Terms & Conditions

 Definitions

Agreement means the Licensor has agreed to supply the Licensee with the Program and to grant the Licensee a non-exclusive, non-transferable licence to use the Program at the specified Site on the terms and conditions set out in this document;

Authorized Students means only those students who attend the Licensee's premises at the Specified Site of this agreement;

Commencement Date means the date of the Agreement;

Confidential Information means the confidential information of the Licensor relating to the Program and including but without limitation, information relating to the design and content of the Program and the terms on which the Program is supplied to the Licensee under this Agreement;

Course means the 35 or 50 Senior Program video lessons, or the 53 Junior Program video lessons;

Class means the group of students collectively participating in a Course;

CPI means the Consumer Price Index;

GST has the same meaning given in section 195-1 of the GST Act;

GST Act means A New Tax System (Goods and Services Tax) Act 1999;

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

Licence means the licence to use the Program granted pursuant to this Agreement;

Licensor means the company that owns The Sound Way Programs, Elect Education Pty Ltd t/a The Sound Way;

Licensee means the school/college/business/organization which wishes to take a License to use the Program on the Terms and Conditions of this agreement;

Media means the media on which the Program is recorded or printed or uploaded or otherwise published;

Moral Rights means:

     (a)     a right of attribution of authorship;

     (b)     a right not to have authorship falsely attributed;

     (c)     a right of integrity of authorship; or

     (d)     a right of a similar nature;

which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this Agreement;

New Class/Course Notification Form means the notification form provided by the Licensor to the Licensee which the Licensee agrees to submit and make full payment thereof to the Licensor before commencing any new class or course;

Primary Payments means any payment by the Licensee to the Licensor under this Agreement;

Program means The Sound Way to Spelling, Writing and Reading program owned by the Company, or any part thereof, and all related documentation;

Site means the site location which the Licensor has approved as the only site from which the Licensee may conduct the Program, together with any other additional location as the Licensor may in its absolute discretion approve in writing from time to time during the term of the Licence;

Site Licence Fee means the site licence fee specified in clause 5.1 of this Agreement;

Taxable Supply has the meaning given in section 195-1 of the GST Act;

Term means the term specified in clause 4 of this Agreement; and

Website means the Licensor’s website from which the Licensee may access the Program.

Interpretation

2.1  Headings in this Agreement do not affect its interpretation.

2.2  If a party comprises two or more persons, the covenants and agreements on their part bind and must be observed and performed by them jointly and each of them severally and may be enforced against any one or any two or more of them.

2.3  Where applicable:

         (a)     words denoting the singular include the plural;

         (b)     words denoting the plural include the singular; and

         (c)     words denoting a gender include each gender.

2.4  No rule of construction applies to the disadvantage of the Licensor because the Licensor was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

Licence

3.1  Commencing on the Commencement Date, the Licensor grants a non-transferable, non-exclusive licence to the Licensee to use the Program solely at the Site for the term of this Agreement subject to the payment to the Licensor of the Site Licence Fee in accordance with the terms and conditions set out in this Agreement.

Term of Licence

The term of the Licence granted in clause 3 is for a period of five (5) years (subject to termination by the Licensor pursuant to clause 23) commencing on the date of this Agreement. The Licence may be extended yearly thereafter by the payment of an Annual Subscription Fee.

Licence Fee

5.1  The Licensee must pay to the Licensor the Site Licence Fee on or before the Date of Commencement.

5.2  The Licence may, if there is no subsisting default by the Licensor under this Agreement, be extended on a yearly basis after the Term on the same terms and conditions as this Licence, by the Licensee paying an Annual Subscription Fee to the Licensor prior to the expiry of the Term.

