ROYAL LIFE SAVING PARTNERSHIPS
This Agreement is made on the date set out by the Purchase of the Product on the Royal Life Saving Website.
ROYAL LIFE SAVING SOCIETY OF AUSTRALIA (NEW SOUTH WALES BRANCH) ACN 000 580 825 ABN 73 000 580 825 of 34/10 Gladstone Road, Castle Hill NSW 2154 (RLS) and
THE PARTY NAMED IN THE PURCHASE OF THE PRODUCT (Recipient)
A. RLS is the owner of the Licenced Material and provider of the Services.
B. The Recipient wishes to use the Licenced Material for the purposes of its business in Austraia and seeks the Services of RLS in accordance with the terms and conditions of this agreement.
C. RLS agrees to licence the Licenced Material and to provide the Services to the Recipient in accordance with the terms and conditions of this Agreement.
In this Agreement, the following words have the following meanings:
Agreement means this agreement and the schedules and any annexures to this Agreement.
Business Day means a day which is not a Saturday or Sunday or public holiday in NSW, ACT or TASMANIA, Australia.
Claim means any claim, action, proceeding, demand, prosecution, judgement, damage, loss, cost, expense, fine, penalty or liability whatever incurred or suffered by or brought or made or recovered against a person and however arising (whether presently ascertained, future or contingent).
Commencement Date means the date referred to on an initial purchase of a Partnership Product on the RLSNSW Website.
Completion Date means the date referred to on an initial purchase of a Partnership Product on the RLSNSW Website.
Confidential Information means all information, operations, records, reports, data (whether as to the results of activities undertaken or otherwise), secrets, know-how, inventions and all other matters connected with a party to this Agreement including that party's servants, agents, and employees and its sub-contractors, their servants, agents or employees.
Consideration means the amount payable to RLS by the Recipient for use of the Licenced Material and provision of the Services as set out in the Partnership Product on the RLSNSW Website.
Corporations Act means the Corporations Act 2001 (Cth).
Event of Default means if any of the following occurs:
(a) a party fails within thirty (30) days to pay any amount payable by it under this Agreement after receiving notice from the other party that such amount is due;
(b) a party fails to observe or perform any of its other material obligations under this Agreement and, if such failure is capable of remedy, such failure is not remedied to the reasonable satisfaction of the other party within thirty (30) days of the other party notifying the defaulting party of such failure (or such longer period as the other party may agree); or
(c) a party suffers an Insolvency Event.
Force Majeure Event means:
(d) an act of God, lightning, fire, flood, severe weather conditions or other natural disaster;
(e) strike, lock out or other industrial action;
(f) wars, hostilities, terrorist acts, riots or civil commotion;
(g) epidemic, pandemic or other medical, health or safety emergency;
(h) compliance with any law, regulation, order or direction of any governmental body or court; or
(i) any other cause whether of a kind specified above or otherwise which is not reasonably within the control of any party.
Further Term means any extension of the Term pursuant to clause 3.2.
Future Rights means any right, obligation, interest or Claim whatsoever which is created or comes into existence after the date of this Agreement in respect of the Licenced Material.
GST means goods and services tax or similar value added tax levied or imposed pursuant to the GST Law or otherwise on a supply.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST law has the same meaning as in the GST Act.
Insolvency Event means, in relation to an entity:
(e) an application or order is made for the winding up or dissolution of, or the appointment of a provisional liquidator, to the entity or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the entity otherwise than for the purpose of an amalgamation or reconstruction that has the prior consent of all shareholders; or
Intellectual Property includes, but is not limited to, ideas, patents, registered and unregistered design rights, registered and unregistered trademarks, drawings, inventions and any copyright subsisting in any works, documents or other items and all other intellectual and industrial property rights (without limitation) and similar or analogous rights existing under the laws of any country and all rights to apply for or register such rights.
Licenced Material means each item of Intellectual Property that the Recipient has purchases as a Partner Subscription from the RLSNSW Website.
Services mean the services to be provided by RLS as set out in the Partner Subscriptions from the RLSNSW Website.
