1. Background
1.1. FSANZ has developed the Australian Branded Food Database to provide a centralised, trusted and comprehensive source of brand-specific information for food products sold in Australia to:
a) inform FSANZ's standards development work; and
b) support the development and monitoring of Australian Government public health policy and nutrition initiatives.
1.2. A subset of data in the Australian Branded Food Database will be published by FSANZ to help people make informed decisions about the foods and beverages they buy.
1.3. You have agreed to provide data for inclusion in the Australian Branded Food Database and to make certain data publicly available in accordance with this Agreement.
2. Definitions
2.1. In this Agreement the following words have the following meanings unless a contrary intention appears:
Australian Branded Food Database means the database developed, operated, and maintained by FSANZ to compile, store, analyse and report information about the nutrient content of packaged food and beverage products in Australia.
Business Validation Rules means a set of business rules used to define acceptable data content requirements against and across the National Product Catalogue data field(s) and contains an associated rule number, level of error and error message that will result if a validation rule is breached.
code means the Australia New Zealand Food Standards Code as updated from time to time.
Content means any data provided by You (or any person or entity authorised by You) to FSANZ using the FSANZ Branded Food Database Portal (and whether owned by You or any third party), including:
a) Product images, Product photography, Product information, Product certifications, Product related reports or other digital data and files relating to Products;
b) any images, photography, information, certification, reports and other digital data and files; and
c) any images, photography, information, certification, reports or other digital data linked to in any website designated by You.
Content Permissions means the permissions specified in clause 10.1, granted by You to FSANZ regarding the use of Content.
Excel Upload Template means the Excel spreadsheet which allows for a bulk upload and validation of Content.
FSANZ means the independent statutory agency Food Standards Australia New Zealand, established by the Food Standards Australia New Zealand Act 1991 (FSANZ Act) or such other Commonwealth entity that assumes any of the functions of FSANZ, including in relation to the Australian Branded Food Database.
FSANZ Branded Food Database Portal means the online portal (including any Online Interface and the Excel Upload Template) used to upload, publish, maintain, retrieve, synchronise, and manage Content for the purposes of the Australian Branded Food Database.
FSANZ Mandatory Product Data means the mandatory data required to be provided by You for inclusion in Australian Branded Foods Database as determined by FSANZ from time to time.
FSANZ Minimum Product Data Set means the minimum subset of the FSANZ Mandatory Product Data from the Australian Branded Foods Database uploaded by You and which is intended for publication on a public website by FSANZ (consistent with the applicable Content Permissions). The FSANZ Minimum Product Data Set includes:
a) Global Trade Item Number (GTIN);
b) brand owner, brand name and product name;
c) nutrition information panel information and listed ingredients;
d) pack and serve size; and
e) if displayed, health star rating.
FSANZ Optional Product Data means any data that is identified as optional for inclusion in the Australian Branded Foods Database as determined by FSANZ from time to time.
FVNL means fruit, vegetable, nut and legume.
GS1 means GS1 Australia Limited (ABN 67 005 529 920).
National Product Catalogue or NPC means the suite of on-line catalogue services operated by GS1 through which information is provided to FSANZ for the purposes of the Australian Branded Food Database.
Online Interface means any interface established for the purposes of uploading Content for the purposes of the Australian Branded Food Database.
Product means packaged goods for consumption, including food and beverage products.
Publishable Content means any Content uploaded using the FSANZ Branded Food Database Portal (including the FSANZ Minimum Product Data Set) which FSANZ may publish in accordance with the applicable Content Permission selected by You for that Content.
Sign On means the user ID and password required to access the FSANZ Branded Food Database Portal.
You means the person or entity accessing and using the FSANZ Branded Food Database Portal. Your has a corresponding meaning.
3. Agreement
3.1. By selecting “I accept' You:
3.1.1.Agree to the terms and conditions of this Agreement; and
3.1.2. represent that You have all necessary authority to accept the terms and conditions of this Agreement.
3.2. You agree that any Content uploaded using the FSANZ Branded Food Database Portal by You is only governed by the terms and conditions of this Agreement. No other terms and conditions apply. If You do not agree to the terms and conditions of this Agreement, select “I do not accept'.
3.3. You acknowledge that uploading Content using the FSANZ Branded Food Database Portal is beneficial to You, including because it allows FSANZ to disseminate information about Your Products.
3.4. This Agreement applies to, and supersedes any agreement which applied to, any Content previously uploaded to the FSANZ Branded Food Database Portal.
4. Term
4.1. This Agreement commences on the date on which You agree to these terms and conditions and continues until terminated in accordance with this Agreement.
5. Access to the FSANZ Branded Food Database Portal
5.1. FSANZ will provide You with a Sign On to enable You, and Your authorised users, to access and use the FSANZ Branded Food Database Portal. FSANZ may change the Sign On assigned to You at any time and will notify You of the change.
5.2. You must keep the Sign On details assigned to You confidential at all times and not permit any person, other than Your authorised users, to use the FSANZ Branded Food Database Portal. You must immediately notify FSANZ of any unauthorised use or access of the Sign On assigned to You.
