Commonwealth of Australia

Telecommunications Act 1997

Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 2001)

I, RICHARD KENNETH ROBERT ALSTON, Minister for Communications,  Information Technology and the Arts, make the following Declaration under subsection 63(5) of the Telecommunications Act 1997.

Dated 2 October 2001.

RICHARD ALSTON

Minister for Communications, Information Technology and the Arts

_________________________________________________________

1       Name of Declaration

This Declaration may be cited as the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 2001).

2       Commencement

This Declaration commences on gazettal.

3       Expiry

This Declaration expires on 30 June 2004.

4       Variation

The Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 is varied as set out in this Declaration.

 Note:  The Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 was published in the Gazette on 30 June 1997.  It has since been varied by the following Declarations:

• Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 1998) published in the Gazette on 4 March 1998.
• Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 1999) published in the Gazette on 24 February 1999.
• Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 2 of 1999) published in the Gazette on 7 December 1999.
• Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 2000) published in the Gazette on 26 July 2000.

5       Provision of information to CUSPs and aspirant CUSPs (new clause)

After clause 16, insert:

Provision of information to CUSPs and aspirant CUSPs

17. (1)  In this clause:

aspirant CUSP means a person that:

(a)      is considering applying to the ACA under section 13A of the Consumer Protection Act for approval as a competing universal service provider for a contestable area; and

(b)     has completed, signed and provided to the licensee and the ACA a deed poll of a kind specified in Schedule 3.

Consumer Protection Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999.

contestable area means an area determined under section 9G of the Consumer Protection Act as a universal service area in which a service obligation referred to in section 9 of that Act has been made contestable under section 11C of that Act.

CUSP means competing universal service provider.

disallowable instrument means an instrument that is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(2) Subject to this clause, the licensee must provide a CUSP or an aspirant CUSP, on request, with the following information for a contestable area which the CUSP or aspirant CUSP has specified in its deed poll:

(a)              such information specified in Schedule 2 as is specifically requested by the CUSP or aspirant CUSP in the format specified in that Schedule relating to the specified contestable area; and

(b)              any other information requested by the CUSP or aspirant CUSP relating to the contestable universal service area specified in the deed poll that:

(i) is in the possession or control of the licensee by virtue of the licensee being or having been since 1 July 2000 a universal service provider in the area comprising all or part of the specified contestable area; and

(ii)         in the case of an aspirant CUSP, would assist the aspirant CUSP to decide whether to enter the identified universal service contestable area as a CUSP; or

(iii)      in the case of a CUSP or aspirant CUSP, inform the CUSP or aspirant CUSP  about operating as a CUSP in that area.

Note:  Under subclause (5) a request under paragraph (2)(b) must be reasonable.

(3)  The licensee is not required to provide the information referred to in subclause (2) to a CUSP or an aspirant CUSP unless the CUSP or aspirant CUSP provides the licensee and the ACA with a completed and signed copy of:

(a)              any deed poll that is determined by the ACA by disallowable instrument from time to time; or

(b)              if no deed poll is determined by the ACA under paragraph (a), the deed poll in Schedule 3.

(4) The licensee must provide the CUSP or aspirant CUSP with the information referred to in paragraph (2)(a) free of charge and:

(a)              within 28 days after the licensee receives the request for the information; or

(b)              if the information is of a kind that the licensee has previously prepared to provide to another CUSP or aspirant CUSP, within 5 days after the licensee receives the request for the information; or

(c)              within such longer period as is agreed in writing between the licensee and the CUSP or aspirant CUSP.

Note: For the purposes on this subclause, under subclause (10) the licensee must keep a register of information prepared and provided to CUSPs and aspirant CUSPs pursuant to clause 17 and provide to the ACA a copy of such information as is provided.

(5) Providing the requirements of subclause (3) are met and the request under paragraph (2)(b) is reasonable, the licensee must comply with the request.

Note: In the event that the licensee disputed the reasonableness of a request, the reasonableness of the request would be a matter determined by the ACA under its functions under section 6 of the Australian Communications Authority Act 1997 of:

(a) regulating telecommunications in accordance with the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999; and

(b) advising and assisting the telecommunications industry.

(6) Where the licensee provides information under paragraph (2)(a), the licensee may:

(a)     require the information to be returned to it; or

(b)    provide for its automatic deactivation after 180 days of its receipt by the CUSP or aspirant CUSP,

unless:

(c)     otherwise agreed in writing between the licensee and the CUSP or aspirant CUSP; or

(d)    in the case of an aspirant CUSP, before the expiry of the 180 days the aspirant CUSP lodges an application to become a CUSP, in which case the aspirant CUSP may keep the information relevant to the universal service area for which it has sought approval as a CUSP until the ACA approves or refuses to approve the person as a CUSP; or

(e)     in the case of an aspirant CUSP, the ACA approves the person as a CUSP, in which case the CUSP may keep information relevant to the universal service area for which it has received approval until it ceases to be a CUSP.

