Bushfire Building Council of Australia Ltd (BBCA) is the owner of the FORTIS Resources described in this Agreement. BBCA agrees to grant you a license to use the FORTIS Resources for a single site residential dwelling (Your Project) subject to the terms and conditions set out in this Agreement as follows:
1 Commencement and Term
This Agreement commences on the Download Date and continues for Term, subject to early termination as provided for in clause10.
2 License and Use of FORTIS Resources
2.1 Granting of license
(a) BBCA grants to you a limited, non-transferable, non-exclusive license to use the FORTIS Resources to construct Your Project one time and one time only in accordance with the terms of this Agreement.
(b) This license is personal to you. You are not permitted to sub-license, assign or transfer the FORTIS Resources.
(c) The license is a single use license for Your Project. You are not permitted to re-use the FORTIS Resources unless you obtain the prior written permission of BBCA.
Use of FORTIS Resources
(a) must not duplicate, publish, sell, or distribute the FORTIS Resources, including any modifications thereof, in whole or part; and
(b) must not use the FORTIS Resources in whole or part for any other project other than the single site, residential dwelling the subject of this Agreement.
3 Your responsibilities
(a) The FORTIS Resources are provided for your information only and as a guide. It is your responsibility to ensure that:
(i) all details and dimensions of the FORTIS Resources are checked for overall accuracy and to ensure they are appropriate for Your Project;
(ii) all necessary permits, approvals and inspections for Your Project are obtained, including all building permits;
(iii) Your Project is completed with licensed engineers, builders, contractors and sub-contractors and any other professionals as may be required for Your Project; and
(iv) Your Project is built to all applicable construction, fire, and utility standards, including any and all federal, state and local building requirements.
(b) Your builder bears full risk and responsibility for Your Project and will be responsible for the provision of all building warranties to you in connection with Your Project, including but not limited to warranties that the Your Project will be suitable for occupancy, that all material used is fit for purpose and for any rectification works required during any warranty periods.
(c) Any use of the FORTIS Resources with or without adaptions to conform with federal, state and local building codes, rules and regulations is done so at your sole risk.
(d) The FORTIS Resources do not include electricals, plumbing, heating or air conditioning drawings as these will depend on the relevant building codes and specific conditions and requirements of Your Project.
(e) Names of materials and manufacturers shown on the FORTIS Resources do not represent an endorsement or recommendation by BBCA of such materials or manufacturers. Selections of materials and manufacturers are your responsibility.
4 Intellectual Property Rights
(a) BBCA hereby grants you the non-exclusive, non-transferable, revocable right to use the Intellectual Property Rights in the FORTIS Resources for the sole purpose of completing Your Project. You must not use BBCA’s Intellectual Property Rights for any other purpose.
(b) BBCA remains the sole owner of all Intellectual Property Rights in the FORTIS Resources, including but not limited to:
(ii) copyright in the drawings, design renders, images, photographs, instructions, manuals, guides and handbooks provided in the FORTIS Resources; and
(ii) the trade mark FORTIS, FORTIS HOUSE, RBC FORTIS HOUSE and any other trade marks, logos and branding used in the FORTIS Resources.
(c) For the avoidance of doubt, BBCA will be the owner of all Intellectual Property Rights in any modified or derivative works created by you in respect of the FORTIS Resources, or any component thereof, and you hereby assign all such Intellectual Property Rights to BBCA.
(d) You acknowledge that nothing in this Agreement gives you any rights, title or interest in or to the FORTIS Resources, other than the right to use the foregoing in accordance with this Agreement.
(e) To the extent that you may be deemed over the Term to have acquired any Intellectual Property Rights through the use of the FORTIS Resources, you hereby assign (by way or present and, where appropriate, future assignment) all such Intellectual Property Rights to BBCA. BBCA will provide documents effecting the assignment to BBCA which you will execute immediately.
(f) All rights not expressly granted to you in this Agreement are reserved entirely and exclusively to BBCA.
5 Moral Rights
BBCA must be attributed in all information containing 2- or 3- dimensional representations of Your Project, whether Your Project is complete or not.
6 Confidential Information
(a) You must keep BBCA’s, and any Related Body Corporate of BBCA’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality. For the avoidance of doubt, you must not disclose any Confidential Information to any third party without the prior written consent of BBCA.
(b) Your obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by BBCA.
(c) The Confidential Information does not include information which is generally available in the public domain otherwise than as a result of a breach of this clause 6 by you.
