Jed Dunstan

(Assignor)

AND

Alastair Warburton Mosey T/A Sensation Makeup Artistry (ABN 97 890 559 329)

(Assignee)

ASSIGNMENT OF INTELLECTUAL PROPERTY

This ASSIGNMENT OF TRADE MARKS dated                day of                                 2022

Between

Jed Dunstan of [insert] (Assignor)

AND

Alastair Warburton Mosey T/A Sensation Makeup Artistry (ABN 97 890 559 329) PO Box 590, CLARENDON SA 5157 (Assignee)

BACKGROUND

1. The Assignee engaged the Assignor to assist in the creation of Bush Babes Brand (as defined below).
2. The Assignor has agreed to transfer to the Assignee all Intellectual Property that may own subsisting in the Bush Babes Brand. 

Terms

1. 1. Definitions and Interpretation
      1. 1. 1. Capitalised terms or expressions used in this deed have the meanings set out in this clause.

Business Day: a day on which banks are open for business in Adelaide South Australia, other than a Saturday, Sunday or public holiday in that city.

Bush Babes Brand means:

1. 1. 1. 1. 1. 1. 1. The name: Bush Babes (including in all stylised forms, capitalisation of letters, phonetic spelling, misspelled or alternative spelling); and
                  2. the brands, logo’s, designs and peripheral branding/get-up set-out in Annexure-A.

(including all Intellectual Property therein)

Bush Babes Brand Works means any and all work create by the Assignor to the Assignee in the creation of the Bush Babes Brand. 

Corporations Act: the Corporations Act 2001 (Cth).

Consideration means the consideration of $300.00 paid by the Assignee to the Assignor for the creation of Bush Babes (receipt of which the Assignor expressly acknowledges) plus the Royalty Fee

Duty:  any stamp, transaction or registration duty or similar charge imposed by any Government Agency including any interest, fine, penalty, charge or other amount imposed in respect of any of them.

Encumbrance:  any interest or power:

1. 1. 1. 1. 1. 1. 1. reserved in or over any interest in any asset including any retention of title;
                  2. created or otherwise arising in or over any interest in any asset under a bill of sale, mortgage, charge, lien, pledge, trust or power,

by way of security for the payment of debt or any other monetary obligation or the performance of any other obligation and includes any agreement to create any of the above.

GST Law:  has the same meaning as “GST Law” in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

Intellectual Property or IP: means all statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions (including registered and unregistered patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered or unregistered designs, the right to have Confidential Information (including trade secrets, know-how, show-how and circuit layouts) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;

Loss:  all damages, losses, costs, expenses and charges including Taxes and Duties.

Period means a period for the calculation of the Royalty Fee ending 30 June 2025.

PPSA:  the Personal Property Securities Act 2009 (Cth).

PPSA Security Interest:  has the meaning given to the term “security interest” in the PPSA.

Product means all a products, produced, manufactured, marketed, sold and/or supplied by the Assignee bearing or under the Bush Babes Brand

Related Body Corporate:  has the meaning given in section 9 of the Corporations Act.

Royalty Fee means a fee payable from the Assignee to the Assignor, calculated as follows:

1. 1. 1. 1. 1. 1. 1. Period 1: between 1 July 2022 and 30 June 2023:

where gross turnover (excluding tax and shipping costs (including insurance)) from sale of Bush Babes branded product sold or licence fees earned by the Assignee during Period 1 is greater than $25,000.00 then 3% of total turnover throughout Period 1

1. 1. 1. 1. 1. 1. 1. Period 2: between 1 July 2023 and 30 June 2024:

where gross turnover (excluding tax and shipping costs (including insurance)) om sale of Bush Babes branded product sold or licence fees earned  by the Assignee during Period 2 is greater than $25,000.00 then 3% of total turnover throughout Period 2

1. 1. 1. 1. 1. 1. 1. Period 3: between 1 July 2024 and 30 June 2025:

where gross turnover (excluding tax and shipping costs (including insurance)) om sale of Bush Babes branded product sold or licence fees earned by the Assignee during Period 3 is greater than $25,000.00 then 3% of total turnover throughout Period 3

(The Assignor shall not be entitled to any further fee, consideration or royalty fee after expiration of Period 3)

Security Interest: any legal or equitable interest or power created, arising in or reserved in or over an interest in any property or asset including a PPSA security interest;

Tax: any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Agency including any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above but excludes Duty.