(7) The licensee is not exempt from providing the same information to a CUSP or an aspirant CUSP even though the licensee may have provided it to the CUSP or aspirant CUSP previously and the information has been subsequently returned or deactivated.

(8) The licensee must provide the CUSP or aspirant CUSP with the information referred to in paragraph (2)(b) relating to the contestable universal service area specified in the deed poll on such terms and conditions as are:

(a)     agreed between the licensee and the CUSP or aspirant CUSP; or

(b)    failing agreement, determined by a mediator agreed by both parties; or

(c)     failing agreement on a mediator, by the ACA or by a mediator determined by the ACA.

(9) The licensee must:

(a)     maintain a register of information provided to CUSPs and aspirant CUSPs under this clause;

(b)    advise the ACA of information it provides to CUSPs and aspirant CUSPs; and

(c)     provide a copy of information provided to CUSPs or aspirant CUSPs to the ACA for the confidential use of the ACA, the Minister for Communications, Information Technology and the Arts and the Department of Communications, Information Technology and the Arts.

6 Format and description of information to be provided to aspirant CUSPs under paragraph 17(2)(a) (new Schedule 2)

After Schedule 1, insert:

Schedule 2 –Format and description of information to be provided to CUSPs and aspirant CUSPs under paragraph 17(2)(a)

Format for provision of information

(1)         Unless otherwise agreed in writing between the licensee and the CUSP or aspirant CUSP, the information referred to in this Schedule is to be provided in an electronic form.  The electronic copy is to be on computer disk in a format compatible with IBM Pentium II computers and Windows 98 and contained in Microsoft Word, Excel, Access read/write, MapInfo or other readily available types of  files, as appropriate. 

(2)         Information provided in electronic format must be able to be printed by the CUSP or aspirant CUSP.

(3)         The information should be able to be understood and used in its own right by any person with a reasonable understanding of the arrangements for universal service contestability and clause 17 of the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997.

(4)         The licensee should provide brief information on what it considers to be the accuracy and level of confidence which might reasonably be attributed to the information.

(5)         Where the information provided is based on sampling, the licensee must provide an explanation of the sampling process employed.

Information to be provided

(6)         Information listed in Column 3 of the following table is information that may be requested by a CUSP or an aspirant CUSP for the purposes of paragraph 17(2)(a) of this Declaration.

(7)         The information in relation to an item may be requested for the period specified in Column 4 of the following table.

(8)         All information provided must be the most current information reasonably available at the time of compilation.

(9)              For the purposes of items (5), (6), (7) and (8) of the table the information is to be aggregate information for each item in Column 3 for the period specified in Column 4 unless:

(a)     the ACA approves in writing a sampling methodology proposed by the licensee for deriving substitute sampled information; and

(b)    the licensee provides substitute sampled data in compliance with the approved sampling methodology.

Note:  The timeframes for the supply of information under subclause 17(4) continue to apply even if the licensee wishes to provide sampled information in fulfilment of its obligation and requires the ACA to approve its sampling methodology. 

(10)          It is intended that all information provided under different items of the table be internally consistent, particularly information in relation to services in operation, calls, traffic minutes and revenues.  Reasons for inconsistencies should be explained under item (3) of this Schedule.

Definitions

(11) In the following table:

originating means that the call or service concerned originates in the exchange service area concerned;

standard telephone service means a standard telephone service as defined in section 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 supplied:

(a)     by the licensee using the public switched telephone network; or

(b)    using another telecommunications network, where the service is supplied in fulfilment of the universal service obligation

terminating means that the call or service concerned originates outside the exchange service area concerned but terminates within the exchange service area concerned.

Note 1: The following abbreviations are used in the following table:

ESA  Exchange service area

STS  Standard telephone service

USA  Universal service area

USO  Universal service obligation

7 Deed poll for CUSPs and aspirant CUSPs requesting information relating to contestable universal service areas (new Schedule 3)

After Schedule 2, insert:

Schedule 3 – Deed poll for CUSPs and aspirant CUSPs requesting information relating to contestable universal service areas

The deed poll referred to in clause 17 is as follows:

CONFIDENTIALITY DEED poll of aspirant competing universal servIce provider or competing universal service provider in relation to access to information for a contestable universal service area

This Deed poll is made on the [date] day of [month] [year] by [the aspirant competing universal service provider or competing universal service provider] [ABN number] (the "Promisor").

RECITALS

A. By this Deed Poll the Promisor indicates to the Commonwealth and Telstra Corporation Limited (‘Telstra’) that it wishes to participate in the universal service obligation (USO) contestability pilots being conducted by the Commonwealth in two pilot areas in Victoria and South Australia and New South Wales and Queensland (‘the USO Contestability Pilots’).