5.3. You must not use any automated scripts to access or use the FSANZ Branded Food Database Portal without FSANZ's written consent, provided that You may use automated scripts to populate the Excel Upload Template.
5.4. FSANZ may, at its sole discretion, suspend or terminate any access to the FSANZ Branded Food Database Portal at any time.
5.5. FSANZ does not guarantee that the FSANZ Branded Food Database Portal will be available for use at any time.
6. Changes to the FSANZ Branded Food Database Portal
6.1. FSANZ may from time to time make modifications to the FSANZ Branded Food Database Portal (including its design, functionality and appearance).
7. Uploading Content
7.1. When uploading Content for inclusion in the Australian Branded Food Database using the FSANZ Branded Food Database Portal, You may use either the Online Interface or the Excel Upload Template.
7.2. When uploading Content for inclusion in the Australian Branded Food Database using the FSANZ Branded Food Database Portal, You:
7.2.1. must provide the FSANZ Mandatory Product Data; and
7.2.2. may provide the FSANZ Optional Product Data.
7.3. You acknowledge that the Content required to be uploaded for a Product may include the nutrition information on any label attached to that Product pursuant to the Code (including, any nutrition information required under Standard 1.2.8 published pursuant to the Code).
7.4. You must ensure that all Content is correct, complete and up to date at the time it is uploaded using the FSANZ Branded Food Database Portal.
8. Validating Content
8.1. You acknowledge and agree that Content uploaded using the FSANZ Branded Food Database Portal will be validated against the Business Validation Rules. This is to ensure that data in the Australian Branded Food Database (which may be derived from multiple sources) is consistent.
8.2. If your Content does not meet the Business Validation Rules:
8.2.1. if using the Online Interface, the Online Interface will highlight the fields which need to be corrected or updated to meet the Business Validation Rules and You must correct or update the highlighted fields to ensure your Content meets all Business Validation Rules; and
8.2.2. if using the Excel Upload Template, You may be required to correct or update the Content using the process specified by FSANZ from time to time (which may include using the Online Interface or by uploading a revised Excel Upload Template) to ensure your Content meets all Business Validation Rules.
9. Maintaining Content
9.1. You must ensure that any Content uploaded by You for inclusion in the Australian Branded Food Database is maintained as current and accurate at all times. You must use the FSANZ Branded Food Database Portal to update any Content as and when required, including in accordance with any instructions from FSANZ.
10. Content Publication Permissions
10.1. You acknowledge that You will be required to select one of the following Content Permissions for the Content when You upload Content using the FSANZ Branded Food Database Portal:
Content Permission |
FSANZ Publishing Rights |
|---|---|
|
a) Level 0 - No restrictions |
No restrictions on publishing any Content. |
|
b) Level 1 - Minimum Data Set |
FSANZ will publish the FSANZ Minimum Product Data Set plus FVNL and dietary fibre content. |
|
c) Level 2 - Minimum Data Set |
FSANZ will only publish the FSANZ Minimum Product Data Set (excluding FVNL and dietary fibre content). |
|
d) Level 3 - Private |
FSANZ will not publish any Content publicly. |
10.2. You are responsible for ensuring that the correct Content Permission is selected for Your Content and that You have all necessary permissions to do so. If You identify any error in the Content Permissions selected by You, You should promptly inform FSANZ in accordance with the process identified by FSANZ from time to time.
10.3. FSANZ has no liability to You or any third party if it publishes Content in accordance with the Content Permission selected by You (even if You select the incorrect Content Permission).
10.4. You will be provided with a statement of the selected Content Permissions at the time FSANZ determines Your submitted Content is ready for publication.
10.5. You acknowledge that allergen declarations will not be published by FSANZ (even if You request this information to be published).
11. Grant of Licence
11.1. You acknowledge and agree that Publishable Content uploaded using the FSANZ Branded Food Database Portal may be made publicly available by FSANZ.
11.2. Accordingly, You agree that FSANZ has a perpetual, non-exclusive, royalty-free, world-wide, irrevocable and non-transferable licence (including a right to sublicense) to:
11.2.1 publish Publishable Content, including to the public (whether using the Australian Branded Food Database or by any other means) without restriction (subject to any Content Permissions selected by You);
11.2.2.permit third parties (including members of the public) to use, copy, communicate, publish, disclose, adapt and modify the Publishable Content for their own purposes; and
11.2.3.publish Publishable Content in whatever form and format FSANZ considers appropriate (including in searchable and downloadable formats).
11.3. You also agree that FSANZ has a perpetual, non-exclusive, royalty-free, world-wide, irrevocable and non-transferable licence to use the Content to develop, operate and maintain the Australian Branded Food Database (including a right to sublicense) and perform all activities related to the Australian Branded Food Database, including:
11.3.1. using, copying, communicating, publishing, disclosing, adapting and modifying any Content:
a) for government purposes, including to enhance and support FSANZ's standards development process and to inform Australian Government decision-making, including by the Commonwealth Department of Health and Aged Care, to determine health and nutrition initiatives;
b) for the purposes of developing, operating and maintaining the Australian Branded Food Database;
c) to ensure the proper operation of the Australian Branded Food Database; and
d) to host and store any Content on and between any of FSANZ's systems or environments and any third party's systems or environments and to transfer Content between them;
11.4. linking Content with other data sets, including supermarket transaction data to track food and nutrient consumption patterns in the Australian population;
11.5. for any other government purpose including for the internal purposes of the required by FSANZ, the Commonwealth Department of Health and Aged Care, or any other Commonwealth entity responsible for the equivalent health functions; and
11.6. for FSANZ to properly exercise all functions and tasks contemplated by this Agreement as and necessary or incidental to the development, operation and maintenance of the branded food database and use of the Content.
