DEED POLL OF CONFIDENTIALITY
THIS DEED POLL is made on
[DATE]
20
BY:
[FULL NAME]
of
[ADDRESS]
(Confidant)
IN FAVOUR OF:
AUSTRALIAN CAPITAL TERRITORY, the body politic established by section 7 of the
Australian Capital Territory (Self-Government) Act 1988 (Cth) represented by the Chief
Minister, Treasury and Economic Development Directorate (
Territory).
BACKGROUND
A.
Electronic voting is available under the
Electoral Act 1992 (ACT) and is provided
in the Territory through the System. eVACS® is available to electors attending an
early voting centre during the three-week early voting period, and at those same
locations on election day.
B.
The Territory and Software Improvements entered into a contract for the
development and licencing of eVACS®. Software Improvements specialises in the
development and commercialisation of high integrity electronic voting and counting
products and services.
C.
eVACS® was first used at the 2001 Territory Legislative Assembly election and has
been used at all subsequent elections in 2004, 2008, 2012 and 2016. The 2020
election will also feature eVACS®. eVACS® uses standard ‘all in one’ personal
computers as voting terminals, with voters using an e-voting card with a pre-printed
QR code to initiate the voting process. Voting terminals are linked to a server in
each polling location using a secure local area network. No connection to the broader
internet is established.
D.
The Confidant is permitted to review the source code of eVACS® upon request and
subject to the provisions of this Deed Poll. The purpose of this Deed Poll is to protect
the integrity and security of the System by allowing the Confidant to identify
vulnerabilities and/or coding errors in the System and affording the Territory an
opportunity to rectify and remedy the identified issues.
E.
In the course of its dealings with the Territory, the Confidant may become aware of,
or have disclosed to it, Confidential Information. Improper use or disclosure by the
Confidant of that Confidential Information may damage the Territory’s ability to
perform its functions, jeopardise the security and/or integrity of the System, and/or
be a breach of law.
F.
The Territory considers, and the Confidant agrees, that it is necessary to take all
reasonable steps to ensure the Confidential Information is kept confidential in
accordance with the terms of this Deed Poll and to ensure all applicable legislation
is complied with.
IT IS AGREED AS FOLLOWS:
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1.
Interpretation
1.1
Definitions
The following definitions apply in this Deed Poll unless the context otherwise requires.
Commencement means the date the Confidant executes this Deed Poll, as specified on
Date
page 1.
Confidential
information that:
Information
(1)
is or relates to documents, submissions, consultations, policies,
strategies, practices and procedures of the Territory which are by
their nature confidential;
(2)
is notified (whether in writing or not) by the Territory to the
Confidant as confidential;
(3)
the Confidant knows or ought to know is confidential;
(4)
is personal information as defined in the
Information Privacy Act 2014; or
(5)
is specified in
Item 1 Schedule 1,
but does not include information which:
(6)
is or becomes public knowledge other than by breach of this Deed
Poll;
(7)
has been independently developed or acquired by the Confidant;
or
(8)
has been notified in writing by the Territory to the Confidant as
being not confidential.
Developers
means Software Improvements.
eVACS®
means the electronic voting and counting system.
Findings
means the Confidant’s findings, opinions, results, recommendations or
feedback associated with the Permitted Activities.
Permitted
means the activities specified in
Item 2 Schedule 1.
Activities
Software
means Software Improvements Pty Ltd.
Improvements
Source Code
means the source code for the System.
System
Means eVACS®,
developed for the Territory by Software Improvements.
Territory
when used:
(1)
in a geographical sense, the Australian Capital Territory; and
(2)
in any other sense, the body politic established under the
Australian Capital Territory (Self-Government) Act 1988 (Cth).
1.2
General
In this Deed Poll, unless the context otherwise requires:
(1)
words in the singular number include the plural and vice versa;
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(2)
references to legislation or to provisions in legislation include references to
amendments or re-enactments of them and to all regulations and instruments
issued under the legislation;
(3)
clause headings are for convenience only and do not affect the construction or
interpretation of this Deed Poll;
(4)
a reference to a “person” includes a body corporate; and
(5)
the word “include” and any derivation is not to be construed as a word of
limitation.
2.
Commencement Date
The obligations in this Deed Poll commence on the Commencement Date.
3.
Non-disclosure of Confidential Information
(1)
The Confidant must only deal with the Confidential Information in accordance
with the terms of this Deed Poll.
(2)
The Confidant must maintain strict confidentiality regarding the Confidential
Information and must notify the Territory of all attempted unauthorised
communications, where “unauthorised communications” mean communications
entered into with the Confidant by a person who is not a Territory employee.
(3)
Subject to
clause 5, the Confidant must not, at any time while or after being
granted access to the Confidential Information, without the prior written consent
of the Territory, nor at any time after the expiration of this Deed Poll, disclose
the Confidential Information to any person.
(4)
The Confidant must take all action necessary to maintain the confidential nature
of the Confidential Information, including keeping all records of the
Confidential Information under lock and key or password protection.