B. As a result of making this Deed Poll the Promisor may be provided with or given access to certain information by Telstra to assist the Promisor to decide whether to enter as a Competing Universal Service Provider (CUSP) in the contestable universal service area it has specified in this Deed Poll and/or to inform itself about operating as a CUSP in that area if approved as a CUSP.

C. The Promisor acknowledges that information provided to it as contemplated by Recital B has been or will be provided at the request of the Promisor subject to the terms of this Deed Poll.

D. The Promisor acknowledges that the information provided to the Promisor will be provided by Telstra under the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 2001) of September 2001.

E. The Commonwealth and Telstra, in order to protect the confidential nature of the information referred to in Recitals B, C and D, require the Promisor to enter into this Deed Poll.

OPERATIVE PART

1. Definitions and Interpretation

1.1 Definitions

1.1.1 In this Deed Poll, unless the context requires otherwise:

ACA means the Australian Communications Authority.

Ancillary Documentation means copies, abstracts, reports, notes, summaries and any other records made in respect of the Confidential Information by the Promisor or an Authorised Person, stored or existing in any form or medium.

Authorised Person means a person who has been given access to Confidential Information in accordance with clause 3.1.3.

Business Day means a day on which Australian Government offices are open in the Australian Capital Territory.

Confidential Information means the following information, including, without limitation, information previously provided by Telstra to the Promisor, whether oral or written, or in CDROM, electronic, magnetic, microfiche or any other form or medium and whether or not stored in an electronic data-base or as a computer record:

(a) Telstra Information; and

(b) Intellectual Property Rights in the information referred to in paragraph (a).

that is provided by Telstra to the Promisor under the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 2001), but does not include information which the Promisor can demonstrate:

(c) was in the public domain prior to its disclosure to the Promisor or which, after such disclosure, enters the public domain through no act or omission of the Promisor;

(d) was made available to the Promisor on a non-confidential basis by Telstra;

(e) was made available to the Promisor on a non-confidential basis by a source other than Telstra, but only if the source was not in breach of any obligation of confidentiality owed to Telstra; or

(f) was or is, at any time, made available to the Promisor by Telstra on a non-confidential basis or derived by the Promisor but only if the derivation was not in breach of any obligation of confidentiality owed to Telstra, other than for the Purpose of Disclosure.

CUSP means a competing universal service provider.

Deed Poll means this Deed Poll, including the Recitals and Schedules.

Intellectual Property Rights means any rights in relation to any copyright, trade mark, trade secret, service mark, design, drawing, patent, know-how, secret process and any other similar proprietary rights and the rights to the registration of those rights, whether created, formed or arising before or after the date of this Deed Poll, in Australia or elsewhere.

Notice means any notice, direction, certification or similar communication given in relation to this Deed Poll.

Other Information means any information (not being Confidential Information) relating to the USO Contestability Pilots which is made available to the Promisor (whether directly or indirectly) by or on behalf of the Commonwealth or Telstra, and whether oral or written or electronic, magnetic, microfiche or in any other form or medium, and includes information of the kind referred to in paragraphs (c), (d), (e) and (f) of the definition of Confidential Information.

Purpose of Disclosure means the sole purpose of assisting the Promisor to decide whether to enter as a CUSP a contestable universal service area it has specified in Schedule 1 to this Deed Poll and/or to inform itself about operating as a CUSP in that area if approved as a CUSP.

Schedule means a schedule to this Deed Poll.

Telstra Information means the information provided by Telstra to the Promisor under the licence condition referred to in Recital D and pursuant to this Deed Poll.

USO Contestability Pilot has the meaning specified in Recital A.

1.2 Interpretation

1.2.1 In this Deed Poll, unless the context requires otherwise:

(a) words denoting the singular include the plural and vice versa, and words denoting one gender include all other genders.

(b) a reference to a person includes a reference to a government, an authority, a body corporate, a partnership, a trust and an unincorporated association, and includes a reference to the person’s executors, administrators, heirs, successors and assigns.

(c) clause headings are for convenience of reference only and have no effect on the construction or interpretation of the provisions hereof.

(d) an obligation, representation or warranty in favour of or for the benefit of two or more persons benefits them jointly and severally.

(e) where the Promisor comprises more than one person, a reference to the Promisor will be construed as a reference to each of those persons jointly and severally.

(f) a reference to Confidential Information or Ancillary Documentation includes a reference to any part of that Information or Documentation.

1.2.2 This Deed Poll applies in respect of Confidential Information that was provided to the Promisor prior to and in anticipation of this Deed Poll as well as Confidential Information which becomes known to the Promisor at the time of or subsequent to the Promisor’s execution of this Deed Poll.

