Terms and Conditions
The Agreement shall be made:-
BETWEEN:
1. The Licensor detailed in Item 2 of the Schedule.
2. The Licensee detailed in Item 3 of the Schedule.
BACKGROUND:
A. The Licensor is the owner of (or is exclusively authorized by the copyright owner to use and grant licences for) the Copyright Works detailed in Item 4 of the Schedule.
B. The Licensee desires to use the Copyright Works in the provision of educational services in the Educational Establishments detailed in Item 5 of the Schedule.
C. In consideration of payment by the Licensee of the Licence Fee detailed in Item 6 of the Schedule to the Licensor, the Licensor has agreed to grant to the Licensee a licence to use the Copyright Works.
OPERATIVE PART:
A. The Licensor is the owner of (or is exclusively authorized by the copyright owner to use and grant licences for) the Copyright Works detailed in Item 4 of the Schedule.
1. INTERPRETATION
1.1 Reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a party includes the party's executors, administrators, successors and permitted assigns;
1.2 Parties
(a) If a party consists of more than 1 person, this Agreement binds each of them separately and any 2 or more of them jointly.
(b) An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly.
(c) A party which is a trustee is bound both personally and in its capacity as a trustee.
2. LICENCE
2.2 Subject to the terms of this Agreement the Licensor hereby grants to the Licensee for the Term detailed in Item 8 of the Schedule, a non-exclusive, non-assignable licence to use the Copyright Works in the Educational Establishments from the Commencement Date detailed in Item 9 of the Schedule.
3. LICENCE FEE
3.1 In consideration of the licence herein granted the Licensee will pay the Licence Fee to the Licensor in the manner and at the times set out in Item 6 of the Schedule.
4. USE
4.1 The Licensee covenants and agrees to use the Copyright Works solely in the Educational Establishments, exclusively for the education of students in the Educational Establishments, and not for any other purpose whatsoever.
4.2 The Licensee is licensed to use the Number of Licenses detailed in Item 7 of the Schedule. The Licensee will use (and ensure that it holds) 1 licence for each student who is being taught using the Copyright Works at any one time. The Licensee will ensure that the number of students using the Copyright Works at any time does not exceed the Number of Licences held by the Licensee.
4.3 The Licensee will ensure that the Copyright Works are not provided to any person other than staff or students of the Educational Establishment.
4.4 In addition to paying the Licence Fee, the Licensee will purchase student texts and teacher texts from the Licensor. The Licensee will purchase 1 student text for each and every student who is taught using the Copyright Works.
4.5 The Licensor may from time to time introduce additional teaching aids associated with the Copyright Works.
4.6 The Licensee will under no circumstances make copies (or allow copies to be made) of the Copyright Works, the student text or the teacher text or any other teaching aid provided by the Licensor without the prior written authorisation of the Licensor.
5. STANDARDS
5.1 The Licensee shall not use the Copyright Works either by itself or as part of any other identification or name in relation to any operation or activity, other than in the provision of educational services within the Educational Establishments, and shall use it only in conformity with the standards set by the Licensor from time to time.
5.2 The Licensee shall permit any officer or agent of the Licensor, who is authorised in writing for that purpose, to enter upon any premises of the Licensee including the Educational Establishments during normal business hours by appointment in order to inspect the circumstances and the use or application of the Copyright Works. The officer or agent shall be entitled to take copies of documents and make inquiries for the purpose of examination and determination of compliance with the terms of this Agreement.
5.3 The Licensee will keep accurate, complete and legible records of all use of the Copyright Works including the details of all students using the Copyright Works or to who the Copyright Works are provided.
6. NO AGENCY
6.1 The Licensee shall not:
(a) grant any right, licence or authority to any third party to use the Copyright Works in anyway whatsoever;
(b) represent the Copyright Works as the property of the Licensee; or
(c) use the Licensor's name without obtaining the prior consent of the Licensor.
7. TITLE
7.1 The Licensee acknowledges that the Licensor is the owner or is exclusively authorised by the copyright owner to licence the Copyright Works and the Licensee undertakes not to take any action which would or might:
(a) invalidate or put in dispute the copyright owner's title or the Licensor's right to the Copyright Works;
(b) oppose any application for registration of the Copyright Works or invalidate any registration of the Copyright Works in process;
(c) support an application to challenge any registration of the Copyright Works;
nor shall the Licensee assist any other person directly or indirectly in any of the above acts.
7.2 All rights, title, interest and copyright in and to the Copyright Works (including but not limited to all photographs, images, animations, video, audio, music, text and other information incorporated into the Copyright Works) are wholly owned by the Licensor and are protected by all applicable copyright laws and international treaty provisions.
7.3 The Licensee assigns to the Licensor absolutely, any and all rights, title and interest to any copyright works arising directly from the Licensee's use of the Copyright Works under this Agreement.
8. MAINTENANCE OF VALUE
8.1 The Licensee shall use its best endeavours to preserve the value and validity of the Copyright Works and in particular shall:
(a) endeavour to create, promote and retain the goodwill relating to the Copyright Works; and
(b) use the Copyright Works only in accordance with this Agreement.
9. INFRINGEMENT
9.1 The Licensee undertakes to the Licensor that it shall do all things necessary for the protection of the Copyright Works against unauthorized use or infringement.
9.2 In the event that the Licensee becoming aware of or receives notice of any infringement or threatened infringement of all or part of the Copyright Works the Licensee shall forthwith notify the Licensor giving particulars and shall provide all information and assistance to the Licensor. Any such proceedings will be under the control and at the expense of the Licensor.
