Intellectual Property Licence Agreement - Template Form Pro · AU-law
✓ Valid in Australia · drafted to comply with local law
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INTELLECTUAL PROPERTY LICENCE AGREEMENT
THIS LICENCE AGREEMENT ("Agreement") is dated ________ (enter the date that this Agreement is signed)
BETWEEN THE LICENSOR:
________ ACN/ABN ________ ("Licensor")
Of the following address:
________
AND THE LICENSEE:
________ ACN/ABN ________ ("Licensee")
Of the following address:
________
RECITALS
A. The Licensor owns all right, title and interest in and to a certain work of intellectual property ("Work"), described specifically as follows:
________
B. The Licensee wishes to use the Work.
C. The Licensor is willing to grant a licence in and to the Work on the terms and conditions set out in this Agreement.
NOW, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration (the receipt and sufficiency of which is acknowledged), the Parties agree as follows:
(1) DEFINITIONS
In this Agreement, the following definitions apply:
"ACL" means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
"Agreement" means this agreement.
"Agreement Date" means the date marked at the top of this document.
"Business Day" means a day which is not a Saturday, Sunday, public holiday or bank holiday in ________.
"Commencement Date" means ________.
"Derivative Works" means works that are an adaptation of the Work, that reproduce a substantial part of the Work, or that combine the Work with other pre-existing work.
"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia pursuant to the GST Law.
"GST Law" has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"Intellectual Property Rights" means, in relation to the Work or any part, summary or derivation of the Work, all present and future right, title and interest in or to any confidential information, logos, brand names, business names, trade names, domain names, registered and unregistered trade marks, registered and unregistered designs, copyrights, patents, service marks, business know-how, inventions, computer programs, business systems or other related information.
"Licence" has the meaning given in clause (3) (Grant of Licence).
"Moral Rights" has the same meaning as in the Copyright Act 1968 (Cth).
"Party" means either the Licensor or the Licensee, and "Parties" means both of them collectively.
"Purpose" has the meaning given in clause (3) (Grant of Licence).
"Royalty" has the meaning given in clause (5) (Fees).
"Work" means the work of intellectual property described as follows:
________
(2) INTERPRETATION
In this Agreement, unless the context otherwise requires:
(a) Words referring to one gender include every other gender.
(b) Words referring to the singular include the plural, and vice versa.
(c) If a word or phrase is defined, its grammatical variations have a corresponding meaning.
(d) Words referring to a person include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
(e) Any reference to time is a reference to time in ________.
(f) If something must be done on or before a date that is not a Business Day, it must be done on or before the next Business Day.
(g) An obligation not to do something includes an obligation not to allow that thing to be done.
(h) Headings are for convenience only and do not affect interpretation.
(i) Each Party must, at its own expense, do all that is reasonably necessary to give full effect to this Agreement.
(j) A reference to legislation includes any subordinate, amended or substituted legislation.
(k) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.
(l) A reference to a Party includes that Party's successors, permitted assigns, legal personal representatives and persons substituted by way of novation.
(m) Any reference to money or currency is a reference to Australian dollars unless otherwise specified.
(3) GRANT OF LICENCE
(a) The Licensor owns the following property (the "Work"):
________
(b) Subject to this Agreement, the Licensor grants the Licensee a licence to use the Work on a ________ basis (the "Licence").
(c) The Licence applies in the following territory: ________.
(d) The Licence is granted for the following term: ________.
(e) The Licence permits the Licensee to use the Work for the following purpose ("Purpose"):
________
(f) The Licensee may not use the Work for any purpose other than the Purpose, except with the Licensor's express written permission.
(g) The Licensor retains title to and ownership of the Work and all Intellectual Property Rights in it.
(h) Except as expressly granted in this Agreement, the Licensor retains all rights, title, interests and licences in the Work.
