15 Browning St, Byron Bay NSW 2481

Spell Designs 

spellbinding growth for a home grown iconWith Nature

The scent, texture and aura of Byron Bay is famous, and well-loved. If that Byron Bay feeling was a fashion brand, it would surely be Spell & The Gypsy Collective.

This Byron fashion label designs and creates modern-bohemian fashion, accessories and homewares, and like many of Byron Bay’s iconic brands, Spell’s roots are modest and local.

“We were creating jewellery by hand for the Byron Bay artisan markets, and it grew from there,” says Isabella Pennefather, who co-founded Spell with her sister Elizabeth Abegg, when they traded nine-to-five city jobs for the allure of Byron.

Since 2008, Spell has certainly grown. The business is now a multi-million dollar global fashion empire, with distributors in the US including Urban Outfitters and Free People, high-profile devoted celebrity customers including US pop stars Katy Perry and Miley Cyrus, and more than 875,000 Instagram followers. In 2016, Spell won the prestigious Telstra Australian Business of the Year award, enjoying the intense media attention that followed.

“Very fast paced growth was challenging and we faced a lot of learning curves,” Elizabeth says.

“We were growing faster than we could hire, so we had to learn to adapt quickly to new things and sometimes become expert or use things we didn’t have training or degrees for. Nowadays, we’re able to hire a mix of really skilled and passionate people for our team, but there was definitely some growing pains.”

Another issue was the slower shipping times from a regional area compared to the fast shipping services of city-based brands and online stores. “We ended up moving our warehouse to Sydney because of this,” Elizabeth says

The secret of Spell’s success has much to do with the sisters being early adopters of social media, which found them a global market for their brand from their coastal home in Byron. Despite being distributed across America and Europe, and having a destinational flagship store in Byron Bay, the majority of their sales are still via their online store.

“Initially we tried to get wholesalers, but we realised we were getting more traction from our customers online,” says Elizabeth.

Elizabeth uses storytelling and carefully styled images to communicate Spell’s bohemian brand and the Byron feeling through Instagram. Even though Spell’s online audience is coming close to one million followers, social media allows Elizabeth to speak with her customers directly. “The dialogue we have with our customers is close,” she says.

Wherever they are in the world, the wearers and advocates of Spell enjoy the slice of Byron the fashion represents.

“We think our whole business has been moulded from the fact we are in Byron Bay,” says Elizabeth.

