Commercial License Agreement
COMMERCIAL LICENSE AGREEMENT
Bo Innovations Pty Ltd (ACN 621 205 865) trading as Visuals2Go of PO Box 157, Padstow, NSW, 2211 (Licensor);
A. The Licensor owns certain pictures, visuals and images on the Visuals2Go website and mobile application which are only available for commercial via a licence.
B. The Licensor offers to grant to the Licensee a non-exclusive licence to use the Visuals2Go application and proprietary images for commercial on the terms and conditions set out in this Agreement.
1. Definitions and interpretation
In this Agreement, unless the context indicates the contrary: Commencement Date means the date the Licensee pays the Licence Fee.
Commercial Licence means a licence to use the Licenced Software and Documentation for business, commercial or educational purposes.
Confidential Information means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and
(b) information developed independently by a party.
Documentation means any and all proprietary documentation, visuals, pictures, photographs and imagery made available to the Licensee by the Licensor for use with the Licensed Software, including any documentation available online.
Fees means the fees calculated in accordance with Schedule 2.
Force Majeure Event means any event beyond the control of the relevant party.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Licensee means a sole trader, partnership, corporation, trust or educational institution that pays the Fees in respect of the Visuals2go Commercial Licence.
Licensed Software means the Visuals2Go mobile application and Documentation owned by the Licensor and made available to the Licensee pursuant to this Agreement.
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Term means 12 months.
Website means www.visuals2go.com located at http://www.visuals2go.com.
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
(d) the term “includes” (or any similar term) means “includes without limitation”; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2. Grant of licence
(a) The Licensor grants to the Licensee a non-exclusive, world-wide, non-transferable licence to use the Licensed Software and Images during the Term solely in connection with the delivery of educational or commercial purposes, subject to and in accordance with the terms and conditions set out in this Agreement.
(b) The subscription plan permits only 1 Licensee or single user. Only that individual is permitted to use the Licensed Software and Documentation for commercial or educational purposes during the Term. If the Licensee requires additional licences then they will need to contact the Licensor by email or phone to discuss the cost of additional Commercial Licence(s). .
(c) The Licensee must not:
(i) use the Licensed Software for any purpose or in any manner other than as set out in paragraph (a);
(ii) use the Licensed Software in any way that could damage the reputation of the Licensor or the goodwill or other rights associated with the Licensed Software;
(iii) permit any third party to use the Licensed Software other than as set out in paragraph (b);
(iv) permit any person to link to any page containing any part of the Licensed Software (including via a hyperlink or RSS feed) without the Licensor’s written consent;
(v) except as expressly permitted by this Agreement, and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent the Licensor restraining the Licensee from doing so:
A. reproduce, make error corrections to or otherwise modify or adapt the
Licensed Software or the Documentation or create any derivative works based upon the Software or the Documentation;
B. de-compile, disassemble or otherwise reverse engineer the Licensed Software or permit any third party to do so; or
(vi) modify or remove any copyright or proprietary notices on the Licensed Software or the Documentation.
(d) Visuals2Go, in its sole discretion, may extend a Commercial License to you for the use of its images. Alternatively, you may have purchased an automatically renewed commercial license subscription for using the Visuals2Go App images.
(e) A Commercial License grants you the permission to use the images of Visuals2Go, during the term of your subscription, in a digital and printed medium with limited attribution.
(f) You may also sell your materials which use the images of Visuals2Go.
(g) A commercial license purchased from https://www.visuals2go.com whilst you have a paid and active subscription will grant you permission to use / re-produce materials containing the image in the following formats:
· Physical printed copies
· Pre-made physical merchandise
· Print-on-demand merchandise
· Social media
· E-cards (intended for multiple distribution)
· Digital worksheets, documents or presentations (intended for multiple distribution)
· Web or print templates (intended for multiple distribution)
· Digital scrapbooking (intended for multiple distribution)
· Digitized embroidery files (intended for multiple distribution)
(h) In the case that you have added images onto Visuals2Go app’s printable templates, you must not sell those templates as it is. You may only sell content that you have created using our images and added templates of your own design that is significantly different from ours.
(i) A commercial license will grant you the ability to do image manipulation of the images such as transformation of color images into line art. However, the final result is still a copyright of Visuals2Go.
(j) You also agree that your right to use the images of Visuals2Go, in any of your materials, expires automatically with the termination of your subscription. This means that you agree to terminate your usage of Visual2Go’s images in any of your materials once your subscription expires.
(k) Your requests for images and albums are valued. We will do our best to create images and albums to be added to this app at the fastest time possible. Please keep in mind that we will only create and publish images and albums if they will benefit most users of Visuals2Go. We cannot promise if those requests will be honoured or when they will be uploaded onto the app.
(l) The app is constantly updated with new images and albums. You have a choice to upgrade the app with added features with individual in App purchases or with a paid subscription.
3. Delivery and installation
(a) The Licensor shall deliver the Licensed Software to the Licensee on the Commencement Date. Any request for access to specific Documentation should be made in writing by email to firstname.lastname@example.org.
(b) The Licensee must ensure that the computer equipment or mobile phone on which the Licensed Software is to be installed is in good, up to date working order and operating condition when the installation of the Licensed Software takes place.
