COPYRIGHT & TRADE MARK LICENCE AGREEMENT AUSTRALIA
BETWEEN Amberley Harris, ABN 26 519 786 548 (hereinafter called the “Owner”) of the one part
AND The person using the videos with permission of the Owner (hereinafter called the “Licensee”) of the other part
WHEREAS the Owner is the owner of copyright in various videos, created by and on behalf of the Owner, as well as trade marks (whether registered or unregistered) as displayed in or used in conjunction with those videos;
AND WHEREAS the wishes to use the Owner’s videos under license from the Owner;
AND WHEREAS the Owner has agreed to grant to the Licensee the right to the videos under the terms set out in this licence agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS
1. SUBJECT to the other provisions of this Agreement the Owner hereby grants to the Licensee the non-exclusive, non-assignable right to use the videos.
2. THE right to the use of the vidoes is granted by the Owner to the Licensee:
a. subject to the payment of $149 per video (including GST, if any). This payment will entitle the Licensee to use the video as a teaching tool for 5 years from the date of payment of the licensee. The Licensee’s rights to start using the video will also run from that same date.
b. No use may be made of the video/s until full payment has been made to the Owner (such payment not being reversed at any time).
c. This licence may be renewed after five years on agreement of both parties, subject to any new terms as may have been added in the meantime.
d. The licence to use the video/s as part of training materials, is on the basis that the video/s are used via a streaming service as arranged by the Owner. The Licensee is strictly prohibited from downloading any local copies of the video, or from sharing the URL of the video for its trainees to view at a different time.
3. THE videos may be used by the Licensee on as an education tool in relation to their professional services offered as, for example, midwives, doulas, hypobirthing teachers, childbirth educators, university lecturers and other related professionals. Such use may only occur while the Licensee undertakes their profession to the expected professional standard. Should the Licensee breach the
professional standards of their profession, or be suspended in their profession due to an investigation in relation to breach of such standards or other misconduct, this license agreement will immediately terminate, and the Licensee will not be entitled to any refund. Should the Licensee be re-instated or found not to have engaged in misconduct, the licence will be re-instated for the remainder of the licence period
4. THE Licensee expressly agrees to hold the Owner harmless from and against any liability of any kind whatever which may arise from the use of the videos under this licence.
5. THE Licensee acknowledges and understands, and will at all times acknowledge, that all intellectual property rights in the videos, including, but not limited to, copyright, trade marks (whether registered or not) and know-how, belong to the Owner. This agreement in no way transfers such intellectual property to the Licensee, nor does this license entitle the Licensee to hold itself out as the owner or originator of such intellectual property.
6. THE Licensee agrees and acknowledges that it may not under any circumstances edit, any of the videos which are the subject of this agreement, in any way whatsoever or for any purpose whatsoever. The Licensee also agrees to play each video in full during its training / education sessions and acknowledges that playing a partial video may lead to incomplete, and therefore potentially misleading, advice. The Licensee may (and agrees that it will not) not share, modify, distribute, publish, broadcast (including publishing on social media or sharing links for), any part of these videos. The Owner appreciates your enthusiasm for my videos and ask that, if you wish to make these available to someone you know, that you provide them with the Owner’s contact details so that an appropriate license may be put in place.
7. THE videos which are the subject of this agreement may change from time to time and will be listed in an invoice to be provided by the Owner to the Licensee.
8. THE Licensee will at all times recognise the validity of any Trade Marks forming part of this agreement, and the ownership thereof and the ownership of the goodwill connected therewith by the Owner and the exclusive right and jurisdiction of the Owner to control the use of the Trade Mark and to take all appropriate measures for its protection. The Licensee will not put in issue, nor assist any other person, directly or indirectly, to put in issue, the validity of the Trade Mark or the ownership thereof by the Owner and will faithfully observe and execute all the requirements and directions of the Owner relating to the manner of use and safeguarding of the Trade Mark.
9. THE Licensee agrees to notify the Owner as soon as possible, should it become aware of any use of the copyright, video/s or trade mark/s which the Licensee may believe may be improper or infringing use.
10. THE Licensee agrees that during this agreement and after its termination, it will not produce or attempt to produce or be part of producing a video which attempts to teach the topic of the video/s which form the part of this license.
