Customer Licence Agreement

Co.Design4All Framework – Customer Licence Agreement for Members.

THIS LICENCE AGREEMENT is made on the date set out in Item 5 of the Schedule.

BETWEEN

The party set out in Item 1 of the Schedule (“the Licensor”); and

The party set out in Item 2 of the Schedule (“the Licensee”).

RECITALS

A.         The Licensor owns and has the right to use and develop the Co-Design Tools and Support Framework described in Item 3 of the Schedule (“the Framework”).

B.         The Licensee desires the Framework for the permitted use.

C.         The Licensor and the Licensee wish to record the license, which has been granted to the Licensee to use the Program in accordance with this Agreement.

OPERATIVE PROVISIONS:

1.          INTERPRETATION

This Agreement is governed by the laws applicable in Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of that state.

In the interpretation of this Agreement:

(a)       References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;

(b)       Words denoting the singular include the plural and vice versa; words denoting individuals or persons include bodies corporate and vice versa; references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;

(c)        Grammatical forms of defined words or phrases have corresponding meanings;

(d)       Parties must perform their obligation on the dates and times fixed by reference to Queensland, Australia;

(e)       Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;

(f)        If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;

(g)       References to a party are intended to bind their executors, administrators and permitted transferees; and

(h)       Obligations under this agreement affecting more than one party bind them jointly and each of them severally.

(i)         Any provision of this Deed which is void or unenforceable will be ineffective to the extent of that illegality, voidness or unenforceability without invalidating the remaining provisions of this Deed, unless the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature in which case it must be read down to achieve that result.

2.         LICENCE

In consideration of the Licensee paying the Licence fee set out in Item 4 of the Schedule (“the Licence Fee”), and otherwise observing the terms and conditions of this Agreement, the Licensor hereby grants to the Licensee a nonexclusive, non- transferable licence to access and use the Framework in the manner described in clause 4, for the period set out in Item 5 of the Schedule.

3.         LICENCE FEE

(a)       Payment of licence fee

The licensee must pay the licence fee specified in the schedule to the licensor during the term.

(b)       Variation of licence fee

The licence fee may be varied from time to time by agreement in writing between the licensor and licensee. Failing such agreement, the licence fee will remain at the rate specified in the schedule increased annually in accordance with increases in the Australian Consumer Price Index weighted average of capital cities or equivalent measure.

(c)        Late payment

If the licence fee or any other money payable by the licensee to the licensor remains unpaid for ten business days after the due date for payment, whether or not formal demand has been made then the licensee shall pay, in addition to any money actually owing to the licensor, interest at the rate of 2% over the bank indicator lending rate for overdrafts of $100,000.00 nominated by the licensor on such money from the date the payment actually fell due until such monies are recovered and paid to the licensor.

4.         USE OF THE FRAMEWORK

4.1 The Licensee is permitted to:

(a)       Access the website which is described in Item 6 of the Schedule (the Website”);

(b)       Download and distribute tools, templates, materials and information contained in the Framework to staff and contractors of the Licensee whether by electronic or other means for the period of the license;

(c)        Populate the tools and templates in order to deliver co-design activities within the organisation or on behalf of the organisation;

(d)       Access and display video content hosted on the website in the form of webinars, vlogs and live casted seminars to staff and contractors associated with the conduct of co-design activities;

(e)       Provide access to Framework tools, templates, materials and information to stakeholders engaged in co-design activities with the Licensee in accordance with this Agreement.

(f)        Host a suite of tools, templates, materials and information on the Licensee intranet, sharepoint or other digital dissemination portal which incorporate the Licensee’s logo and branding or project name and associated branding so long as the Co-Design4All logo is retained and original intellectual property is acknowledged in footers associated with such customised templates and tools in a minimum 10 point font which directs all readers to the Co-Design4All website noting Co-Design4All as the originator of the material however populated and modified by the Licensee.

4.2.1     All staff and contractors of the Licensee are authorised to access the Website solely for the purpose of preparing for and carrying out co-design activities for the duration of the license.

4.3       Staff who are also members or staff of other organisations are only authorised to use the Framework in relation to work undertaken on behalf of the Licensee.

