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These terms and conditions govern your use of the ASX Energy Data Centre service (the “Service”) and any end user subscription access to or use of ASX Energy Data through the Service. Your permission to use the ASX Energy Data and the Service is conditional upon you (the “Subscriber”) agreeing to the terms and conditions set out below (this “agreement”).
By clicking "I Accept" and using the Service, you confirm that you have read, accepted and agree to be bound by the terms and conditions of this agreement.
1. Commencement and Subscription Term
1.1. The Service is provided based on an annual subscription period of 12 months. The Service will commence on the date that We provide the Subscriber with the ASX Energy Data and will continue for 12 months (“Subscription Term”).
1.2. Prior to the expiry of the Subscription Term, We may offer the Subscriber the option to continue to access and use the Service by issuing the Subscriber an invoice for the Subscription Fees for the next Subscription Term, unless We or the Subscriber decide not to renew the Service by notifying the other (in which case this agreement will terminate at the end of the then-current Subscription Term).
2. Use of the ASX Energy Data
2.1. We grant to the Subscriber a non-exclusive, non-transferable licence to use the ASX Energy Data on the following basis:
(a) the Subscriber uses the ASX Energy Data for its own internal information purposes only;
(b) the Subscriber may sub-licence the right to use the ASX Energy Data to its Related Parties provided that:
(i) the sub-licence shall terminate upon the sub-licensee ceasing to be a Related Party of the Subscriber;
(ii) the sub-licence shall impose on the Related Party all the restrictions and obligations imposed on the Subscriber by this agreement relating to the use of the ASX Energy Data; and
(iii) the Subscriber shall be fully liable and responsible for any breach by the Related Party and any breach by the Related Party shall be treated as a breach of this agreement by the Subscriber; and
(c) the Subscriber only prints hard copies, and electronically stores copies, of the ASX Energy Data to the extent necessary for its own internal information purposes and provided all notices including any copyright notice, trademark or other proprietary notice and any relevant disclaimers are retained in any copies of the ASX Energy Data.
2.2. The Subscriber may also publish insubstantial amounts or limited extracts of the ASX Energy Data, to third parties in connection with the Subscriber’s ordinary business without prior written authorisation from Us, provided:
(a) it is on an ad-hoc basis only;
(b) it is accompanied by:
(i) attribution to Us (such as “Source: ASX”); and
(ii) all notices contained within the ASX Energy Data, in an unaltered state, including any copyright notice, trademark or other proprietary notice and any relevant disclaimers
(c) the Subscriber does not do so for a commercial purpose; and
(d) the ASX Energy Data which is republished is:
(i) in an aggregated form; or
(ii) presented in a graph, chart or table.
2.3. Except as expressly permitted in this agreement, the Subscriber may not sell, sub-license, assign, make available, distribute, display, transmit the ASX Energy Data to any person or otherwise allow another person the right to use the ASX Energy Data without Our prior written consent.
2.4. The Subscriber is responsible for maintaining the confidentiality of usernames and passwords. The Subscriber is responsible for all activities that occur under its usernames, passwords or accounts, including payment of Subscription Fees.
2.5. We shall have the right to request from the Subscriber no more than once a calendar year a written statement to verify that the access to and the use of the ASX Energy Data is in accordance with this agreement.
3. Subscription Fees
3.1. The Subscription Fee is payable annually in advance, and the Subscriber must pay the relevant Subscription Fee within 30 days after the date of Our invoice.
3.2. We may vary any Subscription Fees by publishing the variation on www.asxenergy.com.au, provided such variation will only take effect from the commencement of the next Subscription Term.
3.3. Without limiting clause 3.2, We may increase the range of licenses applicable to the use or distribution of the ASX Energy Data under this agreement, which may result in a new Subscription Fee or increase to any existing Subscription Fee, as published by Us on www.asxenergy.com.au.
4.1. The Subscriber must pay all existing taxes and duties (including, but not limited to, any hiring arrangement duty, rental business duty, lease duty or other stamp duty), any new taxes and duties (including a goods and services tax or any other value-added taxes), any increases in taxes and duties and any associated penalties payable on or in respect of this agreement.
