Version 2.0, Effective From 22 December 2023
This webpage sets out the Canstar Blue Award Licence Terms & Conditions.
If you (“Client”) accept or pay a Canstar Blue Award Licence invoice that refers to this webpage or if Client uses a Canstar Blue Award Logo, then Client is signifying acceptance of these Canstar Blue Award Licence Terms & Conditions and enters into an agreement (“agreement”) with Canstar Blue Pty Limited (ABN 60 142 285 434) (“Canstar Blue”) as set out in these Canstar Blue Award Licence Terms & Conditions.
BACKGROUND:
A. Client is the recipient of a Canstar Blue Award given by Canstar Blue.
B. Client wishes to obtain a licence to use the Canstar Blue Trademarks as identified in the Canstar Blue Invoice.
1. DEFINITIONS AND INTERPRETATIONS
In this agreement, unless the context otherwise requires or the contrary intention appears, the following terms have the meanings respectively assigned to them below:
1.1. “agreement” means this agreement and any other documents incorporated by reference such as the relevant invoice;
1.2. “Award Taglines” means the words as shown in the invoice which must appear within the Canstar Blue Award Logo in the manner set out in the Canstar Blue Style Guide.
1.3. “Business Day” means a day on which banks are open for business in Brisbane, Queensland, and excluding Saturdays, Sundays and gazetted public holidays.
1.4. “Canstar Blue Award” means the award given by Canstar Blue in respect of the service or product, as set out in the invoice.
1.5. “Canstar Blue Award Logo” means an award conferred by Canstar Blue in respect of one or more services or products from time to time, currently denoted by the name of the award, award taglines (which denote the category of award), and the Canstar Blue logo. This may be varied by Canstar Blue from time to time, and is provided by Canstar Blue to the Client via email.
1.6. “Canstar Blue Name Mark” means the Canstar Blue Name Mark set out in the invoice.
1.7. “Canstar Blue Style Guide” means the Canstar Blue Style Guide available at the following link https://www.canstarblue.com.au/style-guide/ or as provided to Client by Canstar Blue from time to time.
1.8. “Canstar Blue Trademarks” means the Canstar Blue Award Logos and the Canstar Blue Name Mark, collectively or individually as the context requires.
1.9. “Canstar Blue Websites’ means websites owned or operated by Canstar Blue, and websites of a Canstar Blue distribution partner on whose website Canstar Blue is authorised to place advertisements.
1.10. “Category” means the category of goods and services identified in the invoice.
1.11. “Commencement Date” means the commencement date set out in the invoice.
1.12. “Common Law Rights” means the Canstar Blue corporate look and feel, including brand colour, fonts, layout and presentation.
1.13. “Consequential Loss” means:
(a) indirect, special, incidental, consequential, punitive damages or loss;
(b) loss of revenues;
(c) loss of reputation;
(d) loss of profits;
(e) lost opportunities, including opportunities to enter into arrangements with third parties; or
(f) loss or damage in connection with claims against a party by third parties.
1.14. “Fees” means the licence fees payable for the Licence Term, invoiced to Client in the relevant invoice.
1.15. “GST” means the Goods and Services Tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related Acts of the Commonwealth (“the GST Law”);
1.16. “Intellectual Property Rights” includes all present and future rights in relation to copyright, trade marks, designs, patents, trade, business names whether created before or after the date of this agreement and whether existing in Australia or otherwise.
1.17. “Licence Term” means the term of this agreement set out in the invoice.
1.18. “Tax Invoice” has the meaning given by the GST Law.
2. LICENCE TERM
2.1. Subject to clause 3, this licence for use of Canstar Blue Trademarks begins on the Commencement Date and continues for the Licence Term or until terminated sooner in accordance with the terms of this agreement.
3. FEES AND PAYMENT
3.1. Client will pay the Fees to Canstar Blue in advance for the Licence Term (unless otherwise described on the invoice).
3.2. Fees are exclusive of GST, unless expressly stated otherwise.
3.3. If the Client does not pay any Fees when due, Canstar Blue may immediately terminate the agreement and the Client must immediately cease to use the Canstar Blue Trademarks.
4. GST
4.1. Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as ‘GST inclusive’, does not include an amount on account of GST.
