Intellectual Property Licence

BACKGROUND
A. The Licensor is the owner of the Intellectual Property described in this Agreement.
B. The Licensor has agreed to grant a non-exclusive Licence to the Licensee to use the Intellectual Property for the Permitted Use, pursuant to the terms and conditions of this Agreement.

AGREED TERMS

1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
(a) Agreement means this document and any Schedules to this document;
(b) Claim means any allegation, debt, Liability, proceeding, claims, action, proceedings, notice threatening claim, demands, litigation, judgements, liabilities, suits howsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether at Law, in equity, under statute or otherwise;
(c) Commencement Date means the date of this Agreement;
(d) Due Date means the due date set out at Item 5 of the Reference Schedule;
(e) Intellectual Property means the intellectual property and industrial property rights set out at Item 6 of the Reference Schedule;
(f) Laws mean legislation including regulations, bylaws, and other subordinate legislation; codes of practice; common law; and any Authority Approval;
(g) Liability means all liabilities, losses, claims, damages, outgoings, costs and expenses of whatever description and whether present, unascertained, contingent or prospective;
(h) Licence Fee mean the fee set out in Item 4 of the Reference Schedule;
(i) Licensee means the Licensee set out in Item 2 of the Reference Schedule;
(j) Licensor means the licensor set out in Item 1 of the Reference Schedule;
(k) Loss means all loss, damage, expense, costs (including legal fees on a full indemnity basis and expenses of whatsoever nature or description) and debts including any liability for consequential or indirect losses, economic losses or loss of profits;
(l) Manner of Supply means the manner of supply set out at Item 10 of the Reference Schedule.
(m) Permitted Use means the permitted use as set out in Item 7 of the Reference Schedule;
(n) Processes includes technologies, products, devices, processes or techniques;
(o) Product means the products or processes set out in Item 8 of the Reference Schedule which incorporate the use of the Intellectual Property;
(p) Term means the period of time set out in Item 3 of the Reference Schedule;
(q) Termination Date means the date set out in Item 3 of the Reference Schedule as the expiry date of the Term (subject to early termination in accordance with this Agreement); and
(r) Territory means the geographical locations set out in Item 9 of the Reference Schedule.
1.2 In this Agreement:
(a) terms defined in the A New Tax System (Goods and Services Tax) Act 1999 and the Competition and Consumer Act 2010 have the same meaning;
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or schedule is a reference to a clause or schedule to this Agreement and a reference to this Agreement includes any schedules;
(d) a reference to a document or Agreement includes a reference to that document or Agreement as novated, altered or replaced from time to time;
(e) a reference to $ is a reference to Australian currency;
(f) a reference to any legislation or legislative provision any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(g) a reference to an individual, party or person includes a corporation, Licensor, joint venture, Related Body Corporate, association, authority, trust, state or government and vice versa and that individual’s, party’s or person’s executors, administrators, substitutes, successors, agents, representatives, guarantors, employees, Related Body Corporate, permitted assigns, directors, subcontractors and/or consultants;
(h) a reference to any gender includes all genders;
(i) a reference to writing includes typewriting, printing, photocopying and any other method of representing words, figures or symbols in a permanent visible form; and
(j) Headings are for ease of reference only and do not affect interpretation.

2 COMMENCEMENT AND TERM
2.1 This Agreement commences on the Commencement Date and continues, subject to early termination pursuant to this Agreement, for the Term.

3 ACCEPTANCE
3.1 The Licensee may accept this Agreement in writing by signing the Agreement and returning it to the Licensor, or by conduct in clicking the button which states words to the effect of ‘I Agree’ when prompted on the Licensor’s website.

4 LICENCE
4.1 The Licensor grants to the Licensee the non-exclusive Licence without the right to grant sub-Licences, to use the Intellectual Property for the Permitted Use within the Territory for the Term of this Agreement (‘Licence’)
4.2 This Agreement grants the Licensee a contractual right only to use the Intellectual Property pursuant to this Agreement. Nothing in this Agreement shall be seen as giving the Licensee a proprietary right over the Intellectual Property and all rights in and ownership of the Intellectual Property remain vested in the Licensor.
4.3 The Licensor must furnish the Intellectual Property to the Licensee for the purposes of this Agreement in the manner described in Item 10 of the Reference Schedule.
4.4 The Licensee must not use the Intellectual Property for any purpose other than the Permitted Use.
4.5 Where the Licensor has indicated to the Licensee that the whole or any part of the Intellectual Property comprises confidential material, the Licensee:
(a) must not at any time during the Term of this Agreement or after its termination or expiration disclose such confidential material to any person or corporation without obtaining prior written consent of the Licensor; and
(b) must take such steps as may be necessary to ensure that any of its employees or agents do not disclose such confidential material.

