Intellectual Property Licence Agreement

Progress:

Will the intellectual property be transferred by the first party to the second party completely (so that the second party becomes the new owner of it), or will the first party just let the second party use it in a certain way, while the first party still actually owns it?

The first party is only allowing the second party to use it in a restricted way, and the first party will still be the actual owner of it

The first party will completely transfer it to the second party, so the second party can do what they like with it

There are several ways in which parties can deal with intellectual property. In some cases, parties might effectively want to sell the rights in the intellectual property entirely. This might happen, for example, when the first party creates a logo, and the second party wants to buy that logo outright. The parties intend that after the sale, the second party can do whatever they like with the logo, including modifying it, or selling it to other parties. This is often referred to as an 'assignment' of intellectual property. If this applies, select the first option. In some other cases, the first party might want to give the second party the right to use the intellectual property in certain circumstances, while the first party still holds ultimate control over it. For example, the first party might have created a piece of software, and might want to make it available to many different users. Each user might pay a fee to get the right to use the software for a 12 month period, but may not be allowed to modify it or sell it to anyone else. This is often referred to as a 'licence' of intellectual property, and this is what this document is designed to do. If this sort of arrangement applies, select the second option. If the parties want to transfer the entire ownership of the intellectual property (if they want an 'assignment' of intellectual property), they may use our Intellectual Property Assignment Agreement.

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LICENCE AGREEMENT

THIS LICENCE AGREEMENT (hereinafter "Agreement") is dated ____________________ (enter the date that this Agreement is signed)

BETWEEN THE LICENSOR:

________ (hereinafter "Licensor")

Of the following address:

________

AND THE LICENSEE:

________ (hereinafter "Licensee")

Of the following address:

________

RECITALS

WHEREAS, Licensor owns all right, title and interest in and to a certain work of intellectual property (hereinafter "Work"), defined specifically as the following:

________

WHEREAS, Licensee wishes to use said Work;

WHEREAS, Licensor is willing to grant a licence in and to said Work.

NOW, therefore, in consideration of the promises and covenants contained herein, as well as other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties do hereby agree as follows:

(1) DEFINITIONS

In this Agreement, the following definitions apply:

"ACL" means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Commonwealth).

"Agreement" means this agreement.

"Agreement Date" means the date marked at the top of this document.

"Business Day" means a day which is not a Saturday, Sunday, public holiday or bank holiday in New South Wales.

"Commencement Date" means ________.

"Derivative Works" means works that are an adaptation of the Work, that reproduce a substantial part of the Work, or that combine the Work with other pre-existing work.

"Goods and Services Tax" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law.

"GST" means Goods and Services Tax.

"GST Law" means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).

"Intellectual Property Rights" means, in relation to the Work, or any part, summary or derivation of the Work, all present and all future right title and interest in or to any confidential information, logos, brand names, business names, trade names, domain names, registered trade marks, unregistered trade marks, registered designs, unregistered designs, copyrights, patents, service marks, business know-how, inventions, computer programs, business systems or other related information.

"Licence" has the meaning as defined in the "Grant of Licence" clause of this Agreement.

"Moral Rights" means the same as in the Copyright Act 1968 (Commonwealth).

"Party" means either the Licensor or the Licensee.

"Parties" means the Licensor and the Licensee collectively.

"Purpose" has the meaning as defined in the "Grant of Licence" clause of this Agreement.

"Work" means the Work of intellectual property which is described as follows:

________

(2) INTERPRETATION

In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:

(a) Words referring to one gender include every other gender.

(b) Words referring to a singular number include the plural, and words referring to a plural include the singular.

(c) If a word or phrase is defined in this Agreement then any grammatical variations of that word or phrase have a corresponding meaning.

(d) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.

(e) Any reference to time is a reference to time in New South Wales.

(f) In the event that something must be done under this Agreement on or before a particular date, if that date falls on a day which is not a business day, then that thing must be done on or before the next business day.

(g) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

(h) Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.

(i) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.

(j) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation.

(k) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.

(l) A reference to a Party also includes that Party's successors, assigns, legal personal representatives and/or any person that is substituted by way of novation.

(m) Any reference to money or currency, unless otherwise specified, is a reference to Australian dollars.

