NON-COMMERCIAL R&D LICENCE
Agricultural Production Systems Simulator
Carefully read all
the terms and conditions of this Agreement before installing. Installation of
the software indicates your acceptance of these terms and conditions. If you do not agree to these terms and
conditions cancel the installation process.
This Agreement is effective and commences on
and from the date of installation of the software
The State of Queensland through its Department of Agriculture and Fisheries (ABN 66 934 348 189) which has its head office at
80 Ann Street, Brisbane, QLD 4000 (DAF)
The University of Queensland (ABN 63 942 912
684) which has its head office at St Lucia, QLD 4072 (UQ)
The Commonwealth Scientific and Industrial Research
Organisation (ABN 41 687 119 230) of Limestone Avenue, Campbell, Australian Capital
Territory, acting through its Agriculture
AgResearch Limited a company incorporated in New Zealand (Company Number 552736) having
its registered office at 4th Floor Tower Block, Ruakura Research
Centre, East Street, Hamilton, New Zealand (AgResearch)
University of Southern Queensland ABN
40 234 732 081 of West Street,
Toowoomba, Qld, 4350 (USQ)
(DAF, UQ, CSIRO, AgResearch, USQ
are collectively referred to as the “Licensor”)
The entity accepting this clickwrap licence by installing the software
on its system
The Licensor has developed the Technology in conjunction
with other parties and has sufficient rights in the Technology to license it to
third parties on the terms of this Agreement.
The Licensee wishes to license the Technology from the
Licensor for the purposes of research and development, or education that may
lead to Improvements to be owned by the Licensor.
The Licensor may adopt Improvements and include these in
the Technology, or not, at their absolute discretion.
The Licensee may elect to join with other licensees of
the Technology and interested third parties in the APSIM Community Source
Framework. The APSIM Community Source Framework is a forum of interested persons and organisations
that informs and interacts with the owners of the Technology, provides for
distribution of modifications, promotes central control for quality assurance
purposes, and considers structured innovation relevant to APSIM.
THE PARTIES AGREE:
means the agreement for a
non-commercial R&D licence to APSIM contained in this document, including
the party details, background items, the terms and conditions in these clauses
1-12 and the Details in Schedule 1.
IPR' means any IPR which
the Licensor makes available to the Licensee for the purposes of exploiting the
Technology, and includes at the date of this Agreement the Background IPR
described in the Details;
Information' of a Party
means any information that the Discloser has
notified in writing is confidential to
itself or which by its nature a reasonable person would consider to be
confidential and/or commercially sensitive in nature; and
does not include information to the extent that
developed or known by the receiving party (the ‘Recipient’) (including because it is in the public domain)
otherwise than through breach of this Agreement or an obligation of
confidentiality owed to the Discloser;
which the Recipient can prove by contemporaneous written documentation was
lawfully known to them before the date of this Agreement on a non-confidential
which the Recipient acquired from a source other than the Discloser where such
source is entitled to disclose it; or
required to be disclosed by law or any order of any
court, tribunal, authority or regulatory body or in any emergency to prevent
harm to any person, subject to clause 4(b)(iii);
'Details' means the provisions of Schedule 1 of this Agreement;
means any developments,
additions, alterations, reduction or compaction made to the Technology;
Data’ means any input data used, or generated by,
the Licensee in relation to the Licensee’s use of the Technology including, for
the avoidance of doubt, any soil, weather and management data necessary for the
Technology to generate New Data and observations of crop, soil and animal data
used to inform Improvements in the Technology;
Property Rights' or 'IPR' means all intellectual property
patents, plant breeders rights, copyright, rights
in circuit layouts, registered designs, trade marks, know how, trade secrets
and any right to have confidential information kept confidential; and
any application or right to apply for registration
of any of the rights referred to in paragraph (a);
Costs' means the costs of
obtaining and maintaining registered IPR protection for the Technology and
Background IPR, including patent attorney and legal fees;
BIP’ means any IPR owned or
held by the Licensee prior to the date of this Agreement;
Data’ means data generated using the Technology with the Improvements;
mean outputs produced from
use of the Technology, including New Data, publications, reports, look-up
tables (electronic or paper), demonstrations or presentations and decision
support systems; provided they do not contain the Technology or parts of the
Technology or require the Technology to work or run; and
means a party to this Agreement including its officers and employees.