5 OBLIGATIONS OF THE LICENSEE
5.1 During the Term, the Licensee must:
(a) use the Intellectual Property only for the Permitted Use and in accordance with this Agreement;
(b) comply, within a reasonable time, with all directions issued by the Licensor regarding the manner of use of the Intellectual Property;
(c) immediately report to the Licensor any suspected or actual unauthorised use of the Intellectual Property of which it becomes aware;
(d) provide, at the Licensor’s cost, all assistance reasonably requested by the Licensor to protect the Licensor’s rights in the Intellectual Property;
(e) if requested by the Licensor, submit, as soon as is reasonably practicable, to the Licensor for inspection copies of all materials bearing any Intellectual Property.
5.2 The Licensee agrees not to apply for registration of any Trademark, business name or Licensor name that incorporates signs, logos or words the same as, substantially identical or deceptively similar to the Intellectual Property.

6 LICENCE FEES
6.1 In consideration of the Licence granted under clause 4 the Licensee must pay the Licensor the Licence Fee on or before the Due Date.

7 INFRINGEMENT
7.1 If the Licensee learns of:
(a) any infringement or threatened infringement of the Intellectual Property rights licensed under this Agreement; or
(b) any common law passing-off which may cause deception or confusion to the public by a third party;
(c) the Licensee must immediately notify the Licensor in writing giving particulars of the infringement.
7.2 The Licensee and the Licensor must each execute all documents and do all things reasonably necessary to aid and cooperate in the prosecution of any action taken by either party against such infringement.

8 TERMINATION
8.1 The Licensor may terminate this Agreement by written notice if the Licensee fails to pay any amount due under this Agreement in full on the Due Date and such failure is not remedied within 7 days of notice requiring payment.
8.2 Subject to clause 8.3, either party may terminate this Agreement by written notice if the other party defaults in performance of any other material term of this Agreement and, where that failure is capable of remedy, the other party fails to remedy such a default within 7 days of notice specifying the failure and requiring it to be remedied.
8.3 The Licensor may by notice in writing terminate this Agreement effective immediately in any of the following circumstances:
(a) upon the happening of any of the following insolvency events:
(i) the Licensee ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;
(ii) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to the Licensee or any of its assets;
(iii) the Licensee enters into, or resolves to enter into, a scheme of arrangement, compromise or composition with any class of creditors;
(iv) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of the Licensee;
(v) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction;
(b) the making by the Licensee of an assignment or attempted assignment for the benefit of its creditors; or
(c) the Licensee causes or permits the Intellectual Property to be infringed or used for any use other than the Permitted Use.
8.4 Any termination of this Agreement is without prejudice to the rights of the party terminating to seek and obtain damages for any breach of this Agreement by the other party.

9 CONSEQUENCES OF TERMINATION
9.1 On early termination of this Agreement:
(a) the Licensee must deliver to the Licensor all documents and other materials (including all copies) in its possession relating to the Intellectual Property and do such further things as may be reasonably required by the Licensor to protect its right, title and interest in the Intellectual Property.
(b) all Licence Fees previously paid remain the property of the Licensor and the Licensee can make no claim in respect of them. The Licensee must further pay to the Licensor any Licence Fee accrued but unpaid as at the date of the termination or expiration.

10 CONFIDENTIALITY
10.1 The Licensee must:
(a) keep confidential all information and technical data disclosed by the Licensor to the Licensee provided that the Licensee has the right to disclose such information to its employees insofar as it is necessary for them to know the information for the use of the Licences granted in this Agreement; and
(b) not use any of the Licensor’s disclosures or other information or technical data, except for the purposes of the Licences granted herein and on the terms of this Agreement.
10.2 Regardless the provisions of clause 10.1, the Licensee may disclose information if and to the extent that:
(a) such disclosure is forced by laws, regulations or orders;
(b) the information is generally available in the public domain except where that is a result of a disclosure in breach of this Agreement; and
(c) the Licensee can prove that it knew the information before it was disclosed to it by the Licensor.

11 LICENSOR’S WARRANTIES
11.1 The Licensor warrants that:
(a) The use of any or all of the Intellectual Property according to the terms and conditions of this Agreement will not result in the infringements of proprietary rights of third parties; and
(b) If accepting this Agreement online, the representations it has made to the Licensor about its identity are true and correct.

12 LICENSEE’S INDEMNITY
12.1 The Licensee must promptly advise the Licensor in writing of any Claims which may be brought or Loss which may be claimed against the Licensee or the Licensor or in respect of which the Licensee or the Licensor may become liable arising out of the supply or use of the Intellectual Property by the Licensee, its employees or agents.
12.2 The Licensee indemnifies the Licensor against any Claims or Loss arising out of the use of the Intellectual Property by the Licensee, its employees or agents. The defence of any litigation to which this clause applies is to be under the control of the Licensee, its solicitors and counsel, and all legal costs and expenses of any such litigation is borne by the Licensee. The Licensor, its solicitors and counsel may participate in such litigation at the expense of the Licensee.

