OSM Licence Agreement
Note this is a legally binding agreement, by completing your membership payment you agree to the terms included therein.
Intellectual Property Licence Agreement (OSM)
In Summary it is understood that:
OSM Alert Property Group Agents can access the CRM so long as the Annual Fees are paid
OSM Alert Property Group Agents require the relevant qualification to be part
OSM Alert Property Group Agents requires legal authority to act for all Sale Property
ALERT PROPERTY GROUP PTY LTD (EASY AGENT) of PO Box 760 Surfers Paradise, Queensland 4217 (Licensor);
EACH OF THE PERSONS SPECIFIED IN THE MEMBERSHIP (Onsite Manager)
EACH OF THE PERSONS SPECIFIED IN THE MEMBERSHIP (Guarantor).
A. The Licensor is the director/directors and licensed person of Alert Property Group Pty Ltd (Easy Agent)
B. The Guarantor has agreed to provide a guarantee and indemnity for the performance of THE MEMBERSHIP’s obligations under this agreement.
C. The Licencee(OSM) is the onsite manager who joined through The Membership
The following Addendums form part of this agreement:
Addendum 1 Definitions and interpretation
It is agreed:
1 Definitions and Interpretation
(a) The words and phrases used in this agreement have the meanings as set out herein.
(b) In the interpretation of this agreement, the rules set out herein will apply.
Subject to the Licensee(OSM) complying with this agreement, the Licensor grants a licence to the Licensee to:
(a) provide the Services under the Trade Marks in the Territory;
(b) advertise Listings on the:
(i) Easy Agent Websites; and
(ii) Subscribed Listing Websites,
for the Licence Term.
The Licence does not include the right to grant sub-licences.
2.3 Unlimited licences
(a) The Licensor covenants that during the Licence Term it will not be limited to grant more Licences in the Territory.
(b) The Licensor reserves its right to provide the Services under the Trade Marks inside and outside the Territory.
(a) The Licensee must maintain a home office(onsite manager office) in the Territory during the Licence Term.
(b) Subject to clause 2.4(c), the Licensee may have Listings inside and outside the Territory.
(c) The Licensee(OSM) must deliver the same level of service, time and attention to a Listing outside the Territory as it would devote to a similar Listing within the Territory.
(d) The Licensee(OSM) must refer all Listings and potential Listings outside the Territory that the Licensee can not properly service in accordance with clause 2.4(c) to the Licensor or another Licensee within the Territory of that Listing.
2.5 Licensee’s obligations
The Licensee(OSM) must:
(a) not use any trade marks in connection with the Services other than the Trade Marks;
(b) ensure that the Branding, Trade Marks and Domain Names appear on all promotion material for the Services;
(c) ensure that no advertising or promotional material produced under this agreement contravenes the Trade Practices Act 1975 (Cth) or similar legislation relevant to the promotion of the Services;
(d) use its best endeavours to maximise the Sales Commissions; and
(e) only use the Trade Marks as permitted by this agreement.
(a) The Trade Marks represent valuable goodwill distinctive of the Licensor’s business and reputation. The Licensor may introduce from time to time, standards of quality and service regarding the provision of Services so as to protect the distinction and goodwill represented and symbolised by the Trade Marks.
(b) The Licensee(OSM) must provide the Services to at least the quality and level required by any applicable legislation and that a prudent business person in the business of providing the Services.
(a) The Licensee(OSM) appoints the Principal as the person responsible for providing the Services on behalf of the Licensee.
(b) The Licensee(OSM) must not change the Principal without the prior written consent of the Licensor (selling of their business line).
(a) The Principal and any other employees of the Licensee that provide the Services must complete the Induction Training.
(b) The Licensee will receive free induction training course held at a convenient location for all parties.
(c) Optional Advanced Training is available for the Licensee for a Fee.
4.1 The Alert Property Group Website
(a) The Licensor has established and will maintain an internet website to advertise and promote the Alert Property Group brand, the Services and the Listings (Alert Property Group Website).
(b) The Licensee(OSM) will input the Listing Data for each Listing into a licensee only section of the Alert Property Group Website
(c) The licensee only section of the Alert Property Group Website will require a user name and password provided by the Licensor to access the licensee section.
(d) The Licensee(OSM) grants to the Licensor a royalty free, non-exclusive, perpetual, worldwide licence to use the Listing Data for any purpose. The Licensor warrants that it has the right to grant the Licensee the Licence in this clause 4.1(d).
(e) All features of the Alert Property Group Website, including the Domain Name, content, format, links to other websites will be determined by the Licensor in its absolute discretion.
(f) The Licensor has the absolute right to modify, suspend or temporarily disable the Alert Property Group Website at any time in its sole discretion.
(g) The Licensee(OSM) may establish (at its own expense) its own website to advertise the Listings and the Licensee’s Services (Licensee Website) and the Licensor may include a link on the Alert Property Group Website to the Licensee Website. This is in addition to the satellite websites supplied as part of the Licensee Agreement.
4.2 Subscribed Listing Websites
(a) The Licensor will upload the Listing Data provided under clause 4.1(b) onto the Subscribed Listing Websites within two Business Days of receiving the Listing Data.
