This licence agreement made as of the ____ day of ______, 200____
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of __________________________ (“Licensor”)
AND:
____________________________ ("Distributor")
WITNESSES THAT:
| I | WHEREAS the Licensor is the owner of or licensee of intellectual property rights in the digital data (the “Data”) contained in the database known as ______________; |
| II | AND WHEREAS the Distributor wishes to obtain certain rights to the Data, in accordance with the terms and conditions herein contained; |
| III | AND WHEREAS the Licensor wishes to grant to the Distributor certain rights to the Data, in accordance with the terms and conditions herein contained; |
| IV | AND WHEREAS the Licensor represents that it has full authority to grant the rights desired by the Distributor, in accordance with the terms and conditions herein; |
| V | AND WHEREAS the parties hereto are desirous of entering into a licence agreement on the basis herein set forth, |
| NOW THEREFORE, in consideration of the covenants contained in this Agreement, the parties agree as follows: | |
| 1.0 | DEFINITIONS |
| 1.1 | “Agreement” means this Distributor licence agreement and all schedules annexed to this agreement as the same may be amended from time to time in accordance with the provisions hereof. |
| 1.2 | “Data” means any original and fixed digital data, meta-data, software or documentation licensed pursuant to the terms and conditions of this Agreement, described more fully in Schedule “A” attached hereto. |
| 1.3 | “Derived Products” means any product, system, sub-system, device, component, material or software developed or caused to be developed by the Distributor that incorporates or uses the Data or any part thereof. |
| 1.4 | “Intellectual Property Rights” means any and all intellectual property rights recognized by the law, including any intellectual property right protected through legislation, such as that governing copyright and patents. |
| 1.5 | “Licensor’s Data” means that Data, the Intellectual Property Rights of which vest with the Licensor. |
| 1.6 | “Licensor’s Licensed Rights” means those rights conferred upon the Licensor by third parties over the use of Data which is not the Licensor’s Data. |
| 1.7 | “Market” means [set out the appropriate market] |
| 1.8 | “Modifications” means any modification, enhancement, translation, update or upgrade of all or any part of the Data, in any medium. |
| 1.9 | “Net Revenue” means the total revenue obtained by the Distributor, either directly or indirectly, from or related to the exercise by the Distributor of its rights under section 3 of this Agreement, less any deductions, all of which is more fully described in Schedule “B” attached hereto. |
| 1.10 | “Territory” means the geographical territory designated in Schedule “C” attached hereto. |
| 2.0 | INTELLECTUAL PROPERTY RIGHTS |
| 2.1 | All title and Intellectual Property Rights in and to the Licensor’s Data shall at all times remain the property of the Licensor. All title and Intellectual Property Rights in and to the Data which is not the Licensor’s Data are the property of the respective content owners and may be protected by copyright, other intellectual property laws, common law or international treaties. |
| 3.0 | APPOINTMENT OF DISTRIBUTOR AND LICENCE GRANT |
| 3.1 | Subject to this Agreement, the Licensor hereby appoints the Distributor and the Distributor hereby accepts such appointment, as a non-exclusive distributor of the Data, and grants to the Distributor a non-exclusive, non-transferable, non assignable right and licence to exercise such of the Licensor’s Intellectual Property Rights and such of the Licensor’s Licensed Rights in the Data, in the Territory, to:
|
| 3.2 | The Intellectual Property Rights arising from any Modification or from Derived products, effected by or for the Distributor, shall vest in the Distributor or in such person as the Distributor shall decide. |
| 4.0 | PROTECTION AND ACKNOWLEDGEMENT OF SOURCE |
| 4.1 | The Distributor shall include the following notice where any of the Data is contained within Derived Products,
or any other notice deemed appropriate by the Licensor. |
| 4.2 | The Distributor shall reproduce, include and maintain the following notice on all reproductions of the Licensor’s Data produced pursuant to Section 3 above: Reproduced with the permission of _________________ (applied title of Licensor) |
| 4.3 | The Distributor shall reproduce, include and maintain on all reproductions of the Data produced pursuant to section 3 hereof all metadata that was provided by the Licensor with the Data. |
| 5.0 | FEES AND ROYALTIES |
| 5.1 | In consideration of the rights and licences granted under this Agreement, the Distributor shall pay to the Licensor the fees and/or royalties prescribed in Schedule “B” attached hereto, in the manner set out in said Schedule. |
