Terms and Conditions

1. Interpretation

1.1    The terms defined in the Schedule shall have the same meanings in Part 2 of this Agreement.

1.2    In this agreement the following words and expressions shall have the following meanings:
    "Fee" means the Initial Fee and the Renewal Fee; 
        "Territory" means the United Kingdom of Great Britain and Northern Ireland.

2. Rights Granted and Certificate

2.1    The Licensor hereby grants to the Licensee, on the terms set out in this Agreement, a non-exclusive licence to use the Trade Marks in the Territory on or in relation to the Products. The Licensee represents, warrants and covenants that each such use by them will be a correct use and comply with the Specification and terms of this Agreement. The licence is personal to the Licensee and the grant does not include any right to grant sub-licences. 

2.2    Upon the Commencement Date the Licensor shall provide to the Licensee a certificate which shall confirm the Licensee's right to use the Trade Mark pursuant to clause 2.1 (the "Certificate"). 

2.3    On proof to the reasonable satisfaction of the Licensor of the loss or destruction of any Certificate that is in force, and on compliance by the Licensee with such reasonable conditions as the Licensor may see fit to impose in respect of such issue, the Company may issue a duplicate Certificate.

3. Duration

3.1    This Agreement shall commence on the Commencement Date and shall unless terminated in any of the circumstances of clause 9 of this Agreement continue in force until terminated by either party giving to the other at least three (3) months notice in writing to expire on any anniversary of the Commencement Date.

4. Quality of Products

4.1    All Products manufactured or sold by the Licensee under or by reference to the Trade Marks shall comply with the Specifications. 

4.2    The Licensee shall keep confidential, both during this Agreement and after its termination, any information supplied to it which the Licensor designates as being confidential at the time it is supplied and shall only make use of such information for the purposes of this Agreement.

4.3    For the purpose of ensuring that the Licensee is complying with the Specification:
4.3.1    the Licensee shall as reasonably requested by the Licensor from time to time supply to the Licensor at the Licensee's expense samples of the Products for the purpose of inspecting and testing the same; and
4.3.2    the Licensor by its authorised representative may on reasonable notice and at its own expense visit the Licensee's premises during normal business hours to inspect the Products, the materials used, and the packaging and storage of the Products.

4.4    Products intended to be marketed under the Trade Marks which in the Licensor's reasonable opinion do not meet the Specification shall on notice being given by the Licensor be forthwith withdrawn from production and sale by the Licensee and they shall either be corrected or destroyed or the Trade Marks removed from them at the Licensor's option and at the Licensee's expense.  The Licensor may inspect any such corrected Products before they are marketed.

4.5    If at any time the Licensee becomes aware of any defect or insufficiency in the information provided by the Licensor or of any defect in any Product manufactured or sold by the Licensee in accordance with such information it shall immediately inform the Licensor.

4.6    The Licensor shall use reasonable endeavours to ensure that all other licensees of the Trade Marks shall be subject to and adhere to the same quality control conditions as are imposed on and accepted by the Licensee in this Agreement.

5. Use of the Trade Marks

5.1    The Licensee shall use the Trade Marks in the form stipulated by the Licensor and shall observe any reasonable directions given by the Licensor, from time to time, as to colours and size of the representations of the Trade Marks and their manner and disposition on the Products and their containers, packaging, labels, wrappers and any accompanying leaflets brochures or other material, and in any advertising material prepared by the Licensee for the Products.

5.2    Whenever the Trade Marks are used by the Licensee they shall be accompanied by wording to show that they are registered trade marks (or as the case may be, trade marks) used by the Licensee with the permission of the Licensor; the terms of such wording and its placing shall be as reasonably requested by the Licensor, from time to time.

5.3    If required by the Licensor, the Licensee shall submit designs for the Products and of all printed materials using the Trade Marks to the Licensor for approval as to the manner and the context of the intended use of the Trade Marks and shall not make use of any such designs or materials until they have been approved by the Licensor which approval shall not be unreasonably withheld.  The Licensee shall however be responsible for ensuring that all other requirements relating to labelling, packaging, advertising, marking and other such matters are complied with.