2. Operation of Deed Poll

2.1 Effect and duration

2.1.1 This Deed Poll will be binding upon the Promisor from the date of execution by the Promisor.

2.1.2 This Deed Poll will continue in full force and effect, notwithstanding that the Promisor ceases to have any interest in becoming CUSP under the USO Contestability Pilots, the Commonwealth notifies the Promisor that the USO Contestability Pilots have been completed, terminated, suspended or delayed, the ACA notifies the Promisor that it will not be approved as a CUSP or the Promisor has its approval as a CUSP revoked.

2.1.3 Each obligation of the Promisor under this Deed Poll is an obligation separate and independent from each other obligation, and each is owed severally to and for the benefit of Telstra.

2.2 Provision of Confidential Information

The Promisor acknowledges that Telstra is obliged to provide, and will provide, the Confidential Information to the Promisor only if the Promisor has signed this Deed Poll.

3. Use of confidential information

3.1 Effect and duration

3.1.1 The Promisor must not use the Confidential Information, or create or use the Ancillary Documentation for a purpose other than the Purpose of Disclosure.

3.1.2 The Promisor acknowledges that if Telstra provides the Confidential Information to the Promisor by way of CD ROM or other electronic format, Telstra may encrypt or otherwise electronically protect the data.

3.1.3 The Promisor may disclose, or provide copies of, the Confidential Information to the employees, advisers, consultants, agents, financiers and advisers to financiers of the Promisor provided that:

(a) the Promisor provides an executed copy of the Deed Poll in Schedule 3 to the ACA for each individual who is proposed to have access to the Confidential Information; and

(b) the Promisor undertakes to disclose such information only to the extent necessary for the Purpose of Disclosure.

3.1.4 If the Confidential Information is contained in data that is encrypted or otherwise electronically protected, the Promisor may provide the encryption key, relevant password, or other means for accessing the data, to a person, only if the requirements of clause 3.1.3 are met in relation to the person.

3.1.5 Despite disclosure of Confidential Information under clause 3.1.3, the Promisor remains fully responsible for ensuring that the confidentiality of the Confidential Information is at all times preserved.

3.1.6 The Promisor acknowledges that Telstra is not required to provide the Confidential Information to any person who is not an Authorised Person.

3.1.7 The Promisor must ensure that no act or omission of an Authorised Person in relation to the Confidential Information, or Ancillary Documentation occurs which, if it were an act or omission of the Promisor, would constitute a breach of this Deed Poll or otherwise would cause loss or damage to the Commonwealth or Telstra

3.1.8 If requested by the Commonwealth, following a request in writing by Telstra, the Promisor must promptly provide detailed and complete particulars, including relevant documentation, of the arrangements the Promisor has in place with Authorised Persons in relation to Confidential Information and Ancillary Documentation.

3.1.9 The Promisor must not without the prior written consent of the Telstra, make enquiries of, or hold discussions with, the executive management, staff, agents, advisers, customers, suppliers, creditors, lessees or licensees of Telstra in connection with the Confidential Information or the Purpose of Disclosure.

3.1.10 The Promisor must at all times keep strictly confidential all Confidential Information and Ancillary Documentation and must not disclose, provide, transmit or publish the Confidential Information or Ancillary Documentation to, or permit access to it by, or discuss the contents of it with, any person other than an Authorised Person.

3.1.11 The Promisor acknowledges that the Commonwealth may, following a request in writing by Telstra, at any time require the Promisor to deny access to the Confidential Information or Ancillary Documentation to any Authorised Person and to retrieve from the Authorised Person the Confidential Information and Ancillary Documentation.

3.1.12 If an Authorised Person ceases to be a person described in clause 3.1.3 or it is no longer necessary for the person to have access to the Confidential Information for the Purpose of Disclosure, the Promisor must immediately retrieve all Confidential Information and Ancillary Documentation held by that person.

3.1.13 If:

(a)   the Confidential Information is no longer required by the Promisor for the Purpose of Disclosure, or

(b)   after 6 months of receiving the Confidential Information an aspirant CUSP has not sought approval to become a CUSP for the contestable universal service area to which the Confidential Information relates, or

(c)   the aspirant CUSP’s application for approval as a CUSP for the contestable universal service area concerned has not been approved by the ACA, or

(d)   the Promisor otherwise receives a Notice from the Commonwealth, whether or not following a request to the Commonwealth in writing from Telstra,

the Promisor must, unless Telstra otherwise provides the Confidential Information on a basis that renders it unnecessary, promptly and at its own expense:

(e)   cease to use, and cease to allow Authorised Persons to use, all Confidential Information and Ancillary Documentation held by the Promisor or Authorised Persons; and

(f) deliver to Telstra, or if Telstra otherwise directs, destroy or erase, all Confidential Information and Ancillary Documentation held by the Promisor and Authorised Persons.

In addition, if requested by Telstra, the Promisor must immediately provide to Telstra a written certificate that this clause has been complied with and that any items of Confidential Information or Ancillary Documentation (if any) retained by the Promisor or an Authorised Person have been retained only because it is required by law.