4.4       Access is restricted to the Licensee, its contractors and/or staff for the period of the license.

4.5       The Licensee will not conduct training in relation to co-design for any external party, entity or organisation utilising the Framework or the tools, templates and techniques unless it has secured a separate agreement with the Licensor for the purpose of using the Framework to deliver training, professional development and consulting services.

4.6       The Licensee will not modify or adapt the Framework or the tools, templates and techniques for the purposes of commercially exploiting the licensed materials.

5.         LICENSEE’S OBLIGATIONS

The Licensee must:

a)         Comply with the terms of this Agreement and the terms and conditions noted on the Website;

b)        Only use Facilitators who have had time to familiarise themselves with the Framework and related tools, templates and techniques and participate in related professional development via accessing vlog, webinar and seminar content hosted within the website;

c)         Comply with any guidelines and instructions provided on the Website, in any accompanying materials or operating guidelines as to the correct use of the Framework.

d)        Conduct co-design sessions ethically and in accordance with the codes of conduct governing their profession;

e)         Maintain the privacy of participants consulted as part of the co-design process and where requested the confidentiality of information and materials exchanged for the purpose of populating templates.

f)          Complete and return to the Licensor, at least one survey provided by the Licensor throughout the term of the licence;

g)        Not allow access to the Website or the Framework or any accompanying tools, templates and materials to be given to any unauthorised parties or Competitor of the Licensor.  This includes staff and contractors attempting to access the Framework and related tools, templates and materials after the expiry of the license agreement.  This provision applies to templates which have been updated to include the Licensee’s logo or other naming conventions and where the base intellectual property can be traced to the Licensor;

h)        Not resell, redistribute or sub-license access to the Framework or the website through issuing of any license or sub-license agreements, distributor agreements or other agreements which presume the Licensee has rights to sell or materially gain from others accessing the Framework;

i)          Not modify the co-design Framework, models, terminology or visual elements without the prior approval of the Licensor;

j)          Maintain appropriate insurance and make appropriate disclosures to Insurers in respect of the conduct of co-design activities and community engagement as required and prudent.  Such insurance should acknowledge that the organisation, its staff and contractors are performing such co-design and community engagement activity based on the codes of conduct governing their profession and professional behaviour reasonably expected of staff and contractors engaged in group consultation and related activities.  Their use of any aspect of the Framework and related tools, templates and techniques is done with such materials being only a guide.

6.         LICENSOR’S OBLIGATIONS

The Licensor must:

a)         Provide access to support and training in core aspects of co-design, to the Licensee’s staff and contractors to enable such persons to act as Facilitators of co-design activities.  Such support can be offered via access to written materials, recorded webinars and access to live streamed seminars offered from time to time;

b)        Provide support to the Licensee in relation to technical support and troubleshooting in accordance with available hours as set out on the website.

c)         Provide access to at least 50 tools, templates and techniques with the right to replace, update or remove any material on the website based on feedback or subsequent insight with no requirement to re-install any previously available material.

7.         GOODWILL PROTECTION

7.1        The licensee must allow the Licensor or its nominated representative to inspect upon request:

a)         The business or the sessions conducted under the guise of co-design by the licensee’s staff and contractors; and

b)        The place and method of use of the Framework by the licensee; and

7.2       Comply as may be reasonably directed in writing by the licensor on the issue of protection of the goodwill of the intellectual property from time to time.

8.         ASSIGNMENT

The Licensee may not assign its rights or obligations under this agreement without prior written consent of the Licensor, which consent may be given or withheld, or given on conditions, in the absolute discretion of the Licensor.

9.         TIME

The parties hereto agree that time shall in all respects be of the essence in regards to this agreement.

 

10.       PRIVACY AND CONFIDENTIALITY

10.1      Each party will keep the other’s Confidential Information which it becomes appraised of secret and preserve its confidential nature at all times. Without limiting the foregoing, each party will:

a)         Do everything necessary to protect the confidentiality of such Confidential Information and keep it secure and safe from the risk of loss, damage and any unauthorised access or disclosure; and

b)        Not disclose it to any person other than Staff or contractors who have a need to know such Confidential Information for the purpose of performing this agreement.

c)         Preserve the value and validity of the Framework including through appropriate use of all associated tools, templates and techniques including ceasing their use as at the expiration of this License Agreement.