| 6.0 | COVENANTS OF THE DISTRIBUTOR |
| 6.1 | The Distributor shall:
|
| 7.0 | REPRESENTATIONS, WARRANTIES, INDEMNITIES |
| 7.1 | The Licensor makes no representation or warranty of any kind with respect to the accuracy, usefulness, novelty, validity, scope, completeness or currency of the Data and expressly disclaims any implied warranty of merchantability or fitness for a particular purpose of the Data. The Licensor does not ensure or warrant compatibility with past, current or future versions of browsers to access the Data. |
| 7.2 | The Distributor represents and warrants:
|
| 7.3 | The Licensee acknowledges having received notice of the disclaimer set out above and accepts the Data on an “as is” basis, without representations or warranties of any kind. No oral or written information or advice given by the Licensor, at any time or from time to time, shall create or evidence, or be deemed to create or evidence, a contractual representation, warranty or guarantee of any kind. |
| 7.4 | The Distributor shall have no recourse against the Licensor, whether by way of any suit or action or other, for any loss, liability, damage or cost that the Distributor may suffer or incur at any time, by reason of the Distributor's possession or use of the Data, or arising out of the exercise of its rights hereunder. |
| 7.5 | The Distributor shall indemnify the Licensor and its officers, employees, agents and contractors from all claims whatsoever alleging loss, costs, expenses, damages or injuries (including injuries resulting in death) arising out of the Distributor’s possession or use of the Data or the exercise by the Distributor of its rights hereunder. |
| 7.6 | The Distributor’s obligation to indemnify the Licensor under this Agreement shall not affect or prejudice the Licensor from exercising any other rights under law. |
| 7.7 | The provisions of this Article shall survive termination of this Agreement. |
| 8.0 | TERM |
| 8.1 | This Agreement is effective as of ___________ and shall remain in effect for a period of ____ (___) year(s), subject to subsection 8.2 and section 9.0 below. |
| 8.2 | At the end of the first term, this Agreement shall automatically be extended for successive ____(___) year terms, subject to section 9.0 below, provided the Distributor is not then in breach of any of the terms and conditions of this Agreement. |
| 9.0 | TERMINATION |
| 9.1 | Notwithstanding section 8.0 above, this Agreement may be terminated prior to its expiration:
|
| 9.2 | Upon the expiration or termination of this Agreement, for whatever reason:
|
| 9.3 | Notwithstanding subsection 9.2 above, the Distributor may continue to use the Data for the purpose of completing orders of Derived Products made before the termination date of this Agreement; provided that the Distributor shall continue to pay fees and/or royalties, comply with the requirements in section 4 hereof, and fulfill its reporting obligations set out in Schedule “B” attached hereto. |
| 9.4 | Notwithstanding the expiration or termination of this Agreement, all agreements entered into by the Distributor in the exercise of its rights hereunder prior to such expiration or termination and all obligations imposed therein shall continue in full force and effect subject to their terms. |
| 10 | GENERALITIES |
| 10.1 | Applicable Law This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of Ontario and of Canada, as applicable. |
| 10.2 | Entire Agreement This Agreement, together with Schedules “A”,”B” and “C” appended hereto, constitute the entire agreement between the parties with respect to its subject matter. This Agreement may only be amended in writing, signed by both parties, which expressly states the intention to amend this Agreement. |
| 10.3 | Alternate Dispute Resolution If a dispute arises concerning this Agreement, or if a proposed modification of any term of this Agreement cannot be agreed between the parties, the parties shall attempt to resolve the matter first by negotiation. If the parties have not succeeded in negotiating a resolution, then they shall jointly submit the dispute to a mutually accepted mediator. If the parties cannot agree on an acceptable mediator, then either rparty may submit the dispute to binding arbitration. The arbitral tribunal shall be governed by the UN Commercial Arbitration Code (the “Code”), referred to in the Commercial Arbitration Act, R.S.C 1985, c. C-4.6, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction over the matter. The arbitral tribunal shall consist of one arbitrator chosen by the parties. Subject to the Code, the parties agree that the award and determination of the arbitral tribunal shall be final and binding on both parties, shall be without right of appeal and shall be the exclsuvie remedy between the parties regarding any claims, counterclaims, issues or disputes presented to the arbitral tribunal. Costs The Parties shall bear the costs of the mediation equally, except that each party shall bear its own personal costs of the mediation. The costs of the arbitral tribunal’s fees and expenses shall be shared equally by the aprties. The parties shall bear their own personal costs except that the losing party shall pay all costs, fees, levies and taxes arising from and necessitated by the enforcement of the arbitral tribunal’s award, including, without limitation, registration, enforcement charges or other judicial levies or costs. |