5.4    The use of the Trade Marks by the Licensee shall at all times be in keeping with and seek to maintain their distinctiveness and reputation as determined by the Licensor, and the Licensee shall forthwith cease any use not consistent therewith as the Licensor may reasonably require.

5.5    The Licensee shall not use any mark or name confusingly similar to the Trade Marks in respect of any goods similar to the Products.

5.6    Nothing contained in this Agreement shall entitle the Licensee to use the Trade Marks as part of any corporate business or trading name or style of the Licensee.

6. Ownership of the Trade Marks

6.1    The Licensor warrants that it is permitted to sub-licence  the Trade Marks on the terms of this Agreement and that it is not aware that any of the Trade Marks or the use of any of them on or in relation to the Products in the Territory infringes the rights of any third party but gives no warranty as to the validity of the registrations.

6.2    The Licensor shall procure the payment of all renewal fees necessary to maintain the registrations of the registered Trade Marks on the Register of Trade Marks (the "Trade Mark Register") during the term of this Agreement.

6.3    The Licensee undertakes not to do or permit to be done any act which would or might jeopardise or invalidate any registration of the registered Trade Marks nor to do any act which might assist or give rise to an application to remove any of the registered Trade Marks from the Trade Mark Register or which might prejudice the right or title of the Licensor to any of the Trade Marks, provided that (notwithstanding any provision to the contrary contained in this Agreement) the Licensee shall have the right either alone or with others to seek a declaration or other order from a court or other authority having competent jurisdiction that, by reason of acts or omissions (other than those done by the Licensee in breach of its obligations hereunder), the registration of any of the registered Trade Marks is invalid.

6.4    The Licensee will on request give to the Licensor or its authorised representative any information as to its use of the Trade Marks which the Licensor may require and will (subject to the provisions of clause 7 below) render any assistance reasonably required by the Licensor in maintaining the registrations of the registered Trade Marks.

6.5    The Licensee will not make any representation or do any act which may be taken to indicate that it has any right title or interest in or to the ownership or use of any of the Trade Marks except under the terms of this Agreement, and acknowledges that nothing contained in this Agreement shall give the Licensee any right, title or interest in or to the Trade Marks save as granted hereby.

6.6    The Licensee shall assist the Licensor as may be necessary (including by executing any necessary documents) in recording the Licensee as a registered user of the registered Trade Marks on the Trade Mark Register (including such of the applications as mature into registrations during the period of this Agreement), and the Licensee hereby agrees that such entry may be cancelled by the Licensor on termination of this Agreement, for whatever reason, and that it will assist the Licensor so far as may be necessary to achieve such cancellation including by executing any necessary documents.

7. Infringements

7.1    The Licensee shall as soon as it becomes aware thereof give the Licensor in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, trade mark or get-up of goods or mode of promotion or advertising which amounts or might amount either to infringement of the Licensor's rights in relation to the Trade Marks or to passing-off.

7.2    If the Licensee becomes aware that any other person, firm or company alleges that the Trade Marks are invalid or that use of the Trade Marks infringes any rights of another party or that the Trade Marks are otherwise attacked or attackable the Licensee shall immediately give the Licensor full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.

7.3    The Licensor shall have the conduct of all proceedings relating to the Trade Marks and shall in its sole discretion decide what action if any to take in respect of any infringement or alleged infringement of the Trade Marks or passing-off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Trade Mark.  The Licensee shall not be entitled to bring any action for infringement of the Trade Marks, and the Licensor shall not be obliged to bring or defend any proceedings in relation to the Trade Marks if it decides in its sole discretion not to do so.  However, if it does not take any action as described in this clause which it ought reasonably to take the provisions of clause 9.3 shall take effect.

7.4    The Licensee will at the request of the Licensor give full co-operation to the Licensor in any action, claim or proceedings brought or threatened in respect of the Trade Marks and the Licensor shall meet any reasonable expenses incurred by the Licensee to third parties in giving such assistance.