Other words starting with a capital letter have the
meaning described in the Details.
In this Agreement, ‘including’ and similar
expressions are not words of limitation.
GRANT OF NON-COMMERCIAL LICENCE
non-transferable licence of the Technology for the Term:
the Licence Type;
the Field in the Territory; and
non-transferable, non-exclusive licence to use the Licensor Confidential
Information and Background IPR to the extent necessary for the Licensee to
access the Technology for the purposes of producing the Outputs and
The Licensee grants to the Licensor a
non-exclusive, irrevocable, perpetual, world wide, non- transferable, free
licence (excluding the right to grant sublicences) to use the New Data for the
purpose of generating Improvements and/or producing Outputs. New Data
identified as Confidential Information by the Licensee may be used by the Licensor
in accordance with clause 4 (Confidential Information),
INTELLECTUAL PROPERTY RIGHTS
The Licensee acknowledges that this Agreement does
not transfer to the Licensee any IPR in the Technology, Background IPR or
Confidential Information made available by the Licensor. The Licensee
acknowledges that this Agreement operates to vest ownership of IPR in
Improvements in the Licensor from creation.
The Licensor acknowledges that this Agreement does
not transfer to the Licensor any IPR in the Input Data, New Data, Licensee BIP
or Confidential Information made available by the Licensee, The Licensor
acknowledges that this Agreement operates to vest ownership of IPR in Input
Data and New Data in the Licensee from creation.
keep the Licensor reasonably informed of any Improvements the Licensee makes to
the Technology and provide the Improvements and associated details as
reasonably requested by the Licensor;
that IPR in Improvements vests in the Licensor on and from creation;
that the Improvements do not and will not infringe any third party IPR rights;
charging the Licensor a fee will do all things and execute all documents that
may be necessary to complete the vesting of ownership of the IPR in
Improvements in the Licensor.
The Licensee may not take any action to challenge
the validity of any IPR licensed to them by the Licensor under this Agreement.
The Licensee must advise the Licensor immediately
on becoming aware of:
suspected or actual infringement by any person of the IPR in the Technology,
Outputs or Improvements; and
person claiming that the Technology, Outputs or Improvements infringe the
rights of any person.
Notwithstanding anything to the contrary in this
Agreement, the Licensee acknowledges the right of the Licensor to adopt and use
the Improvements in any way, including a right to not adopt and/or not use the
Improvements whilst retaining ownership of IPR in the Improvements.
The Licensee may not institute or defend
proceedings against a third party in relation to the Technology or Licensor
owned Improvements unless it first obtains written consent from the Licensor.
Each Party ('Recipient') must in relation to
the Confidential Information of the other Party ('Discloser'):
it only as permitted under this Agreement and only disclose it to employees,
contractors and agents who have a need to know, having first taken appropriate
steps to ensure that those persons are made aware of the confidential nature of
the Confidential Information and are also required to keep such Confidential
copy it or any part of it that is in material form other than as strictly
necessary and must mark any such copy 'Confidential ‑ (Discloser)';
comply with any request by the Discloser to return or destroy any or all copies
of Confidential Information, unless required by law to be retained.
The Recipient must:
all reasonable steps to protect the Confidential Information and keep it
safeguarded from unauthorised access, copying, use or disclosure (whether that
disclosure is oral, in writing or in any other form);
notify the Discloser if the Recipient becomes aware of any unauthorised
copying, use or disclosure of Confidential Information in any form;
notice to the Discloser with full details of the circumstances of the proposed
disclosure and of the relevant information to be disclosed; and
the Discloser a reasonable opportunity to challenge the disclosure in a court
of law or other appropriate body; and
cooperate with the Discloser in any reasonable
action it takes to protect the Confidential Information.
The Licensor does not warrant that either the
Technology or the Background IPR does not infringe any third party's IPR but
the Licensor will advise the Licensee if it becomes aware of any infringement.
The Licensor does not give any warranties as to the
quality or fitness for purpose of the Technology or the Background IPR.
The Licensee acknowledges that it exercises its
rights to use the Technology and Background IPR at its
own risk. The Licensor acknowledges that it exercises its rights to use any
Improvements at its own risk but is not so obliged to use any Improvements.