10.2     Each party may disclose the other’s Confidential Information:

d)        If required by law or a governmental agency, provided that the recipient first gives the other as much advance notice as possible and the opportunity to seek limitation of the disclosure;

e)         To satisfy a public accountability requirement or a requirement of a stock exchange; or 

f)          For the purposes of seeking professional advice.

10.3      On request by a discloser, a recipient must return all Confidential Information

to the discloser or destroy that Confidential Information (to the extent practical).  However, each party may retain the other party’s Confidential Information solely to fulfil its legal requirements.

11         PERSONAL INFORMATION

a)         Each party will comply with all Privacy Legislation in relation to Personal Information received from the other party or any of its Related Parties;

b)        The Licensee will comply with the Licensor’s Privacy Policy, as set out on the Website, in relation to all Personal Information received or accessed from the Licensor; comply with any reasonable directions of the Licensor in relation to that Personal Information and will not send any Personal Information outside Australia without The Licensor’s prior written consent. If any information is sent overseas, the Licensor must ensure that it does not store, use or disclose that information inconsistently with the Privacy Legislation of

Australia;

c)         All Personal Information received or accessed by a party from the other party is the other party’s Confidential Information;

d)        The Licensee permits the Licensor to sample and utilise de-identified Personal Information for marketing, research and business development purposes.

12         WEBSITE

a)         The Licensor will make access details to the Website available and provide any required access codes to the Licensee upon the execution of this agreement.

b)        The Licensee agrees that it will keep access details to the Website confidential and it will ensure that its staff and contractors also keep these details confidential;

c)         The Licensee will not make access details to the website available to any party other than its staff and contractors;

d)        The Licensor agrees that the terms and conditions contained in the xx section of the website apply to this agreement as if they were incorporated in it.

13         CO-DESIGN SESSIONS

a)         The Licensee will organise and conduct co-design sessions with its team, clients and stakeholders in accordance with the Framework and in conjunction with the materials and resources provided on the website.

b)        Each co-design session must be run by a facilitator familiar with the Framework and with access to the tools, templates and techniques accessible on the website.

14        RELATIONSHIP BETWEEN THE PARTIES

a)         The relationship between the parties is that of principal and independent contractor.  No party is a partner, agent or employee of another party;

b)        The Licensee is solely responsible for its Staff (including all employment and training related costs and insurances);

c)         Each will ensure that its Related Parties comply with the terms of this agreement as if they were parties to it but only to the extent relevant to them.

15         CONDUCT UNDERTAKINGS

In carrying out the Co-design Sessions, the Licensee must:

a)         Act in a co-operative, professional and courteous manner;

b)        Not be involved directly or indirectly in any conduct, situation or activity which, in the licensor’s reasonable opinion, may harm or diminish the name or reputation of the parties;

c)         Not offend any community or public morals;

d)        Not commit, or be charged with, any criminal offence;

e)         Not engage in any conduct involving fraud or deception; and

f)          Ensure that its staff and related parties comply with each of the requirements set out above.

16        REPRESENTATIONS AND WARRANTIES

16.1. The Licensee represents and warrants that:

(a)       It has the power and is lawfully able to execute, and perform its obligations under this agreement and doing so will not breach any obligation to a third party;

(b)       It has not made any assignments, granted licenses or given any undertakings which are inconsistent with this agreement;

(c)        No litigation, arbitration, tax claim, dispute or administrative proceeding is current, pending or threatened against that, to the best of its knowledge, is likely to have a material adverse effect on the performance of this agreement;

(d)       Any information, documentation or data produced or provided to the Licensor or any of its related parties is at all times accurate, complete and correct; and

(e)       Except as set out in this agreement, neither the licensee nor any of its related parties has made any representation or undertaking of any kind in relation to this agreement

16.2  The Licensor warrants to the licensee that:

(a)       The licensor has the power and authority to enter into this Agreement; and

(b)       The intellectual property rights granted under this Agreement will not when used in accordance with this Agreement infringe the intellectual property rights of any person;

(c)        The Framework and associated tools, templates, techniques and materials are provided in the version deployed from the website on any given day and are subject to update and removal without notice and without penalty to the Licensor

(d)       The Licensor makes no claims regarding the efficacy of the Framework which could imply an obligation of any type in relation to satisfactory completion or performance of any project, co-design or community engagement activity which utilises any aspect of the Framework.  These will all be undertaken by the Licensee, its staff, contractors and associates at their own risk.  The Licensor will not be liable for any damages or losses arising from the use of the Licensed Framework and associated materials.