Scope of Licence

6.1  The Licence is granted solely in respect of the Site.

6.2  The Licensee must not use or permit to be used the Program outside the designated Site premises recorded on page1.

Ownership and Intellectual Property Rights

7.1  The Licensor retains ownership of the Program during the term of the Licence.

7.2  All Intellectual Property Rights in the Program are retained by the Licensor.

7.3  Nothing in this Agreement affects the ownership of Moral Rights in the Program.

7.4  This clause 4 survives the termination of this Agreement.

Protection of Copyright and Trade Mark Rights

8.1  Subject to clause 8.2, in the event of the Intellectual Property Rights or Moral Rights of the Licensor in the Program being infringed, the Licensee agrees to provide all reasonable assistance in the bringing of proceedings, including lending its name to such proceedings, necessary in the Licensor's opinion to protect the Intellectual Property Rights and Moral Rights and to restrain any infringement of such rights.

8.2  The Licensor must pay and indemnify the Licensee from and against all reasonable costs and expenses incurred in complying with clause 8.1 but nothing in this clause 8 compels the Licensor to institute any such proceedings.

Goods and Services Tax

9.1  All Primary Payments specified in this Agreement is exclusive of GST.

9.2  If GST is payable by the Licensor in respect of a Primary Payment or any part in connection with a Taxable Supply provided under this Agreement:

         (a)     the Primary Payment is increased by an amount equal to the applicable GST; and

         (b)     the Licensee must pay the amount of the increase in the same manner and on the same date as the Licensee is required to pay the Primary Payment.

Persons Using Program

10.1  The Licensee must:

         (a)    ensure that the only persons who access and use the Program are the Licensee, its teachers, its facilitators and Authorized Students at the agreed Site;

         (b)    submit and make full payment thereof to the Licensor a New Class/Course Notification Form before commencing any new class or course;

         (c)     before commencing a new Course or Class download and supply each student participating with their own complete personal copies of the student  Manual and the student Workshop Books;

         (d)     only permit its teachers, facilitators and Authorized Students to work with the Program;

         (e)     ensure that its major priority during the term of the Licence is to efficiently and effectively provide and oversight the delivery of the Program to the Authorized Students; and

         (f)     not sub licence the use of the Program to any other entity or person or sub licence time on or charge for access to the Program without the Licensor’s prior written consent.           

Use of Program

11.1  When using the Program, the Licensee agrees to take all reasonable steps to:

        (a)     ensure that the Program is run in accordance with the instructions found in the Licensor’s Teacher/Facilitator Training Course videos and the Teacher/Facilitator Manual which the Licensee hereby acknowledges receiving from the Licensor;

        (b)     ensure all lessons of the Program are presented sequentially by the Licensee’s facilitators and are completed by Authorized Students undertaking the Program in their Program work books;

Supply of Program

12.1  The Licensor may supply the Program, or any part thereof, by way of the Media including by making the contents of the Program available to download or view from the Website.

Risk and Title

13.1  Risk of loss or damage to the Program passes to the Licensee on delivery of the Program to the Licensee or the Licensor making the Program available to the Licensee on the website.

13.2 The Licensee does not acquire any rights in connection with the Program other than those specified in this Agreement.

Assignment

14.1  The Licensee must not assign, transfer, mortgage, charge, sub-licence or otherwise part with the benefit of this Licence without the Licensor’s prior written consent, which consent may be withheld by the Licensor in the Licensor’s absolute discretion.

Copies

15.1  Subject to the following subclauses of this clause, and without seeking to exclude or limit the application of sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) the Licensee must not copy the video content of the Program, in whole or in part without the prior consent in writing of the Licensor.

15.2  The Licensee must notify the Licensor immediately on becoming aware of any unauthorised use or copying of the video content in whole or any part of the Program.

15.3  Immediately upon termination of this Agreement, the Licensee must deliver up to the Licensor the Program (including all copies, authorised or otherwise) and the Media, whether in their original form or as modified by the Licensee.

Modifications

16.1  The Licensee must not modify the whole or any part of the Program or combine or incorporate the whole or any part of the Program in any other program or system without the prior consent in writing of the Licensor.

16.2  If the Program is modified in accordance with subclause 16.1, the modifications must, unless the Licensor directs otherwise, be made in accordance with a written proposal submitted by the Licensee to the Licensor.

16.3  The Licensee shall fully indemnify and hold harmless the Licensor against any liability incurred if the modifications infringe the Intellectual Property Rights of a third person.