11. THE Licensee understands that this license is granted on the basis that the technology for streaming the video remains available. Should that not be the case, the Owner will use her best endeavours to provide the video via an alternative streaming system. Should this not be possible, the Owner is entitled to cancel this agreement, in which case the Licensee will be entitled to a refund as follow:
$150 if cancelled in the first year
$100 if cancelled in the second year
$ 50 if cancelled in the third year
$0 if cancelled in the fourth or fifth years, because the Licensee would already have had substantial benefit from the video/s by that time.
12. Disclaimers
a) The video/s are based on my skills, knowledge, training and experience in the field of pre- and post-natal care.
b) These videos are for informational and educational purposes only. These videos do not provide medical advice and do not replace medical advice.
c) The techniques and advice in these videos is of a general nature and although they work for most women, each may have different experiences and needs. All pregnant women should be urged to seek immediate medical advice, should they struggle with any of the techniques in the video/s. I am also available for 1-2-1 consultations (via skype if you are not local) for an additional fee, should you or your students be struggling to apply the techniques as shown in the video/s.
d) Mothers and expectant mothers should always be warned to consult with a qualified and licensed physician or other medical care provider and follow such advice without delay regardless of anything seen or read in these videos. The Owner assumes no duty to correct or update the Content nor to resolve or clarify any inconsistent information in the video/s. Reliance on the videos is solely at the User's risk. The videos may contain health or medically related materials considered sexually explicit to some. Users are warned that if they may be offended by such Content, an alternate source of information should be found. Publication of information or reference in these videos to specific sources such as specific products, procedures, physicians, treatments, or diagnoses are for information only and are not endorsements by the Owner.
e) All expectant mothers and mothers should be warned to phone the emergency services immediately should “red flag” symptoms occur (such as a non-responsive baby). A list of such symptoms is not provided here as it falls outside of the scope of this document and of the video/s.
13. WHILE the Owner cannot offer a guarantee that the techniques shown in the videos will work for every mother and every child, they are techniques that work in the vast majority of cases and have been very helpful to numerous women that the Owner has worked with over the years.
14. THE Licensee agrees to indemnify, defend and hold the Owner, her people, her affiliates, her content providers and their respective directors, officers, employees, shareholders, partners and agents harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) as a result of or in connection with this agreement, the performance or alleged or actual breach of it, or in connection with the content and use of my videos.
15. TO the extent permitted by law, the Owner and her people shall not be liable for any damages, costs or losses whatsoever arising as a result of using the techniques taught in the videos.
16. SHOULD any liability attach, despite the clauses above, to the extent permitted by law, the Owner’s liability and the liability of her people under this agreement shall not exceed the total aggregate amount you have paid to her for the videos.
17. THIS Agreement is not assignable by the Licensee without the Owner’s prior written consent. The Owner may assign this Agreement without the Licensee’s consent to any other party so long as such party agrees to be bound by its terms.
18. WHERE the Owner reasonably believes that Content is being used outside of the scope of the license granted under this Agreement, the Licensee agrees to, at the Owner’s request, provide a certificate of compliance signed by the Licensee, in a form to be approved by the Owner. In particular, the Owner’s intellectual property is licensed for the Licensee to provide training or education, and the Licensee may not share such access with other educators or trainers.
19. IF any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision of an enforceable provision or provisions, that as closely as possible reflects the terms of the unenforceable whole or part provision but makes them enforceable.
20. THIS Agreement will be governed by the laws of the State of Queensland and the federal laws of Australia.
21. THE Licensee acknowledges that they have read this agreement, understand it, and have had an opportunity to seek independent legal advice before agreeing to it. In consideration of Owner agreeing to provide the content, you agree to be bound by the terms and conditions of this agreement.
22. © 2018 Acacia Law – copyright in these terms and conditions is owned by Acacia Law, law@acacialaw.com, with a perpetual royalty free license to use them belonging to us. These
terms may not be copied, modified in any way or used, in whole or part, without express written permission from Acacia Law. Each legal situation is unique, and these terms have been specifically created for Amberley Harris and may not be appropriate for other legal situations.