(3) GRANT OF LICENCE

(a) The Licensor owns the following property (the "Work"):

________

(b) In accordance with this Agreement, the Licensor grants the Licensee an exclusive licence to use the Work (the "Licence").

________

(d) The Licensee may not use the Work for any purpose other than the Purpose described under the preceding clause hereof, except with the Licensor's express written permission.

(e) The Licensor retains title and ownership of the Work.

(f) Except as otherwise expressly provided in this Agreement, the Licensor retains all rights, titles, interests and licences in the Work which are not expressly granted under this Agreement.

(4) SUB LICENCE

The Licensee may sub-licence the Licensee's rights under this Agreement.

(5) FEES

Licensee shall pay to Licensor a royalty payment ("Royalty") which shall be a one-time flat payment of $________ (________) paid up front at the time the Licensor grants the Licence to the Works to the Licensee.

(6) GOODS AND SERVICES TAX

(a) Unless otherwise explicitly agreed to by each of the Parties, the Royalty payable under this Agreement excludes GST.

(b) In the event that GST is payable on the Royalty under this Agreement, the Licensee will pay to the Licensor an amount equal to the GST payable on the Royalty ("the GST Amount"), calculated by multiplying the Royalty by the prevailing GST rate.

(c) The Licensee must pay the GST Amount to the Licensor at the same time and in the same manner as the Royalty is payable.

(d) Any obligation on the Licensee to pay the GST Amount under this clause is conditional on the Licensor providing to the Licensee a valid tax invoice in accordance with GST Law.

(e) This clause will survive Termination, expiration or Completion of this Agreement.

(7) MODIFICATIONS

The Licensee may freely make modifications to the Work without any prior approval from the Licensor.

(8) CONFIDENTIALITY

(a) The Licensee hereby acknowledges and agrees that during the term of this Agreement, the Licensee may have access to information that is confidential and/or commercially valuable to the Licensor ("Confidential Information"), which may include but is not limited to:

(I) information of whatever nature relating to the business activities, practices and finances of the Licensor;

(II) any other evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, marketing strategies, innovations, creative plans, concepts and any other plans or ideas developed by the Licensor or on its behalf, or used by the Licensor, whether relating specifically to the Licensor's business or otherwise;

(III) any information derived from any other information which falls within this definition of Confidential Information; and

(IV) any copy of any Confidential Information.

but does not include information which:

(I) was known or in the possession of the Licensee before it was provided to the Licensee by the Licensor, provided that it was known or in the possession of the Licensee through legal means, and not as a result of any breach of this Agreement or any other agreement or obligation relating to confidentiality (whether or not the Licensee was a party to such other agreement or obligation);

(II) is, or becomes, publicly available, through no fault of the Licensee;

(III) is provided to the Licensee without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;

(IV) is provided to the Licensee by the Licensor and is marked "Non Confidential"; or

(V) is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Licensor is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.

(b) If there is any doubt as to whether any particular information constitutes Confidential Information, the Licensee should presume it is Confidential Information, until the Licensee obtains explicit confirmation from the Licensor that it is not Confidential Information.

(c) The Licensee shall keep the Confidential Information confidential and secret.

(d) The Licensee shall only use the Confidential Information in accordance with the Licence created under this Agreement and in genuine pursuit of the Purpose.

(e) The Licensee will hold the Confidential Information in confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of the Licensor.

(f) The Licensee will not copy or modify any Confidential Information without the prior written consent of the Licensor, or as expressly permitted in accordance with the Licence.

(g) The Licensee shall promptly advise the Licensor if the Licensee becomes aware of any possible unauthorised disclosure or use of the Confidential Information.

(h) The Licensee shall not disclose any Confidential Information to any employees of the Licensee, except those employees who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee to whom Confidential Information is disclosed shall sign a non-disclosure agreement substantially the same as this Agreement at the request of Licensor.

(i) This clause will survive Termination, expiration or Completion of this Agreement.

(9) INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

In the event that either Party (the "First Party") becomes aware of any infringement or any threatened infringement of any Intellectual Property Rights in relation to the Work, or of any common law 'passing off' in relation to any Intellectual Property Rights, then:

(a) The First Party must immediately notify the other Party of such infringement or 'passing off' (together hereinafter "Infringement").

