TERMS AND CONDITIONS

IP LICENCE AGREEMENT

PARTIES:

Licensor:

Name: Vanessa Vanderhaven ABN 97 209 896 138

Email: hello@vanessavanderhaven.com 

Licensee:

The person or entity identified in their Website account details purchasing products from Vanessa Vanderhaven.

KEY AGREEMENT DETAILS:

Fees

The fees set out on the Website at the time of purchasing any of the Licensor’s products.

Licensed Assets

The Materials owned and produced by the Licensor as identified on the Website at the time of purchase. 

Purpose

To enable the Licensee to use, enjoy the benefit of, or exploit the Licensed Assets as specified on the website at the time of purchase.

Territories

Worldwide.

Exclusivity

The exclusivity will be set out as either outright ownership or non-exclusive on the Website at the time of purchase. 

Website

www.vanessavanderhaven.com 

This agreement (which consists of these Key Agreement Details and the attached terms and conditions) sets out the terms under which the Licensor will grant a licence to the Licensee. 

By ticking the associated box, you agree to be bound by the terms of this agreement.

TERMS AND CONDITIONS

1. TERM

This agreement commences on the Effective Date and will continue:

        1. until the date this agreement is terminated in accordance with its terms (Term).

2. INTELLECTUAL PROPERTY LICENCE 

        1. Subject to the terms of this agreement and in consideration of the payment of the Fees, the Licensor grants to the Licensee a non-transferrable licence to use the Intellectual Property Rights in the Licensed Assets for the sole Purpose specified in the Key Agreement Details for the Term in the Territories (Licence).

        2. The Exclusivity for the Licence will be set out on the Website at the time of purchase. If the Licence is exclusive, Vanessa Vanderhaven will not licence the Licensed Assets to any other party.

        3. The Licensee acknowledges and agrees that:

          1. the Licensee must not use the Licensed Assets for any purpose other than the Purpose and indemnifies the Licensor against any loss the Licensor suffers as a result of the Licensee’s failure to comply with this clause; 

          2. all Intellectual Property Rights in the Licensed Assets remain the sole property of the Licensor, and the Licensee will not acquire title or rights in the Licensed Assets under this agreement.

3. QUALITY AND CONTROL

The Licensee must:

        1. only use the Intellectual Property Rights in the Licensed Assets in the manner approved by the Licensor from time to time (acting reasonably);

        2. immediately remove any use of the Licensed Assets on social media or on any other website if requested by the Licensor (acting reasonably);

        3. not do or authorise the doing of any act, matter or thing or omit to do anything whereby the Intellectual Property Rights in the Licensed Assets may be prejudicially affected; and

        4. ensure that all material in its care, custody or control which features the Licensed Assets is of a high quality.

4. FEES

4.1 FEES

In consideration of the grant of the Licence, the Licensee agrees to pay the Licensor the Fees in the amounts and at the times set out in the Key Agreement Details, or as otherwise agreed in writing. 

4.2 FEE PAYMENT TERMS

        1. Unless otherwise indicated, amounts stated on an invoice do not include GST. In relation to any GST payable for a taxable supply by the Licensor, the Licensee must pay the GST subject to the Licensor providing a tax invoice.

        2. The Licensor reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

        3. The Licensee must pay Fees using the fee payment methods specified in the Key Agreement Details.

4.3 OUTSTANDING FEES

If the Licensee fails to pay any amounts due to the Licensor under an invoice by the specified due date, the Licensor retains the right, without limiting any other rights under this agreement, to charge the Licensee interest at a rate of 10% per annum on the outstanding amount. However, before applying this interest, the Licensor will provide the Licensee with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Licensor.

5. WARRANTIES

        1. The Licensor confirms and warrants that:

          1. immediately prior to the date of this agreement, the Licensor is the sole legal and beneficial owner of all right, title and interest (including all Intellectual Property Rights) in and to the Licensed Assets;

          2. the Licensor has not granted to any third party any right or licence to use the Licensed Assets in the Licensed Area; and

          3. the use of the Licensed Assets by the Licensee in accordance with this agreement does not infringe and will not infringe any Intellectual Property Rights of any third party.

        2. All other express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded. 

6. LIMITATION OF LIABILITY

6.1 Liability

To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Licensee to the Licensor in the 3 months preceding the date of the event giving rise to the relevant liability.

6.2 CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by the Licensor, except:

        1. in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

        2. to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

7. DISPUTE RESOLUTION

        1. A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

        2. A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

        3. Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

8. TERMINATION

8.1 TERMINATION FOR CONVENIENCE

Either party may terminate this agreement for convenience by providing 10 Business Days’ notice to the other party.

8.2 TERMINATION FOR BREACH

        1. Either party may terminate this agreement immediately by written notice if there has been a Breach of this agreement.

        2. A “Breach” of this agreement means:

          1. a party considers the other party is in breach of this agreement including, without limitation, of clauses 2, 3 and 4, and notifies that other party;

          2. the other party is given 10 Business Days to rectify the breach; and

          3. the breach has not been rectified within 10 Business Days or another period agreed between the parties in writing.

8.3 EFFECT OF TERMINATION

Upon termination of this agreement:

        1. the Licensor must:

          1. immediately cease using the Licensed Assets;

          2. remove the Licensed Assets from all materials in the Licensee’s care, custody or control that features the Licensed Assets, and, if the Licensed Assets cannot be removed, then at the Licensor’s option, return or destroy all such material; and

          3. promptly pay any outstanding Fees owed to the Licensor as at the date of termination; and

        2. each party must:

          1. return all property and Confidential Information to the other party; and

          2. comply with all obligations that are by their nature intended to survive the end of this agreement.

9. SUBLICENSING

Any sublicenses of the Licensed Assets: 

        1. must be approved by the Licensor in writing; 

        2. must be consistent with this agreement; and

        3. will end when this agreement is terminated. 

10. NOTICES

        1. A notice or other communication to a party under this agreement must be:

          1. in writing and in English; and

          2. delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

        2. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

          1. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state or territory; or

          2. when replied to by the other party, whichever is earlier.

11. DEFINITIONS 

11.1 DEFINITIONS

Capitalised terms used in this agreement are defined in the Key Agreement Details, in the body of this agreement, and as follows:

Business Day

means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Victoria, Australia.

Effective Date

means the date that the product was purchased.

Fees

has the meaning set out in clause 4.1.

Materials

includes drawings, graphics, artwork, brand names, logos, words and phraseology, typography, pictures, documents, software (in both source and object code form where that distinction is relevant), specifications, information, reports, manuals, flowcharts, working papers, layouts and data stored by any means. 

Intellectual Property Rights

means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.

Licence

means the licence granted in clause 2.

Term

has the meaning set out in clause 1.

12. GENERAL

12.1 GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

12.2 BUSINESS DAYS

If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.

12.3 AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

12.4 WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

12.5 SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

12.6 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

12.7 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

12.8 COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

12.9 COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

12.10 ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

12.11 INTERPRETATION

        1. (singular and plural) words in the singular includes the plural (and vice versa);

        2. (currency) a reference to $; or “dollar” is to Australian currency;

        3. (gender) words indicating a gender includes the corresponding words of any other gender;

        4. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

        5. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

        6. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

        7. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

        8. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

        9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;

        10. (includes) the word “includes” and similar words in any form is not a word of limitation; and

        11. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.