Service Mark Licence Agreement (Australia)

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While the owner of a service mark holds exclusive rights to use that mark to market or sell services, the service mark owner may transfer certain of those rights to a third party through use of a Service Mark Licence Agreement. A service mark licence is usually given for a specific duration during which the licensee pays the service mark owner for use of the service mark. Once the term of the licence expires, all rights in the mark revert back to the original owner.

Among others, this form includes the following key provisions:
  • Grant of Licence: the licence granted in this type of agreement spells out the kinds of rights that the licensee will be able to enjoy
  • Term: The term of the licence agreement is generally for a fixed period of years
  • Payments: Outlines the method and frequency of payments
  • Licensor's Representations and Warranties: Describes any representations the Licensor will make and any warranties the Licensor grants
  • Quality Control: Quality standards the licensee must meet in order to continue use of the service mark
This lawyer-prepared packet contains:
  1. Instructions and Checklist
  2. General Information
  3. Service Mark Licence Agreement for Australia
Law Compliance: This form complies with the state and territory laws of Australia
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
 
 
Service Mark Licence Agreement  Kit
(Australia)

 

 
THIS AGREEMENT is made this        day of       , 20   , by and between                       (“Licensor”) and                             (“Licensee,” and collectively, the “Parties”).
 
WHEREAS, Licensor is the owner of the Service Mark in    (Brief description of Service Mark to be licensed)             (the “Service Mark”).
 
AND WHEREAS, Licensor wishes to permit Licensee to use the Service Mark for the purpose of       (Brief description of Licensees approved use of Service Mark)                                         , under the terms set forth in this Agreement;
 
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
 
1.   Service Mark.  The Service Mark shall be defined as those items listed on Schedule A.
 
2.   Grant of Licence.  Licensor hereby grants to Licensee a non-transferable licence to use the Service Mark (the “Licence”) in the following manner:    (see instructions above for important information about defining the scope of the Licence)                                                                                                                                                        _____________________________________                   .
 
The Licence shall be [ ] exclusive [ ] nonexclusive.
 
Licensor shall remain the sole owner of the copyright in the Service Mark.  Licensee shall enjoy only the rights set forth above, and nothing in this Agreement shall entitle Licensee to make any claim to ownership of the Service Mark, or of any other intellectual property rights in the underlying material.  Licensee may not make any other use of the Service Mark other than those authorised above without prior written approval from Licensor.
 
3.  Term.  
 
a.   The term of this Agreement shall begin on the date written above and shall continue in full force and effect for a period of               years (the “Term”), unless terminated earlier pursuant to this the terms of this Section 3.
 
b.   Should any one or more of the following enumerated events occur, Licensor shall have the right to terminate this Agreement:
i.   Licensee does not make any commercial use of the Service Mark within 12 months of the date of this Agreement.
 
ii.   Licensee ceases to make commercial use of the Service Mark for any period of 12 consecutive months.
 
iii.   Licensee breaches a material provision, term, or condition under this Agreement, including, but not limited to, a failure to meet quality standards as either set forth in this Agreement, or as mandated by Licensor pursuant to Section 6(b) below.
 
iv.   Licensee sells all or substantially all of its assets, or experiences a Change in Control.  For the purposes of this Agreement, Change in Control shall mean a sale or other transfer of equity in the Licensee, resulting in a new person or entity becoming the controlling equity holder of the Licensee.
 
c.   In order to terminate this Agreement pursuant to Subsection (b) above, Licensor must provide written notice to Licensee or to Licensees successor in interest within 30 days of the date of termination stating Licensors intent to terminate and the intended date of termination.
 
d.   In the event that this Agreement is terminated pursuant to this Section 3, Licensee shall cease using the Service Mark in the course of Licensees business as soon as is commercially feasible.  
 
e.   At the end of the Term, or upon any termination of this Agreement, all rights, interest and ownership of the Service Mark shall revert to Licensor, and shall be the sole property of Licensor.
 