(b) The Parties must each take all reasonably necessary steps, including executing all necessary documents, and must cooperate in good faith, in order to protect and enforce both Parties' Intellectual Property Rights in relation to the Work.

(c) The costs and expenses of any action taken under this clause in relation to an Infringement, including but not limited to any legal costs, must be shared equally between the Parties.

(10) LICENSOR RIGHT TO USE DERIVATIVE WORKS

In the event that the Licensee creates Derivative Works, then as of the date of the creation of such Derivative Works, Licensee grants back to Licensor a non-exclusive, non-transferable, royalty-free licence to use the said Derivative Works ("Licence Back"), provided that such Licence Back does not limit or restrict the Licensee's rights to use the Work in accordance with the Licence.

(11) LICENSOR WARRANTIES

(a) The Licensor hereby provides the following warranties (hereinafter the "Licensor's Warranties"):

(I) That the Licensor has the full legal authority and capacity to enter this Agreement.

(II) That the Licensor owns or controls the rights in the Work which the Licensor is providing to the Licensee under this Agreement.

(III) That the Licensor has the full legal authority to provide the Work to the Licensee.

(IV) That there are no restrictions, legal or otherwise, which prevent the Licensor from entering this Agreement.

(V) That this Agreement, and the Work, do not and will not infringe the intellectual property rights of any third party.

(VI) That there are no legal claims, existing or threatened, and no other circumstances or liabilities which may negatively affect or impair the Licensee's ability to use the Work in accordance with this Agreement.

(VII) That except as otherwise expressly disclosed to the Licensee, to the best of the Licensor's knowledge, the Work is free from any defects.

(b) In the event that the Work breaches a warranty set out under this Agreement ("Breach"):

(I) the Licensor will:

________

(II) in order to be entitled to make a claim in relation to the Breach, the Licensee must:

________

(III) in order to make a claim in relation to the Breach, the Licensee must:

________

(IV) the Licensor is responsible for any expenses associated with any successful claim in relation to the Breach.

(V) any benefits provided to the Licensee in relation to the Breach are in addition to other rights and remedies available to the Licensee under the law.

(c) Except as otherwise required by law, the Licensee's right to claim in relation to the Breach will expire the following period after the Licensee takes possession of the Work: ________

(d) The Licensor provides no warranties except for those set out in this Agreement or as otherwise required by law.

(e) This clause will survive the termination or expiration of this Agreement.

(12) LICENSOR INDEMNITY

(a) The Licensor hereby indemnifies, keeps indemnified, and holds harmless the Licensee against any losses, liabilities, claims, damages, expenses, charges, fines, penalties or other costs whatsoever which the Licensee or any directors, employees, officers, agents, representatives or contractors of the Licensee may incur, directly or indirectly, as a result of a breach one or more of the Licensor's Warranties.

(b) This clause will survive Termination, expiration or Completion of this Agreement.

(13) LICENSEE WARRANTIES

(a) The Licensee hereby provides the following warranties (hereinafter the "Licensee's Warranties"):

(I) That the Licensee has the full legal authority and capacity to enter this Agreement.

(II) That the Licensee will only use the Work in accordance with the Licence granted under this Agreement.

(b) This clause will survive Termination, expiration or Completion of this Agreement.

(14) LICENSEE INDEMNITY

(a) The Licensee hereby indemnifies, keeps indemnified, and holds harmless the Licensor against any losses, liabilities, claims, damages, expenses, charges, fines, penalties or other costs whatsoever which the Licensor or any directors, employees, officers, agents, representatives or contractors of the Licensor may incur, directly or indirectly in relation to:

(I) the use, operation, storage, repair or maintenance of the Work; or

(II) any loss or damage to property in connection with the use, operation, storage, repair or maintenance of the Work; or

(III) any injury (or death) suffered by any person in connection with the use, operation, storage, repair or maintenance of the Work; or

(IV) any loss or destruction of the Work; or

(V) any damage to the Work; or

(VI) any breach of this Agreement by the Licensee or by any directors, employees, officers, agents, representatives or contractors of the Licensee; or

(VII) any breach by the Licensee or by any directors, employees, officers, agents, representatives or contractors of the Licensee, of any registration, licence, permit, authorisation, regulation, legislation, by-law, ordinance or rule relating to the use of the Work; or

(VIII) any claim made by a third party against the Licensor that is related in any way to the Licensee's use of the Work; or

(IX) any costs which the Licensor might incur in enforcing its rights under this Agreement, including the Licensor's legal costs on a full indemnity basis.