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License Agreement

  1. PARTIES
    • Licensor: REGIONAL DEVELOPMENT AUSTRALIA – NORTHERN RIVERS INCORPORATED (INC9891541) of Suite 3, 109 Molesworth Street, Lismore, Australia
    • Licensee: The legal person of the address and with the ACN/ABN/ARBN (as appropriate) as identified in the REGIONAL DEVELOPMENT AUSTRALIA – NORTHERN RIVERS INCORPORATED online IP Licence application process and approved by the Committee.
  2. BACKGROUND
    • The Licensor is the registered owner of the Trade Marks.
    • The Licensor agrees to licence the Trade Marks to the Licensee for the Purpose.
    • The Licensee agrees to licence the Trade Marks on the terms set out in this document.
  3. DEFINED TERMS + INTERPRETATION
    • A term or expression starting with a capital letter:
      • which is defined in the Dictionary in Schedule 1, has the meaning given to it in the Dictionary; and
      • which is defined in the Corporations Act, but is not defined in the Dictionary, has the meaning given to it in the Corporations Act.
    • The interpretation clause in Schedule 1 sets out rules of interpretation of this Agreement.
  4. Commencement + term
    • This Agreement commences on the Commencement Date and continues until this Agreement is terminated (Term).
    • This Agreement may be terminated during the Term in accordance with clause 12.
  5. licence
    • The Licensor grants to the Licensee a non-transferable licence to use the Trade Marks for the Purpose only from the relevant Effective Date for the remainder of the Term throughout the Territory subject to the terms of this Agreement.
    • In consideration of the grant of the licence(s) by the Licensor to the Licensee as set out in clause 1 above, the Licensee will pay the Licensor the Annual Licence Fee whilst this Agreement remains in force.
    • The Licensee must pay the Annual Licence Fee on the Commencement Date and thereafter within thirty (30) days of each anniversary of the Commencement Date without any deduction or set off.
    • The Licensee must on the date of termination or expiry of this Agreement, as the case may be, pay to the Licensor all money due and payable to the Licensor on or before such date of termination or expiry that remains outstanding on such date including Annual Licence Fees owing for part of any year this Agreement remains in force.
    • All payments to be made under this Agreement shall be made in Australian dollars, to the nominated account of the Licensor in immediately available funds or such other account or method as the Licensor may nominate in writing from time to time. The Licensee shall pay all charges imposed by any relevant bank or financial institution in relation to such payments.
  6. GST
    • The Licensor must issue an invoice to the Licensee for the Annual Licence Fee within a reasonable period prior to the first anniversary of the Commencement Date of this Agreement and annually thereafter within a reasonable period prior to the anniversary of the Commencement Date for the term of this Agreement
    • All amounts payable or other consideration provided in respect of supplies made in relation to this Agreement are exclusive of GST (if any). Where a supply is a taxable supply, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply.
    • All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply). Where any GST payable is not referable to an actual payment, then it must be paid within 10 days of a tax invoice being issued by the party making the supply.
    • The Licensor and the Licensee will cooperate in complying with the requirements of the GST legislation in order that both parties may each claim applicable input tax credits.
  7. ownership of the trade marks
    • The Licensee acknowledges that on and from the relevant Effective Date:
      • the Licensor retains title to and ownership of the Trade Marks and the benefit of all existing goodwill in the Trade Marks inures solely to the Licensor;
      • the benefit of all goodwill in the Trade Marks resulting from use by the Licensee inures solely to the Licensor; and
      • the Licensee’s only rights in respect of the Trade Marks are those rights of use pursuant to this agreement and the Licensee does not have any other right, title or interest to the Trade Marks or any goodwill in them.
  1. LICENSEE’S RESPONSIBILITIES AND OBLIGATIONS
    • The Licensee must comply with all directions of the Licensor and the Licensor’s standards and requirements for the use by the Licensee of the Trade Marks as notified by the Licensor to the Licensee in writing from time to time, including the form in which the Trade Marks are used.
    • The Licensee must only use the Trade Marks for the Purpose.
    • Subject to the provisions of clause 10 the Licensee agrees that at all times it will use its best endeavours to:
      • protect and maintain the value in and validity of the Trade Marks; and
      • protect the rights and reputation of the Licensor in and to the Trade Marks.
    • The Licensee must not make the Trade Marks available to any other party or do any act that would allow any third party to claim any interest in the Trade Marks.
    • The Licensee must not register or use anywhere in the world any trading name, company name or domain name which incorporates any of the Trade Marks or any component of a Trade Mark or is similar to the Trade Marks, without the prior written consent of the Licensor.
    • The Licensee must not apply anywhere in the world for the registration of any Trade Mark or any mark similar to any of the Trade Marks.
    • If requested by the Licensor, the Licensee must ensure that whenever any of the Trade Marks are used there appears the statement: “Northern Rivers NSW Connect With Nature is a trade mark of Regional Development Australia-Northern Rivers Incorporated and is used under licence”, or another statement of equivalent meaning approved by the Licensor.
    • The Licensee must not do anything which may adversely affect the Licensor’s rights or title or interest to the Trade Marks, or the distinctiveness of the Trade Marks.
    • The Licensee acknowledges and agrees that:
    • it must not use the Trade Marks in any manner likely to deceive or cause confusion.
