YMCA Australia
ABN: 45 004 076 297
Trading Address: 88 Market St,
South Melbourne 3205
Victoria, AUSTRALIA
Phone: (03)9699-7655
Fax: (03) 9699-2365
Email: heartmoves@ymca.org.au
www.heartmoves.org.au
Heartmoves Host Licence Agreement
National Council of YMCA’s of Australia trading as YMCA
Australia (ABN 45 004 076 297)
and
Insert Name & ABN of Licensee
Heartmoves Host Licence Agreement
Date Click here to type
Parties
National Council of YMCA’s of Australia trading as YMCA Australia (ABN 45 004076297) of
88 Market Street, South Melbourne VIC 3205 (“YMCA”)
and
Party specified in the Schedule
("Host")
BACKGROUND
A
The Heart Foundation and YMCA have devised a fitness program for individuals with stable
chronic medical conditions including heart disease, diabetes, arthritis, hypertension and obesity.
This program is known as ‘Heartmoves’.
B
The Host wishes to host classes for the Heartmoves Program.
C
The YMCA wishes to license the Heartmoves Program and materials to the Host.
OPERATIVE PROVISIONS
1
Interpretation
1.1
In this Agreement, unless the context otherwise requires:
Agreement means this agreement, its annexures and schedules as amended from time to
time.
Business Day means any day a bank is open for business excluding weekends, bank and public
holidays.
Commencement Date means the commencement date of the Licence, being the date on which
this Agreement is signed unless the parties have specified an alternate date in the schedule.
Form means the form entitled Direct Debit Authority Form attached as Annexure A.
GST means the tax imposed or assessed by the GST Act and its related legislation and includes
any similar or substitute impost introduced in the future and, where used in the context of GST,
the phrases "consideration", "input tax credit" and "taxable supply" have the respective
meanings given to those terms by the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999.
YMCA Privacy Policy means the privacy policy developed and maintained by the YMCA,
as amended from time to time, found at www.ymca.org.au
Heartmoves Program means the moderate intensity physical activity program
specifically developed for people with lifestyle risk factors or with existing stable chronic
conditions such as heart disease, diabetes, obesity and arthritis known as “Heartmoves”.
Heartmoves Trainer means a person who has undergone Heartmoves Training and who
continues to hold a valid Heartmoves Training Certificate and continues to be accredited to
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teach the Heartmoves Program.
Heartmoves Training means the course developed and run by the YMCA known as the
“Heartmoves Short Course for Exercise Professionals”.
Heartmoves Training Certificate means the certificate that is issued to a person who
successfully completes the Heartmoves Training.
Heartmoves Website means the website created, owned and administered by the YMCA
located at www.heartmoves.org.au .
Immediately Available Funds means cash, bank cheque, telegraphic or other electronic
transfer of cleared funds into the bank account nominated in writing by a recipient.
Intellectual Property means all forms of intellectual property throughout the world including
patents, petty patents, innovation patents, patentable inventions, know-how, trademarks
(whether registered or unregistered), copyright, registered and registrable designs, circuit layout
rights, applications for registration of any of the foregoing and rights to apply for registration of
any of the foregoing.
Insolvency Event means if the Host enters into bankruptcy, provisional liquidation, liquidation,
receivership, receiver and managership, voluntary administration or if a "controller" (as defined
in the Corporations Act 2001 (Cth)) is appointed to the Host or if a mortgagee takes possession
of any assets of the Host whether by itself or by an agent or if the Host ceases to trade or is
unable to pay its debts as they fall due or if the Host makes a compromise with its creditors or
enters into a scheme of arrangement.
Licence means the licence granted by the YMCA to the Host under this Agreement.
Licence Fee means the annual fee of $500.00 exclusive of GST (or other amount as displayed
on the Heartmoves Website or otherwise published by the YMCA from time to time) owed by
the Host to the YMCA for the Licence.
Location means the location of the Host listed in the schedule.
Materials means the materials relating to the Heartmoves Program created by the YMCA
including the materials listed in the schedule and any promotional material, available in
downloadable form from the “members only” area of the Heartmoves Website.
Term means the term specified in clause 4.1.
