‘BM’ means Brand Magic Pty Ltd ABN 24 632 257 982.
‘Licensee’ means the person that requests a Package
‘License Fee’ means the annual fee payable for the Package.
‘Materials’ means the information provided by BM to the Licensee in whatever format
‘Package’ means the particular suite of Materials offered by BM and selected by the Licensee
‘Term’ means 12 months commencing on the date of signup by the Licensee, and will automatically renew for a further term of 12 months unless cancelled before the end of the preceding Term.
- Grant of License and Term.
Subject to payment of the License Fee (as applicable to the Term), BM grants to the Licensee a non exclusive license to use the Materials for the Term in accordance with the Package selected by the Licensee.
BM will provide a tax invoice to the Licensee for the License Fees plus GST. The Licensee shall pay the Fees prior to receipt of the Materials. If the Licensee elects to pay the License Fee in monthly instalments and misses a payment then BM may terminate this Licence and recover the remainder of the License Fee that has not been paid but the Licensee. BM shall be entitled to charge interest at the rate of 12% p.a. calculated daily on any overdue Fees.
Intellectual property in the Materials (“BM’s IP”) will remain owned by BM. It is expressly prohibited for the Licensee or any of its agents to attempt to copy, distribute, disassemble, reverse compile, reverse engineer, or in any create any derivative works of BM’s IP, which is the BM’s proprietary information and trade secret, whether or not said intellectual property is included in any patent or copyright. The License granted under these License Terms does not include the right to develop, modify or enhance the BM’s IP. Notwithstanding, the Licensee shall hold harmless and forever indemnify BM from and against any claims and liability in relation to the developed, modified or enhanced BM’s IP. Any configuration, application or arrangement of BM’s IP into other forms, shall not be considered a derived product with any distinction in ownership from that of BM’s IP. Any distinct and separate element of intellectual property in any form which is produced by normal use of BM’s IP, shall be considered a derived product to which BM retains title and to which the Licensee is granted a right to use solely in its dependent form, and in conjunction with, BM’s IP. Notwithstanding the prohibitions contained in this clause, any product derived from or resulting from any efforts the Licensee or its agents to disassemble, reverse compile, reverse engineer or any similar procedure shall be deemed the property of BM, for which no right to use is granted to the Licensee. Copyright in any changes to underlying copyright of any part or all of the Materials shall automatically vest in BM.
Each party shall treat as confidential information which comes into its possession, pursuant to or as a result of or in the performance of this Agreement, whether such information relates to the business, sales, marketing or technical operations of the other Party or the Licensees of the other Party or otherwise. Neither Party shall, without the written permission of the other, disclose such confidential information to a third Party.
Except as set out herein all implied conditions, warranties and rights are excluded from this Agreement. Where the Competition and Consumer Act 2010 or other laws imply conditions or warranties or give other rights in respect of this Agreement, BM’s liability for any breach of such a condition, warranty or right will (but only to the extent permitted by law) be limited:
(a) in the case of goods supplied, to the replacement or repair of the goods or the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or of acquiring equivalent goods;
(b) in the case of services supplied, to the supplying of the services again or the payment of the reasonable cost of having the services supplied again.
BM will not be liable to the Licensee or any persons claiming under it in contract, tort or otherwise for or in respect of any direct, indirect, or consequential loss, damage, expense or injury suffered by the Licensee or any other person arising out of or relating to this Agreement or any delay, non performance or error in information supplied to the Licensee by BM in connection with this Agreement or any services provided.
This agreement will automatically terminate if: the Licensee enters into an arrangement or composition with creditors; an application is made for the appointment of a liquidator, controller, administrator, official manager, receiver and manager or similar officer or any of them is appointed; an event happens which would allow a court to wind the Licensee up; the Licensee ceases to carry on business or is unable to pay its debts; or the Licensee materially breaches this agreement and does not remedy the breach with fourteen (14) days of receiving notice from BM to rectify the breach or the breach is incapable of being remedied.
If this agreement is terminated for any reason the Licensee shall immediately pay to BM any part of the Fees which has accrued prior to the termination but has not been paid. On termination of the Licence the Licensee shall cease to have any rights to use BM’s IP in any form. If the Licensee continues to use any of BM’s IP after termination then Licensee shall pay to BM all revenue derived by the Licensee from use of BM’s IP, whether directly or indirectly. This clause survives termination.
The proper law of this agreement is the law of New South Wales. The parties submit to the jurisdiction of courts in New South Wales.
These terms and conditions may be updated by BM by giving one months notice to the Licensee. If the Licensee does not accept the updated terms and conditions then the Licensee may terminate the License by giving notice to BM in writing.
In this agreement, capitalised words shall have the meanings ascribed to them in the Schedule unless the context otherwise requires. Headings and bold print have been included for ease of reference. This agreement shall not be construed or interpreted by reference to such headings, sub-headings, or bold print.
This agreement contains the entire agreement between the parties and supersedes all previous correspondence and negotiations concerning the Services.