The Licensee assumes all risk for, and must
indemnify the Licensor against, all liabilities, expenses, losses, damages and
costs (including legal costs on a solicitor and own client basis and whether
incurred by or awarded against the Licensor) that the Licensor may sustain or
incur as a result, whether directly or indirectly, of:
breach of this Agreement by the Licensee, including a breach in respect of
which the Licensor exercises an express right to terminate this Agreement;
negligent act or omission or wilful misconduct of the Licensee, its officers or
employees or any other person for whose conduct the Licensee is liable in
connection with this Agreement; or
use, including exploitation, of the Technology and/or any Improvements and/or
Background IPR by the Licensee.
take out and maintain insurances adequate to cover its obligations under this
comply with the terms of its insurance policies; and
act as its own insurer if it has written agreement from the other Party to that
A Party must not start court proceedings (except
proceedings seeking interlocutory relief) about a dispute arising out of this
Agreement ('Dispute') unless it has complied with this clause 7.
A Party claiming that a Dispute has arisen must
notify the other Party to the Dispute giving details of the Dispute ('Notification').
If the Dispute involves technical matters and has
not been resolved by clause 7(c) negotiations within 28 days of the date of the Notification, the Parties
will refer the Dispute for determination by an independent expert agreed by the
Parties in the technical field the subject of the Dispute.
If the Dispute is not resolved under either of clauses
7(d) or 7(e) within 60
days after referral (or longer period agreed between the Parties) either Party
may initiate proceedings in a court.
Unless the Parties agree otherwise this Agreement
will end on the expiry of the Term.
Either Party may end this Agreement by giving 30
days written notice to the other Party.
On expiration or termination of this
the licence granted to the Licensee under clause
2(a) of this Agreement
the Licensee must immediately:
using the Technology and Improvements;
requested by the Licensor, return to the Licensor all copies of all, or any
part, of the Confidential Information of the Licensor in the Licensee’s
possession or control; and
requested by the Licensor, confirm by letter signed by an authorised person of
the Licensee that it has complied with all of its obligations under this clause
the following clauses continue: 4 (Confidential
Information) (but not the rights to use, disclose and copy), 5 (Warranties and
Exclusions), 6 (Liability and
Insurance), 7 (Dispute
Resolution), this clause 9 (Post
Termination/Expiration) and 10 (Use of Names and
accrued rights and remedies of either Party are not
Licensee must obtain written consent from the Licensor before it:
the names, trademarks or logos of the Licensor; or
a public statement about this Agreement.
notifying or giving notice under this Agreement must give notice in writing
addressed to the other Party's contact specified in the Details.
Relationships: This Agreement does
not create a relationship of employment, agency or partnership between the
Several Rights: The rights and
obligations of each Party and each party comprising the Licensor under this
Agreement are several, not joint or joint and several.
Further Action: Each Party must do or cause to be done all
things necessary or desirable to give effect to, and refrain from doing things
that would hinder performance of, this Agreement.
The Licensee must not assign or attempt to assign or otherwise transfer
any right arising out of this Agreement.
The failure of a Party at any time to insist on performance by the other
Party of any obligation under this Agreement is not a waiver of its right:
insist on performance of, or to claim damages for breach of, that obligation
unless that Party acknowledges in writing that the failure is a waiver; and
any other time to insist on performance of that or any other obligation of the
other Party under this Agreement.
If part or all of any clause of this Agreement is illegal or
unenforceable it will be severed from this Agreement and will not affect the
continued operation of the remaining provisions.
Costs: Each Party must pay its own legal costs
associated with preparing and finalising this Agreement.
Entire Agreement: This Agreement:
the entire Agreement between the Parties and supersedes all earlier agreements,
arrangements and understandings between the Parties about the Technology; and
only be altered in writing signed by both Parties.
Inconsistency: If there is any
inconsistency between provisions then the order of precedence shall be:
1 to 12.
Acknowledgement: Installing the
software indicates that the “Licensee” has read and understood this agreement,
and agrees to be bound by its terms and conditions.
[These terms are ‘click
wrap’ and agreed on installation of the software – no signing blocks are required.]