Trademark Licensing Agreement made in Australia 

Parties Arboriculture Australia Limited (“Arb Aus”) (the "Licensor")

And You (the "Recipient")

Recitals

  1. Arb Aus is the registered owner of certain intellectual property rights via Australian registered trademark 2468389.

  2. Arb Aus wishes to promote the arboriculture industry and practitioners through its certification system and registration of representatives qualified according to its standards and wishes to licence the right to use the intellectual property rights and the Recipient wishes to accept the grant of such licence.

  3. The Recipient wishes to use the trademark to promote their professional status.

  4. The Licensor and the Recipient wish to record the terms and conditions on which the Recipient will receive the relevant intellectual property rights.

This Agreement provides:

1.         Definitions, interpretation and governing law

1.1         Definitions

In this Agreement:

"Agreement" means the agreement dated above between the Recipient and the Licensor.

"Approved Purpose" means use and exploitation of the Licensed Intellectual Property throughout Australia. 

"Confidential Information" means the Licensed Intellectual Property and all and any information and documents relating to the Licensed Intellectual Property in addition to the terms and conditions of this Agreement and any proprietary information shared between the parties.

"Licensed Intellectual Property" means the intellectual property described in Schedule 1.

"Permitted Person" means any director, officer, employee, consultant or adviser of the Recipient.

"Related Corporation" means a Related Body Corporate.

"Representative" includes, in relation to a person or entity, its employees, officers, the employees and officers of that entity's Related Corporations, its external accountants, auditors, solicitors, financial advisors, tax advisors, other advisors, consultants and any other agents.


1.2         Interpretation

In this Agreement:

  1. headings are for convenience only and do not affect interpretation;

  2. the Recitals form part of this Agreement;

and unless the context indicates a contrary intention:

  1. references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this Agreement, and a reference to this Agreement includes any schedule, exhibit or annexure to this Agreement;

  2. the expression "person" includes an individual, a corporation, an association or a joint venture (whether incorporated or unincorporated), and a partnership;

  3. a reference to any party includes that party's executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

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

  5. a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it; and

  6. words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender.

2. Entry into force of this Agreement

Licensor and the Recipient agree that this Agreement and its terms shall come into force and effect on the date of execution of this Agreement.

3. Licence

3.1 Grant

With effect from the date of this Agreement, Licensor hereby grants the Recipient a non-exclusive, perpetual, royalty-free, fully paid-up licence to use the Licensed Intellectual Property for the Approved Purpose. 

3.2 Restrictions

  1. The Recipient agrees that it shall not use or exploit the Licensed Intellectual Property for any purpose other than the Approved Purpose; and

  2. The Recipient must at all times be a financial member of Licensor with no outstanding    debts or arrears owed to Licensor; and

  3. The Recipient must maintain continuous financial membership of Licensor.


4. Confidentiality 

4.1 Duty of confidentiality

(a) The Recipient must not disclose any Confidential Information without the prior written consent of Licensor.

(b) The Recipient must not use any Confidential Information except for the Approved Purpose.

4.2 Exceptions

Notwithstanding clause 4.1, the Recipient may disclose Confidential Information:

  1. To a Permitted Person on a “need to know basis”, provided that before any disclosure, the Recipient ensures that such Permitted Person is, prior to the disclosure, informed:

  1. that the Confidential Information is confidential to the Licensor;

  2. that the Confidential Information must not be disclosed to anyone else (including other employees, agents or professional advisers of the Recipient); 

  3. that the Confidential Information must not be used except to the extent strictly necessary for the Approved Purpose;

  4. that the Confidential Information is otherwise subject to the provisions governing confidential information in the Permitted Persons' contract with the Recipient; and 

  5. on the terms on which the Confidential Information was disclosed to the Recipient;

(b) If required to by law to do so, to a law enforcement or regulatory authority or a stock exchange, provided however that prior to any such disclosure the Recipient notifies the Licensor of the alleged legal requirement, consults with the Licensor as to the reasonable scope required of such disclosure and, after taking into account the matters raised by the Licensor during such consultation, the disclosure is no greater than the minimum required by law; or

(c) If the Recipient is required to disclose the information in connection with legal proceedings relating to this Agreement.

