Open Licence Agreement

Background

SSRB is the Intellectual Property Rights holder of various items of Foundation Material.
SSRB acts as the Custodian of the Foundation Material and is responsible for granting licences to You to enable You to use and adapt the Foundation Material.
You are permitted to use and adapt that Foundation Material on the terms of this Agreement.
Any licence that You may grant to any person to adapt or modify Your adaptation of the Foundation Material will be on the terms of this Agreement.
BY ACCESSING THE FOUNDATION MATERIAL YOU AGREE THAT YOUR USE OF THAT FOUNDATION MATERIAL IS GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

OPERATIVE PROVISIONS

1. Definitions

In this Agreement:

Acts means the Trade Practices Act 1974 (Cth) and other consumer protection legislation in force from time to time;

Agreement means this agreement including (if any) the recitals, schedules and annexures;

Claim means any demand, claim, suit, action, liability or any other remedy actual, contingent or otherwise;

Contributor means each entity that creates or contributes to the creation of a Contributor Adaptation, but does not include any Owner or the Custodian;

Contributor Adaptation means any adaptation (including any translation, derivative, or amendment, or any incorporation into or combination with other material) of the structure or substance of either the Foundation Material or any previous Contributor Adaptation, in any form and in any media and includes any part thereof. For the Avoidance of doubt this includes any Modification;

Custodian means SSRB or such other party as may replace SSRB from time to time;

Distribute means to make available by any means and in any media and a reference to Distribution means the same;

Foundational Form means:

in relation to the Schema, Microsoft Word Format (.DOC);
in relation to the Guides the form in which the Guides are made available by the Custodian from time to time; and
any other permitted form as advised by the Custodian on the website located at www.ssrb.org or www.bestpracticemodelling.com from time to time.

Foundation Material means the Schema and Guides or any part of any of them. A reference to the Foundation Material of an Owner means those items of the Foundation Material that pertain to that Owner unless otherwise expressly stated;

Guide means the document entitled Best Practice Spreadsheet Modelling Standards, explaining the operation of the Schema, available at www.ssrb.org and any Modifications that may be made to them from time to time and which are incorporated into them by the Custodian;

Intellectual Property Rights means:

all rights under patent law, copyright law, trademark law, design patent or industrial design law, semi-conductor chip or mask work law, trade secret law, or any other statutory provision or common law principle applicable to any of the subject matter of this Agreement which may provide a right in either (i) ideas, formulae, algorithms, concepts, inventions, technologies, software, data compilations, drawings, specifications, confidential business information, procedures or know-how generally, including trade secrets or (ii) the expression or use of such ideas;
formulae, algorithms, concepts, inventions technologies, software, data compilations, drawings, specifications, confidential business information, procedures or know-how; and
all applications, registrations, licences, sub-licences, franchises, agreements or any other evidence of a right in any of the foregoing.

Loss means any loss, damage, cost or expense;

Modification means an amendment in the Foundational Form (including by addition, alteration, subtraction, re-ordering or reorganisation of material) to any of the Foundation Material;

Owner means the owner of the Intellectual Property Rights in Foundation Materials, being:

SSRB; and
any other person notified by SSRB to You from time to time.

Schema means the document entitled Best Practice Spreadsheet Modelling Standards available at www.ssrb.org;

SSRB means Spreadsheet Standards Review Board Ltd and its respective successors and permitted assigns;

Territory means the Commonwealth of Australia; and

You (or Your) means a natural person or any other entity exercising rights under this Agreement.

2. Licence

2.1. Licence by Custodian

Subject to the terms of this Agreement, the Custodian grants You a non-exclusive right to use, reproduce, edit, adapt, display and communicate its Foundation Material within the Territory for the purpose of making Contributor Adaptations.
You may sell, license and otherwise deal with such Contributor Adaptations within the Territory and subject to the terms of this Agreement.