1. 1. 1. 1. 1. In this deed, unless the contrary intention appears or context otherwise requires:
               1. a reference to a gender includes a reference to each other gender; singular includes plural and vice versa; reference to a person includes a body politic or corporate, an individual and a partnership (including their successors, substitute and assigns) and vice versa; headings do not affect construction; and another grammatical form of a defined word has a corresponding meaning.
               2. reference to any legislation or any provision of any legislation includes any amendment, modification, consolidation or re-enactment of the legislation or any legislative provision substituted for and all legislation and statutory instruments of and regulations issued under the legislation;
               3. an agreement, representation, warranty or indemnity given or undertaken by two or more persons binds them and is given jointly and severally;
               4. a reference to an amount of money is a reference to the amount in a lawful currency of the Commonwealth of Australia;
               5. if any day appointed or specified by this Agreement for the payment of money falls on a day which is not a Business Day the day appointed or specified is deemed to be the next Business Day; and
               6. time is of the essence as regards any date, period or obligation under this Agreement.
   2. Assignment

In consideration for the Consideration, the Assignor assigns to the Assignee all the Assignor’s right, title and interest in and to Intellectual Property in Bush Babes Brand, including:

1. 1. 1. 1. 1. 1. 1. the absolute entitlement to any registered trade marks granted pursuant to any of the applications comprised in Bush Babes;
                  2. all statutory and common law rights attaching to Bush Babes, together with the goodwill; and
                  3. the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement of any Intellectual Property subsisting in Bush Babes whether occurring before, on or after the date of this deed.
   2. GST
      1. 1. 1. Words used in this Clause 3 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.
            2. Unless expressly stated otherwise, the consideration for any supply under or in connection with this deed is exclusive of GST.
            3. To the extent that any supply made under or in connection with this deed is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this deed for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.
            4. The recipient must pay the additional amount at the same time as the consideration to which it is referable, and upon the issue of an invoice relating to the supply.
            5. Whenever an adjustment event occurs in relation to any taxable supply to which Clause 3.3 applies:
               1. 1. the supplier must determine the amount of the GST component of the consideration payable; and
                  2. if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
            6. If the Assignee fails to comply with its obligation under this Clause 3, it shall additionally pay all interest and penalties which thereby arise to the Assignor.
   3. Royalty fee
      1. Assignee will:
         1. keep records of all sales of all Products in accordance with good business practice;
      2. Payment of Royalty Fee:
         1. Assignee shall pay to the Assignor the Royalty Fee;
         2. Within 45 days of the end of a Financial Year for the relevant Period, the Assignee shall provide the Assignor an annual statement of its sales of Product (Sales Statement).
         3. Within 14 days of receiving the Sales Statement, the Assignor shall issue the Assignee with an invoice for the Royalty Fee, based on the amounts in the Sales Statement.
         4. Assignee shall pay all invoices within 14 days of receipt.
      3. Right to Inspect:
         1. Upon giving the Assignee 5 Business Days’ notice the Assignor may at its own cost, personally or by its nominee, inspect the books of the Assignee strictly for the purpose of assessing compliance with this Agreement.
         2. Within 2 Business Days’ of exercising its right of inspection the Assignor shall report any issues it deems necessary with the books, of which the Assignee is required to remedy within 10 Business Days’ of receiving written notice from the Assignor.
         3. Assignor may not exercise its right to inspect the books more than once per Financial Year up until 12 months after the end of the Period.
   4. Warranties

The Assignor represents and warrants that:

1. 1. 1. 1. 1. 1. 1. they are the sole legal and beneficial owner of, and owns all the rights and interests in, the Bush Babes Brand Works;
                  2. they have not given any third party permission to use the Bush Babes Brand or otherwise licensed or assigned any of the rights under the Bush Babes Brand;
                  3. the bush Babes Brand Work is free from any Encumbrances or Security interest;
                  4. they are unaware of any infringement or likely infringement of the Bush Babes Brand;
                  5. no claim has been made by a third party that disputes the right of the Assignor to use the Bush Babes Brand, they are unaware of any circumstances likely to give rise to a claim;
                  6. so far as it is aware, exploitation of the Bush Babes Brand Works will not infringe the rights of any third party; and
                  7. all previous assignments of the Bush Babes Brand Works are valid and all previous assignments.
   2. Indemnity
      1. 1. 1. The Assignor indemnifies the Assignee against any direct losses, liabilities, costs, charges or expenses (including any direct, indirect, special or consequential losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Assignee:
               1. 1. any breach by the Assignor of the warranties contained in Clause 5 above;
                  2. the Assignor’s breach or negligent performance or non-performance of this deed;
                  3. the enforcement of this deed; or
                  4. any claim made against the Assignee for actual or alleged infringement of a third party’s intellectual property rights resulting from the Assignee’s use of the Bush Babes Brand Works.
            2. The indemnity in Clause 6.1 applies whether or not the Assignor has been negligent or at fault.
            3. At the request of the Assignee, and at the Assignor’s own expense, the Assignor must provide all reasonable assistance to enable the Assignee to resist any claim, action or proceedings brought against the Assignee as a consequence of that breach.
            4. Nothing in this clause shall restrict or limit the Assignee’s general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
   3. Further Action
      1. 1. 1. At its own expense the Assignor must do all things (including completing and signing all documents) reasonably requested by the Assignee that are necessary to:
               1. 1. give full effect to this deed and the transactions contemplated by this deed, including registration of the Assignee as the applicant or registered owner of the Bush Babes Brand (for the avoidance of doubt, all direct registration costs will be borne by the Assignee); and
                  2. use all reasonable endeavours to procure that any third parties do the same.
            2. The Assignor agrees to do the following at the Assignee’s cost and direction, pending formal registration of the assignment of the Bush Babes Brand to the Assignee:
               1. 1. provide the Assignee with all information and other assistance required to enable the Assignee to prepare, file or prosecute applications for registration of any of the Bush Babes Brand (including producing, in the appropriate form, any evidence of its use of the Bush Babes Brand);
                  2. provide the Assignee with all information and other assistance required by the Assignee to conduct, defend or settle any relevant claims, actions or proceedings (including, if requested by the Assignee, bringing proceedings in its own name or lending its name to any proceedings brought by the Assignee).
            3. The Assignor agrees to deliver to the Assignee (or the Assignee’s nominated representative) as soon as practicable within 14 days after the date of this deed, all deeds, documents of title, certificates and other files and records (including those of its agents) relating to the Bush Babes Brand.
   4. No Waiver
      1. 1. 1. No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this deed unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
            2. Words or conduct referred to in Clause 8.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
   5. Entire Deed

This deed states all the express terms agreed by the parties about its subject matter. It supersedes all prior deeds, agreements, understandings, negotiations and discussions in respect of its subject matter.

1. 1. Variation

An amendment or variation of any term of this deed must be in writing and signed by each party.

1. 1. Severability
      1. 1. 1. If the whole or any part of a provision of this deed is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
            2. Clause 10.1 does not apply if the severance of a provision of this deed in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this deed.
   2. Counterparts

This deed may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this deed by signing any counterpart. The date on which the last counterpart is executed is the date of this deed.

1. 1. Notices
      1. In Writing

A notice required or authorised to be given or served on a Party under this Agreement must be in writing and may be given or served by email, facsimile, post or hand to that Party at its facsimile number or address as the Party may have last notified the other Party or Parties in writing.

1. 1. 1. Method of Service
      2. A notice is deemed to have been given or served on the Party to whom it was sent:
         1. 1. in the case of hand delivery, on delivery during Business Hours;
            2. in the case of pre-paid post 4 Business Days after the date of despatch; or
            3. in the case of email, at the time of sending, unless the sender receives notice that the email has been rejected by the recipient’s mail server or that the email has otherwise been delayed.
      3. If a notice is received after 5pm on a Business Day, or on a day which is not a Business Day, it shall be deemed to be received on the next Business Day.
      4. If two or more people comprise a Party, notice to one is effective notice to all.
      5. Sufficient Service

A notice given or served under this Agreement is sufficient if:

1. 1. 1. 1. in the case of company it is signed by a director, officer or secretary of that company; or
         2. in the case of an individual it is signed by that Party; or
         3. given or made for or on behalf of such Party by his authorised agent of by his solicitors.
      2. Mode of Service

The provisions of this clause are in addition to any other mode of service permitted by law.

1. 1. 1. Definition

In this clause notice includes a demand, request, consent, approval, offer and any other instrument or communication made, required or authorised to be given under this Agreement.

1. 1. Governing Law and Jurisdiction
      1. 1. 1. This deed is governed by the law in force in South Australia.
            2. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in South Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this deed.
            3. Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in Clause 13.2 on the basis that:
               1. 1. any proceeding arising out of or in connection with this deed has been brought in an inconvenient forum; or
                  2. the courts described in Clause 13.2 do not have jurisdiction.

EXECUTED AS AN AGREEMENT )

By Jed Dunstan )

)………………………………

In the presence of )

……………………………………………….

Witness Signature

………………………………………………..

Witness Name

EXECUTED AS AN AGREEMENT )

By Alastair Warburton Mosey T/A )

Sensation Makeup Artistry (ABN 97 890 559 329) )………………………………

In the presence of ) A Mosey

……………………………………………….

Witness Signature

………………………………………………..

Witness Name

Annexure A – Bush Babes