17        INTELLECTUAL PROPERTY RIGHTS

a)         Nothing in this agreement has the effect of assigning any pre-existing Intellectual Property Rights of a party.

b)        Each party grants the other party a non-exclusive, royalty-free licence during the Term to use, reproduce and modify the information or data provided to the other party, for the purposes of performing and receiving the benefit of this agreement for the term of this agreement. 

c)         Each party must obtain any necessary consents or waivers from any individual who has any moral rights in any Intellectual Property Rights licensed under this agreement, to permit use of those Intellectual Property Rights for the purposes of performing and receiving the benefit of this agreement without any limitation arising out of the moral rights of that person.

d)        This agreement does not assign to the licensee any intellectual property, copyright, trademarks or trade secrets in the licensed materials.

e)         The licensee is required to respect and not infringe upon the intellectual property contained within the Framework and associated tools, templates and techniques. 

f)          The Licensee when referencing the Framework, whether internally or with external stakeholders will acknowledge the copyright held by the Licensor and the provisions of this License Agreement in relation to rights to protect intellectual property, copyright, trademarks and trade secrets.

g)        Where the Licensee populates a template or uses a tool for the purposes of gathering and reporting on activity undertaken as part of a co-design process, the contents entered into the tool or template will be confidential to the Licensee and do not create or imply the creation of novel intellectual property which would give rise or claim to a share of the intellectual property associated with the Framework.  This provision survives the termination of this agreement.      

18        GENERAL INDEMNITY

The licensee hereby agrees to fully, effectually, and promptly indemnify the Licensor and its Related Parties for any loss, cost, expense (including reasonable legal costs) or damage that any or all of them suffers or incurs as a result of:

(a)       A breach of this agreement (including a representation or warranty);

(b)       Any fraud;

(c)        A failure to obtain, maintain, and comply with any consents required in relation to this agreement, or to comply with any applicable laws;

(d)       Personal injury, death or loss of or damage to real or tangible personal property; or

(e)       Any claims, actions or proceedings by a third party and any investigations by a government body,

(f)        Any loss, cost, expense (including reasonable legal costs), claim or damage that any or all of them suffers or incurs (or agrees to pay by way of settlement or compromise) in connection with or arising out of any claim regarding the provision or non-provision of the co-design activities.

(g)       Arising out of any act or omission of the Licensee or any of its Related Parties whether accidental or not.

19        DISPUTES

If any dispute arises between the parties in relation to the matters set out in this Deed, the parties shall first attempt to settle it by mediation, administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.

Such mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC.

20       NOTICES

A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:

a)         Delivered personally;

b)        Posted to their address when it will be treated as having been received on the second business day after posting;

c)         Faxed to their facsimile number when it will be treated as received when it is transmitted

d)        Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.

21         TERM AND TERMINATION

21.1  Term

This agreement begins and ends as set out in Item 5 of the Schedule will continue for the term unless it is earlier terminated.

21. 2  Termination on Notice

Either party may terminate this agreement by notice in writing to the other if the other party commits any breach of any provision of this agreement, and has failed to remedy such breach within 14 days of receipt of notice specifying:

a)         The exact nature of the breach committed by the defaulting party; and

b)        What is required by the defaulting party to remedy the breach.

a)         Immediate Termination

The licensor may by notice in writing immediately terminate this agreement upon:

a)         The making or filing of any application to wind up the licensee under any law or government regulation relating to bankruptcy or insolvency; or

b)        The appointment of a receiver, agent or manager for all or substantially all of the property of the licensee;

c)         The making by the licensee of any assignment, arrangement or composition whether formal or informal for the benefit of its creditors; or

d)        The institution by the licensee of any proceedings for the liquidation or winding up of its business; or

e)         The failure to pay the licensee fee within ten business days of its due date for payment.