(4) SUB-LICENCE
The Licensee may sub-licence its rights under this Agreement only with the prior written consent of the Licensor, and any such sub-licence must be on terms no less protective of the Licensor's rights than this Agreement.
(5) FEES
The Licensee must pay to the Licensor a royalty ("Royalty") which is a one-time flat payment of $________ (________) payable up front at the time the Licensor grants the Licence to the Licensee.
(6) GOODS AND SERVICES TAX
(a) Unless otherwise expressly agreed by the Parties, the Royalty payable under this Agreement excludes GST.
(b) If GST is payable on a supply made under this Agreement, the Licensee must pay to the Licensor an amount equal to the GST payable on the supply ("GST Amount"), calculated by multiplying the Royalty by the prevailing GST rate.
(c) The Licensee must pay the GST Amount at the same time and in the same manner as the Royalty.
(d) The Licensee's obligation to pay the GST Amount is conditional on the Licensor providing a valid tax invoice in accordance with the GST Law.
(e) This clause survives termination, expiration or completion of this Agreement.
(7) MODIFICATIONS
The Licensee may make modifications to the Work without prior approval from the Licensor only to the extent reasonably necessary for the Purpose and subject to the Licensor's Moral Rights under the Copyright Act 1968 (Cth). Nothing in this clause derogates from the Licensor's ownership of, or Intellectual Property Rights in, the Work.
(8) CONFIDENTIALITY
(a) The Licensee acknowledges that during the term of this Agreement it may have access to information that is confidential and/or commercially valuable to the Licensor ("Confidential Information"), which may include but is not limited to:
(I) information of whatever nature relating to the business activities, practices and finances of the Licensor;
(II) any evaluation material, design work, technologies, technological ideas or strategies, strategic plans, marketing strategies, innovations, creative plans, concepts and any other plans or ideas developed by or used by the Licensor;
(III) any information derived from such information; and
(IV) any copy of any Confidential Information,
but does not include information which:
(I) was lawfully known to or in the possession of the Licensee before it was provided by the Licensor, otherwise than as a result of a breach of confidence;
(II) is, or becomes, publicly available through no fault of the Licensee;
(III) is provided to the Licensee without restriction by a third party who did not breach any confidentiality obligation;
(IV) is provided by the Licensor and marked "Non-Confidential"; or
(V) is required by law or regulation to be disclosed, but only to the minimum extent necessary and provided that the Licensor is first consulted as to whether and how the disclosure may be prevented or restricted.
(9) INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
If either Party (the "First Party") becomes aware of any infringement or threatened infringement of any Intellectual Property Rights in relation to the Work, or of any common law 'passing off' in relation to any such rights, then:
(a) the First Party must immediately notify the other Party of the infringement or passing off (together, "Infringement");
(b) the Parties must each take all reasonably necessary steps, including executing all necessary documents, and must cooperate in good faith, in order to protect and enforce both Parties' Intellectual Property Rights in the Work; and
(c) the costs and expenses of any action taken under this clause, including legal costs, must be shared equally between the Parties unless otherwise agreed in writing.
(10) LICENSOR RIGHT TO USE DERIVATIVE WORKS
If the Licensee creates Derivative Works, then from the date of creation of those Derivative Works the Licensee grants to the Licensor a non-exclusive, non-transferable, royalty-free licence to use those Derivative Works ("Licence Back"), provided that the Licence Back does not limit or restrict the Licensee's rights to use the Work in accordance with the Licence.
(11) LICENSOR WARRANTIES
(a) The Licensor provides the following warranties ("Licensor's Warranties"):
(I) that the Licensor has full legal authority and capacity to enter into this Agreement;
(II) that the Licensor owns or controls the rights in the Work being provided to the Licensee;
(III) that the Licensor has full legal authority to provide the Work to the Licensee;
(IV) that there are no restrictions, legal or otherwise, that prevent the Licensor from entering into this Agreement;
(V) that this Agreement and the Work do not and will not infringe the intellectual property rights of any third party;
(VI) that there are no legal claims, existing or threatened, and no other circumstances or liabilities that may impair the Licensee's ability to use the Work in accordance with this Agreement; and
(VII) that, except as otherwise disclosed to the Licensee, to the best of the Licensor's knowledge the Work is free from defects.