4.3 Explicit rights of the Licensor

The Licensor may, at its sole discretion, disclose Confidential Information pertaining to the Recipient to any party via any medium including but not limited to the following:

  1. The name and suburb of the Recipient, as recorded by the Licensor; 

  2. Whether the Recipient is permitted to use the Licenced Intellectual Property; and 

  3. Information about complaints about the Recipient received by the Licensor.


5. Protection of Confidential Information

(a) The Recipient must take all prudent precautions to prevent the unauthorised use or disclosure of any Confidential Information.  Without limiting the preceding, the Recipient must take no less care in protecting the confidentiality of any Confidential Information than the Recipient takes in respect of its own confidential information.

(b) The Recipient, if it becomes aware of any actual or threatened unauthorised use or disclosure of any Confidential Information by any person associated with the Recipient, must promptly notify the Licensor.  The Recipient must at its own cost provide all reasonable assistance to the Licensor in relation to any action taken or proceedings instituted by the Licensor in respect of that actual or threatened unauthorised use or disclosure. 

6. Disclaimer

The Recipient covenants and agrees that, except as may be expressly provided in any further agreement in writing between the Recipient and the Licensor:

  1. The Licensor does not make or give any representation, guarantee or warranty, express or implied, that the Confidential Information is or will be complete, current or accurate or that it has been or will be audited or independently verified or updated, or that reasonable care has been or will be taken by them in the compiling, preparation or furnishing of the Confidential Information;

  2. The Licensor does not accept any responsibility for any inference, interpretation, opinion or conclusion that the Recipient or any of its Representatives may draw or form from the Confidential Information; and

  3. The Confidential Information may not be relied upon in any way by the Recipient or any of its Representatives in assuming any contractual or other obligation or liability.


7. Release

The Recipient covenants and agrees that, except as may be expressly provided in any further agreement in writing between the Recipient and the Licensor:

  1. To the extent permitted by law, no liability (whether in negligence or other tort, by contract or under common law, statute or in equity or restitution) is accepted by the Licensor by reason of or in connection with the provision of the Confidential Information or by the purported reliance thereon by the Recipient or any of its Representatives;

  2. It releases the Licensor from all liabilities, losses or damage (whether foreseeable or not), claims, actions suits, remedies, costs, expenses, or other matters (whether in negligence or other tort, contract or under law, statute or in equity, restitution or otherwise) arising from or which hereafter may arise from or in connection with the provision of, or any purported reliance on, the Confidential Information to or by the Recipient or any of its Representatives, and the Recipient covenants that no such claim or allegation shall be made by the Recipient or any of its Representatives against the Licensor in relation thereto; and

  3. It expressly waives any right which it may have to rely upon the Confidential Information and that it will not rely upon the Confidential Information to sue or to hold the Licensor liable in any respect.


8. Return of the Confidential Information

(a) The Recipient covenants and agrees to, at the request of the Licensor, or at the time at which the Confidential Information is no longer required for the Approved Purpose:

(i) Immediately cease using the Confidential Information in its possession; and

(ii) Immediately return to the Licensor all original written documents containing Confidential Information and any copies of those documents and any other materials which reproduces, extracts or contains in written form (or, in the case of the Confidential Information saved in electronic form, such Confidential Information shall be deleted from the Recipient's electronic record), any of the Confidential Information or any information which is based upon, referrable to, or sourced in whole or in part from Confidential Information.

  1. The obligations of confidentiality outlined in this Agreement subsist notwithstanding the return of Confidential Information in accordance with its terms.


9. Acknowledgements

  1. The Recipient acknowledges that unauthorised disclosure or use of Confidential Information could cause irreparable harm and significant injury to the Licensor, which may be difficult to ascertain.  Accordingly, the Recipient agrees that the Licensor has the right to seek immediate injunctive relief from breaches of this Agreement, in addition to any other rights and remedies it may have in law.