2.2. Approved Software Packages

Notwithstanding the scope of the licence grant in clause 2.1(b), you must not, without the written consent of the Custodian, create, sell, licence or otherwise deal with a software package based upon the Foundation Material otherwise than for internal use within your business.

2.3. Licence by Contributors

Each Contributor who grants You any rights to adapt, amend, edit or alter in any way any Contributor Adaptation, grants You those rights on the terms of this Agreement.
A Contributor may impose other terms on You in relation to the licence of its Contributor Adaptation, but those rights must not in any way limit, modify, preclude or conflict with the terms of, or compliance with, this Agreement.

3. Modifications

3.1. Creation of Modifications

If You create or contribute to a Modification (whether or not as part of a larger Contributor Adaptation), then You must promptly deliver the Modification to the Custodian by sending it via email to proposals@ssrb.org.
If You create or contribute to a Contributor Adaptation which includes or produces material that could be translated, expressed, decoded or interpreted as a Modification, then regardless of the form, language, program or medium in which the Contributor Adaptation was created you must:
1. translate, express, decode or interpret that material into the Foundational Form to produce the Modification; and
2. promptly deliver the Modification to the Custodian in accordance with clause 3.1(a).
All Modifications delivered in accordance with this clause must contain or be accompanied by sufficient information to indicate the way in which the Modification functions in relation to, and connects with, the Foundation Material.

3.2. Ownership of Modifications

Upon its creation pursuant to clause 3.1(a) or 3.1(b), a Modification will be the Intellectual Property Rights of the Custodian and may be incorporated into the Foundation Material to which it relates at the discretion of the Custodian.
For the avoidance of doubt, You hereby irrevocably assign all rights, title and interest in all Modifications (including all future copyright by way of present assignment) throughout the world in perpetuity to the Custodian.
To the extent that You have any moral rights in any Modification You consent for the benefit of the Custodian, their licensees and assigns, to do those acts or omissions that may be necessary to enable the full enjoyment and exploitation of the Foundation Materials and in particular you consent to the modification, amendment, editing, display, publication and communication of the Modification in any way that the Custodian, its licensees and assigns see fit and to the omission of any attribution of You as an author of the Modification.
The Custodian is not obliged to use, exploit, display or in any way make public any Modification, and may elect not to incorporate any Modification into the Foundation Materials.

3.3. Licence Back of Modifications

For the avoidance of doubt, upon assignment of a Modification by You to the Custodian, the Custodian grants You a non-exclusive right, subject to the terms of this Agreement, to use, reproduce, edit, adapt, display and communicate the Modification within the Territory for the purpose of making Contributor Adaptations. This licence will be on the same terms as the licence of the Foundation Material, whether or not the Custodian elects to incorporate Your Modification into the Foundation Material.

4. Distribution Obligations

4.1. Application of this Agreement

You may only Distribute Foundation Material under the terms of this Agreement.
The Contributor Adaptations which You create or to which You contribute are governed by the terms of this Agreement. You may impose other terms in relation to the licence of those Contributor Adaptations, but those rights must not in any way limit, modify, preclude or conflict with the terms of, or compliance with, this Agreement.

4.2. Notice of this Agreement

Every copy of the Foundation Material and every copy of each Contributor Adaptation that You Distribute must be accompanied by a copy of this Agreement in an identical form as this Agreement and must contain a notice stating that this Agreement applies to the Distributed copy.

4.3. No Representation of Endorsement etc

You must not make any representation, whether written or oral, that You have received accreditation from SSRB or that You are endorsed, recommended or sponsored by SSRB unless specifically authorised by SSRB.

4.4. Copyright and Authorisation Notices

Without limiting clause 4.2:

You must display the following notice in a prominent location on any Foundation Material that You publish or communicate to the public, "This document is a copy of the authorised version of the Best Practice Spreadsheet Modelling Standards as at 15 May 2010. Please check www.ssrb.org for any updates to this document. This document is subject to an Open Licence available at www.ssrb.org and all copyright in this document and any derivation of this document is owned by the Spreadsheet Standards Review Board".
You must display the following notice in a prominent location on any Modification of the Foundation Material that you publish or communicate for you internal business purposes or to the public, "This document is based upon the Best Practice Spreadsheet Modelling Standards as at 15 May 2010, and contains modifications NOT AUTHORISED BY the Spreadsheet Standards Review Board. This document is subject to an Open Licence available at www.ssrb.org and all copyright in this document and any derivation of this document is owned by the Spreadsheet Standards Review Board".