4.2. Despite any other provision in this agreement, if a party (‘Supplier’) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as ‘GST inclusive’):
(a) the consideration payable or to be provided for that supply under this agreement but for the application of this clause (‘GST exclusive consideration’) is increased by, and the recipient of the supply (‘Recipient’) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
(b) the amount by which the GST exclusive consideration is increased shall be paid to the Supplier by the Recipient without set-off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
4.3. If GST is levied or imposed on or in respect of any supply made under or in connection with this agreement for which the consideration is a non-monetary payment, the Supplier and the Recipient agree that they will each exchange Tax Invoices of equal amount for the consideration in relation to any such supply.
5. GRANT OF LICENCE
5.1. Subject to clause 3, Canstar Blue grants to Client and Client accepts a non-exclusive, non-transferable, licence for the Licence Term to use the Canstar Blue Trademarks in Australia to promote the Canstar Blue Award in relation to the service of product identified in invoice on the terms of this agreement.
5.2. The rights and permissions granted to Client are personal to Client. Client may not assign, sublicense or otherwise deal with the licences granted to Client by this agreement and must not in any way whatsoever purport to permit any other person to use or enjoy the rights granted under it.
5.3. Client acknowledges that:
(a) The Canstar Blue Trademarks are of importance and value to Canstar Blue and all right, title and interest (whether registered or not) in and to the Canstar Blue Trademarks and the Common Law Rights are owned absolutely by and vested absolutely in Canstar Blue;
(b) Save for the licences and authorisations granted to it by this agreement, Client has no right, title or interest (whether registered or not) in or to the Canstar Blue Trademarks or the Common Law Rights;
(c) This agreement is the only source of Client’s right to use the Canstar Blue Trademarks; and
(d) Canstar Blue may in its absolute discretion alter, amend or vary the Canstar Blue Trademarks or the Common Law Rights at any time.
5.4. Client acknowledges and agrees that all goodwill and any other right, title and interest arising from Client’s use of the Canstar Blue Trademarks vests in and accrues solely for Canstar Blue’s benefit.
5.5. Client acknowledges that the Canstar Blue Award is for a limited period and that Client must cease use of the Canstar Blue Trademarks in accordance with the timeframes in clause 10.4 if Client is no longer the current holder of the Canstar Blue Award.
5.6. The licence granted herein automatically terminates if Client no longer holds the Canstar Blue Award that is the subject of this agreement.
6. USE OF CANSTAR BLUE TRADEMARKS
6.1. Client agrees to use the Canstar Blue Award Logo in accordance with the Canstar Blue Style Guide.
6.2. Client must ensure that the Canstar Blue Trademarks are not used for any purpose other than those set out in this agreement and are used only in accordance with the terms of this agreement.
6.3. Client must not intentionally authorise or assist anyone else to do anything in relation to the Canstar Blue Trademarks that is not expressly authorised by the terms of this agreement.
6.4. Client agrees to include on its website, a URL link (as supplied by Canstar Blue “the Link”), which links back to the Canstar Blue Website (as per the Link), and if no Link is provided by Canstar Blue, then as a default link back to www.canstarblue.com.au. Client must ensure that the Link always remains operational during the Licence Term.
6.5. If requested by Canstar Blue, Client must provide reasonable information about how Client uses the Canstar Blue Trademarks.
6.6. Client must not use the Canstar Blue Trademarks to directly compare the Client’s services or products to any third party’s services or products.
6.7. Client must not use a Canstar Blue Trademark unless Client displays the Award Tagline beneath the Canstar Blue Trademark in the format stipulated in the Canstar Blue Style Guide. This is a fundamental term of this agreement.
6.8. Client must not without the prior written approval of Canstar Blue, use the Canstar Blue Trademarks together with any other sign, trade mark or other means of identification, other than with a) a representation of Client’s Brand as specified in the invoice, or b) as permitted by the invoice, provided that the representation of the Canstar Blue Trademark is published with equal prominence to such additional signs or trade marks and in accordance with the format stipulated in the Canstar Blue Style Guide.
6.9. During the period that Client is using the Canstar Blue Trademarks, Client must not tarnish the Canstar Blue Trademarks or disparage Canstar Blue.