4.  Payments.  
 
a.   Licensee shall pay to Licensor (check any that apply):
   [ ]   a fee of ___________________ Australian Dollars (AUD      ), payable in the following instalments:    (briefly state the times at which payment will due, and how much will be due for each payment; i.e., upon execution of this Agreement, upon commencement of using the Service Mark, etc.)      
   [ ]   a royalty of AUD           per unit (good or service) sold in connection with the Service Mark.
[ ]   a royalty of AUD          per AUD             worth of goods and services sold in connection with the Service Mark
[ ]   a royalty of      % of the gross sales from all goods and services sold in connection with the Service Mark.
[ ]   Additional details:                                                                                     ____                                                                                   .
(Include any considerations, deductions, or other formulae that will be used to determine the definition of “gross sales” for the purposes of this section.)
 
b.   Licensee shall pay to Licensor an advance against the royalties discussed in Subsection (a) above, in the amount of ___________________ Australian Dollars (AUD      ).  This advance shall be paid in full to Licensor within 7 days of the execution of this Agreement.
 
c.   (if applicable) Licensee shall submit to Licensor written quarterly reports (the “Quarterly Reports”) at the end of each quarter of the calendar year (March 31; June 30; September 30; December 31) stating the amount of goods and services sold in connection with the Service Mark for the then-ending quarter, and the corresponding amount owed to Licensor as royalty payments for that quarter (the “Quarterly Royalty Payment”).  Quarterly Reports must be received by Licensor no more than 7 days after the end of each quarter.  Payment of each Quarterly Royalty Payment must be paid to Licensor in full within 30 days of the end of each quarter.  Failure to submit Quarterly Reports or to make Quarterly Royalty Payments within the time allotted above shall be considered to be a material breach of this Agreement.
d.   Licensor shall be given access by Licensee to Licensees records, wherever commercially reasonable, in order to audit Licensees stated sales records, and to confirm that all royalty payments are properly stated and accounted for.  If it is determined that any Quarterly Royalty Payment has been deficient, Licensee shall have 7 days to pay Licensor the deficient amount.  Failure to pay deficient royalty amounts within the time allotted above shall be considered to be a material breach of this Agreement.
 
e.   In the event that this Agreement expires or is terminated pursuant to the terms and conditions under Section 3 above, Licensee shall remain obligated to pay to Licensor any royalties due to Licensor, or any payments, whether those units were sold before or after the termination of this Agreement.
 
5.  Licensors Representations and Warranties.  
 
a.   Licensor represents and warrants that it is the sole and exclusive owner of the Service Mark, and owns all right, title and interest in the Service Mark.
b.   Licensor represents and warrants that it has the legal authority to grant Licensee the Licence, and that no other person or entity is required to give its consent for the Licence to be valid.
c.   (if Licence is exclusive) Licensor represents and warrants that Licensor has not licensed the Service Mark to any person or entity other than Licensee, nor will it licence the Service Mark to any person or entity other than Licensee for the duration of this Agreement.
 
6.   Indemnification.  Licensor agrees to indemnify and hold harmless Licensee for any claims, suits, damages, actions, or other costs arising out any breach of Licensors warranties set forth in Section 5 above.
 
7.   Quality Control.
 
   a.   Licensee hereby agrees that any product or services that it sells in connection with the Service Mark shall conform to the quality standards set forth in Section 2 above, provided that Licensor may set additional specifics or standards for such sale of goods or services pursuant to Subsection (b) below.
 
   b.   Licensor may, at any time, set standards for the quality of goods or services marketed or sold in connection with the Service Mark in addition to those standards set forth in this Agreement.  Licensor must give written notice of such additional standards (the “Notice of Additional Standards”) to Licensee in order for those standards to be applicable.  To the extent that Licensee is not in compliance with these additional standards at the time it receives a Notice of Additional Standards, Licensee must conform to the stated standards as soon as is commercially feasible.
 
   c.   Licensee shall make available upon request samples of any products or services sold in connection with the Service Mark, including any packaging, displays, or other materials employed in the marketing, display or sale of such products or services.  Licensee shall also grant Licensor access to inspect any facilities in which such products are designed or manufactured for the purpose of ascertaining whether Licensee is in compliance with the quality standards then in effect for the use of the Service Mark, where such access is commercially reasonable.
 
8.   Assignment.   Licensee may not assign its rights, duties or obligations under this Agreement without the prior written approval of Licensor.  Licensee may, however, assign this Agreement without Licensors prior written approval if such transfer is to a purchaser of all or substantially all of Licensees assets, or to a purchaser or other transferee of a controlling equity interest in Licensee.  Licensor shall have the right to transfer its interest in this Agreement and in the Service Mark without the consent of Licensee.  Licensor must notify Licensee in writing in the event of that Licensor assigns all or a material part of this Agreement (the “Licensors Notice of Assignment”).  The Licensors Notice of Assignment must be sent to Licensee within 30 days of such assignment.
 
9.   Governing Law.  This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of ___________________, without regard to conflicts of law principles.
 