(5)
The Territory may grant or withhold its consent for purposes of
clause 3(2) in
its absolute and unfettered discretion. If the Territory grants its consent, it may
impose conditions on that consent and the Confidant must comply with those
conditions.
(6)
The obligations of the Confidant under this Deed Poll will not be taken to have
been breached where the Confidential Information is legally required to be
disclosed.
(7)
The Confidant must immediately deliver to the Territory or destroy all
documents in its control containing the Confidential Information as soon as the
Confidant is requested by the Territory (whether in writing or not). Following
such a request, unless otherwise agreed in writing by the Territory, the Confidant
is not permitted to retain any copies of documents (including in electronic form)
which contain Confidential Information.
4.
Permitted Activities
The Confidant must only use the Confidential Information for the purposes of
undertaking the Permitted Activities and as otherwise directed by the Territory.
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5.
Disclosure of Findings
(1)
The Confidant must notify the Territory of any Findings in writing as soon as
reasonably possible.
(2)
The Confidant may publish its Findings only if it provides a copy of the Findings
to the Territory in writing at least 60 days before the intended publication.
(3)
During the 60 day notice period referred to in
clause 5(2), the Territory may
request clarification from the Confidant in relation to the Findings and the
Confidant must provide such clarification as soon as reasonably possible.
(4)
The Findings must not include the Source Code, either in whole or in part.
(5)
The Territory may use without limitation the Findings, including providing the
Findings to the Developers.
6.
Notices
(1)
All requests and notices under this Deed Poll must be forwarded to the address
or email address of the relevant party specified in
Item 3 Schedule 1.
(2)
A notice given under this Deed Poll will be deemed to have been given:
(a)
if delivered by hand, on delivery;
(b)
if sent by prepaid mail, on the expiration of five business days after the
date on which it was sent; or
(c)
if sent by electronic mail, on whichever of the following occurs first:
(i)
the other party’s acknowledgement of receipt by any means;
(ii)
the sender’s electronic mail device recording that the electronic
mail has been successfully transmitted to the recipient’s
address; or
(iii)
the expiration of two business days after the date on which it
was sent without receipt of a notification that the delivery
failed,
and if given in two or more ways, on the first of paragraphs (a) to (c) occurring.
7.
Indemnity
The Confidant will indemnify and keep indemnified the Territory, its employees and
agents in respect of all claims, costs and expenses made against any of them in relation
to injury, loss or any damage suffered by any person as a consequence of the Confidant
breaching this Deed Poll, except to the extent to which a relevant claim arises out of the
act or omission of the Territory.
8.
Legal proceedings
The Confidant acknowledges that the Territory may take legal proceedings against the
Confidant or third parties if there is any actual, threatened or suspected breach of this
Deed Poll, including proceedings for an injunction to restrain such breach.
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9.
Governing law
This Deed Poll is governed and construed in accordance with the law for the time being
in force in the Territory and the parties submit to the non-exclusive jurisdiction of the
Courts of the Territory.
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SCHEDULE 1
Item 1.
Confidential
Confidential Information includes the following:
Information
(1)
the Source Code;
See clause 1.1
(2)
Developer
documentation,
technology,
program
codes,
strategies,
practices,
procedures and associated information for
example business plans, data, specifications,
financial information and manuals;
(3)
any Findings;
(4)
any correspondence to or from the Territory
or the Confidant concerning the Permitted
Activities;
(5)
this Deed Poll; and
(6)
any other information disclosed or submitted,
orally, in writing, or by any other means to
the Confidant by the Territory or on behalf of
the Territory to facilitate the Permitted
Activities.
Item 2.
Permitted
In relation to the Confidential Information, the
Activities
Confidant is permitted to:
See clause 1.1
(1)
view the Confidential Information for the
sole purpose of assessing the integrity and
security of the System;
(2)
inform the Territory of any potential
technical vulnerabilities, bugs or errors
associated with the System as identified or
suspected by the Confidant;
(3)
provide
general
feedback
about
the
performance and function of the System to
the Territory;
(4)
respond to requests by the Territory for
further information about comments made by
the Confidant to the Territory concerning the
System; and
(5)
make recommendations to the Territory for
addressing any concerns associated with the
System.
Item 3
Notices
For the Confidant:
See clause 6(1)
Street address: [insert details]
Postal address: [insert details]
Email address: [insert details]
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© ACT Government Solicitor 2020
For the Territory:
Street address: Level 6, 221 London Circuit,
Canberra City ACT 2601
Postal address: PO Box 272, Civic Square ACT
2608
Email address: xxxxxxxxx@xxx.xxx.xx
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SIGNED, SEALED AND DELIVERED as a Deed Poll on the date written on page 1.
.............................................................
.............................................................
Print Name in Full
)
Signature of Confidant
)
in the presence of:
)
)
)
.............................................................
)
Signature of witness
)
………………………………………..
Name of witness
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