7. CLIENT’S UNDERTAKINGS
7.1. Client acknowledges that the Canstar Blue Trademarks and the Common Law Rights are of importance and value to Canstar Blue and that any use of the Canstar Blue Trademarks by Client which does not strictly comply with the terms of this agreement may prejudice Canstar Blue’s rights to them. Client accordingly undertakes, for the benefit of Canstar Blue, that Client will not:
(a) challenge the registration of the Canstar Blue Trademarks or Canstar Blue’s ownership of the Canstar Blue Trademarks;
(b) use the Canstar Blue Trademarks in a manner which is likely to prejudice the distinctiveness of the Canstar Blue Trademarks or the Common Law Rights or the validity of any registration of them;
(c) use any trade mark, trade dress or get up whether registered or unregistered, which is similar to, or so nearly resembles the Canstar Blue Trademarks or the Common Law Rights as to be likely to deceive or cause confusion;
(d) seek registration of any name, including any word, trade mark or domain name which resembles the Canstar Blue Trademarks; or
(e) assist, support, aid or conspire with any person to do any of the things set out in clause 7.1(a)-(d).
8. ADVERTISING
8.1. Subject to clause 8.2, Client may publish or display, in any medium, a publication or advertisement that contains a Canstar Blue Trademark in relation to a Category provided that Client has complied with the provisions of this clause.
8.2. Client must provide a copy of the proposed publication or advertisement to Canstar Blue (via marketing@canstarblue.com.au) at least 72 hours prior to the proposed publication date.
8.3. Within two Business Days of Canstar Blue receiving a proposed publication or advertisement, Canstar Blue must either provide approval or refuse approval.
8.4. If Canstar Blue refuses to provide approval, Canstar Blue must provide reasons to Client why Canstar Blue has refused approval.
8.5. Client can resubmit the publication or advertisement to Canstar Blue after addressing such reasons for approval by Canstar Blue. Canstar Blue must either provide approval or refuse approval to Client within two Business Days after resubmission.
8.6. Approval must not be unreasonably withheld by Canstar Blue.
8.7. If Canstar Blue does not respond to a request for approval of a publication or advertisement by Client within the timeframes in this clause 8, then provided that Client has complied with this clause 8 in respect of the request for approval, Canstar Blue is deemed to have provided approval.
8.8. Client must not use the Canstar Blue Trademarks in relation to any products which are not Client’s services or products in the Category.
9. ACKNOWLEDGMENTS
9.1. Each party warrants to the other that it has the full power to enter into and perform this agreement.
9.2. Client acknowledges and agrees that Client did not rely upon any representation or warranty made to Client by Canstar Blue in entering into this agreement.
9.3. Client represents that all information provided by Client or on Client’s behalf to Canstar Blue, to the best of Client’s knowledge, true and correct in all material respects and not misleading or deceptive.
10. TERMINATION
10.1. Either party may terminate this agreement immediately by giving written notice to the other:
(a) if the other party fails to comply with any of its obligations under this agreement and (where the breach is capable of remedy) fails to remedy the breach within fourteen (14) days after receiving notice requiring it to do so; or (where the breach cannot be remedied) fails to take steps to prevent the recurrence of the breach to other party’s reasonable satisfaction;
(b) if the other party goes into liquidation, is wound up or dissolved (except for the purpose of reconstruction or amalgamation) or enters into a scheme of arrangement with its creditors or is placed under official management or in receivership or ceases to carry on business or ceases to be able to pay its debts as they become due.
10.2. This agreement will terminate immediately at the end of the Licence Term.
10.3. If this agreement is terminated for any reason, then all rights and licences granted to Client under this agreement also terminate and Canstar Blue will be under no further obligation to provide Canstar Blue Trademarks to Client.
10.4. Upon termination of this agreement or the licences granted herein for any reason, Client must end use of the Canstar Blue Trademarks in circulation in any medium within the following timeframes:
(a) Magazines, newspapers, television, online media, radio – within 30 Business Days after the date of termination;
(b) Brochures, billboards and all other media not otherwise specified – within 60 Business Days after the date of termination; and
(c) Packaging or ‘on product’ – within 90 Business Days after the date of termination.
10.5. After this agreement has terminated or expired, but subject to clause 10.4, Client agrees not to use or refer to the Canstar Blue Trademarks in any advertising or promotion for Client or its products, in any way, unless Client enters into a new agreement with Canstar Blue permitting Client to do so.