16.4  The Program as modified remains the property of the Licensor.

16.5  This Agreement shall continue to apply to the Program as modified.

16.6  This clause is subject to any right of modification arising pursuant to sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth).

16.7  This clause 16 survives the termination of this Agreement.

Confidentiality

17.1  The Licensee must not, without the prior written approval of the Licensor, disclose the Licensor’s Confidential Information.

17.2  The Licensee is not in breach of clause 17.1 in circumstances where it is legally compelled to disclose the Licensor’s Confidential Information.

17.3  The Licensee must take all reasonable steps to ensure that its employees, students and agents do not make public or disclose the Licensor’s Confidential Information.

17.4  The Licensee must on demand return to the Licensor any Confidential Information supplied by the Licensor to the Licensee at any stage in connection with this Agreement.

17.5  This clause 17 survives the termination of this Agreement.

Security

18.1  The Licensee is responsible for the supervision, management and control of the Program.

18.2  The Licensee must to ensure that the Program is protected at all times during this Agreement from unauthorised access or use by a third party and from physical misuse, damage or destruction by any person.

Limited Publicity

19.1  The Licensee agrees that the Licensor may identify the Licensee in a list of users of the Program in media such as publicity releases, marketing literature and advertising and on websites during the term of the Licence.

Programme Performance

20.1  The Licensor provides no warranties regarding the results which can be achieved from the use of the Program by the Licensee or the Licensee’s facilitators, employees or agents.

20.2  The Licensee acknowledges that errors may exist in the Program, and the only liability of the Licensor in this regard will be to repair or replace the Program as considered necessary by the Licensor.

20.3  The Licensor is not bound by any warranty or representation whether in writing or oral, express or implied including, but without limitation, any representation of fitness for a particular purpose given by any person acting on behalf of the Licensor.

20.4  This clause 20 does not purport to exclude any rights which the Licensee may have which are provided by statute and which cannot be excluded.

20.5  No employee, agent or representative of the Licensee has the authority to bind the Licensor to any oral representation or warranty concerning the Program. Any written representation or warranty not contained in this Agreement will not be enforceable by the Licensee.

Entire Agreement

21.1  This Agreement contains the entire agreement between the parties and supersedes all prior negotiations, representations, proposals, undertakings and agreements, whether written or oral, relating to the subject matter of this Agreement.

Limitation of Liability

22.1  Except as expressly stated in this Agreement the Licensor will not be liable for the quality, condition or description of the Program or for any type of loss or damage caused to the Licensee by the Licensor's performance of its obligations under this Agreement.

22.2  Without limiting the generality of the above, the Licensor will not be liable for any consequential loss including but not limited to labour costs, loss of goodwill, or loss of profits.

22.3  To the extent permitted by law, any term or condition contrary to this clause 22 which is implied by statute or common law is expressly excluded.

Termination by the Licensor

23.1  Upon the happening of any of the following events the Licensor has the right to immediately terminate the Agreement:

           (a)     the Licensee commits a breach of any term of this Agreement and the breach continues for fourteen (14) days after the service of a notice on the Licensee by the Licensor requiring the Licensee to remedy the breach; or

            (b)     the Licensee attempts to assign, transfer, mortgage, charge, sub-licence or otherwise part with the benefit of this Licence without the prior written consent of the Licensor; or

            (c)     the Licensee discloses, copies or modifies any part of the Program without the prior written consent of the Licensor; or

            (d)     the Licensee commits a breach of clause 10 or 11 of these Terms and Conditions.

23.2  The termination of this Agreement will terminate the Licence but not relieve the Licensee from any expressed or implied obligation in this Agreement including, but without limitation, the payment of Primary Payments to the Licensor due and owing as at the date of termination.

23.3  On termination of this Agreement the Licensee must return to the Licensor the Program and the Media, including, but without limitation, all DVDs and associated written materials. Termination under this Agreement will not affect any of the rights, remedies and powers under this Agreement or at law in respect of any breach by the Licensee under this Agreement.

Governing Law and Jurisdiction

24.1  This Agreement is to be governed by, take effect and be construed in accordance with the laws in force in Western Australia and all parties submit to the jurisdiction of the Courts of Western Australia.