3.1.14 The Promisor must ensure that the Confidential Information and Ancillary Documentation is stored and used in a manner such that:

(a)   access is restricted to the Promisor and Authorised Persons;

(b)   each item of Confidential Information or Ancillary Documentation is clearly identified and marked as “CONFIDENTIAL”;

(c)   its use does not infringe the Intellectual Property Rights of any person; and

(d)   it is used in accordance with any conditions of use notified to the Promisor by the Commonwealth.

3.1.15 The Promisor must maintain complete, accurate and up-to-date records of all use, copying (including number of copies made and destroyed or erased), and disclosure of Confidential Information, and must immediately produce those records to the Commonwealth or ACA upon request.

3.1.16 The Promisor must notify the Commonwealth, ACA and Telstra immediately if it becomes aware of any unauthorised use, access, copying or disclosure of any of the Confidential Information, or any anticipated or actual breach of this Deed Poll, or any actual or threatened act or omission of an Authorised Person of the type referred to in clause 3.1.15.  If the Promisor or an Authorised Person is, or anticipates being, legally compelled to disclose any Confidential Information or Ancillary Documentation, the Promisor must immediately notify Telstra of that circumstance, and must, at the Telstra’s direction:

(a) assist and take such steps as will permit the Telstra to oppose or restrict that disclosure, including allowing Telstra, should it so elect, to direct the conduct by the Promisor or Authorised Person of legal action opposing the application for or order of disclosure, or conduct the legal action on behalf of the Promisor or Authorised Person, in which case Telstra will be responsible for the costs of the legal action;

(b) take all lawful measures available to oppose or restrict that disclosure; and

(c) to the extent practicable, make disclosure on terms which will preserve the confidentiality of the Confidential Information and the Ancillary Documentation.

3.1.17 The Promisor acknowledges that prior to taking any action or giving any directions, as contemplated by clause 3.1.16, Telstra will notify the Commonwealth its intention to do so and will obtain the Commonwealth’s consent, which consent will not be unreasonably withheld.

3.2 Non-conferral of rights

3.2.1 Nothing in this Deed Poll creates any right in the Promisor to receive any of the Confidential Information, nor does this Deed Poll grant to the Promisor any rights of a proprietary or personal nature in or to use the Confidential Information.

4. indemnity and release

4.1 Indemnity

4.1.1 The Promisor indemnifies the Commonwealth, Telstra, each of their officers and employees in respect of any expenses, losses, damages, outgoings and costs incurred (whether directly or indirectly) by any of them as a result of an act or omission by the Promisor or an Authorised Person in connection with the Confidential Information or the Other Information including (without being limited to) a breach of this Deed Poll.

4.1.2 The Promisor acknowledges that the Commonwealth and Telstra hold the benefit of the indemnity provided in clause 4.1.1 in trust for themselves and for those officers and employees referred to in that clause who have been officers or employees of either of the Commonwealth or Telstra at any time during the period commencing 1 year prior to the date of this Deed Poll and ending 6 years after the date of this Deed Poll, and the Promisor acknowledges that by reason of that trust, each of those beneficiaries may enforce that indemnity on their own behalf or may have the indemnity enforced on their behalf by the Commonwealth or Telstra.

4.2 Release

4.2.1 The Promisor releases each of the Commonwealth, Telstra, their officers, employees or advisers in respect of any claims which may arise from or in connection with the provision or use of the Confidential Information or the Other Information, to the fullest extent that the law permits such a release to be given.

4.2.2 The Promisor agrees that no duty of care is owed by the Commonwealth, Telstra, their officers, employees or advisers in respect of the provision, compilation or preparation of the Confidential Information or the Other Information, and to the extent that the law recognises such a duty of care to exist despite this clause, the Promisor must not, and will ensure that the Authorised Persons do not, make a claim of any sort against the Commonwealth, Telstra, their officers, employees, or advisers in reliance upon such a duty of care.

5. Disclaimer

5.1 No reliance on Confidential Information or Other Information

5.1.1 Nothing contained in the Confidential Information or the Other Information, nor the provision of the Confidential Information or the Other Information, will constitute or be deemed to constitute an offer, recommendation, or invitation by the Commonwealth or any other person (including Telstra, its officers, employees, advisers and agents) in respect of the USO Contestability Pilots, nor is it in any way purported that the Confidential Information or the Other Information will comprise all or any information that the Promisor or any other person may require or expect to find in order to evaluate or investigate the opportunities available under the USO Contestability Pilots.

5.1.2 The Promisor acknowledges that the details of Confidential Information will not be verified by the Commonwealth, Telstra, their officers, employees or advisers, unless otherwise stated in the Confidential Information. The Promisor releases the Commonwealth and Telstra, and their advisers, severally and jointly from all and any liability to any person in respect of anything done or omitted to be done (and the consequences of that action or omission) in reliance upon any of the Confidential Information.