13 GST AND WITHHOLDING TAX
13.1 If goods and services tax (“GST”) is payable in respect of payments made by the Licensee to the Licensor under this Agreement, the amounts payable will be increased by the amount of the GST, provided that:
(a) the Licensor is registered for the purposes of GST; and
(b) the Licensor must provide the Licensee with an invoice that complies with the form of “tax invoice” specified in the regulations to A New Tax System (Goods and Services Tax) Act 1999 (Cth).

14 NOTICES
14.1 A party giving notice under this Agreement must do so in writing to the address of the opposite party specified herein. A party may change its address by notifying the other party in writing. Such notice is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, three days after the date of posting;
(c) if sent by facsimile, when the senders facsimile system generates a message confirming successful transmission of the total number of pages of the notice unless, within eight hours after that transmission, the recipient informs the sender that it has not received the entire notice; or
(d) if sent by email, when the email is stated to be transferred as recorded in the mail envelope properties.

15 LIMITATION ON ASSIGNMENT
15.1 The Licensee must not assign all or any of its rights given to it under this Agreement without the prior written consent of the Licensor, which consent the Licensor may grant or not in its absolute discretion.
15.2 The Licensor may at its discretion assign all or any of its rights under this Agreement.

16 EXECUTION
16.1 Both parties acknowledge and agree that the original of this Agreement may be in facsimile and/or email form and agree to accept the facsimile and/or email copy as the original and binding Agreement. Although this Agreement is not conditional upon the subsequent execution of an original and duplicate by the parties, either party may request the other party to execute an original and duplicate of this Agreement in which case the parties agree to do so.

17 GENERAL PROVISIONS
17.1 Jurisdiction: this Agreement is governed by the Laws of Queensland and the parties irrevocably submit to the non-exclusive jurisdiction of Queensland courts in respect of any action or proceeding concerning this Agreement.
17.2 No partnership or agency relationship: nothing contained in this Agreement must be deemed to constitute partnership between the parties and nothing contained in this Agreement must deem either party to be the agent of the other party and the Licensee must not hold itself out as, engage in any conduct or make any representation which may suggest to any person that the Licensee is for any purposes, the agent of the Licensor.
17.3 Independent Advice: the parties warrant they separately have had the opportunity to obtain independent legal, financial and taxation advice prior to signing this Agreement.
17.4 Amendment: no variation or modification of this Agreement shall be of any effect unless in writing and signed by the parties.
17.5 Business Days: if anything is required to be done on a day that is not a Business Day, then it must be done instead on the next Business Day where “Business Day” means a week day other than a statewide public holiday.
17.6 Counterparts: this Agreement may be executed in any number of counterparts with the same effect as if each counterpart were on the same instrument.
17.7 Costs: each party is to be responsible to pay their own legal costs in relation to the preparation and entry into the Agreement.
17.8 Further assurances: each party to this Agreement will, at its own expense and without additional consideration, upon receipt of a request by another party promptly do such further acts and will execute, acknowledge, deliver and record such other documents and instruments as may be reasonably necessary or desirable from time to time to give full effect to this Agreement and any transaction contemplated by this Agreement.
17.9 Time of Essence: time shall be of the essence of the Licensee’s obligations hereunder unless otherwise agreed in writing by the parties.
17.10 Bargaining Power: the parties acknowledge that prior to making this Agreement:
(a) each party could negotiate for the alteration of or rejection of each and any of the provisions of this Agreement; and
(b) there is no material inequality in bargaining power between the parties; and
(c) each party had consulted or had the opportunity to consult independent legal and or financial advisers.
17.11 Agreement: this Agreement sets out the entire Agreement between the parties and it replaces all previous communications, representations, inducements, undertakings, Agreements and arrangements between the parties in respect of its subject matter and this Agreement may not be modified except by written Agreement signed by each party.
17.12 No waiver: failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
17.13 Severance: if a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
17.14 Stamp duty: stamp duty payable on this Agreement (including any fines or penalties) must be paid by the Licensee.
17.15 Survival: if this Agreement is terminated for any reason, such termination will not affect any accrued rights or liabilities of either party nor will it affect the coming into force of any provision of this Agreement which is expressly or by implication intended to come into force or continue on after the termination.
17.16 Confidentiality: the information in and terms of this Agreement are confidential to the Parties and shall not be disclosed to any third party other than advisers to the Parties or the Nominated Person. Neither party shall do any act or say anything that shall bring the reputation of the other into disrepute.