Special Conditions means the special conditions (if any) set out in the individual Partner Subscription from the RLSNSW Website.
Term this Agreement shall commence on the Purchase Date and will, subject to clause 13, terminate on the Completion Date. This Agreement shall be reviewed on an annual basis
Terms and Conditions mean the terms and conditions which apply to the provision of the Services, and the use of the Licenced Material and the Intellectual Property.
2.1 Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and conversely.
(b) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(c) A reference to dollars is Australian dollars.
(d) A reference to a schedule or appendix is a reference to a schedule or appendix in this Agreement or on the RLSNSW Website.
(e) A reference to a party includes a reference to the party's successors, assignees and permitted substitutes.
(f) An obligation of two or more parties shall bind them jointly and severally. An obligation incurred in favour of two or more parties shall be enforceable by them jointly and severally.
2.2 In this Agreement:
(a) The term “RLS”, or “party” (when it relates to RLS) includes RLS, its associates, members, sub-contractors and their respective agents, officers, volunteers and employees;
(b) The term "Recipient", or “party” (when it relates to the Recipient) includes the Recipient, its associates, members, sub-contractors and their respective agents, volunteers, officers, and employees; and
(c) The term “third party” means anyone, not being RLS or the Recipient as defined in this clause.
3.1 In consideration of the amount payable under clause 4 and subject to the terms of this Agreement:
(a) RLS shall provide the Services to the Recipient for the Term. Any expansion in, or addition to, the Services must first be agreed by the parties in writing.
(b) RLS grants to the Recipient a non-exclusive, non-transferrable licence to use the Licenced Material for the Term. The Recipient has no right to sub-licence any rights granted under this Agreement.
4.1 In consideration of the Services being provided under this Agreement, the Recipient must pay or otherwise provide to RLS the Consideration in the manner set out in in the Partnership Product Details on the Royal Life Saving NSW Website. RLS must provide to the Recipient an appropriate tax invoice for the relevant sum.
(c) render the Services to the Recipient with due diligence and integrity in a good and professional manner and in accordance with the RLS Constitution and By-Laws and all applicable legislation, regulations and codes of practice and standards; and
(b) deliver the Services in a good and professional manner so as to maintain the goodwill and reputation of RLS and in accordance with the Terms and Conditions at all times;
(c) ensure that its nominated personnel regularly consult or liaise with RLS with respect to the scope and nature of the Services and any updates or changes affecting the delivery of the Services and the Terms and Conditions;
6.2 The Recipient must:
(d) recognise the validity of the Licenced Material and the ownership of the Intellectual Property by RLS and not at any time put in issue the validity of the Licenced Material or do any act calculated to prejudice such validity;
(h) use reasonable endeavours to ensure that any Authorisations required for the validity, enforceability and performance of its Obligations under this Agreement are obtained and promptly renewed and maintained in full force and effect; and
(b) the Terms and Conditions which govern the use and delivery of the Services and the Licenced Material are set out on the program portal page. RLS may change or update the Terms and Conditions at any time during the Term or any Further Term of this Agreement by giving 30 days notice in writing to the Recipient prior to such change or update applying;
(e) RLS will own, maintain and control all Intellectual Property rights including but not limited to the RLS brands, names and logos and all associated sub-brands (including but not limited to "Keep Watch", "Swim School Excellence", “Junior Lifesavers”, “Outback Lifesavers” and "Swim and Survive") and the right to exploit such rights.
(e) each party will not, nor permit any of its officers, servants, employees or agents to do or perform any act which prejudices or brings the other party or any of its respective officers, servants and agents into disrepute; and
(a) The Recipient must give notice to RLS as soon as possible if it becomes aware of any unauthorised third-party act including any infringement of, misuse, unauthorised use of, act inconsistent with, challenge to or claim, demand or suit against or related to any of the Licenced Material (Infringement), giving such detailed particulars of the Infringement as is reasonably possible.