    • the Licensor may from time to time direct the Licensee to change its manner and form of use of the Trade Marks to ensure compliance with the Licensor’s standards and requirements and the Licensee must comply with all such directions; and
    • the Licensor reserves the right to withhold its approval of the Licensee’s use or proposed use of any or all of the Trade Marks and the Licensee agrees to accept any such exercise of the Licensor’s right.
  2. QUALITY CONTROL
    • The Licensee must ensure that all of its goods and services in respect of which it uses the Trade Marks and all advertising and promotional material and other material or documentation relating to those goods or services in respect of which it uses the Trade Marks:
      • comply with any standards, requirements and directions notified by the Licensor from time to time;
      • comply with all applicable laws, including industry requirements; and
      • are consistent with the reputation and goodwill of the Licensor’s Goods and Services and of the Licensor generally.
  1. Infringement
    • If the Licensee becomes aware of any:
      • actual, suspected or threatened infringement of the Trade Marks or of any conduct in relation to the Trade Marks that might constitute passing off or a breach of any statute concerning misleading or deceptive conduct; or
      • any allegation or claim by a third party that use of the Trade Marks is likely to deceive or cause confusion, infringes a third party’s rights, or constitutes passing off or misleading and deceptive conduct,
    • then the Licensee must immediately notify the Licensor in writing giving the Licensor all the information available to the Licensee.
    • The Licensee must not take any other steps in relation to clauses 1.1 or 10.1.2 without the prior written consent of the Licensor.
    • The Licensor may in its absolute discretion commence proceedings in respect of any infringement of the Trade Marks or other causes of action connected with the Trade Marks and will have the full conduct of such proceedings.
    • The Licensee must not take any steps in respect of any enforcement proceedings in respect of any infringement of the Trade Marks or other causes of action connected with the Trade Marks unless requested by the Licensor.
    • If requested by the Licensor, the Licensee must:
      • provide all information concerning the Licensee’s use of the Trade Marks; and
      • render its fullest co-operation and assistance to the Licensor in any dispute, litigation or settlement in relation to the Trade Marks.
  1. indemnity
    • The Licensee agrees to indemnify, keep indemnified and hold harmless the Licensor from and against all and any losses, damages, expenses, costs, liabilities, claims, demands, actions and suits (including legal costs) suffered or incurred (actually or contingently) by the Licensor arising out of or in connection with the Licensee’s use of the Trade Marks in a manner not authorised by this agreement or any breach by the Licensee of this Agreement.
  2. termination
    • This agreement may be terminated by the mutual agreement of the parties in writing.
    • The Licensor may terminate this agreement immediately (or at any later time) by notice in writing if:
      • the Licensee commits any breach of this agreement which is not capable of being remedied or, if remediable, is not remedied within 14 days of the Licensor giving notice of such breach to the Licensee;
      • the Licensee uses or attempts to use the Trade Marks for a purpose other than the Purpose; or
      • the licensing of the Trade Marks pursuant to this agreement becomes unlawful or in any way prejudicial to the Licensor’s title to or rights in the Trade Marks.
    • Termination for other reasons:
    • The Licensor may terminate the agreement immediately by notice in writing if:
      • the Licensee becomes, threatens or resolves to become, subject to any form of insolvency administration; or
      • there is a change in Control, ownership or management of the Licensee; or
      • the Licensee sells or otherwise disposes of substantially all its business assets to a third party.
    • Termination without cause:
    • The Licensor may terminate this agreement or the rights to use any particular Trade Mark without cause and for any reason (or none) by providing not less than 3 months’ prior written notice to the Licensee.
    • Consequences of termination:
    • If this agreement is terminated under clause 1, 12.2 or 12.4 the Licensor:
    • will be regarded as discharged from any further obligations under this agreement; and
    • may pursue any other remedies lawfully available to it, and where the agreement is terminated by the Licensor pursuant to clause 1, the Licensor may claim, from the Licensee, all costs, expenses, losses and damages suffered or incurred by the Licensor as a result of the termination or breach.
    • Upon termination of this agreement for whatever reason or the rights to use any particular Trade Mark:
    • the Licensee’s rights to use all the Trade Marks (or the rights to use any particular Trade Mark, as the case may be) are terminated;
    • the Licensee must immediately cease to use all the Trade Marks (or the rights to use any particular Trade Mark, as the case may be); and
    • the Licensee must return to the Licensor or erase or destroy and provide written evidence of destruction, as reasonably requested by the Licensor, of all copies of the Trade Marks (or the particular Trade Mark, as the case may be) in any form or format held by the Licensee, in the Licensee’s possession or control.
    • the Licensee must on the date of termination or expiry of this Agreement, as the case may be, pay to the Licensor all money due and payable to the Licensor in accordance with the provisions of clause 4.
  3. entire agreement
    • This Agreement replaces all previous agreements and understandings concerning its subject matter and contains the entire agreement between the parties with respect to its subject-matter.
  4. ASSIGNMENT
    • The Licensee must not assign, sub–licence or transfer any of its rights or obligations under this agreement without the prior written approval of the Licensor.
  5. Variation
    • No provision of this agreement or a right conferred by it can be varied except in writing signed by both parties.
  6. Further assurance
    • Each party must do everything necessary, or reasonably required, by the other party, to give effect to this agreement and the transactions contemplated by this agreement.
  7. no waiver
    • Failure or omission by either party at any time to enforce or require strict or timely compliance with any provision of this agreement will not affect or impair that provision in any way or the rights of the relevant party to avail itself of the remedies it may have in respect of any breach of such provision.
  8. Invalidity
    • A provision, or part of it, must be read down if:
      • this agreement, or the provision, is void, voidable or unenforceable if the provision, or the part of it, is not read down; and
      • the provision, or the part of it, is capable of being read down.
    • A provision, or part of it, must be severed if, despite the operation of clause 1, the provision is void, voidable or unenforceable if the provision, or the part of it, is not severed.
    • The remainder of this agreement has full effect even if clause 2 applies.
  9. Survival
    • Clauses 3, 6, 7, 10, 11, 5, 12.6, 16, 18, 19, 20 and 21 survive the termination of this agreement, as do any rights and remedies accrued before termination.
  10. Notices
    • Requirements:
    • Any notice given in connection with this document must be in writing and must be addressed to a party and either:
      • hand delivered to, or sent by post to, the party’s registered office, principal place of business or any other address the party notifies for the service of notices;
      • sent by email to any email address the party notifies for the service of notices.
    • When given:
    • A notice is taken to have been given:
      • in the case of being hand delivered, on the date on which it is delivered;
      • in the case of being sent by post, on the third (seventh if sent to an address in another country) day after the date of posting;
      • in the case of delivery by email, at the time sent.
  1. Governing law + jurisdiction
    • This Agreement is governed by the laws of New South Wales, Australia.
    • The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
  2. SCHEDULE 1 – DICTIONARY
    • Defined terms:
    • The following words have the following meanings in this agreement, unless the context requires otherwise.
    • Agreement means this document being an agreement between the parties.
    •  
    • Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Sydney, Australia.
    • Commencement Date means the date approved by the Committee.
    • .
    • Committee means the Committee of the Licensor as appointed by the Board of the Licensor from time to time.
    • Control has the same meaning as defined in 50AA of the Corporations Act, 2001 (Cth) as amended from time to time.
    • Effective Datemeans the following respective dates:
      • for the Trade Marks listed in Schedule 2 on the Commencement Date ; and
      • for such other trade mark as notified in writing by the Licensor to the Licensee after the date of this agreement, on and from the date specified in that notification.
    • Goodsmeans any goods covered by the Trade Marks as set out in Schedule 2 or as notified in writing by the Licensor to the Licensee from time to time.
    • Licence Feemeans the amount approved by the Committee and disclosed to the Licensee from time to time (including, if appropriate, as part of the REGIONAL DEVELOPMENT AUSTRALIA – NORTHERN RIVERS INCORPORATED online IP Licence application process).
    • Purposemeans the operation of the business or businesses carried on by the Licensee comprising the use of the Trade Marks in respect of the Goods and Services.
    • Servicesmeans the services covered by the Trade Marks, as set out in Schedule 2 or as notified in writing by the Licensor to the Licensee from time to time.
    • Territorymeans Australia.
    • Trade Marksmeans the registered, pending and unregistered trade marks set out in Schedule 2 to this agreement, and such other trade marks as notified for the purposes of this defined term by the Licensor to the Licensee in writing from time to time after the date of this agreement.
  3. schedule 1 – INTERPRETATION
    • Interpretation
    • The following apply in the interpretation of this agreement, unless the context requires or provides otherwise.
    • A reference to any statute, regulation, rule or similar instrument includes any consolidations, amendments or re-enactments of it, any replacements of it, and any regulation or other statutory instrument issued under it.
    • A reference to the singular includes the plural number and vice versa.
    • A reference to a gender includes a reference to each gender.
    • A reference to a party means a person who is named as a party to this agreement.
    • Person includes a firm, corporation, body corporate, unincorporated association and a governmental authority.
    • A reference to a party or a person includes that party’s or person’s executors, legal personal representatives, successors, liquidators, administrators, trustees in bankruptcy and similar officers and, where permitted under this agreement, their substitutes and assigns.
    • An agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them jointly and severally.
    • Includes means includes but without limitation.
    • Where a word or expression has a defined meaning, its other grammatical forms have a corresponding meaning.
    • A reference to doing something includes an omission, statement or undertaking (whether or not in writing) and includes executing a document.
    • A reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or an annexure to this agreement.
    • A reference to time is to the time in the place where a thing is to be done, unless specified otherwise.
    • When the day on which something must be done is not a Business Day, that thing must be done on the preceding Business Day.
    • If there is any conflict between the body of this Agreement and its schedules the terms of the main body of this Agreement will prevail.
    • A reference to $, dollar, AUD is a reference to Australian Dollars (AUD).
    • Headings
    • A heading is for reference only. It does not affect the meaning or interpretation of this agreement.
    • Schedules
    • Any schedule attached to this Agreement forms part of it. If there is any inconsistency between any clause of this Agreement and any provision in any schedule or attachment, the clause of this Agreement will prevail.

  4. SCHEDULE 2 – TRADE MARK(S)
    • IP RIGHT NO: 2077668

TRADE MARK

 

Class 42:  Association services being the certification of goods or services provided by licensees of the association; certification of quality or standards; certification of promotion of the Northern Rivers NSW area

Priority Date:  25 March 2020

Owner:  Regional Development Australia-Northern Rivers Incorporated

  1. PARTIES
    • Licensor: REGIONAL DEVELOPMENT AUSTRALIA – NORTHERN RIVERS INCORPORATED (INC9891541) of Suite 3, 109 Molesworth Street, Lismore, Australia
    • Licensee: The legal person of the address and with the ACN/ABN/ARBN (as appropriate) as identified in the REGIONAL DEVELOPMENT AUSTRALIA – NORTHERN RIVERS INCORPORATED online IP Licence application process and approved by the Committee.
  2. BACKGROUND
    • The Licensor is the registered owner of the Trade Marks.
    • The Licensor agrees to licence the Trade Marks to the Licensee for the Purpose.
    • The Licensee agrees to licence the Trade Marks on the terms set out in this document.
  3. DEFINED TERMS + INTERPRETATION
    • A term or expression starting with a capital letter:
      • which is defined in the Dictionary in Schedule 1, has the meaning given to it in the Dictionary; and
      • which is defined in the Corporations Act, but is not defined in the Dictionary, has the meaning given to it in the Corporations Act.
    • The interpretation clause in Schedule 1 sets out rules of interpretation of this Agreement.
  4. Commencement + term
    • This Agreement commences on the Commencement Date and continues until this Agreement is terminated (Term).
    • This Agreement may be terminated during the Term in accordance with clause 12.
  5. licence
    • The Licensor grants to the Licensee a non-transferable licence to use the Trade Marks for the Purpose only from the relevant Effective Date for the remainder of the Term throughout the Territory subject to the terms of this Agreement.
    • In consideration of the grant of the licence(s) by the Licensor to the Licensee as set out in clause 1 above, the Licensee will pay the Licensor the Annual Licence Fee whilst this Agreement remains in force.
    • The Licensee must pay the Annual Licence Fee on the Commencement Date and thereafter within thirty (30) days of each anniversary of the Commencement Date without any deduction or set off.
    • The Licensee must on the date of termination or expiry of this Agreement, as the case may be, pay to the Licensor all money due and payable to the Licensor on or before such date of termination or expiry that remains outstanding on such date including Annual Licence Fees owing for part of any year this Agreement remains in force.
    • All payments to be made under this Agreement shall be made in Australian dollars, to the nominated account of the Licensor in immediately available funds or such other account or method as the Licensor may nominate in writing from time to time. The Licensee shall pay all charges imposed by any relevant bank or financial institution in relation to such payments.
  6. GST
    • The Licensor must issue an invoice to the Licensee for the Annual Licence Fee within a reasonable period prior to the first anniversary of the Commencement Date of this Agreement and annually thereafter within a reasonable period prior to the anniversary of the Commencement Date for the term of this Agreement
    • All amounts payable or other consideration provided in respect of supplies made in relation to this Agreement are exclusive of GST (if any). Where a supply is a taxable supply, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply.
    • All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply). Where any GST payable is not referable to an actual payment, then it must be paid within 10 days of a tax invoice being issued by the party making the supply.
    • The Licensor and the Licensee will cooperate in complying with the requirements of the GST legislation in order that both parties may each claim applicable input tax credits.
  7. ownership of the trade marks
    • The Licensee acknowledges that on and from the relevant Effective Date:
      • the Licensor retains title to and ownership of the Trade Marks and the benefit of all existing goodwill in the Trade Marks inures solely to the Licensor;
      • the benefit of all goodwill in the Trade Marks resulting from use by the Licensee inures solely to the Licensor; and
      • the Licensee’s only rights in respect of the Trade Marks are those rights of use pursuant to this agreement and the Licensee does not have any other right, title or interest to the Trade Marks or any goodwill in them.
  1. LICENSEE’S RESPONSIBILITIES AND OBLIGATIONS
    • The Licensee must comply with all directions of the Licensor and the Licensor’s standards and requirements for the use by the Licensee of the Trade Marks as notified by the Licensor to the Licensee in writing from time to time, including the form in which the Trade Marks are used.
    • The Licensee must only use the Trade Marks for the Purpose.
    • Subject to the provisions of clause 10 the Licensee agrees that at all times it will use its best endeavours to:
      • protect and maintain the value in and validity of the Trade Marks; and
      • protect the rights and reputation of the Licensor in and to the Trade Marks.
    • The Licensee must not make the Trade Marks available to any other party or do any act that would allow any third party to claim any interest in the Trade Marks.
    • The Licensee must not register or use anywhere in the world any trading name, company name or domain name which incorporates any of the Trade Marks or any component of a Trade Mark or is similar to the Trade Marks, without the prior written consent of the Licensor.
    • The Licensee must not apply anywhere in the world for the registration of any Trade Mark or any mark similar to any of the Trade Marks.
    • If requested by the Licensor, the Licensee must ensure that whenever any of the Trade Marks are used there appears the statement: “Northern Rivers NSW Connect With Nature is a trade mark of Regional Development Australia-Northern Rivers Incorporated and is used under licence”, or another statement of equivalent meaning approved by the Licensor.
    • The Licensee must not do anything which may adversely affect the Licensor’s rights or title or interest to the Trade Marks, or the distinctiveness of the Trade Marks.
    • The Licensee acknowledges and agrees that:
    • it must not use the Trade Marks in any manner likely to deceive or cause confusion.
    • the Licensor may from time to time direct the Licensee to change its manner and form of use of the Trade Marks to ensure compliance with the Licensor’s standards and requirements and the Licensee must comply with all such directions; and
    • the Licensor reserves the right to withhold its approval of the Licensee’s use or proposed use of any or all of the Trade Marks and the Licensee agrees to accept any such exercise of the Licensor’s right.
  2. QUALITY CONTROL
    • The Licensee must ensure that all of its goods and services in respect of which it uses the Trade Marks and all advertising and promotional material and other material or documentation relating to those goods or services in respect of which it uses the Trade Marks:
      • comply with any standards, requirements and directions notified by the Licensor from time to time;
      • comply with all applicable laws, including industry requirements; and
      • are consistent with the reputation and goodwill of the Licensor’s Goods and Services and of the Licensor generally.
  1. Infringement
    • If the Licensee becomes aware of any:
      • actual, suspected or threatened infringement of the Trade Marks or of any conduct in relation to the Trade Marks that might constitute passing off or a breach of any statute concerning misleading or deceptive conduct; or
      • any allegation or claim by a third party that use of the Trade Marks is likely to deceive or cause confusion, infringes a third party’s rights, or constitutes passing off or misleading and deceptive conduct,
    • then the Licensee must immediately notify the Licensor in writing giving the Licensor all the information available to the Licensee.
    • The Licensee must not take any other steps in relation to clauses 1.1 or 10.1.2 without the prior written consent of the Licensor.
    • The Licensor may in its absolute discretion commence proceedings in respect of any infringement of the Trade Marks or other causes of action connected with the Trade Marks and will have the full conduct of such proceedings.
    • The Licensee must not take any steps in respect of any enforcement proceedings in respect of any infringement of the Trade Marks or other causes of action connected with the Trade Marks unless requested by the Licensor.
    • If requested by the Licensor, the Licensee must:
      • provide all information concerning the Licensee’s use of the Trade Marks; and
      • render its fullest co-operation and assistance to the Licensor in any dispute, litigation or settlement in relation to the Trade Marks.
  1. indemnity
    • The Licensee agrees to indemnify, keep indemnified and hold harmless the Licensor from and against all and any losses, damages, expenses, costs, liabilities, claims, demands, actions and suits (including legal costs) suffered or incurred (actually or contingently) by the Licensor arising out of or in connection with the Licensee’s use of the Trade Marks in a manner not authorised by this agreement or any breach by the Licensee of this Agreement.
  2. termination
    • This agreement may be terminated by the mutual agreement of the parties in writing.
    • The Licensor may terminate this agreement immediately (or at any later time) by notice in writing if:
      • the Licensee commits any breach of this agreement which is not capable of being remedied or, if remediable, is not remedied within 14 days of the Licensor giving notice of such breach to the Licensee;
      • the Licensee uses or attempts to use the Trade Marks for a purpose other than the Purpose; or
      • the licensing of the Trade Marks pursuant to this agreement becomes unlawful or in any way prejudicial to the Licensor’s title to or rights in the Trade Marks.
    • Termination for other reasons:
    • The Licensor may terminate the agreement immediately by notice in writing if:
      • the Licensee becomes, threatens or resolves to become, subject to any form of insolvency administration; or
      • there is a change in Control, ownership or management of the Licensee; or
      • the Licensee sells or otherwise disposes of substantially all its business assets to a third party.
    • Termination without cause:
    • The Licensor may terminate this agreement or the rights to use any particular Trade Mark without cause and for any reason (or none) by providing not less than 3 months’ prior written notice to the Licensee.
    • Consequences of termination:
    • If this agreement is terminated under clause 1, 12.2 or 12.4 the Licensor:
    • will be regarded as discharged from any further obligations under this agreement; and
    • may pursue any other remedies lawfully available to it, and where the agreement is terminated by the Licensor pursuant to clause 1, the Licensor may claim, from the Licensee, all costs, expenses, losses and damages suffered or incurred by the Licensor as a result of the termination or breach.
    • Upon termination of this agreement for whatever reason or the rights to use any particular Trade Mark:
    • the Licensee’s rights to use all the Trade Marks (or the rights to use any particular Trade Mark, as the case may be) are terminated;
    • the Licensee must immediately cease to use all the Trade Marks (or the rights to use any particular Trade Mark, as the case may be); and
    • the Licensee must return to the Licensor or erase or destroy and provide written evidence of destruction, as reasonably requested by the Licensor, of all copies of the Trade Marks (or the particular Trade Mark, as the case may be) in any form or format held by the Licensee, in the Licensee’s possession or control.
    • the Licensee must on the date of termination or expiry of this Agreement, as the case may be, pay to the Licensor all money due and payable to the Licensor in accordance with the provisions of clause 4.
  3. entire agreement
    • This Agreement replaces all previous agreements and understandings concerning its subject matter and contains the entire agreement between the parties with respect to its subject-matter.
  4. ASSIGNMENT
    • The Licensee must not assign, sub–licence or transfer any of its rights or obligations under this agreement without the prior written approval of the Licensor.
  5. Variation
    • No provision of this agreement or a right conferred by it can be varied except in writing signed by both parties.
  6. Further assurance
    • Each party must do everything necessary, or reasonably required, by the other party, to give effect to this agreement and the transactions contemplated by this agreement.
  7. no waiver
    • Failure or omission by either party at any time to enforce or require strict or timely compliance with any provision of this agreement will not affect or impair that provision in any way or the rights of the relevant party to avail itself of the remedies it may have in respect of any breach of such provision.
  8. Invalidity
    • A provision, or part of it, must be read down if:
      • this agreement, or the provision, is void, voidable or unenforceable if the provision, or the part of it, is not read down; and
      • the provision, or the part of it, is capable of being read down.
    • A provision, or part of it, must be severed if, despite the operation of clause 1, the provision is void, voidable or unenforceable if the provision, or the part of it, is not severed.
    • The remainder of this agreement has full effect even if clause 2 applies.
  9. Survival
    • Clauses 3, 6, 7, 10, 11, 5, 12.6, 16, 18, 19, 20 and 21 survive the termination of this agreement, as do any rights and remedies accrued before termination.
  10. Notices
    • Requirements:
    • Any notice given in connection with this document must be in writing and must be addressed to a party and either:
      • hand delivered to, or sent by post to, the party’s registered office, principal place of business or any other address the party notifies for the service of notices;
      • sent by email to any email address the party notifies for the service of notices.
    • When given:
    • A notice is taken to have been given:
      • in the case of being hand delivered, on the date on which it is delivered;
      • in the case of being sent by post, on the third (seventh if sent to an address in another country) day after the date of posting;
      • in the case of delivery by email, at the time sent.
  1. Governing law + jurisdiction
    • This Agreement is governed by the laws of New South Wales, Australia.
    • The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
  2. SCHEDULE 1 – DICTIONARY
    • Defined terms:
    • The following words have the following meanings in this agreement, unless the context requires otherwise.
    • Agreement means this document being an agreement between the parties.
    •  
    • Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Sydney, Australia.
    • Commencement Date means the date approved by the Committee.
    • .
    • Committee means the Committee of the Licensor as appointed by the Board of the Licensor from time to time.
    • Control has the same meaning as defined in 50AA of the Corporations Act, 2001 (Cth) as amended from time to time.
    • Effective Datemeans the following respective dates:
      • for the Trade Marks listed in Schedule 2 on the Commencement Date ; and
      • for such other trade mark as notified in writing by the Licensor to the Licensee after the date of this agreement, on and from the date specified in that notification.
    • Goodsmeans any goods covered by the Trade Marks as set out in Schedule 2 or as notified in writing by the Licensor to the Licensee from time to time.
    • Licence Feemeans the amount approved by the Committee and disclosed to the Licensee from time to time (including, if appropriate, as part of the REGIONAL DEVELOPMENT AUSTRALIA – NORTHERN RIVERS INCORPORATED online IP Licence application process).
    • Purposemeans the operation of the business or businesses carried on by the Licensee comprising the use of the Trade Marks in respect of the Goods and Services.
    • Servicesmeans the services covered by the Trade Marks, as set out in Schedule 2 or as notified in writing by the Licensor to the Licensee from time to time.
    • Territorymeans Australia.
    • Trade Marksmeans the registered, pending and unregistered trade marks set out in Schedule 2 to this agreement, and such other trade marks as notified for the purposes of this defined term by the Licensor to the Licensee in writing from time to time after the date of this agreement.
  3. schedule 1 – INTERPRETATION
    • Interpretation
    • The following apply in the interpretation of this agreement, unless the context requires or provides otherwise.
    • A reference to any statute, regulation, rule or similar instrument includes any consolidations, amendments or re-enactments of it, any replacements of it, and any regulation or other statutory instrument issued under it.
    • A reference to the singular includes the plural number and vice versa.
    • A reference to a gender includes a reference to each gender.
    • A reference to a party means a person who is named as a party to this agreement.
    • Person includes a firm, corporation, body corporate, unincorporated association and a governmental authority.
    • A reference to a party or a person includes that party’s or person’s executors, legal personal representatives, successors, liquidators, administrators, trustees in bankruptcy and similar officers and, where permitted under this agreement, their substitutes and assigns.
    • An agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them jointly and severally.
    • Includes means includes but without limitation.
    • Where a word or expression has a defined meaning, its other grammatical forms have a corresponding meaning.
    • A reference to doing something includes an omission, statement or undertaking (whether or not in writing) and includes executing a document.
    • A reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or an annexure to this agreement.
    • A reference to time is to the time in the place where a thing is to be done, unless specified otherwise.
    • When the day on which something must be done is not a Business Day, that thing must be done on the preceding Business Day.
    • If there is any conflict between the body of this Agreement and its schedules the terms of the main body of this Agreement will prevail.
    • A reference to $, dollar, AUD is a reference to Australian Dollars (AUD).
    • Headings
    • A heading is for reference only. It does not affect the meaning or interpretation of this agreement.
    • Schedules
    • Any schedule attached to this Agreement forms part of it. If there is any inconsistency between any clause of this Agreement and any provision in any schedule or attachment, the clause of this Agreement will prevail.

  4. SCHEDULE 2 – TRADE MARK(S)
    • IP RIGHT NO: 2077668

TRADE MARK

 

 

Class 42:  Association services being the certification of goods or services provided by licensees of the association; certification of quality or standards; certification of promotion of the Northern Rivers NSW area

Priority Date:  25 March 2020

Owner:  Regional Development Australia-Northern Rivers Incorporated

 

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