5. Warranties and Liability

5.1. Warranty

Each Contributor warrants and represents that:

the Contributor Adaptations that it creates or to which it contributes are its own original creations and do not and will not infringe the Intellectual Property Rights of any person; and
Contributor has sufficient capacity, rights and authority to grant the rights conveyed under this Agreement.

5.2. Indemnity

Contributor will fully indemnify each of the Owners and the Custodian in respect of all Loss arising out of any Claim by any person alleging that a Contributor Adaptation created or contributed to by that Contributor infringes any Intellectual Property Rights.
Contributor will not be required to indemnify an Owner under clause 5.2(a) to the extent that the alleged infringement arises out of the Owner?s use of any part of that Owner?s Foundation Material other than a Modification created or contributed to by that Contributor.

5.3. Acknowledgment and Exclusion of Warranties

The Foundation Material is provided to You as a 'work in progress' and as such You acknowledge that it may contain deficiencies. Due to the developing and experimental nature of the Foundation Material, You are required to make Your own investigations regarding the condition, accuracy, suitability, quality or fitness for any purpose of the Foundation Material. Neither the Owners nor the Custodian gives any express warranties in this regard, and to the fullest extent permitted by law each of them negates and excludes all such conditions, warranties and representations that may be implied.
You acknowledge that You have not relied on any representation of any of the Owners or the Custodian regarding the condition and suitability of the Foundation Material for Your purposes, but have satisfied Yourself in this regard.

5.4. Liability

The Owners' or the Custodian's liability to You for any proven Loss or Claim arising directly or indirectly out of this Agreement, whether under statute, common law (including negligence) or otherwise will be limited to the following extent:

Notwithstanding any other provision of this Agreement, neither the Owners nor the Custodian will be liable for any direct or indirect lost profit or revenue, exemplary damages, deletion or corruption of electronically or digitally stored information, or without limiting the foregoing, any indirect or consequential loss or damage howsoever described or claimed.
The total liability of all Owners and the Custodian will be limited to $20 for an aggregate of all Losses and Claims.

5.5. Breach of Implied Warranty

Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy which is conferred on You by the Acts. If an Owner or the Custodian breaches a condition or warranty which has been implied by the Acts in relation to the supply of goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption, its liability for breach will be limited to (where permissible by the Acts):

In the case of the supply of goods: the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
in the case of the provision of services: the supplying of the services again, or the payment of the cost of having the services supplied again,

whichever the Owner or the Custodian sees fit to provide.

5.6. Intellectual Property Claims

As soon as is practicable You must notify the Custodian of that Foundation Material in writing of the Claim.
You must permit the Custodian to modify, alter or substitute the infringing part of the Foundation Material at its own expense in order to avoid continuing infringement, or authorise the Custodian to procure for You the authority to continue the use and possession of the infringing Foundation Material.

5.7. Contribution

A party's liability under this Agreement will be reduced in proportion to the extent that the events giving rise to that liability are attributable to any act or omission of the other party, and the other party will assume liability in that proportion.

6. Termination

6.1. Termination for Breach

This Agreement and all rights granted to you under it will terminate automatically if You fail to comply with any of the terms and conditions contained herein, and fail to cure the breach within 14 days of becoming aware of it. Any licence of Contributor Adaptations that You have properly granted in accordance with this Agreement will survive termination of this Agreement.
Upon termination of this Agreement You must immediately forward all Modifications to the Custodian in accordance with clause 3.1.

6.2. Obligations Survive Termination

Clauses 3, 5 and 7 survive termination of this Agreement.