(a) Upon receiving a notice under clause 8.1, RLS may, in its absolute discretion:
(b) If RLS requests the Recipient to commence proceedings under clause 8.2(a)(ii), the Recipient:
(c) Should RLS undertake the prosecution or defence of any action or proceedings involving the Licenced Material (including if necessary becoming a party to any action or proceeding undertaken by the Recipient), RLS will be entitled to a proportion of the proceeds of such action or proceeding in proportion to its level of involvement, the level of any costs or expenses borne by RLS, and the damage or loss caused to RLS as a result of the cause of action.
(e) The Recipient must not commence proceedings in respect of any third party action referred to in clause 8.2(a)(ii) without RLS' prior written consent.
(ii) to officers, employees and consultants or advisers of the party (or its related bodies corporate) who have a need to know (and only to the extent that each has a need to know) and are aware that the Confidential Information must be kept confidential; and
10.2 If either party performs services which relate to, or requires the collection, handling, processing or analysis of personal information (as that term is defined by the Privacy Act 1988 (Commonwealth)) then that party shall comply with the national privacy principles as set out in that Act.
11.2 Neither party has the authority to act on behalf of, or bind or pledge the credit of the other party.
12.1 Each party shall affect and maintain such insurances as are necessary and reasonable to protect their respective interests under this Agreement for the Term and any Further Term, including but not limited to:
12.2 Either party shall upon request of the other party provide to that other party copies of certificates of currency of such policies of insurance described in clause 11 and for any renewal of such policies of insurance.
12.3 Each party will notify the other party as soon as practicable in writing and in any event within five (5) days, of all accidents or claims which might arise out of or in relation to this Agreement.
(a) (whether arising from negligence or otherwise) arising or incurred by the Recipient directly in connection with any act, omission or misconduct by RLS, or its directors, employees or agents, or with any breach or non-performance of the obligations of RLS under this Agreement, except to the extent that the cause of the Claim was caused by the Recipient; or
13.2 The Recipient indemnifies and shall keep indemnified RLS, its directors, employees and agents from all Claims (whether arising from negligence or otherwise) arising or incurred by RLS directly in connection with any act, omission or misconduct by the Recipient, or its directors, employees or agents, or with any breach or non-performance of the obligations of the Recipient under this Agreement or the use of the Licenced Material, except to the extent that the cause of the Claim was caused or contributed to by RLS.
(a) Either party may terminate this Agreement on Notice to the other party if an Event of Default occurs and the defaulting party has not within 30 days of receiving Notice of the default (Notice Period) remedied the default.
(b) With the exception of an Insolvency Event, if the parties dispute whether the failure has been satisfactorily remedied at the end of the Notice Period set out in clause 13.1(a) they must refer the matter to mediation in accordance with clause 18.
(c) A party may terminate this agreement by giving written notice to the other party in the event that the other party becomes insolvent within the meaning of the Corporations Act or bankrupt within the meaning of the Bankruptcy Act 1966 (Cth).
(i) the licences granted to the Recipient and the Services to be provided to the Recipient pursuant to clause 3 will immediately cease; and
(ii) the Recipient must immediately cease to use and deliver the Services and cease to use the Licenced Material and must, at the option of RLS, return or certify destruction of any materials that embody or include any of the Licenced Material.
(a) Any termination of this Agreement shall be without prejudice to the Rights of either party against the other in respect of anything done or omitted under this Agreement prior to such termination or in respect of any sums or other claims outstanding at the time of termination nor will it affect the coming into force or the continuance of any provision which is expressly or by implication intended to come into or continue in force on or after the date of termination.
(b) If on termination of this Agreement, the Recipient holds stock that has been packaged for sale bearing the Licenced Material, the Recipient must repackage those goods so as to remove any Licenced Material or offer any such goods that do not bear the Recipient's logo to RLS, or RLS' nominee, for sale, at the Recipient's wholesale price. RLS is under no obligation to purchase any stock. Any goods not repackaged or purchased by RLS or RLS' nominee must be destroyed by the Recipient on termination of this Agreement.
(c) The Recipient must remove the Licenced Material from the Recipient's signage and banners, webpage and all of the Recipient's other social media pages and information or advertising brochures on termination of this Agreement.