Trade Marks means the registered “Heartmoves” trade marks (numbers 831584 and
831585) for the Heartmoves Program.
Website Locator System means the “Locate a Centre” program available on the
Heartmoves Website that enables persons to search a map of Australia to find persons
and centres that hold Heartmoves Program classes.
1.2
1.3
Reference in this Agreement to:
(a)
a party includes that party's successors and permitted assigns;
(b)
a person includes a corporation, a body corporate and an unincorporated
association and vice versa;
(c)
any gender includes a reference to all other genders;
(d)
the singular includes the plural and vice versa.
Every phrase, sentence, paragraph and clause in this Agreement is severable the one from
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the other and if any phrase, sentence, paragraph or clause is found to be defective or
unenforceable for any reason whatsoever the remaining phrases, sentences, paragraphs or
clauses are of full force and effect.
1.4
Any indemnity given by a party under this Agreement:
(a)
is not the exclusive remedy of the party holding the benefit of the indemnity, which
party may at its option, in addition or in the alternative, pursue other remedies under
this Agreement, at common law, in equity or under statute;
(b)
is a continuing indemnity;
(c)
will not be affected by any matter including without limitation, the termination, renewal
or extension of this Agreement or any indulgence, waiver or other concession given by
a party unless the party benefiting from the indemnity agrees in writing; and
(d)
includes legal costs and disbursements on a full indemnity basis.
2
Relationship
2.1
The parties are independent contractors. The Host is not the agent or partner of the YMCA and
this Agreement is not intended to create any other relationship by which the YMCA can be
jointly liable or vicariously liable for the acts or omissions of the Host.
2.2
The Host must not make any representation to any third party that is contrary to the preceding
sub-clause, whether direct or implied.
2.3
The Host must procure that its employees, agents and sub-contractors do not represent
themselves as employees, agents or partners of the YMCA.
3
Grant of Licence
3.1
The YMCA grants the Host a non-exclusive revocable licence to use the Intellectual Property in
the Heartmoves Program, the Materials and the Trade Marks in Australia for the Term.
3.2
The Licence granted under clause 3.1 confers on the Host the right, and is limited, during the
Term, to:
(a)
3.3
at the Location/s:
(i)
teach classes of the Heartmoves Program; and
(ii)
promote itself as a provider of Heartmoves Program classes;
(b)
access and use the materials in accordance with this Agreement;
(c)
access the Heartmoves Website;
(d)
reproduce and distribute copies of the Materials for the sole purpose of performing the
Host’s obligations under the Agreement, hosting classes of the Heartmoves Program
and promoting the Heartmoves Program; and
(e)
be listed on the Website Locator System in accordance with the provisions of clause
10.
For the avoidance of doubt, the Licence is:
(a)
non-exclusive to the Host and the YMCA may license the Heartmoves
Program to others;
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(b)
limited to the Location/s specified in the Schedule. If the Host wishes to host the
Heartmoves Program at any other location/s the host must seek prior written approval
from YMCA and an additional fee may be incurred. The Host must pay an additional fee
for any additional locations and obtain an additional and separate licence for such
additional locations; and
(c)
not sub-licensable or assignable as provided in clause 13.
4
Licence Fee and Term
4.1
The Licence commences on the Commencement Date as per the Schedule and is continuous
unless terminated earlier under clause 18 or clause 19.
4.2
The Host must pay the Licence Fee for the Term either:
4.3
(a)
as one lump sum, in accordance with clause 5; or
(b)
in monthly instalments, in accordance with clauses 6 and 7.
The YMCA retains the right, in its complete discretion, to:
(a)
increase the Licence Fee at any time and from time to time;
(b)
discontinue the Heartmoves Program and terminate the Licence at any time by
giving written notice to the Host in accordance with clause 19 ;
(c)
terminate the Licence at any time by giving the Host written notice if the Host has
committed any breach of this Agreement; and
(d)
assign this Agreement to any new owner of the Heartmoves program by giving 30
days’ written notice to the Host. Where such notice is given the Host shall have 30
days from the receipt of such notice to terminate the Agreement and receive a prorata refund of Licence Fees paid.
5
Licence Fee Payment – Lump Sum Option
5.1
If the Host wishes to pay the Licence Fee for the Term as one lump sum, the Host must pay
the Licence Fee to the YMCA in Immediately Available Funds on or before the
Commencement Date of this Agreement. The value of all Lump Sum payments will be
calculated pro rata of the annual fee to Dec 31st each year. On Jan 1st each year, a full 12
month renewal notice will be issued to the Host.
5.2
Prior to the expiry of the Initial Pro Rata term, an invoice for a further 12 month period will be
sent by the YMCA to the Host. If the Host wishes to renew the Licence for a further period of
12 months and pay the applicable Licence Fee as a lump sum, it must pay the applicable
Licence Fee to the YMCA no later than fourteen days prior to the expiry of the then current
term.
5.3
If the Host has paid the Licence Fee in accordance with clause 5.2 the Host may continue to
renew the Licence term provided that the Licence term may only be extended by a period of
12 months on each occasion.
5.4
If the Host cancels the Licence in accordance with clause 19.2, the Host is not entitled to a
refund of all or any part of any Licence Fee paid to the YMCA.
6
Licence Fee Payment – Monthly Payment Option
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6.1
If the Host wishes to pay the Licence Fee for the Term by monthly instalments, the provisions
of this clause 6 apply.
6.2
The Host must:
(a)
pay the Licence Fee to the YMCA in equal monthly instalments, one month in
advance by way of direct debit;
(b)
complete the Direct Debit Form in accordance with clause 7 and provide it to the
YMCA on or before the Commencement Date of this Agreement; and
(c)
ensure the total of the monthly instalments equals the amount of the Licence
Fee.
6.3
The Host may terminate the Licence at any time by providing the YMCA with 30 days
written notice of its intention to terminate the Licence.
6.4
On termination of the Licence in accordance with clause 6.3, the Host will not be entitled
to receive a refund of all or part of any Licence Fee paid to the YMCA.
7
Form
7.1
By completing the Form, the Host agrees:
7.2
7.3
7.4
7.5
(a)
that the YMCA may debit the amount of the monthly instalment of the Licence Fee from
the bank account nominated by the Host on the Form, (the Nominated Account)
between the 15th and 20th day of each month; and
(b)
that if the date of the Direct Debit falls on a day that is not a Business Day, then the
YMCA will debit the Nominated Account on the nearest Business Day.
The Host must:
(a)
ensure that cleared funds are available to allow the YMCA to debit the applicable
instalment of the Licence Fee from the Nominated Account in accordance with clause
7.1; and
(b)
verify, each month, that the amount debited from the Nominated Account is correct,
and notify the YMCA immediately if the Host considers an incorrect amount has been
debited from the Nominated Account.
If cleared funds are not available in the Nominated Account, the Host must:
(a)
provide the details of another bank account to the YMCA in time for the direct debit to be
withdrawn in accordance with clause 7.1; and
(b)
pay any fees and charges that the YMCA incurs as a result of the cleared funds not
being available to the YMCA to debit from the Nominated Account.
If the Host wishes to change the details of its Nominated Account, the Host must:
(i)
notify the YMCA in writing of its new bank account details; and
(b)
ensure that this change of Nominated Account does not disrupt the payment of the
Licence Fee, which must be paid in accordance with clauses 6 and 7.1.
The YMCA agrees that bank account details disclosed by the Host for the purpose of
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completing the Form are confidential.
8
General Obligations of Host
8.1
The Host must ensure that the Heartmoves Program is taught only by Heartmoves Trainers.
The Host acknowledges that its compliance with this clause is essential if the risk of injury and
illness to Heartmoves Program participants is to be managed.
8.2
The Host must ensure that all of its Heartmoves Trainers hold a valid Heartmoves Training
Certificate for the Term. The Host must ensure that every two years all of its Heartmoves
Trainers satisfactorily complete a re-accreditation course provided (or approved) by YMCA.
8.3
The Host must not allow Heartmoves Program classes to be taught otherwise than at the
Location/s list in the Schdule, or license or permit anyone to do so.