10. INDEMNITY
10.1 The Licensee shall at all times keep the Licensor indemnified from and against all claims, demands, actions, proceedings or prosecutions which may be brought, commenced or prosecuted against the Licensor or in which the Licensor may be involved in consequence of or relating to the use of the Copyright Works by the Licensee. The indemnity will extend to all costs, damages and expenses incurred by the Licensor in connection therewith.
11. TERMINATION
11.1 Without prejudice to any right or remedy which the Licensor may have against the Licensee for breach of this Agreement, the Licensor will have the right to terminate the authority to use any of the Copyright Works and this Agreement at any time without notice to the Licensee:
(a) if any liquidator, receiver, manager, trustee, administrator or any other insolvency practitioner enters into possession of any of the assets of the Licensee;
(b) if an administrator is appointed to the Licensee pursuant to the Corporations Act 2001;
(c) if any distress or execution is levied upon any of the assets of the Licensee and such distress or execution is not satisfied within seven (7) days;
(d) if the Licensee goes into liquidation whether voluntary or compulsory (otherwise than for the purpose of amalgamation or reconstruction) or makes any composition with its creditors;
(e) if the Licensee commits a breach of any of the provisions of this agreement and does not remedy the breach within a period of seven (7) days after receiving notice from the Licensor specifying the nature of the default; or
(f) if for any reason the Licensee ceases to operate the Educational Establishments.
11.2 On the expiry or termination of this Agreement the Licensee will immediately return all copies of the Copyright Works (including all teacher and student texts) provided by the Licensor to the Licensee (either pursuant to this Agreement or any other agreement) or in the Licensee's possession or control to the Licensor and will immediately cease using the Copyright Works in any way whatsoever.
11.3 All payments (including Licence Fee payments) are non-refundable.
12. WARRANTIES
12.1 The Licensor warrants that:
(a) it has exclusive rights to licence the Copyright Works; and
(b) there are no outstanding encumbrances or other matters affecting its capacity to authorise the Licensee to use the Copyright Works under this Agreement.
12.2 The Licensee warrants that all information provided by it in this Agreement or otherwise provided to the Licensor is accurate and complete.
12.3 Notwithstanding any other provision of this Agreement the Licensor warrants and agrees that it will be responsible for any fees and charges in relation to keeping the Copyright Works registered (where applicable), and will ensure (where applicable) that the Copyright Works are kept registered during the term of this Agreement.
12.4 Each party warrants that it:
(a) if it is a body corporate, it is duly incorporated and validly existing under the laws of the place of its incorporation;
(b) it has the power to enter into and perform its obligations under this Agreement; and
(c) it has taken all necessary corporate action to authorise the entry into and performance of this Agreement.
13. NOTICES
13.1 Every notice required or permitted under this Agreement will be in writing signed by or on behalf of the party giving it, and will be deemed to have been received by the intended party when copies are delivered person-ally to that party or when they are posted or faxed to its registered office. Proof that the notice was properly addressed and posted or faxed will be sufficient evidence of service.
14. JURISDICTION
14.1 This agreement will be governed by and construed in accordance with the laws of Australia and the parties submit to the exclusive jurisdiction of the Courts of Australia.
15. CHARGES
15.1 All stamp duties and governmental charges arising out of this Agreement shall be the responsibility of, and payable by, the Licensee. Any GST payable on any taxable supply pursuant to this Agreement shall be the responsibility of the Licensee.
16. NO WAIVER
16.1 The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
17. SEVERABILITY
17.1 Any provision in this Agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or un-enforceability, without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
17.2 If a term of this Agreement is held by a Court to be unenforceable then that term will be severed from this Agreement and not affect the enforceability of the other provisions of this Agreement.
18. CONFIDENTIALITY
18.1 This Agreement and all matters and things connected with and related to this Agreement and its performance are confidential and no party shall disclose them to any other person without the prior written consent of the other party except where such disclosure is
(a) to its legal advisers, financial advisers or bankers (and then only if the recipient agrees prior to receipt to keep the information confidential; or
(b) required by any applicable law.
19. NO ASSIGNMENT
19.1 The rights and obligations of the Licensee under this Agreement are personal and cannot be sold, transferred assigned, licensed, charged or otherwise dealt with and the Licensee shall attempt or purport to do so, without the prior written consent of the Licensor.
20. PRIVACY
20.1 Each party in performing their obligations under this Agreement shall each comply with the Privacy Act 1988 (Cth) and any applicable laws relating to the collecting and handling of the personal information of customers and the parties undertake to take all reasonable steps to ensure the integrity and confidentiality of the personal information obtained pursuant to this Agreement.
20.2 In addition to clause 20.1, both parties undertake to use reasonable endeavours to comply with each other's privacy policies and with regards to information supplied by the Licensor to the Licensee, the Licensee will comply with the Licensor's privacy policy.
20.3 The Licensee warrants that it will take all reasonable measures to store personal information provided by the Licensor or obtained though the use of the Copyright Works in a manner which will prevent it from being misused, or being accessed by someone other than authorised by the Licensee and/or the Licensor or by the individual to whom the information relates.
20.4 The parties shall:
(a) observe the National Privacy Principles under the Privacy Act 1988 (Cth); and
(b) not disclose, use or hold any personal information in breach of the Privacy Act 1988 (Cth).
20.5 Each party will indemnify and keep the other party indemnified against all costs (including legal costs on an indemnity basis) expenses, losses, claims, orders and determinations suffered or incurred by the party as a result of the other party not complying with its obligations, determinations or orders regarding privacy.
20.6 Pursuant to section 12(1)(c) of the Do Not Call Register Act 2006 (Cth) the Licensee warrants it will take reasonable steps to ensure that they, their employees and agents comply with the provisions set out in the Do Not Call Register Act 2006 (Cth).