| 10.4 | No Waiver No condoning, excusing or overlooking by the Licensor of any default by the Licensee, at any time or times, in performing or observing any of the Licensee’s obligations hereunder, will operate as a waiver, renunciation, surrender of or otherwise affect the rights of the Licensor in respect of any continuing or subsequent default. No waiver of these rights will be inferred from anything done or omitted by the Licensor, except by an express waiver in writing. |
| 10.5 | Order of Precedence If there is a conflict or ambiguity between this Agreement proper and any schedules thereto, the interpretation consistent with this Agreement proper (taking into consideration the statements in the recitals and headings) shall prevail and apply, notwithstanding any wording to the contrary in the applicable schedule. |
| 10.6 | No Joint Venture The Parties expressly disclaim any intention to create a partnership, joint venture or joint enterprise. The Parties acknowledge and agree that nothing contained in this Agreement nor any acts of any party shall constitute or be deemed to constitute the parties as partners, joint venturers or principal and gent in any way or for any purpose. No Party has the authority to act for, or to assume any obligation or responsibility on behalf of the other Party. The relationship between the Parties is intended to be, and shall at all times be construed as that of licensor and licensee. |
| 10.7 | No notices The Licensor assumes no obligation or liability whatsoever for the provision of updates to the Data or the provision of notices in relation thereto to the Licensee. |
In acceptance of the foregoing, the parties have on the date set above apposed their signatures as follows:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as
represented by the Minister of _________ ,
by: _______________________
(signature)
_______________________
(printed name)
_______________________
(title)
DISTRIBUTOR’S FULL NAME
by: ________________________
(signature)
________________________
(printed name and title)
Duly Authorized Signatory
SCHEDULE “A”
to the Model Distributor Licence Agreement
DESCRIPTION OF DATA
Describe data sets in sufficient detail to ensure that there will be no confusion as to the subject-matter of the licensed Data.
SCHEDULE “B ”
to the Model Distributor Licence Agreement
FEES AND ROYALTIES
The Licensor may require the Distributor to pay a fee upon execution of the licence agreement. In addition, where deemed appropriate, the Licensor may also require the payment of royalties. Fees and royalties would be set out in this schedule.
Royalties may be structured in a number of ways, including through a combination of fixed payments made over time (regardless of the volume of sales or sub-licences granted), and royalties based on the number of sub-licences actually granted. Provisions may also exist for payment of a percentage of the revenues received by the Distributor from sub-Distributors.
Clarity in the calculation of royalty fees is crucial. For example, if royalty fees are not based solely on a “per unit” basis, but rather on a percentage of net income or some other accounting term, it becomes imperative that such term be clearly defined in the licence agreement.
The inclusion of reporting obligations and audit/verification rights of the Licensor are of particular significance in instances where a licence is royalty-bearing. The Distributor may, for instance, be required to report to the Licensor quarterly on its net sales, etc., concurrent with periodic royalty payments and the Licensor would want to reserve the right to inspect the Distributor’s books to confirm the accuracy of the Distributor’s reports. Monetary penalties may be imposed on the Distributor where audits/verifications reveal discrepancies in excess of an agreed amount.
Reporting obligations should survive termination of the licence agreement. Typically, upon termination of a royalty-bearing licence agreement, a Distributor is required to:
In addition to detailing how royalty payments will be calculated, it would also be appropriate to set out in this Schedule the mechanism for payment. How is payment of the royalties to be effected? By cheque, wire transfer? Who are the contracting parties’ representatives?
SCHEDULE “C”
to the Model Distributor Licence Agreement
TERRITORY