8.4
The Host must not, and must procure that its employees, agents and contractors do not make
any false, misleading or deceptive statements with respect to the YMCA or the Heartmoves
Program or otherwise by conduct, publication, statement or representation bring YMCA or the
Heartmoves Program into disrepute.
8.5
If the Host becomes aware of any Heartmoves Program classes or other activity involving
the materials that is contrary to this Agreement it must inform the YMCA by notice in writing
as soon as possible.
8.6
The Host must ensure that all of its Heartmoves Trainers act reasonably and professionally
with due care and skill and in accordance with industry best practice, and comply with the
Materials and all guidelines and directions issued from time to time by the YMCA.
8.7
The Host must ensure that all Heartmoves Trainers at the host location/s abide by the
following:
(a) Have current CPR/ First Aid qualifications
(b) Participate in Heartmoves reaccreditation courses every 2 years
(c)
Registered to a peak body.
8.8
The Host must adhere to the Risk Management Policies per that state.
8.9
The Host must not, and must ensure that its employees, agents, and contractors do not,
reproduce, communicate, use or otherwise exploit the Intellectual Property in the
Heartmoves Program, the Materials or the Trade Marks except to the extent strictly
consistent with the terms of this Agreement.
8.10
If the Host becomes aware of any threatened or actual unauthorised use or misuse of any
Intellectual Property in the Heartmoves Program, the Materials or the Trade Marks, the Host
must immediately (and in any event within 2 days of so becoming aware) notify YMCA in
writing of the possible infringement or infringement including all of the facts in detail.
9
General YMCA Obligations
9.1
The YMCA undertakes to provide the Host with:
(a)
access to the materials;
(b)
access to the Heartmoves Website; and
(c)
information about and access to re-accreditation courses for Heartmoves Trainers.
10
YMCA Website Locator System
10.1
While the Host holds a Licence, the Host is eligible to have its name, contact number, address,
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email address and website details (Details) listed on the Website Locator System.
10.2
If the Host wishes its Details to be included on the Website Locator System, the Host must
forward these Details in writing to the YMCA.
10.3
The Host warrants that all Details provided in accordance with clause 10.2:
10.4
(a)
are accurate; and
(b)
do not infringe the Intellectual Property rights of the YMCA or any third party.
If, at any time:
(a)
the Host ceases to hold a Licence;
(b)
the Host does not pay the Licence Fee;
(c)
the Details provided are inaccurate and are not amended in accordance with clause
10.5; or
(d)
any Intellectual Property rights of the YMCA or any other third party are infringed,
the YMCA may immediately remove the Details from the Website Locator System.
10.5
The Host must inform the YMCA, as soon as practicable if:
(a)
there are any changes to the Details; or
(b)
if the Host identifies a mistake in its Details,
and the YMCA will amend such Details within a reasonable period of time.
11
Privacy
11.1
The Host agrees that when collecting personal information (as defined in the Privacy Act 1988
(Cth)) from participants it will comply with the YMCA’s Privacy Policy.
12
Warranties
12.1
The Host warrants that it:
(a)
has full power and authority to enter into and perform its obligations under this
Agreement;
(b)
has all necessary licences and permits to operate as a fitness centre in the state (or
territory) of the Location; and
(c)
has not suffered and is not subject to or threatened by an Insolvency Event.
13
No Sub-licensing or relicensing
13.1
The Host may not novate, transfer, assign or sub-licence all or any of its rights to the Licence,
nor purport to do so, without obtaining the prior written consent of the YMCA.
13.2
The Host may not sub-licence any other entity, the Licence is provided for the sole use of the
Host at the Location/s.
14
Intellectual Property
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14.1
The Host acknowledges and agrees that the Heartmoves Program and Materials and the
Intellectual Property therein are the sole property of the YMCA and the Trade Marks are the
property of the Heart Foundation and nothing in this Agreement creates or implies the transfer of
any Intellectual Property from the YMCA to the Host, or any other third party.
14.2
The Host must not use the name of the YMCA or Trade Mark without the prior written consent
of the YMCA, which may be given or withheld in its absolute discretion.