22        Effect of termination

Upon termination:

a)         The licensee must deliver to the licensor all documents and other materials including all copies in its possession relating to the Framework and its tools, templates and techniques, and will do such further things as may be reasonably required by the licensor to protect its right to title and interest in the intellectual property including deleting all digital copies made of any aspect of the Framework to ensure licensed materials are inaccessible to staff, contractors and associates after the date of termination;

b)        Any licence fee previously paid remains the property of the licensor and will not be refunded; and

c)         Any licence fee due but unpaid at the date of the termination must be paid by the licensee to the licensor.

23        COSTS

a)         Each party will pay its own costs of and incidental to this agreement.

b)        The licensee will bear all duty payable on this agreement and keep indemnified the licensor in respect of that liability.

c)         The licensee will bear all GST payable in respect of any supply under this agreement upon receipt of tax invoice issued by the licensor.

24       DEFINITIONS

In this Agreement:

a)         Access code means a unique identifier which enables the Licensee to access the website, the Framework and its resources and materials as they are presented as tools, templates, techniques and supports;

b)        Business means the business operated by the licensee described as such in the schedule;

c)         Business day means a day, not being a Saturday, Sunday or gazetted public holiday, on which banks are open for commercial business where performance of an obligation under this Agreement is to take place;

d)        Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost liability, action, proceeding, right of action, chose in action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;

e)         Clients means patients or users of the professional services provided by the Licensee as part of its business;

f)          Client access code means a unique identifier which provides clients with restricted access to the website, the Framework and its associated resources and materials.

g)        Commencement date means the date so specified in the schedule;

h)        Competitor means an Individual or organisation whose interests, operations and commercial activities would interfere with the interests, operations, commercial activities of the Licensor.

i)          Confidential information means all technical and other information and know how, including all information and know how in any eye or machine readable form or other format, disclosed or given by a party to this Agreement from any source in respect of or incidental to:

(i)         The Framework;

(ii)        The Website;

(iii)       A Party; and

(iv)       Any other information disclosed or given by a party to the other party which is declared by that party or by law to be confidential information.

j)          Event of Default in relation to a party means that person becomes subject to an Insolvency Event which remains in effect for a continuous period of 5 business days, or that person commits a material breach of this Deed and that breach is not remedied within 30 days after notice of the breach was given by any of the non-breaching party to the other party.

k)         Facilitator means a staff member of the Licensee who performs co-design activities whether utilising the Framework and associated materials or not.

l)          Insolvency event means any form of corporate or individual insolvency or administration including bankruptcy, receivership, voluntary administration, provisional liquidation or liquidation or if a party is unable to pay their debts as they fall due, ceases to trade or enters into a composition with its creditors.

(a)       License fee means the amount calculated and paid by the licensee to the licensor specified in the schedule;

(b)       Notice means a written notice, consent approval, direction, order or other communication;

(c)        Obligation means a legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability;

(d)       Permitted use means a use agreed to by the Licensor and Licensee.

(e)       Personal Information means Personal Information as defined by the Privacy Act 1988 (Cth) or any more up to date laws in Australia as they are updated from time to time.

(f)        Privacy Legislation means the Privacy Act 1988 (Cth) or any other State or Federal Privacy Legislation.

(g)       Framework means the model of co-design and associated tools as provided on the website and described as such in the schedule;

(h)       Related Party includes a related body corporate, a related entity or a related party as defined by the Corporations Act 2001 (Cth)

(i)         Right includes a legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action;

(j)         Staff means owners, employees and contractors of a party;

(k)       Term means the term set out in the schedule.

The Schedule Executed

On behalf of licensee	(insert full name here)
Signature
Witness Name
Witness Signature

The Schedule Executed by On Behalf of Licensor Co-Design4All
Signature
Witness Name
Witness Signature

The document Executed as an Agreement
Executed by Licensee pursuant to Section 127 Corporations Act in the presence of:	( insert Full legal name)
Director
Director/Secretary

Executed by Licensor, Co-Design4All, pursuant to Section 127 Corporations Act in the presence of:
Signature
Director
Director/Secretary

Schedule 1