4. Intellectual Property Rights
(a) Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
(b) The Licensee:
(i) acknowledges that the Licensor owns all Intellectual Property Rights in the Licensed Software; and
(ii) will not directly or indirectly do anything that would or might invalidate or put in dispute the Licensor’s title in the Licensed Software.
(c) If any person makes any claim alleging that any of the Licensed Software (or use of any of the Licensed Software) infringes any Intellectual Property Rights or Moral Rights of any person, the Licensee must:
(i) promptly notify the Licensor in writing;
(ii) not make any admissions or take any action in relation to the claim without the Licensor’s written consent;
(iii) permit the Licensor control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and
(iv) cooperate with, assist and act at all times in accordance with the reasonable instructions of the Licensor in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
(a) The Licensee must pay the Licensor the Fees.
(b) The Licensor may invoice the Licensee for the Fees on an annual basis in advance.
(c) Each invoice is payable immediately or within 30 days of the date of the invoice if alternative payment arrangements have been made. If the Licensee has not paid an invoice in full by that date, the Licence will be deemed void and cancelled.
(a) All amounts payable under this Agreement are expressed exclusive of GST.
(b) In respect of any taxable supply, the Licensee must pay to the Licensor an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Licensee of a valid tax invoice.
The Licensee must permit the Licensor (or its nominated auditor) to audit the records and premises of the Licensee at any time during the Term and for 3 years following the end of the Term, on at least 5 days written notice, for the purpose of confirming the Licensee’s compliance with this Agreement.
(a) The Licensor warrants to the Licensee that the Licensed Software will meet the description set out in Schedule 1.
(b) Each party warrants to the other that it has the right and ability to enter into this Agreement and that this Agreement will be legally binding on it.
(a) To the full extent permitted by law, the Licensor excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
(b) To the full extent permitted by law, the Licensor excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
(c) The Licensor’s total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.
(d) Either party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
(e) This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, the Licensor limits its liability in respect of any claim to, at the Licensor’s option:
(i) in the case of goods:
A. the replacement of the goods or the supply of equivalent goods;
B. the repair of the goods;
C. the payment of the cost of replacing the goods or of acquiring equivalent
D. the payment of having the goods repaired; and
(ii) in the case of services:
A. the supply of the services again; or
B. the payment of the cost of having the services supplied again.
A party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of this Agreement which:
(i) is not remediable; or
(ii) if capable of remedy, is not remedied by the other party within 14 days of written notice;
(b) an insolvency event occurs, other than an internal reconstruction with notice to the other party.
11. Consequences of termination
If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement except those obligations in clauses 8, 10, 12, and 13 and any other obligations that, by their nature, survive termination;
(b) each party retains the claims it has against the other;
(c) the Licensee’s right to use the Licensed Software immediately ceases and the licences granted under this Agreement terminate;
(d) the Licensee must immediately remove all Licensed Software from the Website; and
(e) the Licensee must immediately pay all outstanding Fees.
(a) A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
(b) A party may:
(i) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
(ii) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this
Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
(c) Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information while it is in the receiving party’s possession or control.
(d) Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of the Licensor’s request or on termination of this Agreement for any reason.
(a) The parties’ contact details for notices under this Agreement are as follows, or as otherwise notified by one party to the other from time to time:
Licensor: Bo Innovations Pty Ltd
Address: PO Box 157, Padstow, New South Wales, 2210
Contact number: 0422 249 992
(b) All notices must be in writing and can be given by:
(i) hand delivery during normal business hours;
(ii) registered post; or
(iii) facsimile followed within 2 business days by one of the means listed above.
(c) A notice is deemed to be given and received:
(i) if delivered in accordance with paragraph (b)(i). on the next business day after the day of delivery;
(ii) if sent in accordance with paragraph (b)(ii). 5 clear business days after the day of posting;
(iii) if sent in accordance with paragraph (b)(iii). on the next business day after transmission.
You agree to indemnify, defend and hold Visuals2Go and its affiliates, and their respective directors, officers, employees, shareholders, partners and agents harmless from and against any and all claims, liability, losses, costs and expenses (including lawyer’s fees on a solicitor and client basis) incurred by any Visuals2Go Party in connection with: (i) any use or alleged use of the Site under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; or (iii) any breach by you of this Membership Agreement. Visuals2Go reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Visuals2Go’s defence of such claim.
(a) The Licensee must not assign, sublicence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Licensor.
(b) Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
(c) If a provision of this Agreement is invalid or unenforceable it is to be read down or
severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
(d) This Agreement (and any documents executed in connection with it) is the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
(e) This Agreement may be amended only by a document signed by all parties.
(f) A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.
(g) This Agreement may be executed in counterparts which will be taken together to constitute one document.
(h) A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
(i) Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party’s performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.
(j) All stamp duties and other government charges in relation to this Agreement must be paid by the Licensee.
(k) This Agreement is governed by the laws of New South Wales, Australia and each party submits to the jurisdiction of the courts of New South Wales.
1. Licensed Software
This License grants permission to the Licensee to use all Visuals2Go images for educational or commercial purposes.
US$197 per annum or US$24.99 per month for Single users. Prices are subject to change.
The app is constantly updated with new images and albums. You have a choice to upgrade the app with added features with individual inApp purchases or with a subscription.