(b) The Licensee will not be liable under this clause for any loss, liability, claim, damages, expense, charge, fine, penalty or other cost which is caused by the Licensor's gross negligence, wilful misconduct or bad faith.

(c) This clause will survive Termination, expiration or Completion of this Agreement.

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(a) This clause will survive Termination, expiration or Completion of this Agreement.

(16) WARRANTIES REGARDING COMPETITION

(a) Each Party hereby respectively warrants:

(I) That this Agreement does not relate to a contract, arrangement, or understanding, or a concerted practice for the purpose, or with the likely effect, of substantially lessening competition;

(II) That this Agreement does not relate to some kind of exclusive dealing between the parties, for the purpose, or with the effect or likely effect, of substantially lessening competition;

(III) That this Agreement does not relate to some kind of arrangement involving "price fixing", whereby competitors have agreed on pricing rather than competing against each other;

(IV) That this Agreement does not relate to some kind of arrangement involving "output restrictions", whereby competitors have agreed to prevent, restrict, or limit the volume or type of particular goods or services available;

(V) That this Agreement does not relate to some kind of arrangement involving "market sharing", whereby competitors have agreed to divide or allocate customers, suppliers, or territories among themselves rather than allowing competitive market forces to work; and

(VI) That this Agreement does not relate to some kind of arrangement involving "bid rigging" or "collusive tendering", whereby competitors have agreed they will not compete genuinely with each other for tenders, allowing one of the competitors to 'win' the tender.

(b) This clause will survive Termination, expiration or Completion of this Agreement.

(17) LIMITATION OF LIABILITY

(a) Notice to the Licensee:

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

(b) The Licensee may have certain rights under the ACL, or under other similar or related consumer protection laws.

(c) The ACL (or any other similar or related consumer protection laws) may give the Licensee certain rights, warranties, guarantees and remedies regarding the provision of goods or services by the Licensor, which cannot be excluded, modified or restricted by the Licensor ("Statutory Rights").

(d) The Licensor's liability to the Licensee is governed solely by the ACL (and any other similar or related consumer protection laws) and by this Agreement.

(e) To the maximum extent permitted by law, except as otherwise provided in this Agreement, and except in cases of death or personal injury caused by a Party's gross negligence, wilful misconduct or bad faith, that Party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the fulfilment of obligations under this Agreement, liability shall be limited to Fees paid by the Licensee to the Licensor.

(f) To the extent it is lawful, and except as otherwise provided in this Agreement, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.

(g) When the Licensee's Statutory Rights apply, to the maximum extent possible, the Licensor's liability in respect of any claim is limited to, at the Licensee's option:

(I) in the case of goods:

(A) a replacement of the goods; or

(B) the supply of equivalent goods; or

(C) a repair of the goods; or

(D) the payment of the cost of replacing the goods; or

(E) the payment of the cost of acquiring equivalent goods or of having the goods supplied again; or

(F) the payment of the cost of having the goods repaired; and

(II) in the case of services:

(A) the supply of the services again; or

(B) the payment of the cost of having the services supplied again.

(h) This clause will survive the Termination or expiration of this Agreement.

(18) TRANSFER OF RIGHTS

(a) This Agreement shall be binding on any successors of the Parties.

(b) This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by either Party without the prior written consent of the other Party.

(19) COMMENCEMENT

The Licence created under this Agreement commences on the following date ("Commencement Date"):

________

(20) TERMINATION

(a) This Agreement may be terminated by either Party by providing 30 days' written notice to the other Party.

(b) This Agreement shall automatically terminate on ________.

(I) The Licensee fails to pay any part of the Royalty or any other payment when due under the terms of this Agreement.

(II)The Licensee is declared bankrupt, enters into administration or enters into liquidation.