10.   Counterparts.   This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
 
11.   Severability.   If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
 
12.   Notice.   Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, addressed as follows:
   If to Licensor:      
      
      
      
   If to Licensee:         
         
      
      
 
13.   Headings.   The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
 
14.   Entire Agreement.   This Agreement constitutes the entire agreement between Licensor and Licensee, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
 
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written.
 
 
LICENSOR
 
                  
Signature
                  
Print Name
LICENSEE
 
                  
Signature
                  
Print Name
 
Schedule A
 
Service Mark Description
 
 
 
 
Number of Pages11
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Product number#33954
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
 
 
Service Mark Licence Agreement  Kit
(Australia)

 

 
THIS AGREEMENT is made this        day of       , 20   , by and between                       (“Licensor”) and                             (“Licensee,” and collectively, the “Parties”).
 
WHEREAS, Licensor is the owner of the Service Mark in    (Brief description of Service Mark to be licensed)             (the “Service Mark”).
 
AND WHEREAS, Licensor wishes to permit Licensee to use the Service Mark for the purpose of       (Brief description of Licensees approved use of Service Mark)                                         , under the terms set forth in this Agreement;
 
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
 
1.   Service Mark.  The Service Mark shall be defined as those items listed on Schedule A.
 
2.   Grant of Licence.  Licensor hereby grants to Licensee a non-transferable licence to use the Service Mark (the “Licence”) in the following manner:    (see instructions above for important information about defining the scope of the Licence)                                                                                                                                                        _____________________________________                   .
 
The Licence shall be [ ] exclusive [ ] nonexclusive.
 
Licensor shall remain the sole owner of the copyright in the Service Mark.  Licensee shall enjoy only the rights set forth above, and nothing in this Agreement shall entitle Licensee to make any claim to ownership of the Service Mark, or of any other intellectual property rights in the underlying material.  Licensee may not make any other use of the Service Mark other than those authorised above without prior written approval from Licensor.
 
3.  Term.  
 
a.   The term of this Agreement shall begin on the date written above and shall continue in full force and effect for a period of               years (the “Term”), unless terminated earlier pursuant to this the terms of this Section 3.
 
b.   Should any one or more of the following enumerated events occur, Licensor shall have the right to terminate this Agreement:
i.   Licensee does not make any commercial use of the Service Mark within 12 months of the date of this Agreement.
 
ii.   Licensee ceases to make commercial use of the Service Mark for any period of 12 consecutive months.
 
iii.   Licensee breaches a material provision, term, or condition under this Agreement, including, but not limited to, a failure to meet quality standards as either set forth in this Agreement, or as mandated by Licensor pursuant to Section 6(b) below.
 
iv.   Licensee sells all or substantially all of its assets, or experiences a Change in Control.  For the purposes of this Agreement, Change in Control shall mean a sale or other transfer of equity in the Licensee, resulting in a new person or entity becoming the controlling equity holder of the Licensee.
 
c.   In order to terminate this Agreement pursuant to Subsection (b) above, Licensor must provide written notice to Licensee or to Licensees successor in interest within 30 days of the date of termination stating Licensors intent to terminate and the intended date of termination.
 
d.   In the event that this Agreement is terminated pursuant to this Section 3, Licensee shall cease using the Service Mark in the course of Licensees business as soon as is commercially feasible.  
 
e.   At the end of the Term, or upon any termination of this Agreement, all rights, interest and ownership of the Service Mark shall revert to Licensor, and shall be the sole property of Licensor.
 
4.  Payments.  
 
a.   Licensee shall pay to Licensor (check any that apply):
   [ ]   a fee of ___________________ Australian Dollars (AUD      ), payable in the following instalments:    (briefly state the times at which payment will due, and how much will be due for each payment; i.e., upon execution of this Agreement, upon commencement of using the Service Mark, etc.)      
   [ ]   a royalty of AUD           per unit (good or service) sold in connection with the Service Mark.
[ ]   a royalty of AUD          per AUD             worth of goods and services sold in connection with the Service Mark
[ ]   a royalty of      % of the gross sales from all goods and services sold in connection with the Service Mark.
[ ]   Additional details:                                                                                     ____                                                                                   .
(Include any considerations, deductions, or other formulae that will be used to determine the definition of “gross sales” for the purposes of this section.)
 
b.   Licensee shall pay to Licensor an advance against the royalties discussed in Subsection (a) above, in the amount of ___________________ Australian Dollars (AUD      ).  This advance shall be paid in full to Licensor within 7 days of the execution of this Agreement.
 
