Unless otherwise expressly defined below, expressions used in this Schedule have the meanings given to them in clause 1.
In this Schedule:
Brand means all branding and goodwill associated with the Project (or any part of the Project) including:
(a) all registered and unregistered trade marks (other than those trademarks of any Project Co Associate or Financier which are used in its business more generally and are not created or developed in connection with the Project);
(b) all names including business names, domain names and company names (other than those names of any Project Co Associate or Financier that are used in its business more generally and are not created or developed in connection with the Project); and
(c) all telephone numbers, email addresses, internet addresses and all other addresses used by the general public in relation to the Project to make contact using an ICT network.
Core IP Providers has the meaning given in section 2.16(g). [Note: Details of specific entities to be inserted based on successful Respondent's responses. These will be the entities from whom the State will require Deeds of Assurance. However, the State reserves its position to require other arrangements (such as direct licences for the State) depending on the specific intellectual property circumstances of Respondents)]
COTS means, in respect of Software and Firmware, a commercial off-the-shelf product that is ready-made and available for sale to the general public.
Data means all data and expressions of data contained in, or processed or generated by, the Project Assets or produced as a result of the Project Activities, including:
(a) all data and expressions of data contained in all images contained in or processed or generated by the Project Assets;
(b) all data and expressions of data comprising reports generated by the Project Assets; and
(c) all data and expressions of data about or relating to or generated by Project Co or any Project Co Associate in connection with the Project Assets.
Deed of Assurance means a deed of assurance substantially in the form of Annexure A.
Developed Intellectual Property means all Intellectual Property Rights, trade secrets and know-how comprised in or related to:
(a) all or any part of the Project Assets;
(b) all or any part of the Project Activities including all or any items, software tools or materials or documents used by Project Co in carrying out the Project Activities; or
(c) all or any part of any Project Co Material,
created, developed or produced in connection with the Project by or on behalf of Project Co or any Project Co Associate, whether before or after the date of this Deed excluding the Licensed Intellectual Property, Third Party Software, State IP and the Intellectual Property Rights subsisting in any Escrow Material. [Note: The State requires ownership of all Intellectual Property developed in connection with the Project. However, the State is prepared to consider Respondent specific carve outs from this definition which will be treated as Licensed Intellectual Property.]
Domain Names means any internet domain names used by Project Co in relation to the Project.
Escrow Material means [to be inserted].
[Note: The State is willing to consider Respondent requirements for escrow arrangements relating to specific categories of Intellectual Property on a project specific basis provided that the State has adequate access rights to the escrow material. To be deleted if no Escrow Material is proposed.]
[Escrow Release Event means:
(a) an Insolvency Event occurs in respect of [insert party providing Escrow Material];
(b) an Insolvency Event occurs in respect of [insert name of party who may own Escrow Material if not the same as party providing it] and [insert party providing Escrow Material] has not entered into a technical software support arrangement in respect of the Escrow Material with the State on terms satisfactory to the State, acting reasonably, within 20 Business Days after the occurrence of the Insolvency Event;
(c) the State exercises any step-in right in accordance with this Deed due to the acts or omissions of [insert party providing Escrow Material] and requires access to the Escrow Material to exercise its step-in rights (but only to the extent, and for the period, required for the State to reasonably exercise its step-in rights);
(d) a Default Termination Event occurs due to an act or omission of [insert party providing Escrow Material] and the State terminates this Deed; or
(e) [insert party providing Escrow Material] otherwise agrees to release their respective Escrow Material to the State, whether in accordance with any agreement between [insert party providing Escrow Material] and the State or otherwise.]
[Note: Escrow Release Events to be considered on a project specific basis.]
Firmware means a set of coded instructions embedded within a device or component of a device that performs functions or provides data to enable the device to operate in a specified manner.
Intellectual Property Rights includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including rights of any kind in:
(a) inventions, discoveries and novel designs, whether or not registered or registrable as patents, innovation patents or designs, including developments or improvements of equipment, technology, processes, methods or techniques;
(b) literary works, dramatic works, musical works, artistic works, cinematograph films, television broadcasts, sound broadcasts, published editions of works and any other subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the subject matter, subsist anywhere in the world;
(c) registered and unregistered trademarks and service marks, including goodwill in the business concerned in the relevant goods and/or services;
(d) trade, business or company names;
(e) internet domain names; and
(f) proprietary rights under the Circuit Layouts Act 1989 (Cth),
whether created or in existence before or after the date of this Deed.