14.3
If the Host uses the Trade Mark with the permission of the YMCA:
14.4
(a)
it must comply with any directions or guidelines which the YMCA may issue; and
(b)
it may do so only for the purpose of hosting Heartmoves Program classes and
promoting the Heartmoves Program. Use of the Trade Mark for another purpose, or to
promote goods or services unrelated to the Heartmoves Program will be deemed a
breach of this Agreement.
The Host acknowledges and agrees that:
(a)
any and all Intellectual Property created in the Heartmoves Program or the Materials
during the Term automatically vests in, and is owned by, YMCA and the Host must do
all things necessary including but not limited to signing any document necessary to give
effect to this clause;
(b)
the Host will not, and must ensure that its employees, agents and contractors do not,
directly or indirectly challenge, contest or deny the validity or ownership of any of the
Intellectual Property in the Heartmoves Program, Materials or Trade Marks or cause or
permit anything to be done which may damage or endanger YMCA’s ownership of the
Intellectual Property in the Heartmoves Program or Materials or YMCA’s licence to the
Trade Marks.
15
Insurance
15.1
The Host must have and maintain throughout the term of the Licence, insurance provided
by a reputable insurer with a minimum credit rating of A- up to the levels of:
(a)
$20 million for public liability insurance; and
(b)
$10 million for professional indemnity insurance.
15.2
The Host must, on reasonable request of the YMCA provide certificates of currency of all such
policies and must advise the YMCA in writing if at any time it does not hold insurance as required
by this clause 15.
16
Indemnity
16.1
The Host agrees to indemnify and keep the YMCA indemnified against all loss, including but not
limited to:
(a)
any liability for damages or any other remedy; or
(b)
legal costs and disbursements in responding to, defending or otherwise handling
any claim by a third party;
arising directly or indirectly from the Host’s, or any of its employees, agents or contractors’:
(i)
breach of this Agreement;
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(ii)
negligence or other tort;
(iii)
criminal, reckless or wilful act or omission; or
(iv)
breach of statutory duty,
and whether such claim is for personal injury or death, damage to reputation, damage to or loss
of property, financial loss, loss of money or consequential loss, lost profit or lost opportunity, or
any other form of loss.
17
Limitation of Liability
17.1
Nothing in this agreement is or should be interpreted as an attempt to modify, limit or exclude
terms or warranties which are imposed by statute (including but not limited to the Competition
and Consumer Act 2010 (Cth)) and which cannot be modified, limited or excluded.
17.2
Subject to clause 17.1:
(a)
the YMCA’s total aggregate liability under this Agreement for negligence or other tort,
breach of contract, or breach of a statutory duty (including a warranty implied into this
contract under Part 3-2 Division 1 of Schedule 2 of the Competition and Consumer Act
2010 (Cth)) shall be limited to the total amount of Licence Fees paid by the Host to the
YMCA under this Agreement; and
(b)
the YMCA is not liable for consequential, indirect or economic loss, loss of profit or
business opportunity.
18
Termination
18.1
The YMCA may terminate this Agreement immediately by giving the Host written notice if:
(a)
the Host suffers an Insolvency Event;
(b)
the Host commits a breach of this Agreement that is not, in the opinion of YMCA,
capable of rectification;
(c)
the Host commits a breach of this Agreement that, in the opinion of the YMCA, is
capable of rectification and the Host fails to rectify that breach within 14 days of the
date of a notice from the YMCA to the Host specifying the breach;
(d)
in the opinion of the YMCA, the Host or any of its personnel, agents or subcontractors
bring the YMCA or the Heartmoves Program into disrepute;
(e)
the Host permits Heartmoves Program classes to be taught by persons who are not
Heartmoves Trainers; or
(f)
the Host conducts Heartmoves Program classes in a manner that is, in the opinion of the
YMCA, an unacceptable risk to the health or safety of any person.
18.2
The YMCA may terminate this Agreement by giving the Host 7 days’ written notice.
18.3
The Host may terminate this Agreement by giving YMCA 30 days’ written notice.
18.4
Following Termination the Host must:
(a)
immediately cease all Heartmoves Program classes held at the Location/s; and
(b)
remove any Material in and around the Location/s from display;
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(c)
destroy or return to the YMCA any Material as soon as practicable; and
(d)
cease representing that Heartmoves Program classes are held at the
Location/s.