(b) If the Work breaches a warranty set out in this Agreement ("Breach"):
(I) the Licensor will:
________
(II) to be entitled to make a claim in relation to the Breach, the Licensee must:
________
(III) to make a claim in relation to the Breach, the Licensee must:
________
(IV) the Licensor is responsible for any expenses associated with any successful claim in relation to the Breach;
(V) any benefits provided to the Licensee in relation to the Breach are in addition to other rights and remedies available to the Licensee under the law.
(c) Except as otherwise required by law, the Licensee's right to claim in relation to a Breach will expire the following period after the Licensee takes possession of the Work: ________
(d) The Licensor provides no warranties except those set out in this Agreement or as otherwise required by law.
(e) This clause survives termination or expiration of this Agreement.
(12) LICENSOR INDEMNITY
(a) The Licensor indemnifies and holds harmless the Licensee against any losses, liabilities, claims, damages, expenses, charges, fines, penalties or other costs which the Licensee or any of its directors, employees, officers, agents, representatives or contractors may incur, directly or indirectly, as a result of a breach of one or more of the Licensor's Warranties.
(b) This clause survives termination, expiration or completion of this Agreement.
(13) LICENSEE WARRANTIES
(a) The Licensee provides the following warranties ("Licensee's Warranties"):
(I) that the Licensee has full legal authority and capacity to enter into this Agreement; and
(II) that the Licensee will only use the Work in accordance with the Licence granted under this Agreement.
(b) This clause survives termination, expiration or completion of this Agreement.
(14) LICENSEE INDEMNITY
(a) The Licensee indemnifies and holds harmless the Licensor against any losses, liabilities, claims, damages, expenses, charges, fines, penalties or other costs which the Licensor or any of its directors, employees, officers, agents, representatives or contractors may incur, directly or indirectly, in relation to:
(I) the use, operation, storage, repair or maintenance of the Work;
(II) any loss or damage to property in connection with the use, operation, storage, repair or maintenance of the Work;
(III) any injury (or death) suffered by any person in connection with the use, operation, storage, repair or maintenance of the Work;
(IV) any loss or destruction of the Work;
(V) any damage to the Work;
(VI) any breach of this Agreement by the Licensee or any of its directors, employees, officers, agents, representatives or contractors;
(VII) any breach by the Licensee or any of its directors, employees, officers, agents, representatives or contractors of any registration, licence, permit, authorisation, regulation, legislation, by-law, ordinance or rule relating to the use of the Work;
(VIII) any claim made by a third party against the Licensor related in any way to the Licensee's use of the Work; or
(IX) any costs the Licensor incurs in enforcing its rights under this Agreement, including legal costs on a full indemnity basis.
(b) The Licensee is not liable under this clause for any loss, liability, claim, damages, expense, charge, fine, penalty or other cost caused by the Licensor's gross negligence, wilful misconduct or bad faith.
(c) This clause survives termination, expiration or completion of this Agreement.
(15) DISPUTE RESOLUTION
(a) The Parties agree to attempt in good faith to resolve any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement (a "Dispute") promptly by negotiation between the Parties.
(b) A Party claiming that a Dispute has arisen must notify the other Party in writing, providing details of the nature of the Dispute.
(c) On receipt of a notice under this clause, the Parties must, within ten (10) Business Days, meet and use their reasonable endeavours, acting in good faith, to resolve the Dispute by negotiation.
(d) If the Dispute is not resolved within twenty (20) Business Days of the date of the notice, the Parties must refer the Dispute to mediation, administered by a mediator agreed upon by the Parties or, failing agreement, appointed by the President of the Law Society of ________ or their nominee.