IP Escrow Agent means [#]. [Note: To be appointed on a project specific basis.]
IP Escrow Deed means [#].[Note: To be developed on a project specific basis.]
[Note: To be used on a project specific basis where the State agrees that certain intellectual property may be placed in escrow.]
Licensed Intellectual Property means all Intellectual Property Rights, trade secrets and know-how comprised in or related to:
(a) all or any part of the Project Assets;
(b) all or any part of the Project Activities including all or any items, software tools or materials or documents used by Project Co in carrying out the Project Activities; or
(c) all or any part of the Project Co Material,
that are:
(e) Project Co Data; and
(f) the Escrow Material to the extent released to the State in accordance with section 2.6(c),
but excluding:
(g) the Third Party Software; and
(h) the State IP.
List of Intellectual Property means a list of each item comprising Intellectual Property Rights used or to be used by Project Co or any Project Co Associate in performing its obligations under any State Project Document, which includes, separately identified, the List of Software, and specifies in relation to any Intellectual Property Rights not identified in the List of Software:
(a) the nature and, if applicable, name of the material in which the Intellectual Property Rights is comprised;
(b) the owner of the Intellectual Property Rights and, to the extent applicable, the licensor and the licensee of those Intellectual Property Rights;
(c) the duration of any licence and maintenance agreements; and
(d) the licence and maintenance fees and similar fees,
provided that neither Project Co nor any Project Co Associate will be required to disclose the information specified in paragraph (d) above if such information is subject to any contractual confidentiality obligations imposed on that party as a result of such information comprising confidential information.
List of Software means a list of each item of Software used or to be used by Project Co or any Project Co Associate in performing the Project Activities which specifies in relation to each item of Software:
(a) name and release version of the Software;
(b) owner and distributor of the Software and, if relevant, the licensor and the licensee of that Software;
(c) whether the Software is Third Party Software;
(d) the duration of any licence and maintenance agreements; and
(e) the licence and maintenance fees and similar fees,
provided that neither Project Co nor any Project Co Associate will be required to disclose the information specified in paragraph (e) above if such information is subject to any contractual confidentiality obligations imposed on that party as a result of such information comprising confidential information.
Moral Rights has the meaning given to it in the Copyright Act 1968 (Cth).
Non-Project Specific IP means:
(a) any and all Material which is or has been developed other than in connection with the Project by Project Co or any Project Co Associate and brought to the Project by Project Co or any Project Co Associate (Background IP);
(b) any Developed Intellectual Property which is primarily derived or adapted from Background IP; and
(c) [insert].
[Note: Respondents may bid back consortium specific Intellectual Property developed for the purposes of the Project but which will be treated as Licensed Intellectual Property rather than Developed Intellectual Property.]
Project Co Data means [to be inserted]. [Note: The State requires ownership of data associated with the Project. However, the State is prepared to consider ownership of limited specified categories of non-operational data vesting in Project Co where Respondents can show a legitimate need for such ownership.]
Software means a set of coded instructions that performs functions or provides working data or parameters to enable a device or system to operate in a specified manner, and be loaded into a system or device dynamically by a user and includes all Firmware and operating systems required by a system or subsystem to perform in a specified manner.
State IP means all Intellectual Property Rights and trade secrets and know-how comprised in:
(a) the Data;
(b) the Brand; and
(c) the Trade Marks.
Third Party Software means any COTS Software and Firmware owned by any entity other than Project Co or the Project Co Associates that is:
(a) comprised in all or any part of the Works or the Project Assets;
(b) otherwise used or to be used by, or on behalf of, Project Co or any Project Co Associate in performing the Project Activities; or
(c) Software tools necessary for the State, or that a person in the State's position would otherwise require, to modify, maintain, test, further develop or regenerate the bespoke Software contained in the Project Assets or otherwise exercise any rights of ownership given to the State under section 2.12,
and is identified as such in the List of Software and any information provided under section 2.10(b)(iv).
Trade Marks means any trade marks specified by the State to Project Co in writing and any other trademarks used by or on behalf of Project Co or a Project Co Associate in relation to the Project (other than those trademarks of any Project Co Associate which are used in their business generally and are applied by them to devices or equipment they supply, but which do not include, directly or indirectly, any brands which are created or developed in connection with, the Project or any part of the Project).