c.   (if applicable) Licensee shall submit to Licensor written quarterly reports (the “Quarterly Reports”) at the end of each quarter of the calendar year (March 31; June 30; September 30; December 31) stating the amount of goods and services sold in connection with the Service Mark for the then-ending quarter, and the corresponding amount owed to Licensor as royalty payments for that quarter (the “Quarterly Royalty Payment”).  Quarterly Reports must be received by Licensor no more than 7 days after the end of each quarter.  Payment of each Quarterly Royalty Payment must be paid to Licensor in full within 30 days of the end of each quarter.  Failure to submit Quarterly Reports or to make Quarterly Royalty Payments within the time allotted above shall be considered to be a material breach of this Agreement.
d.   Licensor shall be given access by Licensee to Licensees records, wherever commercially reasonable, in order to audit Licensees stated sales records, and to confirm that all royalty payments are properly stated and accounted for.  If it is determined that any Quarterly Royalty Payment has been deficient, Licensee shall have 7 days to pay Licensor the deficient amount.  Failure to pay deficient royalty amounts within the time allotted above shall be considered to be a material breach of this Agreement.
 
e.   In the event that this Agreement expires or is terminated pursuant to the terms and conditions under Section 3 above, Licensee shall remain obligated to pay to Licensor any royalties due to Licensor, or any payments, whether those units were sold before or after the termination of this Agreement.
 
5.  Licensors Representations and Warranties.  
 
a.   Licensor represents and warrants that it is the sole and exclusive owner of the Service Mark, and owns all right, title and interest in the Service Mark.
b.   Licensor represents and warrants that it has the legal authority to grant Licensee the Licence, and that no other person or entity is required to give its consent for the Licence to be valid.
c.   (if Licence is exclusive) Licensor represents and warrants that Licensor has not licensed the Service Mark to any person or entity other than Licensee, nor will it licence the Service Mark to any person or entity other than Licensee for the duration of this Agreement.
 
6.   Indemnification.  Licensor agrees to indemnify and hold harmless Licensee for any claims, suits, damages, actions, or other costs arising out any breach of Licensors warranties set forth in Section 5 above.
 
7.   Quality Control.
 
   a.   Licensee hereby agrees that any product or services that it sells in connection with the Service Mark shall conform to the quality standards set forth in Section 2 above, provided that Licensor may set additional specifics or standards for such sale of goods or services pursuant to Subsection (b) below.
 
   b.   Licensor may, at any time, set standards for the quality of goods or services marketed or sold in connection with the Service Mark in addition to those standards set forth in this Agreement.  Licensor must give written notice of such additional standards (the “Notice of Additional Standards”) to Licensee in order for those standards to be applicable.  To the extent that Licensee is not in compliance with these additional standards at the time it receives a Notice of Additional Standards, Licensee must conform to the stated standards as soon as is commercially feasible.
 
   c.   Licensee shall make available upon request samples of any products or services sold in connection with the Service Mark, including any packaging, displays, or other materials employed in the marketing, display or sale of such products or services.  Licensee shall also grant Licensor access to inspect any facilities in which such products are designed or manufactured for the purpose of ascertaining whether Licensee is in compliance with the quality standards then in effect for the use of the Service Mark, where such access is commercially reasonable.
 
8.   Assignment.   Licensee may not assign its rights, duties or obligations under this Agreement without the prior written approval of Licensor.  Licensee may, however, assign this Agreement without Licensors prior written approval if such transfer is to a purchaser of all or substantially all of Licensees assets, or to a purchaser or other transferee of a controlling equity interest in Licensee.  Licensor shall have the right to transfer its interest in this Agreement and in the Service Mark without the consent of Licensee.  Licensor must notify Licensee in writing in the event of that Licensor assigns all or a material part of this Agreement (the “Licensors Notice of Assignment”).  The Licensors Notice of Assignment must be sent to Licensee within 30 days of such assignment.
 
9.   Governing Law.  This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of ___________________, without regard to conflicts of law principles.
 
10.   Counterparts.   This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
 
11.   Severability.   If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
 
12.   Notice.   Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, addressed as follows:
   If to Licensor:      
      
      
      
   If to Licensee:         
         
      
      
 
13.   Headings.   The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
 
14.   Entire Agreement.   This Agreement constitutes the entire agreement between Licensor and Licensee, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
 
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written.
 
 
LICENSOR
 
                  
Signature
                  
Print Name
LICENSEE
 
                  
Signature
                  
Print Name
 
Schedule A
 
Service Mark Description
 
 
 
 

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