15.1 The Recipient acknowledges that the conduct of the Services or any use of the Licenced Material or any other Intellectual Property outside the terms of this Agreement, including but not limited to the continued conduct of the Services or use of the Licenced Material or any other Intellectual Property after termination of this Agreement, will constitute an infringement of RLS' Intellectual Property rights and that RLS shall be entitled to take any enforcement action against the Recipient that RLS deems appropriate.
16.3 If GST is payable in relation to a Taxable Supply under this Agreement, then the supplier may increase the amount otherwise payable for the supply under this Agreement by the amount of such GST or otherwise recover from the recipient the amount of such GST.
16.4 The recovery of any amount in respect of GST by the supplier from the recipient is subject to the supplier issuing to the recipient a tax invoice or an adjustment note enabling the recipient to claim any applicable tax credits in respect of the supply.
(b) must be left at the intended recipient’s address or sent to the addressee by mail or email. If it is sent by mail, it is taken to have been received three (3) working days after it is posted. If it is sent by email, it is taken to have been received when the addressee actually received it in full and in legible form;
(c) If the result of the operation of clause 16 is that a notice would be taken to be given or made after 5pm or on a day which is not a business day it will be taken to have been received at the commencement of business the next business day in that place.
18 Force majeure
18.1 Where a Force Majeure Event prevents or delays a party from performing any obligation under this Agreement (either in whole or part), that party shall give immediate written notice to the other party specifying:
18.2 The obligations of a party are suspended following a notice under clause 17.1 for so long as the Force Majeure Event continues but only to the extent that the relevant Force Majeure Event prevents or delays the party from performing such obligations.
18.3 A party:
(a) shall remedy a Force Majeure Event which prevents or delays that party from performing any obligation under this Agreement to the extent reasonably practicable and performance of the obligations shall resume as soon as reasonably possible after remedy;
(b) which is prevented or delayed (in whole or in part) from performing any obligation under this Agreement by a Force Majeure Event shall take all action reasonably practicable to mitigate any loss suffered by the other party or a third party as a result of that Force Majeure Event.
18.5 A party’s contractual commitments, existing or prospective, with a third party which limits the ability of the party to meet its obligations under this Agreement does not constitute a Force Majeure Event.
(a) within five (5) business days of a party notifying the other party of the dispute, representatives of each of the parties must meet and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) failing agreement under clause 18.1, the parties must submit the dispute to mediation by a mediator as appointed by the parties. If the parties are unable to agree upon a suitable mediator within two (2) weeks of being notified of the intention to refer the dispute to mediation, either party may request the President of the Law Society of New South Wales to appoint a suitable mediator; and
(c) neither party may commence court proceedings (except proceedings seeking urgent interlocutory or injunctive relief) in relation to a dispute relating to or arising out of this Agreement until it has first exhausted the procedure in this clause 18.
Each party must pay its own costs, charges and expenses in connection with this Agreement. The Recipient must pay any stamp duty or other duty or similar tax (together with related fines, penalties and interest) in connection with this Agreement.
22.1 Clauses 8, 9, 12 and 14 survive the termination of this Agreement.
22.2 Termination of this Agreement does not affect the rights of any party against another party in respect of anything done or omitted to be done under this Agreement before termination or regarding any sums or other claims outstanding at the time of termination.
24.1 If any part of this Agreement is invalid, unenforceable, illegal, void or voidable for any reason, this Agreement will be construed and be binding on the parties as if the invalid, unenforceable, illegal, void or voidable part had been deleted from this Agreement or read down to the extent necessary to overcome the difficulty.
27.1 This Agreement and the rights and obligations of the parties hereunder shall be construed and take effect in accordance with and be governed by the laws of the State of New South Wales and each party expressly submits to the non-exclusive jurisdiction of the Courts of New South Wales and of all courts competent to hear appeals from them.
28.1 The special conditions (if any) form part of this Agreement and are binding on the parties.
29.1 This Agreement constitutes the entire agreement between the parties in relation to the Services and no agreement or understanding varying the terms hereof shall be binding on either party unless in writing and duly executed by or on behalf of the parties.