(e) The costs of any mediation, including the fees and expenses of the mediator, will be shared equally between the Parties unless otherwise agreed in writing.
(f) Nothing in this clause prevents either Party from seeking urgent interlocutory or injunctive relief from a court of competent jurisdiction where necessary to protect that Party's rights.
(g) This clause survives termination, expiration or completion of this Agreement.
(16) WARRANTIES REGARDING COMPETITION
(a) Each Party warrants that this Agreement does not relate to:
(I) a contract, arrangement, understanding or concerted practice having the purpose or likely effect of substantially lessening competition contrary to the Competition and Consumer Act 2010 (Cth);
(II) exclusive dealing for the purpose, or with the effect or likely effect, of substantially lessening competition;
(III) any arrangement involving "price fixing", whereby competitors agree on pricing rather than competing;
(IV) any arrangement involving "output restrictions", whereby competitors agree to prevent, restrict or limit the volume or type of goods or services available;
(V) any arrangement involving "market sharing", whereby competitors agree to divide or allocate customers, suppliers or territories among themselves; or
(VI) any arrangement involving "bid rigging" or "collusive tendering", whereby competitors agree not to compete genuinely for tenders.
(b) This clause survives termination, expiration or completion of this Agreement.
(17) LIMITATION OF LIABILITY
(a) Notice to the Licensee:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
(I) in the case of goods:
(A) replacement of the goods;
(B) supply of equivalent goods;
(C) repair of the goods;
(D) payment of the cost of replacing the goods;
(E) payment of the cost of acquiring equivalent goods; or
(F) payment of the cost of having the goods repaired; and
(II) in the case of services:
(A) supply of the services again; or
(B) payment of the cost of having the services supplied again.
(h) This clause survives termination or expiration of this Agreement.
(18) TRANSFER OF RIGHTS
(a) This Agreement is binding on the successors of the Parties.
(b) This Agreement, and the rights granted under it, may not be assigned, sold, leased or otherwise transferred in whole or part by either Party without the prior written consent of the other Party.
(c) This clause survives termination, expiration or completion of this Agreement.
(19) COMMENCEMENT
The Licence created under this Agreement commences on the Commencement Date:
________
(20) TERMINATION
(a) This Agreement may be terminated by either Party by providing thirty (30) days' written notice to the other Party.
(b) This Agreement automatically terminates on ________.
(c) In addition, this Agreement may be terminated by the Licensor if:
(I) the Licensee fails to pay any part of the Royalty or any other payment when due;
(II) the Licensee becomes insolvent, has a controller, receiver, administrator or liquidator appointed, or enters into any scheme or arrangement with creditors; or
(III) the Licensee is in breach of this Agreement and fails to rectify the breach within twenty-one (21) days after receiving notice from the Licensor.
(d) In addition, this Agreement may be terminated by the Licensee if:
(I) the Licensor becomes insolvent, has a controller, receiver, administrator or liquidator appointed, or enters into any scheme or arrangement with creditors; or
(II) the Licensor is in breach of this Agreement and fails to rectify the breach within twenty-one (21) days after receiving notice from the Licensee.
(e) Immediately upon termination of this Agreement:
(I) all rights in the Work revert to the Licensor;
(II) any Royalty payments previously paid remain the Licensor's property and the Licensee has no right to claim them;
(III) any obligations for Royalty payments accrued but unpaid at the date of termination must be paid in full to the Licensor;
(IV) the Licensee must, on demand by the Licensor, provide all documents or other materials in its possession relating to the Work; and
(V) the Licensee must, on demand by the Licensor, take all reasonable steps requested to protect the Licensor's right, title and interest in the Work.
(f) If this Agreement is terminated by the Licensee, the Licensee remains liable for all Royalty or other payments accrued at the date of termination.