(d) You acknowledge that damages may be an inadequate remedy for breach of this clause 6 and that BBCA may obtain injunctive relief against you for any breach of this clause 6.
7.1 BBCA’s Warranties
BBCA represents and warrants that:
(a) it is duly organised, validly existing in good standing, and that it has full power and authority to enter into and perform its obligations under this Agreement;
(b) this Agreement is a valid and binding obligation on BBCA; and
(c) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party.
7.2 Your Warranties
You represent and warrant that:
(a) you are duly organised, validly existing, of good standing, and that it has full authority to enter into and perform your obligations under this Agreement;
(b) this Agreement is a valid and binding obligation on you;
(c) you will engage an appropriately qualified builder and any other professional as may be required for Your Project, to review the FORTIS Resources and ensure that the plans and any modifications thereof are appropriate for the construction of Your Project;
(d) Your Project will strictly comply with all local, state and national building codes, construction standards, zoning requirements, application laws, regulations, ordinances and requirements; and
(e) you will not use the FORTIS Resources on another site or for any use other than for your personal use in constructing a single site residential dwelling.
7.3 No Further Warranties
(a) Other than the warranties provided in clause 7.1, THE FORTIS RESOURCES ARE PROVIED FOR YOUR INFORMATION ONLY AND “AS IS” WITHOUT REPRESENTATIONS OR WARRANITES OF ANY KIND, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) IT IS YOUR RESPONSIBILITY TO ENSURE, PRIOR TO THE USE OF THE FORTIS RESOURCES, THAT THE FORTIS RESOURCES ARE ACCURATE AND SUITABLE FOR YOUR PROJECT AND THAT THEY COMPLY WITH APPLICABLE LAWS.
(c) FOR THE AVOIDANCE OF DOUBT, BBCA DOES NOT PROVIDE WARRANTIES AS TO THE STRENGTH, DURABILITY, RESILIENCE OR RESISTANCE OF YOUR PROJECT IN THE EVENT OF FIRE, CYCLONE, STORM, FLOOD AND ANY OTHER NATURAL OR CLIMATE OR CLIMATE-RELATED DISASTER (DISASTER EVENT) OR ANY WARRANTIES AS TO THE PREVENTION OF DEATH OR ANY LOSS, HARM OR INJURY TO ANY PERSON IN A DISASTER EVENT.
(a) To the fullest extent permitted by law, under no circumstances, shall BBCA or BBCA’s Related Body Corporate be liable for any direct, indirect, incidental or consequential Loss whatsoever arising from the provision of the FORTIS Resources to you.
(b) For the avoidance of doubt, BBCA or any of BBCA’s Related Body Corporate will not be liable for any Loss, death or personal injury arising from a Disaster Event.
9.1 Licensee’s Indemnity
You agree to hold harmless and indemnify BBCA, its Related Body Corporates and any of their personnel (those indemnified), and will hold them harmless from and against, all Loss and any other liability that those indemnified may pay, suffers or incur, directly or indirectly, in connection with your use of the FORTIS Resources.
9.2 Third-party claims
Each Party agrees to:
(a) promptly notify the other party of the existence of any third-party claim(s) relevant to this Agreement in writing;
(b) permit the other party to defend, compromise or settle such claim in its discretion and to have the exclusive conduct of such proceedings using counsel of its own choice; and
(c) provide all available information, assistance and authority reasonably required to enable the other party to take such action as it considers necessary.
10.1 Termination for breach
(a) BBCA may terminate this Agreement with immediate effect by giving written notice to you if you:
(i) commit a material breach that is not capable of remedy;
(ii) commit a material breach and fail to remedy that breach within 30 days after receiving written notice requiring you to do so by BBCA; or
(iii) are in breach of clauses 4, 5 and/or 6.
(b) Any termination of this Agreement under clause 10.1 is without prejudice to the rights of BBCA to seek and obtain damages for any breach of this Agreement by you.
10.2 Obligations upon termination
(a) Upon termination or expiry of this Agreement you will:
(i) cease all use of the FORTIS Resources;
(ii) return the FORTIS Resources to BBCA or, at the direction of BBCA, destroy any copies of the FORTIS Resources; and
(iii) return all Confidential Information, or, at the direction of BBCA, will erase and destroy any copies of the Confidential Information in your possession or under your control.
(b) Where construction is already in progress, you may, at BBCA’s discretion, continue using the FORTIS Resources for the sole purpose of completing Your Project that is already in progress.
