Background
A. The Licensor is the owner of the Intellectual Property and Product described in this T&C.
B. The Licensor is licenced to use the Intellectual Property.
C.The Licensee intends to take a Licence from the Licensor to be permitted to use the Intellectual Property and to purchase from the Licensor Product in order to provide educational services.
D. In accordance with the terms set out in the contract between the Licensor and Licensee (“the Contract”), the Licensor has agreed to grant to the Licensee a non-exclusive Licence to use the intellectual Property and to provide the Product for the Permitted Purpose subject to the terms of the Contract and this T&C.
Operative provisions
1. Definitions and interpretation
1.1 Definitions
Words used in the Contract and this T&C are as defined herein:
Claims includes all manner of losses, damages, actions, suits, causes of action, arbitrations, debts, dues, costs, claims, demands, interest, verdicts and judgments whatsoever both at law, or in equity or arising under the provisions of statute.
Commencement date means the date set out in the Contract.
Contract means the contract between the Licensor and Licensee.
Event of Default means any of the events described as such in this T&C (including, without limitation, those events described in clause 12 of this T&C).
GST has the meaning given to that term in the GST law and includes any replacement or subsequent similar tax.
Government Agency means a government or government department, a governmental, semi-governmental or judicial person or a person (whether autonomous or not) charged with the administration of any applicable law.
Intellectual Property means the intellectual property listed in Item 1 of Schedule 1.
Licence Fees means the amount and manner listed in the Contract.
Misrepresentation means any representation, warranty or statement made, or taken to be made, in this T&C or in the Contract, or in any document provided by the Licensee to the Licensor, of any nature, in the course of negotiating the agreement between the parties reflected in the Contract, or otherwise referred to in, or issued pursuant to, this T&C, which is later identified to be untrue in any material respect when made, or taken to be made, as the case may be.
Notice to Rectify means the form that may be served by one party to another pursuant to clause 12. Substantially in the form shown in Schedule 2.
Permitted Purpose means the purpose listed in Item 2 of Schedule 1.
Service means the service listed in Item 3 of Schedule 1.
Term means the period beginning on the Commencement Date and ending on the Termination Date.
Termination Date means the date this Licence is terminated pursuant to the Contract.
Transaction Documents means:
(a) the Contract;
(b) this T&C;
(b) any other document which the parties agree is a Transaction Document; and
(c) any document required to give effect to the provisions of the Contract.
1.2 Interpretation
In this T&C, unless the contrary intention appears:
(a) a reference to this document means this T&C, and references to clauses and schedules are references to clauses and schedules of this T&C;
(b) any word, term or expression for which a particular or special meaning has been attributed or ascribed by a law shall be given that particular or special meaning in this T&C;
(c) singular includes the plural and vice versa;
(d) a reference to any one gender includes each other gender (as the case may require);
(e) a reference to a person includes a reference to that person’s executors, administrators, legal personal representatives, successors and permitted assigns;
(f) an agreement on the part of, or in favour of, two or more persons binds them or any one of them jointly and severally;
(g) time is of the essence in the performance by the parties of their respective obligations under the Contract and this T&C;
(h) if any provision of this the Contract and this T&C refers to the time on or by which anything is to be done, or to time generally, then that provision will be taken to include a reference to Australian Eastern Standard time;
(i) a reference in the Contract and this T&C to a “Business Day” means a day on which banks are open for business generally in the state of Victoria, Australia, other than the following days:
(i) a Saturday or Sunday;
(ii) any public holiday; and
(iii) the period from Australian Christmas Day up to and including the Australian New Year’s Day public holiday;
(j) if the day on or by which a person must do something under this Deed is not a Business Day, the person must do it on or by the next Business Day;
(k) other grammatical forms of defined words or expressions have corresponding meanings; and
(l) words and expressions importing natural persons include partnerships, bodies corporate, associations and public authorities.
All headings in this T&C have been inserted for the purposes of ease of reference only and do not affect the meaning or interpretation of this T&C.
2. Commencement and Term
(a) The Contract commences on the Commencement Date and terminates on the Termination Date.
(b) The parties may extend the Term for a further period by agreement in writing and the payment by the Licensee to the Licensor. If the Term is extended, references to “Term” in this T&C include the extended Term.
3. Service
The Licensor shall provide services to the licensee as described in Item 3 of Schedule 1.
4. Licence
(a) The Licensor grants to the Licensee, during the Term, a Licence to use the Intellectual Property and Product for the Permitted purpose.
(b) The Licensee acknowledges that the Intellectual Property and each derivative form of the Intellectual Property is the exclusive property of, and is owned by the Licensor.
(c) The Licensee acknowledges that the Product is the exclusive property of the Licensor and the Licensor retains title to the Product.
(d) All existing goodwill in the Intellectual Property is vested in and all future goodwill arising out of the use by the Licensee of the Intellectual Property will vest in and remain the exclusive property of the Licensor.