(21) NOTICES
(a) Any notice, demand, request or other correspondence in relation to this Agreement required or permitted to be given in writing is deemed validly given to the Licensor if delivered to:
________
(b) Any such notice is deemed validly given to the Licensee if delivered to:
________
(c) Either Party (the "Nominating Party") may nominate another address (the "New Address") by notifying the other Party in writing. After nomination, any notice is deemed validly given if delivered to the Nominating Party at the New Address.
(22) WRITTEN COMMUNICATION
In relation to any correspondence or notification required under this Agreement to be provided in writing:
(a) such notice is properly given if given to the other Party:
(I) by email to an email address that the other Party has nominated, acknowledged or used in connection with this Agreement;
(II) by facsimile to a facsimile number that the other Party has nominated, acknowledged or used in connection with this Agreement; or
(III) by post to a postal address that the other Party has nominated, acknowledged or used in connection with this Agreement.
(b) such notice is taken to be received:
(I) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address;
(II) if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine;
(III) if sent by prepaid post within Australia, five (5) Business Days after the date of posting; and
(IV) if sent by prepaid post to or from an address outside Australia, twenty-one (21) days after the date of posting.
(23) GENERAL PROVISIONS
(a) GOVERNING LAW: This Agreement is governed in all respects by the laws of ________ and applicable Commonwealth law. The Parties submit to the non-exclusive jurisdiction of the State and Federal courts of ________.
(b) LANGUAGE: All communications and notices under this Agreement must be in the English language.
(c) AMENDMENTS: No amendment or modification of this Agreement binds any Party unless evidenced in writing and signed by both Parties.
(d) RIGHTS, REMEDIES AND POWERS: Unless expressly provided otherwise, the rights, remedies and powers a Party acquires under this Agreement are cumulative and in addition to any other rights, remedies or powers that Party may have.
(e) SURVIVAL OF OBLIGATIONS: Any provisions of this Agreement which by their nature would be expected to survive termination, expiration or completion remain in full force and effect, including those expressly stated to survive.
(f) NO WAIVER: No power or right under this Agreement is waived by any act or acquiescence of a Party. A power or right may only be waived in writing signed by the Party waiving it. No waiver constitutes a waiver of any other power or right or of the same on a future occasion. Failure to enforce a term does not constitute a waiver of that or any other term.
(g) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and supersedes all prior negotiations, representations, understandings and agreements, whether written or oral. Each Party acknowledges that it has not relied on any representation, warranty or statement not expressly set out in this Agreement.
(h) SEVERABILITY: If any provision of this Agreement is held to be invalid, illegal or unenforceable, that provision is, to the extent of the invalidity, illegality or unenforceability, severed, and the remaining provisions continue in full force and effect.
(i) COUNTERPARTS: This Agreement may be executed in counterparts, all of which together constitute a single agreement. If the execution dates differ, this Agreement is effective on the date both Parties have signed, which may be the later date.
(j) FORCE MAJEURE: Neither Party is liable to the other for any failure to perform due to causes beyond its reasonable control, including acts of God, acts of civil or military authorities, riots, embargoes, natural disasters, labour or transportation disputes, and other unforeseen circumstances.
(k) FURTHER ACTS: Each Party must, and must ensure that its directors, employees, officers, agents, representatives and contractors, do all things and sign, execute and deliver all documents reasonably required to give effect to this Agreement.
EXECUTED AS AN AGREEMENT ON ________
Executed by ________ ACN/ABN ________ in accordance with s127 of the Corporations Act 2001 (Cth) by:
___________________________________
Signature of director
____________________________________
Name of director
___________________________________
Signature of director/company secretary
____________________________________
Name of director/company secretary
Executed by ________ ACN/ABN ________ in accordance with s127 of the Corporations Act 2001 (Cth) by:
___________________________________
Signature of director
____________________________________
Name of director
___________________________________
Signature of director/company secretary
____________________________________
Name of director/company secretary
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