7. General

7.1. Interpretation

In this Agreement, unless the context requires otherwise:

the singular includes the plural and vice versa;
a gender includes the other genders;
the headings are used for convenience only and do not affect the interpretation of this Agreement;
a reference to a document includes the document as modified from time to time and any document replacing it;
the word 'person' includes a natural person and any body or entity whether incorporated or not;
the word 'month' means calendar month and the word 'year' means 12 months;
the words 'in writing' include any communication sent by letter, facsimile transmission or email;
a reference to any statute, proclamation, rule, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, regulation or ordinance replacing it. A reference to a specified section, clause, paragraph, schedule or item of any statute, proclamation, rule, regulation or ordinance means a reference to the equivalent section of the statute, proclamation, rule, regulation or ordinance which is for the time being in force;
wherever 'include' or any form of that word is used it must be construed as if it were followed by '(without being limited to)';
money amounts are stated in Australian currency unless otherwise specified; and
a reference to any agency or body, if that agency or body ceases to exist or is reconstituted renamed or replaced or has its powers or functions removed ('defunct body'), means the agency or body which performs most closely the functions of the defunct body.

7.2. Nature of Obligations

Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them individually.
Each obligation imposed on a party by this Agreement in favour of another is a separate obligation.

7.3. Entire Understanding

This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications between the parties.
Each party acknowledges that, except as expressly stated in this Agreement, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to the subject matter of this Agreement.

7.4. No Waiver

A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement. A waiver of a breach does not operate as a waiver of any other breach.

7.5. Severability

If any provision of this Agreement offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:

where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
in any other case the offending provision must be severed from this Agreement in which event the remaining provisions of the Agreement operate as if the severed provision had not been included.

7.6. Successors and Assigns

This Agreement binds and benefits the parties and their respective successors and permitted assigns.

7.7. No Variation

This Agreement cannot be amended or varied except in writing signed by the parties.

7.8. Costs

Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.

7.9. Costs

If this Agreement consists of a number of counterparts, each is an original and all of the counterparts together constitute the same document.

7.10. Conflicting Provisions

If there is any conflict between the main body of this Agreement and any schedules or annexures comprising it, then the provisions of the main body of this Agreement prevail.

7.11. Notices

Any notice or other communication to or by a party to this Agreement:

may be given by personal service, post or facsimile;
must be in writing, legible and in English;
that is from You to SSRB must be addressed as follows:
Address: Level 8, 330 Collins Street, Melbourne, Victoria, Australia 3000

Attention: Chairman
or to any other address notified by the SSRB;
in the case of a corporation, must be signed by an officer or under the common seal of the sender;
is deemed to be given by the sender and received by the addressee:
1. if delivered in person, when delivered to the addressee;
2. if posted, 2 business days (or 6, if addressed outside Australia) after the date of posting to the addressee whether delivered or not; or
3. if sent by facsimile transmission, on the date shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form to the facsimile number of the addressee notified for the purposes of this clause,

but if the delivery or receipt is on a day which is not a business day or is after 4.00 pm (addressee's time) it is deemed to have been received at 9.00 am on the next business day.

7.12. Non Merger

A term or condition of, or act done in connection with, this Agreement does not operate as a merger of any of the rights or remedies of the parties under this Agreement and those rights and remedies continue unchanged. Each term of this Agreement that has not been carried into effect at the termination of this Agreement survives the termination.

7.13. No Adverse Construction

This Agreement is not to be construed to the disadvantage of a party because that party was responsible for its preparation.

7.14. Further Assurances

A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents which are reasonably necessary to give full effect to this Agreement including, in Your case, the execution of any assignment of copyright.

7.15. Consents and Approvals

Where anything depends on the consent or approval of a party, then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that party.

7.16. Governing Law and Jurisdiction

This Agreement is governed by and must be construed in accordance with the laws of the State of Victoria. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters or things arising out of this Agreement.

7.17. No Partnership, etc

Nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary.