Guidance Note for clause 11. 3: To the extent permitted by law, this clause excludes any additional warranties, terms or conditions that may otherwise be implied by law into the Agreement. However some conditions, such as those implied by legislation, cannot be excluded by this clause. This may include warranties about goods and services under the Australian Consumer Law. Acknowledgements The Licensee acknowledges and agrees that except as expressly provided in this Agreement: the Licensor has not made, and does not by entering into this Agreement make, any representation or warranty, express or implied, that use of the Licensed IPR and its Commercialisation in accordance with the Licence does not infringe any third party's IPR; the Licensor does not make and has not made any representation or warranty in relation to whether any valid patent will be granted or granted with the Claims sought; the Licensee exercises the rights granted under this Agreement to the Licensed IPR at its own risk and will make its own inquiries to determine that its Commercialisation of the Licensed IPR and any Product based on the Licensed IPR will not infringe any third party's IPR; Guidance Note for clause 11.3(e): Clause 11.3(e) is a general obligation to act in 'good faith'. Failure by the Licensee to comply with this requirement is a material breach of the Agreement, entitling the Licensor to terminate the Licence. This obligation applies in addition to specific performance criteria or milestones. It requires consideration of the circumstances, rather than setting out specific criteria that must be met. If the parties are able to agree detailed and specific obligations that set out the Licensee's Commercialisation efforts exhaustively, it may be appropriate to also agree to remove this general obligation. to the full extent permitted by law, the Licensor has not made and excludes all warranties, terms, conditions or undertakings, whether express or implied, written or oral, statutory or otherwise (including any implied warranty of merchantability or of fitness for a particular purpose) for the Licensed IPR, Products or any other matter, including, without limitation, as to the suitability or safety of the Licensed IPR or the Products for use by third parties; and it will act in good faith in the exercise of the Licence to the Licensed IPR.
Guidance Note for clause 11. 1: This clause sets out the general representations and warranties that the parties make to each other with respect to entering into the Agreement. Warranties and liability
Guidance Note for clause 11. 3: To the extent permitted by law, this clause excludes any additional warranties, terms or conditions that may otherwise be implied by law into the Agreement. However some conditions, such as those implied by legislation, cannot be excluded by this clause. This may include warranties about goods and services under the Australian Consumer Law.
Guidance Note for clause 11. 4: Where Party A is liable to Party B under this Agreement, Party A's liability is reduced to the extent that Party B contributed to any loss it suffered. For example, Party B may have been negligent and contributed to its loss.
Guidance Note for clause 11. This clause limits the amount of financial exposure each party faces in the event a lawsuit is filed or another claim is made by the other party. The parties can agree to cap the total amount that a party may be liable to pay to the other party for loss suffered in relation to this Agreement. This cap should be set out in item 8 of the Details Schedule. Liability cap The aggregate liability of each party for loss suffered or incurred by the other party arising out of or in connection with this Agreement (including under an indemnity) however caused whether in tort (including negligence), contract, statute, equity or otherwise is, subject to clause 11.5(b), to the full extent permitted by law limited to the amount specified in item 8 of the Details Schedule. Guidance Note for clause 11.5(b): The liability cap specified in item 8 does not apply to the types of liability listed in this clause 11.5(b). This means that the liability of each party for these types of claims is unlimited. These types of liability are typically unlimited in commercial arrangements because it is difficult to quantify (for the purposes of determining a liability cap) the losses that can arise from such claims. Any limit on or exclusion of the liability of each party under clause 11.5(a) does not apply in relation to liability for: personal injury (including sickness or death); an infringement of Third Party IPR to the extent within the indemnity in clause 12.1; a breach of any obligation of confidentiality; or wilful default or fraud.
Guidance Note for clause 11. 3: This clause sets out the process to be undertaken in the unlikely event that a party becomes aware that any IPRs relevant to the Project are being infringed by a third party or a third party claims its IPRs are being infringed. Any potential or claimed infringements that a party becomes aware of must be reported to the other party and the parties will discuss and agree the steps, if any, to be taken. This clause survives the termination or expiry of the Agreement (see clause 24.12). Infringement and enforcement of IPR
(a) Each party must promptly notify the other party in writing if it becomes aware of:
(i) any actual, suspected or threatened infringement by a third party of the other party’s Pre-existing IPR, Confidential Information or IPR in the Project IP;
(ii) any claim by a third party that the carrying out of the Project infringes the IPR or other legal rights of that third party; or
(iii) any claim by a third party that the use of a party’s Pre-existing IPR, Confidential Information or Project IP infringes the IPR or other legal rights of the third party.
(b) Upon notification under clause 11.3(a), the parties will confer as to what steps, if any, are to be taken. Each party will cooperate in good faith to discuss and seek to agree the steps required to be taken.
(c) Nothing in this Agreement requires a party to obtain approval from the other party prior to taking action to defend an action by a third party against it, or except as identified in section 4 of Schedule 3, initiate infringement proceedings in respect of IPR owned by the party.
Guidance Note for clause 11. The registration and protection of IPR in the Project IP may include applying for patent or design registration, or taking legal action where someone has infringed the IPR. The parties can specify in section 4 of Schedule 3 whether the Licensee has the right to register or protect the IPR in the Project IP, and whether it can require the Owner to register or protect the IPR. The responsibilities of the parties to manage IPR are ongoing and continue to apply following the termination of this Agreement (and completion of the Project).
Guidance Note for clause 11. 2: This clause provides an initial position in relation to Commercialisation of IPR in Project IP that places obligations on the Owner of the Project IP. This approach is intended to balance the respective contributions of the parties to the Project, despite one party being the Owner of the Project IP. The University should be aware that where it owns the IPR in the Project IP, during the Commercialisation Option Period it will be prohibited from Commercialising the Project IP and, if requested by the Collaborator, the University must negotiate a reasonable commercial licence for the Collaborator to Commercialise the Project IP and any incorporated Pre-existing IPR. If the Collaborator is the Owner of the Project IP, the University may seek to negotiate a reasonable commercial licence to Commercialise the Project IP (and any incorporated Pre-existing IPR) following the expiry of the Commercialisation Option Period. If both parties consider that this approach is not appropriate for their particular Project, the parties can agree an alternative approach and specify it in item 10 of the Details Schedule. The parties acknowledge and agree that each party's Personnel:
(i) may develop knowledge and skills while performing the Project that may not form part of the IPR in the Project IP; and
(ii) may use such knowledge and skills for performing other projects.
Guidance Note for clause 11. 3: To the extent permitted by law, this clause excludes any additional warranties, terms or conditions that may otherwise be implied by law into the Agreement. However some conditions, such as those implied by legislation, cannot be excluded by this clause. This may include warranties about goods and services under the Australian Consumer Law. Acknowledgements The Licensee acknowledges and agrees that except as expressly provided in this Agreement:
(a) the Licensor has not made, and does not by entering into this Agreement make, any representation or warranty, express or implied, that use of the Licensed IPR and its Commercialisation in accordance with the Licence does not infringe any third party's IPR;
(b) the Licensor does not make and has not made any representation or warranty in relation to whether any valid patent will be granted or granted with the Claims sought;
(c) the Licensee exercises the rights granted under this Agreement to the Licensed IPR at its own risk and will make its own inquiries to determine that its Commercialisation of the Licensed IPR and any Product based on the Licensed IPR will not infringe any third party's IPR;
Guidance Note for clause 11. 3(e): Clause 11.3(e) is a general obligation to act in 'good faith'. Failure by the Licensee to comply with this requirement is a material breach of the Agreement, entitling the Licensor to terminate the Licence. This obligation applies in addition to specific performance criteria or milestones. It requires consideration of the circumstances, rather than setting out specific criteria that must be met. If the parties are able to agree detailed and specific obligations that set out the Licensee's Commercialisation efforts exhaustively, it may be appropriate to also agree to remove this general obligation. to the full extent permitted by law, the Licensor has not made and excludes all warranties, terms, conditions or undertakings, whether express or implied, written or oral, statutory or otherwise (including any implied warranty of merchantability or of fitness for a particular purpose) for the Licensed IPR, Products or any other matter, including, without limitation, as to the suitability or safety of the Licensed IPR or the Products for use by third parties; and