(e) The Licensee, its agents/employees/contractor/sub-contractors, must not at any time during the Term or after the expiration of the Term apply for registration of any trade mark, business name, company name or domain name which includes any words or logos that are the same as, substantially identical to or deceptively similar to the Intellectual Property or any other Intellectual Property used by the Licensor or any subsidiary of the Licensor, from time to time.
(f) It is the Licensee’s responsibility to properly implement the accessible programs provided by the Licensor.
5. Obligations of the Licensee
5.1 During the Term, the Licensee must comply, within a reasonable time, all directions issued by the Licensor regarding the manner of use of the Intellectual Property
6. Licence Fees
6.1 In consideration of the grant by the Licensor to the Licensee of the right to use the Intellectual Property and supply the Product (if any), the Licensee must pay the Licensor the Licence Fee in the manner set out in the Invoice/Contract.
6.2 In the event that the Licensee fails to pay the Licensor as stipulated in the Invoice/Contract, then the Licensor will have the option to suspend the services, including but not limited to the link, until payment is received by the Licensor.
7. Manual
7.1 The licensor must give the Licensee electronic access to the Manual during the Term.
7.2 The Licensee must comply with the manual in the conduct of its services. If the Licensee does not comply with any part of the Manual, the Licensee will be in breach of this agreement.
8. System Changes
The Licensee acknowledges that:
(a) The System may need to change and evolve over time to adapt and to accommodate, among other things, changes in:
(i) the market
(ii) business plans, and/or
(iii) technology
(b) The System may need to change and evolve over time to adapt and to accommodate, among other things, changes in:
(b) The Licensor reserves the right to change the System at its absolute discretion, including to:
(i) change, cease using or to introduce new processes and know-how, or
(ii) change, introduce or require the Licensee to use specific technology or systems.
9. Changes to Intellectual Property
The Licensor may at its sole discretion:
(a) change all or any part of the brand, and/or
(b) relinquish all or any part of the Intellectual Property and adopt in its place other intellectual property, including a new brand.
10. Restrictions on Transfer
(a) The Licensee is not entitled to, and must not, sub-licence or Transfer the use of any or all of the Intellectual Property or supply any of the Product without the prior express written consent of the Licensor.
11. Renewal of Licence and Service Agreement
(a) The Licensor agrees to grant a new licence to the Licensee after expiration of the Term of the existing Licence provided the Licensee has been compliant with the terms of this T&C and the Contract.
(b) The licence fee payable on renewal will be set out in the new licence and service agreement served on the Licensee 30 days before expiration of the Term.
12. Breach
(a) If the Licensee is in breach of the Contract and or this T&C, the licensor may issue a Notice to Rectify at any time after the breach occurs.
(b) If the Licensor is in breach of the Contract and this T&C, the Licensee may issue a Notice to Rectify at any time after the breach occurs.
(c) If the party that is in breach of the Invoice/Contract and this T&C has received a Notice to Rectify, the party that issued the Notice to Rectify may terminate the Contract after first having complied with clause 13.
13. Process for Settling Disputes
(a) A party claiming that a dispute has arisen, must give written notice to the other party to the dispute specifying the nature of the dispute.
(b) Following receipt of the notice under paragraph (a), the parties to the dispute must, seek to resolve the dispute by consultation between a director/manager of each party within 14 days of receipt of the notice.
14. Termination
14.1 The licensor has the right to terminate the rights of the Licensee under this T&C and the Contract (including the right to use the Intellectual Property), by notice in writing from the Licensor to the Licensee, without compensation, if:
(a) The Licensee has engaged in business or services which in the reasonable opinion of the Licensor could, would or might be injurious to the Licensor and including but without limitation injurious to the goodwill associated with all or any part or any or parts of any business carried on by the Licensor under the Intellectual Property or any derivative from the Intellectual Property; or
(b) The Licensee fails to comply with its obligations in relation to the supply of services and the payment of Licence fees, and any other monies owing to the licensor.
14.2 If a party that has received a Notice to Rectify fails to rectify the breach named in the Notice to Rectify before the date that is 14 days after the date of the Notice to Rectify, the party that issued that Notice may terminate this Licence.
15. Consequences of termination
On early termination of the Contract and this T&C under clause 14:
(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) The Licensee must deliver to the licensor all Product belonging to the Licensor; and
(c) 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.
16. Secrecy obligations
16.1 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 Licence granted in this T&C and the Contract; and
(b) not use any of the Licensor’s disclosures or other information or technical data, except for the purposes of the Licence granted herein and on the terms of the Contract.
16.2 Regardless the provisions of clause (a), 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 T&C and the Contract; and
(c) the Licensee can prove that it knew the information before it was disclosed to it by the Licensor.
17. Licensor’s warrantees
(a) The Licensor warrants that the use of any or all the Intellectual Property according to the terms and conditions of this deed will not result in the infringements of proprietary rights of third parties.
(b) The Licensor indemnifies the Licensee against any claims made or threatened, whether by legal proceedings or otherwise, against the Licensee by a third party on the grounds that by virtue of rights to which such third party lays claim, under letters patent or copyright (whether registered as a design or not) or any other similar right or claim including rights arising from the disclosure under cover of confidence, such third party is entitled to prevent or interfere with the free use of any or all of the Intellectual Property by the Licensee pursuant to this T&C and the Contract.