  2. The Recipient acknowledges that it is the responsibility of the Recipient to maintain awareness and a contemporary knowledge of industry best practice, and use up to date information and tools such as but not limited to tree identification nomenclature, app and spreadsheet versions pertaining to tree risk assessment, tree valuation, and the like.


10. Indemnity

The Recipient indemnifies the Licensor against all liability or loss arising directly or indirectly from and any costs, charges and expenses incurred in connection with:

  1. Any breach by the Recipient of this Agreement; or

  2. Any act or omission by any of its officers, employees, agents, consultants, advisors which, if done or omitted to be done by the Recipient, would be a breach of the Recipient's obligations under this Agreement.


11. General

11.1 No Assignment 

The rights and obligations of any party under this Agreement can only be assigned with the prior approval of the other party.

11.2 Retention of Rights

The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by the law and in equity independently of this Agreement.

11.3 Exercise of Rights

A party may exercise a right, power or remedy at its discretion and separately or concurrently with another right, power or remedy.  A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy.  Failure by a party to exercise or delay in exercising a right, power or remedy does not prevent its exercise.

11.4 Waiver and Variation

A provision of or a right created under this Agreement may not be:

  1. Waived except in writing signed by the party granting the waiver; or

  2. Varied except in writing signed by the parties.

11.5 Termination

(a) Either party may terminate this Agreement with written notice.

(b) The Licensor may terminate this Agreement immediately at its sole discretion and without prior notice.

(c) The Agreement will be terminated by the Licensor if Licensor receives any complaint concerning the Recipient’s:

(i) use of the Licensed Intellectual Property;

(ii) performance of any activity that relates to the Licensed Intellectual Property: and

(iii) act that brings, is deemed to bring, or may bring the Licensed Intellectual Property or the Licensor into disrepute:

unless the complaint is:

(i) vexatious, as determined by Licensor at its sole discretion; or

(ii) withdrawn by the complainant and Licensor determines, at its sole discretion, that the withdrawal of the complaint is reasonable.

(d) The Licensor may, at its sole discretion, suspend the listing of the Recipient on its website at any time for any reason. For the purposes of clarification only, this action will typically be taken if the Licensor receives a complaint in which case the suspension may remain in place until either the Agreement is terminated, or alternative determination made by the Licensor.

11.6 Survival of Indemnities and releases

(a) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Recipient and survives termination of this Agreement.

(b) Each release given by the Recipient in this Agreement survives termination of this Agreement.

11.7 Enforcement of Indemnities

It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this Agreement.

11.8 Governing Law

This Agreement is governed by the law in force in Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Australia.

11.9 Warranties

The Recipient warrants that:

  1. The Recipient will cease using the Licensed Intellectual Property when it is:

(i) Not a financial member of Licensor;

(ii) Notified that a complaint has been received;

(iii) Notified by Licensor that this Agreement has been terminated:

  1. The Recipient will at all times:

(i) Conduct themselves in a manner so as to uphold the reputation of Licensor and the arboriculture industry;

(ii) Maintain currency of knowledge through continuous education;

(iii) Maintain accepted professional standards in the execution of its duties; and

(iv) Only use the Licensed Intellectual Property in direct association with the Recipient.  


Agreement is made by the checking of the tick-box acknowledging acceptance the terms and conditions of this Agreement, and subject to the consideration requested being paid, the Licensor will make available to the Recipient the completed Agreement including the name of the Recipient and date of the Agreement. 


Schedule 1:  Licensed Intellectual Property

  1. The Licensor registered trademark image number 2468389 shown here:

The Licensor registered trademark image coloured and augmented with text in such a way as to provide a symbol of membership, status, verification of competency, training or attendance as appropriate by being annotated with:

  1. member category

  2. certification name

  3. certification sub-system

  4. verification website

  5. authorising body (abbreviated)

  6. registered trademark symbol.

  1. A certificate issued by the Licensor to enable the Recipient to communicate the existence of this Agreement to third parties. Whilst this Agreement is in effect, the certificate may be printed and used at Recipient’s discretion but must not be altered or amended in any way.