(b) The Licensor may in its absolute discretion change the Subscribed Listing Websites at any time by notice to the Licensee(OSM).
5.1 Annual Fee
(a) The Licensee(OSM) must pay the Licensor the Annual Fee in full upon execution of this agreement.
(b) This agreement will not commence until the Annual Fee has been paid in full.
5.3 Commission (sales only)
(a) The Licensee is required to pay the Licensor the administration fee on any settled sales.
(b) Withheld or unpaid administration fees will incur a compounding monthly interest penalty rate of 40%
(c) If the account remains unpaid after 3 months from settlement date, the matter will be refered to a collections agency.
5.4 Training Fees
(a) The Licensee must pay any Training Fees incurred for the Licensee or its staff to attend any Training.
(b) The Licensee will be advised of the Training Fees prior to each Training session prior to the commencement of the Training.
6 Term and Termination
This agreement commences on the Commencement Date and continues for the Licence Agreement Period(10 years + 10 years) unless terminated earlier in accordance with this clause 6.
6.2 Termination for breach
(i) the Licensee(OSM) commits a breach of this agreement;
(ii) the Licensee(OSM) fails to maintain all the necessary licences and approvals required to provide the Services; or
(iii) an Insolvency Event occurs in relation to the Licensee,
(iv) the Licencee(OSM) receives 3 warnings(written, verbal or otherwise) of their behaviour from Head Office,
then the Licensor may terminate this agreement immediately with notice to the Licensee in which case this agreement will terminate on the date specified in that notice or, if no date is specified, immediately.
(b) If the Licensor commits a material breach of a fundamental term of the agreement that has a material and adverse affect on the Licensee and fails to remedy that breach within 60 days of receiving notice from the Licensee requiring that the Licensor remedy that breach, then the Licensee(OSM) may terminate this agreement by notice to the Licensor in which case this agreement immediately is at an end.
(c) If the licensee(OSM) fails to maintain the Annual Fee.
6.3 Termination by notice.
The Licensee(OSM) may terminate this agreement by giving at least 30 days notice to the other party prior to the expiry of the Initial Period.
7.1 Capacity warranties
The Licensee(OSM) warrants, and it is a condition of this agreement that:
(a) it has the power to own its assets and to provide the Services;
(b) it has the full power and authority to enter into and perform its obligations under this agreement;
(c) it has taken all necessary action to authorise the execution, delivery and performance of this agreement in accordance with its terms;
(d) the execution, delivery and performance by it of this agreement does not and will not violate any encumbrance or document which is binding upon it or any assets of it;
(e) no litigation, arbitration, dispute or administrative proceeding has been commenced, is pending or to its knowledge threatened, by or before any Government Agency, and no judgment or award has been given, made or is pending, by or before any Government Agency, which in any way questions its power or authority to enter into or perform its obligations under this agreement; and
(f) it does not, and its assets do not, enjoy immunity from any suit or execution.
7.2 Intellectual property warranties
The Licensor warrants that to the best of the Licensor’s actual knowledge as at the date of this agreement without having made any enquiries, the Licensor had the right and authority to provide the Licensee(OSM) with the rights described in clause 2.
8.1 Obligations of confidence
Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of the other party provided to or obtained by that party prior to or after entry into this agreement.
The obligations of confidence in clause 8.1 do not apply to Confidential Information:
(a) that is required to be disclosed by applicable law, or under compulsion of law by a court or Government Agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:
(i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
(ii) before disclosing any information, gives a reasonable amount of notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence;
(b) that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or
(c) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
8.3 Restriction on disclosure
(a) Each party may use and disclose Confidential Information of the other party only:
(i) with the prior written consent of the other party; or
(ii) to that party’s directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under this agreement.
(b) If either party discloses Confidential Information under clause 8.3(a), that party must ensure that such information is kept confidential by the person to whom it is disclosed.
8.4 Injunctive relief
Each party acknowledges that:
(a) the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and
(b) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of this clause 8.
9 Maintenance and inspection of records
(a) The Licensee(OSM) will maintain for a period of seven years separate and accurate records and accounts of:
(i) the provision of the Services;
(ii) the Sales Commission earned on each Listing; and
(iii) any other information reasonably required by the Licensor relevant to the provision of the Services and the determination of the Commission.
(b) Such separate and accurate records and accounts will be in sufficient detail so that the Licensor need not refer to the other records and accounts of the Licence.
The Licensee(OSM) will permit an accountant or auditor of the Licensor from time to time during ordinary business hours to inspect and verify all or any records required to be maintained by the Licensee(OSM) under clause 9.1 and the Licensee(OSM) will give all assistance necessary to such accountant or auditor to carry out such inspection and verification and permit such accountant or auditor to take copies of any such records.
10 Limitation of liability
Subject to clause 10.2, the Licensor excludes any liability for any loss or damage, however caused (including by the negligence of the Licensor), suffered by the Licensee(OSM) in connection with this agreement including Consequential Loss, loss of profits or loss or corruption of data.
10.2 Trade practices
If the Trade Practices Act 1974 (Cth) or any other legislation implies a condition or warranty into this document in respect of goods or services supplied, and the Licensor’s liability for breach of that condition or warranty may not be excluded but may be limited, clauses 10.1 and 11.1 do not apply to that liability and instead the Licensor’s liability for such breach is limited to, in the case of a supply of goods, the Licensor replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, the Licensor supplying the services again or paying the cost of having the services supplied again.
The Licensee(OSM) is liable for, and indemnities the Licensor from and against, all loss or damage (including legal costs) incurred or suffered by the Licensor however caused in connection with:
(a) a breach of this agreement by the Licensee(OSM);
(b) any unlawful or negligent act or omission of the Licensee(OSM), its officers, employees or agents in the performance of this agreement; or
(c) use of the Trade Marks or Alert Property Group Website by the Licensee(OSM) or a third party who gained access from the Licensee(OSM).
11.2 Continuing obligation
Each indemnity contained in this agreement is a continuing obligation notwithstanding:
(a) any settlement of account; or
(b) the occurrence of any other thing, and it is not necessary for the Licensor to incur expense or make payment before enforcing or making a claim under an indemnity.
12.1 Guarantee provisions
The Guarantor unconditionally and irrevocably guarantees to the Licensor:
(a) the Licensee’s payment of any money the Licensee is required to pay;
(b) the Licensee’s performance and observance of the Licensee’s obligations; and
(c) the Licensee’s payment of any damages payable by the Licensee for the Licensee’s failure or delay to fulfil any of the Licensee’s obligations, under this agreement.
If the Licensee(OSM) defaults in:
(a) the payment of any amount due under this agreement, the Guarantor must pay that amount to the Licensor on demand; or
(b) the performance and observance of any of the Licensee’s other obligations under this agreement, the Guarantor must pay to the Licensor on demand all losses, damages, expenses and costs which the Licensor is entitled to recover because of that default, whether or not the Licensor has exercised or exhausted the Licensor’s remedies for their recovery from the Licensee.
As a separate and additional liability, the Guarantor indemnifies the Licensor in respect of:
(a) all Liabilities incurred by the Licensor arising directly or indirectly out of any default or delay by the Licensee(OSM) in the performance and observance of the Licensee’s obligations under this agreement; and
(b) any money payable under this agreement (including money which would have been payable if it were recoverable) which is not recoverable from the Licensee(OSM) for any reason and whether or not:
(i) any transaction relating to any money payable under this agreement was void or illegal or has been avoided; or
(ii) anything relating to that transaction was or ought to have been known to the Licensor.
12.4 Continuing obligation
This clause contains a continuing guarantee and indemnity despite any settlement of account, intervening payment or anything else until all money payable under this agreement has been paid in full, and all the Licensee’s other obligations under this agreement have been performed and observed.
13.1 Non Compete
The Licensee(OSM) and each of the Guarantors undertake that they will not:
(a) directly or indirectly;
(b) by themselves or jointly with or on behalf of any other person, corporation or trust;
(c) through an agent, independent contractor or employee; or
(d) on any account or pretext or by any means whatsoever,
conduct any Restraint Business within the Restraint Area for the Restraint Period
The Licensee(OSM) and the Guarantors acknowledge that the restraints contained in this clause 13 are fair and reasonable and required by the Licensor to protect its goodwill, reputation, intellectual property and financial interests.
14.1 No arbitration or court proceedings
If a dispute arises out of or in relation to this agreement (Dispute) no party to the Dispute (Disputant) will start arbitration or court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 14.
A party claiming that a Dispute has arisen must notify each other Disputant in writing giving details of the Dispute and its proposal for a resolution.
14.3 Initial Period
For a 14 day period after a notice is given (Resolution Period) each Disputant must use all reasonable endeavours to resolve the Dispute.
14.4 Appointment of mediator
If the Dispute remains unresolved at the end of the Resolution Period, it must be referred for mediation at the request of any Disputant to:
(a) a person agreed on by the Disputants; or
(b) if agreement is not reached within seven days of the end of the Initial Period, a mediator nominated by the then Chairman of QCAT or the Chairman’s nominee.
14.5 Role of mediator
The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has agreed to this in writing.
14.6 Venue and representation
Unless otherwise agreed between the Disputants:
(a) the mediation will take place on the Gold Coast; and
(b) the Disputants will be entitled to legal representation.
Each Disputant will use all reasonable endeavours to resolve the Dispute through mediation as soon as is practical, including, but not limited to, providing the mediator with all information relevant to the Dispute.
Any information or documents disclosed by a Disputant under this clause must be kept confidential and may not be used except to attempt to resolve the Dispute.
Each Disputant must bear its own costs of complying with this clause 14 and the Disputants must bear equally the mediator’s costs.
If the Dispute is still not resolved within 30 days of appointment of the mediator, a Disputant that has complied with clauses 14.1 to 14.8 may terminate the dispute resolution process by giving notice to each other Disputant.
14.11 Breach of this clause
If, in relation to a Dispute, a Disputant breaches any provision of clauses 14.1 to 14.8, each other Disputant need not comply with those clauses in relation to that Dispute.