5.1.3 The Promisor acknowledges that no representation or warranty, express or implied, is made as to the currency, accuracy, reliability or completeness of the information contained in the Confidential Information by the Commonwealth or Telstra or any of their employees, officers, advisers or agents. Without limiting the foregoing, the Promisor acknowledges that no representations or warranties of any sort, whether express or implied, are made by the Commonwealth, Telstra or their employees, officers, advisers and agents to the effect that reasonable care has in fact been taken in the preparation and provision of the Confidential Information, or to the effect that any of the forecasts, estimates, assumptions or opinions contained in the Confidential Information  will be achieved or prove correct, either totally or partially.

5.1.4 The Promisor acknowledges that none of the Commonwealth, Telstra, their advisers, agents, employees or officers has any responsibility to inform the Promisor of any matter arising or coming to their notice which may affect or qualify any matter contained in the Confidential Information, and the provision of the Confidential Information will not under any circumstances create any representation that there has been no change in the Confidential Information or Other Information since the date of its preparation or the date at which it is expressed to be applicable.

5.1.5 The Promisor acknowledges that any Confidential Information made available to it is done so on the basis of the Promisor’s undertakings under this Deed Poll, and the Promisor represents and warrants that any reliance which it places on any of the Confidential Information is solely at its own risk and that in doing so it has satisfied itself as to the accuracy and completeness of the Confidential Information.

5.1.6 This clause 5 is an essential term of this Deed Poll (without limiting the essential nature of any other clause of this Deed Poll).

5.1.7 The provisions of clause 5 apply to all Confidential Information whether or not it contains or bears a statement that “a disclaimer applies to this document” or other statement to that effect. Any express disclaimer is in addition to and does not limit clause 5.

6.      MISCELLANOUS PROVISIONS

6.1 Injunction proceedings

6.1.1 In the event of there being an act or omission of an Authorised Person which, if it were the act or omission of the Promisor, would threaten or constitute a breach of this Deed Poll, or in the event of a threatened or actual breach of this Deed Poll by the Promisor, Telstra is entitled to seek an injunction to restrain the relevant act or omission.

6.1.2 The Promisor warrants that it will not, and will ensure that Authorised Persons do not, oppose the granting of such an injunction on the basis that no actual loss or damage has been or will be sustained by either the Commonwealth or Telstra.

6.2 Governing law

6.2.1 This Deed will be construed in accordance with and governed by the laws in force in the Australian Capital Territory, and the Promisor submits to the non-exclusive jurisdiction of the Courts of that Territory.

6.3. Entire understanding

6.3.1 This Deed Poll constitutes the entire understanding between the Commonwealth and the Promisor and between Telstra and the Promisor in relation to the protection and use of the Confidential Information, and supersedes all previous negotiations, representations and arrangements (whether oral or in writing) between them regarding the use of the Confidential Information.

6.4 Waiver and variation

6.4.1 The Promisor acknowledges that no waiver, variation, discharge or release in relation to this Deed Poll or a provision of this Deed Poll will be valid unless it is in writing and signed by the Commonwealth, following consultation with Telstra, and no waiver of any breach of a provision of this Deed Poll will operate as a waiver of any other breach of the same provision or of any other provision, and any waiver will not affect the operation of this Deed Poll except to the extent of the waiver.

6.5 Notices

6.5.1 Any Notice given or required to be given in relation to this Deed Poll may be delivered by hand, sent by pre-paid ordinary post (or by pre-paid airmail post if sent to or from a place outside Australia) or transmitted by facsimile to the Commonwealth, ACA, Telstra or the Promisor as the case may be in accordance with the address and facsimile information specified in Schedule 2 to this Deed Poll (or such other address and facsimile information for these persons as advised from time to time by those persons to each other).

6.5.2 A Notice is deemed to have been received upon delivery (if delivered by hand or posted to or from a place outside Australia), upon successful transmission by facsimile as recorded by the transmitting machine (if sent by facsimile transmission), or on the second Business Day after the date of sending (if posted by ordinary mail to or from a place in Australia).

6.6 Severability

6.6.1 If the whole or any part of a provision of this Deed Poll is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction.  The remainder of this Deed Poll has full force and effect and the validity and enforceability of that provision in any other jurisdiction is not affected.  This clause has no effect if the severance alters the basic nature of this Deed Poll.

6.7 Non-Merger and exercise of rights

6.7.1 The rights, powers and remedies provided in this Deed Poll are cumulative with and will not merge with the rights, powers or remedies of the Commonwealth, Telstra or Promisor arising other than under this Deed Poll.

6.7.2 The Promisor acknowledges that the failure by the Commonwealth, Telstra or Promisor to exercise, or a delay by a one of them in exercising, any of its rights, powers or remedies under this Deed Poll, does not preclude the exercise of that right, power or remedy.

Executed as a deed POLL

Signed, Sealed and delivered[1] )
by …………………… )
at …………………… )
on …………………… )

in the presence of:

………………………
(Witness’ signature)

………………………
(Witness’ name)

…………………….

(WITNESS’ ADDRESS)

Schedule 1 ‑ specified contestable universal service areas

For the purposes of the definition of Purpose of Disclosure in clause 1.1.1, the Promisor specifies the following contestable universal service area or areas as an area or areas in relation to which the Promisor is interested in gaining approval as a CUSP and/or operating as a CUSP and in relation to which the Promisor is requesting Confidential Information for the Purpose of Disclosure.

The specified contestable universal service areas are:

1. The Promisor should list the contestable universal service area or areas for which it is seeking information.  The areas are identified in the Universal Service Area Determination (No. 1) 2001 and the Universal Service Areas Determination (No. 1) 2001 (Amendment No. 1 of 2001).

Schedule 2  ‑ CONTACT DETAILS FOR NOTICES

1 Commonwealth

Department of Communications, Information Technology, and the Arts
38 Sydney Avenue
FORREST   ACT   2603
 

Attention:  Mr Philip Mason

Telephone: (02) 6271 1579

Facsimile:   (02) 6271 1886

Email: philip.mason@dcita.gov.au

2 Telstra

Telstra Corporation Limited
Locked Bag 6794

SYDNEY  NSW  1100

Attention:  Ms Dianne MacLean

Telephone: (02) 8293 8304

Facsimile: (02) 9267 0343

Email: Dianne.M. MacLean@team.telstra.com

3 Promisor

CUSP’s name

[Postal address]

Attention: 

Telephone: 

Facsimile: 

Email: 

[Promisor should provide information of the kind specified for other persons mentioned in this schedule.]

Australian Communications Authority

Australian Communications Authority
PO Box 13112

LAW COURTS PO

MELBOURNE  VIC  8010

Attention:  Mr Bruce Matthews

Telephone: (03) 9963 6712

Facsimile: (03) 9963 6983

Email: bruce.matthews@aca.gov.au

Schedule 3 – deed poll for authorised persons

This Deed poll is made on the [date] day of [month] [year] by the person who is signatory of this Deed Poll (the "Covenantor").

RECITALS

A. The Commonwealth of Australia (the “Commonwealth”) in accordance with Recital A of the Deed Poll has determined to trial arrangements for the competitive supply of services in fulfillment of the universal service obligation (USO) in two pilot areas in Victoria and South Australia and New South Wales and Queensland (‘the USO Contestability Pilots’).

B. Under the USO Contestability Pilots carriers and carriage service providers may apply for approval by the Australian Communications Authority as competing universal service providers.

C. To assist carriers and carriage service providers to decide whether to seek approval as a competing universal service provider and/or to operate as a competing universal service provider the Commonwealth has put in place the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 2001) to provide access to certain information held by Telstra Corporation Limited.

D. With a view to accessing information under the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 1 of 2001) [name of CUSP or aspirant CUSP] (‘the Principal’) signed a Confidentiality Deed Poll on the [date] day of [month] [year]  (the ‘Main Deed Poll’).  The Main Deed Poll requires that the Principal:

• gives confidentiality undertakings in order to receive Confidential Information; and

• obtains confidentiality undertakings in the form of this Deed Poll by all persons to whom it proposes to give any or all of the Confidential Information.

E. In accordance with clause 3.1.3 of the Main Deed Poll, upon execution of this Deed Poll and notification to the ACA the person is then designated an Authorised Person. 

F. The Covenantor is a person referred to in Recital E, and who by this Deed Poll now makes the several promises, undertakings, acknowledgments and warranties contained in this Deed Poll for the benefit of the Commonwealth and Telstra.

OPERATIVE PART

DEFINITIONS AND INTERPRETATION

1. In this Deed Poll unless the context requires otherwise all terms have the same definition as in the Main Deed.

General Undertakings

2. The Covenantor warrants that he, she or it (as the case may be) has full legal capacity to provide the several promises, undertakings, acknowledgments and warranties contained in this Deed Poll.

3. If the Covenantor is not a natural person, the Covenantor warrants that its execution of this Deed Poll is in the proper form and that it believes and intends that it will be bound by its provisions.

4. The Covenantor acknowledges that the Confidential Information provided to the Covenantor is confidential to Telstra, and that the improper use or disclosure of that Confidential Information may cause loss or damage to either or both of the Commonwealth and Telstra.

5. The Covenantor undertakes to use the Confidential Information only for the purpose of assisting the Principal in respect of whom the Covenantor is an employee, board member, adviser, consultant, agent or financier, or an employee of an adviser, consultant, agent or financier, for the sole purpose of assisting the Principal to decide whether to enter, or operating in as a CUSP, a contestable universal service area it has specified in Schedule 1 to the Main Deed Poll and/or to inform itself about operating as a CUSP in that area if approved as a CUSP (‘the Purpose of Disclosure’).

6. Subject to clause 8, the Covenantor undertakes not to disclose or publish, nor allow to be disclosed or published, the Confidential Information to any person other Telstra or the Principal.

7. Subject to clause 8, the Covenantor undertakes not to copy or transcribe, nor allow to be copied or transcribed, the Confidential Information except where strictly necessary for the purpose of assisting the Principal solely for the Purpose of Disclosure.

8. The Covenantor may disclose the Confidential Information to another person but only if that person is an Authorised Person and it is necessary to disclose the Confidential Information for the purposes of assisting the Principal solely for the Purpose of Disclosure.

9. The Covenantor undertakes to give to the Commonwealth all of the Confidential Information (and all copies of it) in the Covenantor’s control or possession upon a request by the Commonwealth, whether or not at the request of Telstra, for its return, or upon the cessation of the Principal’s rights to access the information for the Purpose of Disclosure.

10. The Covenantor undertakes to ensure that the Confidential Information is securely stored, and is not stored in any manner or form which the ACA, at the reasonable request of Telstra, has communicated to the Covenantor or the Principal that it is reasonably not to be stored in.

11. The Covenantor undertakes to comply with any reasonable direction that the Commonwealth or Telstra may communicate to the Covenantor or the Principal in relation to the Confidential Information including directions as to the safe-keeping and storage of the Confidential Information.

12. The Covenantor undertakes to use the Confidential Information only to assist the Principal and solely for the Purpose of Disclosure.

13. The Covenantor undertakes that if he, she or it (as the case may be) is compelled to disclose the Confidential Information, or otherwise proposes to disclose the Confidential Information because of a law or an order of a court or tribunal, the Covenantor:

(a) will provide prompt notice to the Principal of the same in order that the Commonwealth and/or Telstra may seek a protective order, exemption from production or other appropriate remedy;

(b) will only disclose the Confidential Information which there is a legal compulsion to disclose; and

(c) will provide the Commonwealth and Telstra with all reasonable assistance and co-operation which they consider necessary to prevent the disclosure of the Confidential Information.

14. The Covenantor warrants that he, she or it (as the case may be) is not aware of any conflict of interest, existing or potential, which will or may affect the performance of the Covenantor’s obligations under this Deed Poll.

15. The Covenantor promises that he, she or it (as the case may be) will notify the Principal immediately on becoming aware of any conflict of interest or potential conflict of interest which affects or may affect the performance of the Covenantor’s obligations under this Deed Poll and will take all reasonable steps to prevent that conflict of interest from occurring or continuing.

16. The Covenantor promises that he, she or it (as the case may be) will notify the Principal immediately any warranty contained in this Deed Poll ceases to be true and immediately any promise, acknowledgment or undertaking contained in this deed is breached or is not performed as and when required by this Deed Poll to be performed.

MISCELLANEOUS PROVISIONS

17. The provisions of this Deed Poll will be construed and enforced in accordance with the following principles:

(a) ‘person’ includes a body corporate, an unincorporated association, a firm or partnership (whether limited or unlimited) and an authority or organisation, notwithstanding that any of them may not be legal persons;

(b) ‘employee’ will be taken to include a reference to a director and to an officer;

(c) a reference to the publishing of information will be taken to include a reference to the dissemination or communication of that information in any manner or form whatsoever;

(d) a reference to the copying or storage of information will be taken to refer to any form of copying or storage, including copying or storage in electronic, electronically assisted, or magnetic form or microform;

(e) a reference to Confidential Information will include a reference to the whole or part of the Information, and will extend to include the intellectual property in the Confidential Information;

(f) this Deed Poll will be construed and take effect in accordance with the laws of the Australian Capital Territory;

(g) the warranties, promises, acknowledgments and undertakings given in this deed are continuing; and

(h) if there is an inconsistency between this Deed Poll and the Main Deed Poll, then the provisions of the Main Deed Poll will prevail to the extent of the inconsistency and as if the Covenantor were the signatory to the Main Deed Poll in place of the Principal.

EXECUTED AS A DEED POLL

Signed, Sealed and delivered[2] )
by …………………… )
at …………………… )
on …………………… )

in the presence of:

………………………
(Witness’ signature)

………………………
(Witness’ name)

………………………
(Witness’ address)

Schedule

Item 1

(date)                                                

Item 2

(name and address)                                              

[1]  Use whichever form of execution is appropriate to the legal identity of the Promisor.  If an alternative form of execution is required, this should be inserted.

[2]  Use whichever form of execution is appropriate to the legal identity of the Covenantor.  If an alternative form of execution is required, this should be inserted.