19
Discontinuance of the Heartmoves Program
19.1
The YMCA may, in its complete discretion, discontinue the Heartmoves Program at any time
by giving the Host 1 month’s written notice (Notice of Discontinuance).
19.2
Upon the discontinuance of the Heartmoves Program, the YMCA must reimburse the Host on
a pro-rata basis for the unused amount of the Licence Fee (calculated from the date of
discontinuance to the end of the Term).
19.3
If the YMCA discontinues the Heartmoves Program the Host agrees that 1 month after it
receives the Notice of Discontinuance it must:
(a)
cease all Heartmoves Program classes held at the Location/s;
(b)
return all unused Material to the YMCA; and
(c)
cease representing the Location/s as a place where Heartmoves Program
classes are held.
20
GST
20.1
All consideration provided for a supply under this Agreement is calculated exclusive of GST
unless the contrary is clear.
20.2
If an amount of consideration under this Agreement is calculated as compensation or
reimbursement for an expense, loss or liability of a supplier the consideration must be
calculated after excluding any amount for which the supplier is entitled to an input tax credit as
recipient of the item to which the expense, loss or liability relates.
20.3
A party shall not be obliged to make any payment for GST unless it is provided with a tax
invoice which complies with the GST Act.
20.4
For the purposes of this clause the following words “input tax credit”, “taxable supply” and
“consideration” have the same meaning as is given by the GST Act.
21
Notices
21.1
A notice given under this Agreement must be in writing and emailed or posted to the address
provided in clause 21.2. A notice delivered personally or via email will be deemed to have been
served in delivery. A notice posted shall be deemed to have been served on the day which is 1
business day after the date of posting. A notice serviced on a Saturday, Sunday or public
holiday in the place of delivery is deemed to be served on the next following business day.
21.2
To deliver or post a notice:
(a)
to the Host - it must be sent to the address listed in the Schedule; or
(b)
to the YMCA – it must be sent to:
Heartmoves,
YMCA Australia, 88 Market St South Melbourne, Victoria 3205
22
Entire Agreement
22.1
This document constitutes the entire agreement between the parties and no discussion or
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correspondence shall be binding unless incorporated in this document.
22.2
No variation of this Agreement shall be valid or binding unless it is in writing and signed by
both parties.
23
Further Assurances
23.1
Each party must take all steps, execute all documents and do everything reasonably required by
any other party to give effect to any of the transactions contemplated by this Agreement.
24
Governing Law
24.1
This Agreement is created, and shall be performed, interpreted and enforced in accordance
with the laws applicable in Victoria and the parties submit to the non-exclusive jurisdiction of
the Courts of that place.
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SCHEDULE
HOST
Host Name:
Click here to enter text.
Contact Person:
Click here to enter text.
Date of Birth:
Click here to add text
Position:
Click here to enter text.
Address:
Click here to enter text.
Email:
Click here to enter text.
Contact number:
Click here to enter text.
Location/s – Host Licences are able to hold Heartmoves at the host facility with one additional community
outreach program:
1. Name:
Click here to enter text.
Address:
Click here to enter text.
2. Name:
Click here to enter text.
Address:
Click here to enter text.
Commencement Date (if applicable):
Click here to enter text.
MATERIALS
1. Documents listed on and/or available for download from the “members only” area of the
Heartmoves Website; and
2. the “Heartmoves Short Course for Exercise Professional Training Manual” (provided only at
the Heartmoves Training).
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EXECUTED AS AN AGREEMENT:
Signed for and on behalf of The National
Council of YMCA’s of Australia trading as
YMCA Australia (ABN number is 45 004
076 297) by its authorised representative in the
presence of:
Signature of witness
Signature of authorised representative
Name of witness
(BLOCK LETTERS)
Name of authorised representative
(BLOCK LETTERS)
Address of witness
Date:
Signed for and on behalf of Other Party Name
ABN Other party ABN. by its authorised
representative in the presence of:
Signature of witness
Signature of authorised representative
Name of witness
(BLOCK LETTERS)
Name of authorised representative
(BLOCK LETTERS)
Address of witness
Date:
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