(III) The Licensee is in breach of this Agreement and fails to rectify the said breach within 21 days after receiving notice from the Licensor of the said breach.

(d) In addition, this Agreement may be terminated by the Licensee if:

(I) The Licensor is declared bankrupt, enters into administration or enters into liquidation.

(II) The Licensor is in breach of this Agreement and fails to rectify the said breach within 21 days after receiving notice from the Licensee of the said breach.

(e) Immediately upon the termination of this Agreement:

(I) Any and all rights in the Work will revert to the Licensor.

(II) Any and all Royalty payments which have previously been paid by the Licensee remain the Licensor's property and the Licensee has no right to make any claim in relation to them.

(III) Any and all obligations for Royalty payments which are accrued but unpaid as at the date of termination must be paid in full to the Licensor.

(IV) The Licensee must, upon demand by the Licensor, provide to the Licensor any and all documents or other materials in the Licensee's possession which relate to the Work.

(V) The Licensee must, upon demand by the Licensor, take any reasonable steps as requested by the Licensor to protect the Licensor's right, title and interest in the Work.

(f) In the event that this Agreement is terminated by the Licensee, the Licensee shall remain liable for any and all Royalty payments or other payments accrued under the terms of this Agreement as at the date of termination.

(21) NOTICES

(a) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Licensor if delivered to the following address:

________

(b) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Licensee if delivered to the following address:

________

(c) Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing of the New Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.

(22) WRITTEN COMMUNICATION

In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:

(a) such notice is properly given if given to the other Party:

(I) by email to an email address that the other Party has nominated, acknowledged or used in connection with this Agreement.

(II) by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with this Agreement.

(III) by post to a postal address the other party has nominated, acknowledged or used in connection with this Agreement.

(b) such notice is taken to be received:

(I) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.

(II) if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.

(III) if sent by prepaid post within Australia, five (5) days after the date of posting.

(IV) if sent by prepaid post to or from an address outside Australia, twenty one (21) days after the date of posting.

(23) GENERAL PROVISIONS

(a) GOVERNING LAW: This Agreement shall be governed in all respects by the laws of New South Wales and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within New South Wales.

(b) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.

(c) AMENDMENTS: No amendment to or modification of this Agreement, and no additional obligation or obligations in relation to this Agreement or the subject matter of this Agreement, will bind any Party unless evidenced in writing and signed by both Parties.

(d) RIGHTS, REMEDIES AND POWERS: Unless expressly provided in this Agreement, any rights, remedies or powers which a Party acquires under this Agreement are cumulative and apply in addition to any rights, remedies or powers which that Party may otherwise have. Unless expressly provided in this Agreement, nothing in this Agreement shall in any way reduce, extinguish, postpone, restrict or otherwise limit any right, remedy or power which that Party may have.

(e) SURVIVAL OF OBLIGATIONS: Notwithstanding any other provisions of this Agreement, at the Termination, expiration or Completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive Termination, expiration or Completion shall remain in full force and effect, including but not limited to any provisions which are explicitly stated to survive Termination, expiration or Completion.

(f) NO WAIVER: None of the powers or rights created under the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. A power or right under the terms of this Agreement may only be waived in writing, signed by the Party that is waiving the said power or right. No waiver of any power or right under a term of this Agreement shall constitute a waiver of any other power or right or of the same power or right on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.

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(i) COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall constitute a single agreement. If the dates set forth at the end of this document are different, this Agreement is to be considered effective as of the date that both Parties have signed the agreement, which may be the later date.

(j) FORCE MAJEURE/EXCUSE: Neither Party is liable to the other for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, labour or transportation disputes, and other acts which may be due to unforeseen circumstances.

(k) FURTHER ACTS: Each Party must, and must ensure that its directors, employees, officers, agents, representatives and contractors do all things and sign, execute and deliver all documents, agreements and instruments as reasonably required in order to give effect to this Agreement and to the rights and obligations of the Parties created under this Agreement.

EXECUTED AS AN AGREEMENT THIS ________

Executed by ________ in accordance with s127 of the Corporations Act 2001 (Cth) by:

___________________________________
Signature of first director

____________________________________
Name of first director

___________________________________
Signature of second director

____________________________________
Name of second director