means the high level language computer programs that, when compiled, generate the object and executable program that constitutes the usable software product, and includes make files and other necessary instructions to the compiler and linker.
Taxes means taxes, levies, imposts, charges and duties (including stamp and transaction duties) imposed by any Government Agency, together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, the overall net income ofAEMO, but excluding GST.
Tax Invoice has the meaning given in the GST Act.
Term means the term specified in paragraph 2 of Schedule 6.
Third Party means any person that is not an officer or employee of the Research Body and includes contractors, secondees and research students.
Vendor means ARMINES and Overspeed.
Wind Farmhas the meaning given inthe Wind Farm Data Confidentiality Deed Poll.
Wind Farm Datahas the meaning given in the Wind Farm Data Confidentiality Deed Poll.
Wind Farm Data Confidentiality DeedPoll means the deed poll set out at Schedule 3.
Wind Farm Data Sublicence has the meaning given in clause 3.1(b).
1.2References to certain general terms
Unless the contrary intention appears, a reference in this Agreementto:
(a)(variations or replacement) a document (including this Agreement) includes any variation or replacement of it;
(b)(clauses and schedules) a clause or schedule is a reference to a clause in or schedule to this Agreement;
(c)(reference to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(d)(law) law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
(e)(singular includes plural) the singular includes the plural and vice versa;
(f)(person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
(g)(executors, administrators, successors) a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;
(h)(two or more persons) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually;
(i)(jointly and individually) an agreement, representation or warranty by two or more persons binds them jointly and each of them individually;
(j)(reference to a group of persons) a group of persons is a reference to any two or more of them jointly and to each of them individually;
(k)(calculation of time) a period of time dating from a given day or the day of an act or event, is to be calculated exclusive of that day;
(l)(reference to a day) a day is to be interpreted as the period of time commencing at midnight and ending 24hours later;
(m)(meaning not limited) the words “include”, “including”, “for example” or “such as”, when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
(n)(time of day) time is a reference to Australian Eastern Standard Time, which is Coordinated Universal Time plus 10 hours, without daylight saving; and
(o)(reference to any thing) any thing (including any amount) is a reference to the whole and each part of it.
1.3Next day
If an act under this Agreement to be done by a Party on or by a given day is done after 5.00pm on that day, it is taken to be done on the next day.