(c) You acknowledge that your failure to cease use of the FORTIS Resources after the expiry or termination of this Agreement will result in immediate and irredeemable damage to BBCA. You acknowledge that there is no adequate remedy at law for such a failure to cease use of the FORTIS Resources, and consequently, you agree that in the event of such failure, BBCA shall be entitled to equitable relief by way of temporary or permanent injunctions and such other further relief as any court with jurisdiction may deem just and proper and in such circumstances.
11 Limitation on assignment
(a) You must not assign all or any of your rights given to you under this Agreement without the prior written consent of BBCA, which BBCA may grant or not in its absolute discretion.
(b) BBCA may at its discretion assign all or any of its rights under this Agreement.
12 General provisions
This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one Agreement.
12.2 No waiver
Failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy.
If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
Except as otherwise provided in this Agreement, the provisions of this Agreement may not be varied except by agreement in writing signed by both parties.
12.5 Dispute Resolution
Before having recourse to litigation, any dispute or difference arising in connection with this Agreement shall be resolved by negotiation between the parties. If the dispute is not resolved within 30 days of written notice of the dispute to the other party, or such longer time as agreed between the parties, the dispute must be submitted to mediation administered by the Australian Disputes Centre (ADC), to be conducted in accordance with the ADC Guidelines for Commercial Mediation in force at that time.
The parties agree that clauses 4, 5, 6, 7, 8, and 9 survive termination of this Agreement.
12.7 Relationship between parties
Nothing in this Agreement constitutes a partnership or joint venture between the parties, nor will either party be deemed to be an agent or employee of the other party as a result of this Agreement.
12.8 Governing Law
The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability) and any non-contractual obligations arising out of or in connection with it, will be governed by and construed in accordance with the laws of Victoria, Australia.
12.9 Entire agreement
This agreement constitutes the entire agreement of the parties in respect of the matters dealt with in this agreement and supersedes all prior agreements, understandings, undertakings and negotiations in respect of the matters dealt with in this agreement.
13 Definitions and interpretation
In this agreement, the following definitions apply:
(a) Download Date means the date that you first downloaded the FORTIS Resources from BBCA’s website.
(b) Force Majeure Event means any event or cause which is beyond the reasonable control of either party including, without limitation, fires, floods, earthquakes, storms and other disturbances caused by the elements, epidemic, pandemic, strikes, lockouts, riots, explosions, governmental action, acts of terrorism, insurrection, and war, the occurrence of any of which could not reasonably have been foreseen and guarded against by either party and which prevents or impedes performance under this Agreement.
(c) FORTIS House means the house detailed in the FORTIS Resources.
(d) FORTIS Resources means the FORTIS House™ architectural drawing plans for the construction of the FORTIS House, the FORTIS House design renders (images) and the FORTIS House handbooks, and as may be updated from time to time.
(e) Intellectual Property Rights means the unregistered and registered intellectual property rights of whatever nature throughout the world including, but not limited to copyright, designs, domain names, trade names, trade marks (whether registered or unregistered), image rights, publicity rights, moral rights, performer rights, trade secrets, know-how, patents, whether pending or granted, and any applications and/or rights to apply for the same.
(f) Loss means any and all liabilities, payments, expenses, obligations, damages, claims, deficiencies, penalties, taxes, levies, actions, judgments, settlements, legal fees, accountant fees or disbursements incurred or suffered with respect to the act, omission or fact or circumstance with respect to which such term is used.
(g) Term means the period of time required to complete Your Project. For the avoidance of doubt, the Term ends at the completion of Your Project.
(h) Your Project means the one time and one time only construction of a single site residential dwelling.
In this Agreement:
(a) a reference to a statute or a section of a statute includes all amendments to that statute or section passed in substitution for the statute or section referred to and incorporating any of its provisions;
(b) “related body corporate” has the meaning defined in the Corporations Act 2001 (Cth);
(c) a provision must not be interpreted adversely to a party only because that party was responsible for preparing it;
(d) headings are for convenience only and do not affect its interpretation;
(e) references to a person or words denoting a person includes a Licensor, statutory corporation, partnership, joint venture and association, and includes that person’s legal personal representatives, executors, administrators, successors and permitted assigns;
(f) every obligation entered into by two or more parties binds them jointly and each of them severally;
(g) where any word or phrase is defined, any other grammatical form of that word or phrase will have a corresponding meaning;
(h) “includes”, “including” and similar expressions are not words of limitation; and
(i) reference to any agreement or other document annexed to or referred to in this agreement includes:
(A) any amendments to the agreement; and
(B) any documents in addition to or in substitution for the agreement which has been approved in writing by the parties to this agreement.