11.7. Without limiting this Agreement, FSANZ is not obliged to publish all Content uploaded by You and may remove Content from the Australian Branded Food Database at any time. You may request that FSANZ remove Your Content from the Australian Branded Food Database at any time in accordance with the processes specified by FSANZ from time to time.
12. Use of the FSANZ Branded Food Database Portal
12.1. In using the FSANZ Branded Food Database Portal, You must, and must ensure that Your personnel:
12.1.1. comply with all applicable laws and all reasonable directions issued by FSANZ from time to time;
12.1.2. use the FSANZ Branded Food Database Portal strictly in accordance with this Agreement and any other requirements specified by FSANZ from time to time (including in the FSANZ Branded Food Database Portal);
12.1.3. do not tamper with, modify, or do anything which may impact upon the security of the FSANZ Branded Food Database Portal or Australian Branded Food Database or cause any corruption, loss, damage or destruction, unauthorised access to or disruption FSANZ systems or data (including by introducing any virus, trojan, worm or similar deleterious program that may damage or interfere with the operation of the FSANZ Branded Food Database Portal or Australian Branded Food Database); and
12.1.4. do not post, send or otherwise make available through the FSANZ Branded Food Database Portal any material that:
e) infringes a third party's intellectual property rights;
f) is defamatory, harassing or obscene; or
g) is illegal, fraudulent, misleading or deceptive.
13. Exclusion of Liability
13.1. You acknowledge and agree that FSANZ is not liable to You or any third party in relation to any Content provided by You (including if any Content provided by You or included in the Australian Branded Food Database is not current or accurate at any time or has been requested to be removed from the Australian Branded Food Database).
13.2. You acknowledge and agree that You are responsible for, and accept all legal liability and risks resulting from, FSANZ's or any third parties' use of any Content You upload using the FSANZ Branded Food Database Portal (including if that Content is published by FSANZ).
13.3. Without limiting this Agreement, FSANZ disclaims all liability for any damages however arising in relation to this Agreement (including for negligence), whether special, indirect, consequential, or compensatory damages, and including liability for infringement of any intellectual property rights, relating to use of information in or reliance upon this Agreement.
14. Indemnity
14.1. You indemnify FSANZ, FSANZ's officers, employees, agents, licensees and sub-licensees against any liability, loss, damage, cost (including the cost of any settlement and legal costs and expenses on a solicitor and own client basis), compensation or expense sustained or incurred by FSANZ in relation to this Agreement (including for negligence) which arises out of:
14.1.1. any breach of this Agreement;
14.1.2. any action, claim, dispute, suit or proceeding brought by any third party (including in relation to any infringement or alleged infringement of intellectual property rights or a duty of confidentiality); and
14.1.3. any error, inaccuracy, omission, defect, lack of completeness, misrepresentation or other imperfection in respect of any Content.
15. Termination
15.1. FSANZ may terminate this Agreement at any time and for any reason.
15.2. Despite any termination of this Agreement, clauses 9, 11, 13, and 14 survive termination.
16. Assistance by Third Parties
16.1. You acknowledge that FSANZ may engage third parties to assist it to perform its obligations under or in relation to this Agreement (or to perform those obligations on behalf of FSANZ) and to develop, operate, and maintain the Australian Branded Food Database.
16.2. You agree that FSANZ may disclose any Content provided by You to those third parties for the purposes of performing its obligations under or in relation to this Agreement and to develop, operate, and maintain the Australian Branded Food Database.
17. Consents
17.1. You must obtain all necessary consents necessary to give effect to the terms and conditions of this Agreement.
18. Variation
18.1. FSANZ may update this Agreement at any time, including by updating this Agreement by publishing an updated version on the FSANZ Branded Food Database Portal or the relevant website maintained by FSANZ.
18.2. If FSANZ updates this Agreement, You will be required to agree to that new Agreement in order to continue to provide Content and to use the FSANZ Branded Food Database Portal.
19. No merger
19.1. The warranties, undertakings, agreements and continuing obligations in this Agreement do not merge on completion of the transactions contemplated by this Agreement.
20. Entire agreement
20.1. This Agreement:
20.1.1. is the entire agreement between the parties about their subject matter; and
20.1.2. supersedes all prior representations and agreements about that subject matter.
21. Assignment and Novation
21.1. You may not assign or novate any right or obligation or liability arising out of this Agreement except with the written consent of FSANZ.
22. Governing Law
22.1. This Agreement is governed by, and is to be construed in accordance with, the law of the Australian Capital Territory.