10.6. Client shall have no right to compensation from Canstar Blue for (a) money expended by Client for promotion in connection with the Canstar Blue Award Logos; or (b) any goodwill Client may have established in connection with the Canstar Blue Award Logos, which goodwill shall remain the property of Canstar Blue.
10.7. Termination of this agreement will be without prejudice to the rights of any party against the other party for any prior breach of this agreement.
10.8. Termination of this agreement will not affect any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination and clauses 1, 5, 6, 7, 10, 11 and 12 will continue to apply.
11. LIABILITY
11.1. Subject to clause 11.2, the liability of Canstar Blue for any loss or damage, however caused (including by way of negligence), suffered by Client in connection with this agreement or the Canstar Blue Trademarks is limited in aggregate, to the value of total Fees that are paid by Client to Canstar Blue over the Licence Term.
11.2. If the Competition and Consumer Act 2010 (Cth) or any other legislation implies a condition or warranty into this agreement in respect of goods or services supplied, and Canstar Blue’s liability for breach of that condition or warranty may not be excluded but may be limited, clause 11.1 does not apply to that liability and instead Canstar Blue’s liability for such breach is limited to, in the case of a supply of goods, Canstar Blue replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Canstar Blue supplying the services again or paying the cost of having the services supplied again.
11.3. Subject to clause 11.4, the liability of Client to Canstar Blue in connection with this agreement is limited, in aggregate, to $300,000.
11.4. Clause 11.3 shall not limit Client’s liability to Canstar Blue in respect of a) infringement of Canstar Blue’s or a third party’s Intellectual Property Rights, or b) fraud or wilful misconduct by Client, or c) under the indemnity in clause 11.5.
11.5. Client indemnifies Canstar Blue against all liability, costs (including legal costs on a full indemnity basis) expenses, loss and damage suffered or incurred (or agreed to be paid by way of settlement or compromise) by Canstar Blue, including third party claims against Canstar Blue, as a result of Client’s fraud, wilful misconduct, defamatory publication, false advertising, misrepresentation or misleading or deceptive conduct.
11.6. Canstar Blue indemnifies Client against all liability, costs (including legal costs on a full indemnity basis) expenses, loss and damage suffered or incurred (or agreed to be paid by way of settlement or compromise) by Client, including third party claims against Client, as a result of the Canstar Blue Trademarks infringing any Australian trade marks or Australian copyright.
11.7. Subject to clause 11.2 and Client’s obligation to pay the Fees, neither party shall be liable to the other for any Consequential Loss however arising or caused (including by reason of the negligence of a party), as suffered by a party in connection with this agreement.
12. GENERAL
12.1. The parties will comply with all legislative requirements in connection with the performing of this agreement and in particular any relevant requirements of the Privacy Act 1988 (Cth) (“Privacy Act”) relating to the collection, use and disclosure of personal information.
12.2. The benefit of and obligations under this agreement shall not be dealt with in any way by Client (whether by assignment or otherwise) without Canstar Blue’s prior written consent.
12.3. This agreement may only be varied in writing signed by both parties.
12.4. The terms of the relevant invoice issued by Canstar Blue that refers to this agreement are incorporated herein. To the extent of any express inconsistency, the invoice prevails over these terms and conditions.
12.5. This agreement constitutes the entire agreement between the parties. Any prior arrangements, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this agreement will be valid except in writing signed by each party.
12.6. Any of Client’s standard terms, purchase order terms or terms of acceptance are not included as part of this agreement unless agreed to and signed in writing by a member of Canstar Blue’s senior executive team.
12.7. This agreement is governed by and construed according to the laws in force in the State of Queensland. Each party unconditionally and irrevocably submits to the jurisdiction of courts with jurisdiction in Queensland and all appellate courts from such courts.
12.8. If any provision of this agreement is held invalid, unenforceable or illegal for any reason, this agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.
12.9. Client declares that it is not a “small business” for the purposes of section 23 of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). A “small business” is defined as one that employs fewer than 100 employees or has a turnover for the last income year of less than $10,000,000.
12.10. No rights under this agreement are waived except by notice in writing signed by each party.
12.11. Notice will be deemed given: (a) in the case of hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving party; (b) in the case of posting, 3 days after dispatch; and (c) in the case of email transmission, upon confirmation of delivery by the recipient’s email service.