4.2. In the event that payment of any amount of the Subscription Fees becomes subject to withholding tax, levy or similar payment obligation on sums due to Us under this agreement, then such withholding tax amounts shall be borne and paid for by the Subscriber in addition to the sums due to Us.
4.3. Any amounts payable to Us under or in connection with this agreement have been determined exclusive of GST. If any supply made by Us to the Subscriber under or in connection with this agreement is a taxable supply:
(a) the Subscriber must pay an amount to Us equal to the GST payable by Us on that supply, in addition to any amounts payable or other consideration to be provided for that supply;
(b) the additional amount must be paid at the same time as the first part of any consideration is provided for that supply; and
(c) We will provide the Subscriber with a tax invoice for that supply in accordance with the GST law, unless the parties have entered into an arrangement whereby the Subscriber will provide a recipient created tax invoice for supplies, including that taxable supply.
For the purposes of this clause 4.3, words and phrases that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning provided by that Act. However, where the GST law treats a part of a supply as a separate supply for the purpose of working out the GST payable on that supply or determining the time at which GST will be payable on that supply, that part of the supply will be treated as a separate supply for the purposes of this clause 4.3.
5. Changes in the Service
5.1. We reserve the right to change the Service including the format, content and/or delivery method of the ASX Energy Data from time to time by public notification via www.asxenergy.com.au.
5.2. If any change materially impacts the Subscriber’s ability to use the ASX Energy Data or the Service, the Subscriber may terminate this agreement by giving notice in writing with effect from the date the change(s) are to take effect.
6. Intellectual Property Rights
All Intellectual Property in the ASX Energy Data and related information material provided under this agreement is and remains owned by the ASX Group or Our third party licensors (as applicable) and except as expressly permitted under this agreement, the Subscriber has no rights to the ASX Energy Data, or any related information material.
7.1. Either party may terminate this agreement if the other party is in breach of a material term of this agreement and fails to remedy that breach within 30 days written notice to remedy.
7.2. If the Subscriber has not paid the Subscription Fees by the due date and not remedied such non-payment after receiving at least 7 days’ written notice from Us reminding the Subscriber of the non-payment, We may:
(a) withhold supply or access to the ASX Energy Data; and/or
(b) immediately terminate this agreement.
7.3. Either party may terminate this agreement immediately by written notice to the other party if the other party is adjudicated bankrupt, enters into liquidation or any arrangement or composition with its creditors or if a receiver is appointed to any part of its assets and not discharged within 14 days or if any judgement against the other party remains unsatisfied for more than 7 days.
7.4. We may terminate this agreement immediately if the Subscriber is in breach of clause 2 of this agreement (unless the breach is trivial or insignificant).
7.5. We may terminate this agreement immediately if We cease to have rights to provide the ASX Energy Data to the Subscriber for any reason.
7.6. Either party may terminate this agreement for convenience by giving the other party at least 30 days’ written notice to the other party.
8. Effects of Termination
8.1. On any termination of this agreement for any reason, the Subscriber shall:
(a) immediately pay any outstanding Subscription Fees owed to Us under these Terms and Conditions; and
(b) immediately cease using the ASX Energy Data and ensure that there is no further use of the ASX Energy Data in any of the Subscriber’s internal reports, presentations, applications or services and if so requested by Us, will provide a written statement to that effect to Us.
8.2. On termination of this agreement by the Subscriber under clause 5.2, 7.1 or 7.3, or where We terminate this agreement under clause 7.5 or 7.6, We shall refund any prepaid Subscription Fees pro-rated to reflect the remainder of the then-current Subscription Term. For clarification, the Subscriber will not be entitled to any refund where We terminate this agreement under clauses 7.1, 7.2, 7.3 or 7.4, or the Subscriber terminates for convenience under clause 7.6.
8.3. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect including without limitation clauses 4, 6, 8, 9, 10, 11, and 12.2.
8.4. Termination of this agreement for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
9.1. All express or implied guarantees, warranties or conditions relating to these terms or their subject matter, not contained in these terms, are excluded from these terms to the maximum extent permitted by law.
9.2. Nothing in this agreement excludes, restricts or modifies any guarantee, condition warranty, right or remedy implied or imposed by any legislation which cannot lawfully be excluded, restricted or modified (a “Non-Excludable Condition”).
9.3. If a Non-Excludable Condition is implied or imposed in relation to this agreement or the Service and cannot be excluded, and We are able to limit the Subscriber’s remedy for a breach of the Non-Excludable Condition, then Our liability for breach of the Non-Excludable Condition is limited to one or more of the following at Our option:
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again.
10.1. Subject to clause 9 and clause 10.2, to the maximum extent permitted by law, no member of the ASX Group will be liable to the Subscriber or to any third party, whether in contract, tort, under statute or otherwise (including in each case negligence), for:
(a) any loss of profits, business contracts, revenue or turnover;
(b) loss or damage to reputation or goodwill;
(c) any loss or corruption or destruction of data;
(d) loss of anticipated savings or wasted expenditure (including management time);
(e) any special, indirect, incidental, punitive or consequential loss or damage;
(f) any Loss arising out of or in connection with any action taken by the ASX Group as a result of a direction or requirement by a Regulatory Authority pursuant to any Law or other power that such Regulatory Authority may have, that a member of the ASX Group take, or not take, certain action; and/or:
(g) any Loss arising out of or in connection with any:
(i) delays or interruptions in transmission of any ASX Energy Data;
(ii) any ASX Energy Data being inaccurate or incomplete;
(iii) inability to use, or reliance on, any ASX Energy Data;
(iv) any decisions by the Subscriber or any third party based on the ASX Energy Data; and/or
(v) access to or use, distribution or redistribution of ASX Energy Data by the Subscriber or any third party otherwise than in accordance with this agreement,
except to the extent caused or contributed to by any negligent, wilful, fraudulent or unlawful act or omission by Us.
10.2. Where the Subscriber or any third party is a Participant under any Operating Rules, and to the extent the Subscriber or such third party accesses the Service or any ASX Energy Data in connection with being such a Participant, then:
(a) the provision of such access to the Participant and performance by Us pursuant to or relating to this agreement (“Participant Access”) constitute (and are deemed to constitute) the supply of trading services, clearing systems, the settlement facility, the system and/or other services (as applicable) pursuant to the relevant Operating Rules;
(b) subject to the remainder of this clause, the limitations and exclusions of liability contained in the relevant Operating Rules will apply in relation to the provision and performance of Participant Access under this agreement; and
(c) to the extent necessary to enable the ASX Group to enforce the benefit of the exclusion of liability referred to in paragraph (b), the terms of the relevant Operating Rules are deemed to be incorporated into this agreement.
10.3. Subject to clause 10.2, Our total aggregate liability, whether in contract, tort (including negligence), statute or otherwise, arising our of or in connection with this agreement, the Service or any ASX Energy Data in all circumstances is limited to an amount equal to the Subscription Fees paid by the Subscriber to Us during the 12 month period immediately before the date on which the cause of action first arose.
The Subscriber indemnifies Us and Our Related Parties against any Loss incurred by or awarded against Us or Our Related Parties arising out of any Claim which any person other than the Subscriber may bring against any of Us or Our Related Parties where such Claim arose out of or in connection with:
(a) access to or use, distribution or redistribution of ASX Energy Data by the Subscriber otherwise than in accordance with this agreement;
(b) use or reliance by any third party on the ASX Energy Data;
(c) a breach by the Subscriber of its obligations under this agreement; or
(d) any wilful, fraudulent or unlawful act or omission by the Subscriber,
except to the extent that We have caused or contributed to the Loss.
12. Records and Audit
12.1. The Subscriber will maintain appropriate records and procedures which ensure that the access to and the use of the ASX Energy Data is in accordance with this agreement.
12.2. The Subscriber agrees that, no more than once per year, We may nominate an employee or agent to inspect relevant records and procedures during on giving 30 days’ notice in writing to the Subscriber. The Subscriber must provide Us with access during regular working hours to the premises, records, procedures and staff of the Subscriber for the purposes of assessing the Subscriber’s compliance with the terms of this agreement. While on the Subscriber’s premises, We agree to comply with the Subscriber’s applicable policies (including workplace health and safety policies), procedures, and reasonable security/confidentiality requirements notified to Us. We agree to keep confidential any information gathered by Us as confidential.
13.1. We may amend the terms of this agreement from time to time by giving notice by public notification via www.asxenergy.com.au, provided such change will only take effect from the commencement of the next Subscription Term. If any amendment causes the Subscriber substantive disadvantage, the Subscriber may elect not to renew prior to the commencement of the next Subscription Term.
13.2. This agreement records the entire agreement between the parties relating to the ASX Energy Data and the Service and supersedes all previous arrangements, understandings, representations and agreements, whether written or oral, relating to the ASX Energy Data and the Service.
13.3. This agreement is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales in respect of all matters relating to this agreement.
13.4. Either party may assign its rights and obligations under this agreement to one of its Related Bodies Corporate by providing written notice to the other party.
13.5. If any provision of this agreement is or becomes invalid or unenforceable, that provision will be severed from this agreement. The invalidity or unenforceability of that provision will not affect the other provisions of this agreement, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the severance of the invalid or unenforceable provision.
13.6. The rights and remedies provided under this agreement are cumulative and not exclusive of any rights provided by law or any other such right or remedy.
13.7. If part or all of any clause of this agreement is illegal or unenforceable, it will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
13.8. The failure of a party at any time to insist on performance by the other party of any obligation under this agreement is not a waiver of its right:
(a) to insist on providing of, or to claim damages for breach of, that obligation, unless that party acknowledges in writing that the failure is a waiver; and
(b) at any other time insist on performance of that or any other obligation of the other party under this agreement.
In this agreement the following definitions apply:
ASX Group means Us and our Related Parties.
ASX Energy Data means the energy data supplied by Us as part of the Service by means of Our website, FTP or any other method agreed between the parties and further described in the Fees Schedule.
Claim means any claim, demand, action or proceeding (whether based in contract, tort (including negligence), statute or otherwise.
Fees Schedule means the schedule of fees published by Us applicable to licensing of ASX Energy Data supplied under this agreement.
Intellectual Property means all intellectual property rights including without limitation copyright, all rights in relation to inventions, patents, registered and unregistered trademarks, registered and unregistered designs, domain names, rights in computer software and databases, rights in semi-conductor or circuit layouts, the right to have confidential information kept confidential, and any application or right to apply for registration of any of the rights referred to herein, whether such rights exist in Australia or anywhere else in the world.
Loss means any and all liabilities, costs, losses, damages, expenses (including legal expenses on a solicitor/client basis), or other outgoings of whatsoever kind and howsoever arising (including negligence) or liability incurred or suffered arising from any Claim, in each case whether such loss is direct, indirect, special or consequential and whether or not the Subscriber or Us (as the context requires) were advised in advance of the possibility of such loss.
Operating Rules means the Operating Rules of ASX Limited, ASX 24, ASX Clear, ASX Clear (Futures), ASX Settlement and Austraclear, as applicable.
Participant means an entity recognised under the Operating Rules as a participant of ASX Limited, ASX 24, ASX Clear, ASX Clear (Futures), ASX Settlement and Austraclear, as the case may be.
Regulatory Authority means any government or any regulatory, supervisory, governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity, including the Australian Securities and Investments Commission and the Reserve Bank of Australia.
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
Related Party means all employees, officers, contractors and agents of the relevant party, and the employees, officers, contractors and agents of any Related Body Corporate of the relevant party.
Subscription Fees means the applicable subscription fees payable by the Subscriber for the subscribed Service as published in the Fees Schedule.
We/Us/Our means ASX Operations Pty Ltd.