18. Licensee’s indemnity
(a) The Licensee must promptly advise the Licensor in writing of any claims which may be brought or claimed against the Licensee or the Licensor or in respect of which the Licensee or the Licensor may become liable arising out of the use of the Intellectual Property by the Licensee, its employees or agents.
(b) The Licensor, its solicitors and counsel may participate in such litigation in (a) at the expense of the Licensor.
19. Notices
19.1 Form and manner of service
(a) Any notice, request or other communication to be given or served, pursuant to this T&C, must be in writing and shall be dealt with as follows:
(i) if given by the Licensor to the Licensee, signed by the Licensor or by their solicitor, and addressed and forwarded to the Licensee, then in accordance with the information provided on the Contract; and
(ii) if given by the Licensee to the Licensor, signed by the Licensee or its solicitor and forwarded to the Licensor in accordance with the information in the Contract.
(b) Any such notice, request or other communication shall be delivered by hand or sent by pre-paid security post, facsimile transmission or e-mail to the address of the party to which it is sent.
19.2 When received
Any notice, approval, request, demand or other communication will be deemed to be received:
(a) if delivered personally, on the day of delivery;
(b) if sent by pre-paid security post, upon the expiration of four Business Days after the date on which it was sent; and
(c) if transmitted electronically, upon receipt by the sender of an acknowledgement that the communication has been properly transmitted to the recipient.
20. Costs
Each party must pay its own legal costs and expenses in relation to the negotiation, preparation and execution of the Contract and other documents referred to in it – unless expressly stated otherwise.
21. General
21.1 Entire Agreement
The Contract and this T&C constitute the entire agreement and undertaking between the parties in relation to the subject matter, and supersedes any previous Deeds, agreements, arrangements, and undertakings between them.
21.2 General Covenants
The parties mutually covenant and agree that they will each do all the acts and things and execute all the Deeds and documents as shall, from time to time, be reasonably required for the purpose of, and to give effect to, the Contract and this T&C.
21.3 Confidentiality
The Contract and this T&C are confidential to the parties and shall not be disclosed by any of the parties, except:
(a) with the consent of the other parties.
(b) as is required or permitted by any law.
(c) by the parties to their respective auditors, bankers, tax advisors or legal advisors under a duty of confidentiality.
21.4 Duration of agreement
The Contract and this T&C will continue in force in accordance with this T&C and the Contract. However, any warranties, obligations, undertakings, and indemnities referred to in the Contract and this T&C shall survive the expiration or earlier termination of the Contract.
21.5 Governing law
The Contract and this T&C shall be construed and governed in accordance with the laws in force in Victoria, Australia, and shall take effect between the parties from the date the Contract is signed or executed.
21.6 Illegality, invalidity, or unenforceability
The illegality, invalidity or unenforceability of any provision of the Contract and this T&C or any part of a provision of the Contract and this T&C shall not affect the legality, validity or enforceability of any other provision or part of a provision of the Contract and this T&C and any provision or part of a provision of the Contract and this T&C which is illegal, invalid or unenforceable shall be severed from the remainder of the Contract and this T&C.
21.7 Variation
Unless otherwise provided for in the Contract and this T&C, no variation or modification of the Contract and this T&C shall be binding unless in writing and signed by or on behalf of each party.
21.8 Waiver
The failure or omission of a party at any time to:
(a) enforce or require the strict observance of or compliance with any provision of the Contract and this T&C; or
(b) exercise any election or discretion under the Contract and this T&C,
will not operate as a waiver of them or the rights of a party, whether express or implied, arising under the Contract and this T&C.
21.12 Not a general precedent
The Contract and this T&C is not a general precedent, and it applies only to the parties in relation to the subject matter of the Contract and this T&C.
21.13 Counterparts
The Contract may be executed in any number of counterparts, all of which taken together shall be deemed to constitute one and the same Contract.
21.14 Time is of the essence
Time is of the essence in the Contract and this T&C. If a time obligation of a party has been varied in writing, the time obligation as varied is of the essence in this the Contract and this T&C.
Schedule 1
Item 1
Intellectual Property
(a) Any resources provided (e. g. Video lesson, Teacher Lesson Plans, Sign Reference Sheets, Activity materials) remain the intellectual property of Auslan Education Services and cannot be shared or on sold.
Item 2
Permitted Purpose
(a) To use our resources provided, for the purposes designed – i.e. teaching Auslan within the contracted school.
(b) This prohibits sharing with other outside agencies and editing our materials for other purposes.
Item 3
Service
(a) To provide Auslan language instruction to Primary School Children (and by special arrangement to Kinder/ELC/Secondary) in Government and Non-Government Sectors.
(b) To provide an Auslan program for the term of the Contract with Video Lesson, Lesson Plans, Sign Reference Sheets, and Activity materials for some lessons.