The parties agree as follows:
1. Words and expressions referred to in the Schedule have the meanings set out in the Schedule.
2. In this Agreement:
(a) “Materials” means the ABC Licenced Material and the Non ABC Licenced Material; and
(b) “Fee” means the total of the Licence Fee specified for the ABC Licenced Material and the Licence Fee specified for the Non ABC Licenced Material.
3. There will be no binding agreement and the ABC will have no obligation to perform this Agreement until this Agreement has been executed on behalf of the ABC by Director, Commercial or a person authorised by Director, Commercial so to do.
4. The ABC grants the Licensee a non-exclusive licence to use the Materials in the Production in order to exercise the Licensed Rights for the Licence Period in the Licence Territory. The Licensee acknowledges that it is responsible for obtaining any necessary consents to use the Materials from underlying rights holders.
5. Upon signature of this Agreement the Licensee shall pay the Fee to the ABC. Where applicable the fee(s) include the goods and services tax imposed by the Commonwealth.
6. The ABC shall use its best endeavours to supply to the Licensee copies of the Materials as the Licensee may reasonably require to exercise the rights herein granted.
7. The Licensee warrants such copies shall be used only within the Production and for the use specified. Use in any other context, including re-versioning of the Production, without the express written permission of the ABC is specifically excluded. Upon completion of the Production the Licensee shall destroy or return to the ABC all copies of the Materials which may then remain in its possession except such material as is contained in the Production. The Licensee shall be responsible for all laboratory, carriage, customs and other costs of a similar nature in respect of the manufactured copies of the Materials in accordance with the provisions of this clause.
8. If the Materials contain ABC registered or unregistered marks, logos, branding, or styling likely to cause it to be identifiable with the ABC, any use of such Materials will be subject to the specific written approval of the Director, ABC Commercial who may require the ABC mark to be removed from the Materials at the expense of the Licensee.
9. An accreditation to the ABC stating “Australian Broadcasting Corporation Library Sales” must be given in the end credits of the Production with the duration and height of the credit being equivalent to all other credits for footage or other copyright material suppliers.
10. The Licensee warrants that:
(a) where the Materials are used in advertising or for promotional purposes, if the Materials contain vision and/or sound of an identifiable individual and the Licensee intends to use the Materials in:
(i) such to - imply that the individual endorses a product or particular view point; or
(ii) a political advertisement (namely an advertisement authorised by a political party);
the Licensee will obtain the individual’s prior permission for that use;
(b) where the Materials are used in advertising or for promotional purposes, the use of the Materials will not imply ABC endorsement of a product or view point:
(c) if the Materials contain copyright material which the ABC cannot licence, the Licensee will obtain all necessary consents from the owners of that copyright material prior to the exercise of any rights herein granted.
11. The Licensee indemnifies the ABC against any loss, claim, demand, liability, cost, damages and expenses (including legal fees properly incurred) resulting from any breach of these warranties or directly or indirectly relating to the content of the Production or the Licensee’s use of the Materials including any claim for infringement of any patent, trade mark, registered design, or for passing off, misleading or deceptive conduct, defamation or contempt of court.
12. In addition to any other rights and remedies at law this Agreement may be terminated immediately by the ABC where the Licensee has committed a breach of this Agreement which can be rectified and fails to rectify the breach within ten (10) Business Days of written notice being given by the ABC or where the Licensee has committed a breach of this Agreement which cannot be rectified.
13. The Materials are provided in accordance with the ABC Editorial Policies, accessible at http://abc.net.au/corp/.
14. This Agreement shall be interpreted in accordance with the laws of New South Wales and any dispute arising therefrom shall be subject to the exclusive jurisdiction of the courts of New South Wales.
15. This Agreement contains the entire understanding of the ABC and the Licensee with respect to the Materials and may not be modified or amended except in writing signed by the ABC and the Licensee.
16. To the extent permitted by law, all representations, conditions and warranties, oral or written, express or implied, other than those contained herein are hereby excluded.
17. Each party agrees that signature on its behalf and on behalf of the other party and exchange of such signatures by means of facsimile or email transmission shall constitute a binding agreement between the parties. The Licensee warrants that the person signing on behalf of the Licensee is authorised to do so.
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