8. Fees

8.1    The Licensee shall pay the Licensor:
8.1.1    in consideration of the grant made in this Agreement, the Initial Fee; and
8.1.2    within 30 days of the first anniversary of the Commencement Date and within 30 days of each following (or subsequent) anniversary, the Renewal Fee.

8.2    All sums payable hereunder are net of Value Added Tax, which shall where appropriate be payable by the Licensee in addition.

9. Termination

9.1    Either party may terminate this Agreement without prejudice to its other remedies forthwith by notice in writing to the other if that other either:
9.1.1    commits a breach of this Agreement provided that if the breach is capable of remedy the notice shall only be given if the party in breach shall not have remedied the same within one month of having been given notice in writing specifying the breach and requiring it to be remedied;  or
9.1.2    is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the relevant party under this Agreement) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed of its assets or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts (or any analogous event which occurs in a different jurisdiction).

9.2    The Licensor may terminate this Agreement forthwith by notice in writing in any of the following circumstances:
9.2.1    if the Licensee fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than seven (7) days after being notified in writing by the Licensor to make such payment; or
9.2.2    if the Licensee exercises its rights under the proviso to clause 6.3; or
9.2.3    if the Licensee fails to comply with the Licensor's reasonable instructions in relation to the Trade Mark, from time to time; or
9.2.4    if the Licensee suspends or ceases, or threatens to suspend or cease to carry on all or a substantial part of the Licensee's business (and for the avoidance of doubt, the "Licensee's business" shall mean the manufacture and/or supply of the Products).

9.3    The Licensee may terminate this Agreement by 30 days' notice in writing if the Licensor does not take any action it ought reasonably to take to protect the Trade Marks under the provision of clause 7.3 above within six (6) months of the circumstances giving rise to the need for such action coming to the attention of the Licensor.  

9.4    Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and in particular but without limitation the right to recover damages from the other.

9.5    Upon the termination of this Agreement for whatever reason the Licensee shall:
9.5.1     cease to make any use of the Trade Marks save that if the Licensee has a stock of Products existing or in the course of manufacture or unfulfilled orders on hand at the date of termination of this Agreement the Licensee may, but only with the Licensor's specific permission, sell such stock on the terms hereof or such other terms as may be agreed; and
9.5.2    return to the Licensor the Certificate issued by the Licensor pursuant to clause 2.2 .

9.6    All provisions of this Agreement which in order to give effect to their meaning need to survive its termination shall remain in full force and effect thereafter.

10. Indemnity

10.1    The Licensee shall be liable for and will indemnify the Licensor (together with its officers, servants and agents) against any and all liability, loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the Licensor whether direct or consequential (including but without limitation any economic loss or other loss of profits, business or goodwill) arising out of any dispute or contractual tortious or other claims or proceedings brought against the Licensor by a third party claiming relief against the Licensor by reason of the manufacture, use or sale of any Products by the Licensee or the use by the Licensee of the Trade Marks, except insofar as any such claims may arise from:
10.1.1    any breach of this Agreement by the Licensor;
10.1.2    any invalidity or defect in the title of the Licensor to the Trade Marks not caused by any act or default of the Licensee;  or
10.1.3    from the instructions given to the Licensee by the Licensor provided such instructions have been properly carried out by the Licensee.

11. Assignment

11.1    Neither party shall assign, transfer, sub-contract or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, save that the Licensor shall assign the benefit and burden of this Agreement to any party to which it may assign the Trade Marks. The Licensor shall use reasonable endeavours to procure that an assignee of the Licensor, if the Licensee so requires, shall grant a licence direct to the Licensee on the same terms mutatis mutandis as those contained in this Agreement.

11.2    In the event of an assignment this Agreement shall be binding upon such successor or assignee and the name of a party appearing herein shall be deemed to include the names of any such successor or assignee.

12. Illegality

12.1    If any provision or term of this Agreement shall become or be declared illegal, invalid or unenforceable for any reason whatsoever such term or provision shall be divisible from this Agreement and shall be deemed to be deleted from this Agreement provided always that if such deletion substantially affects or alters the commercial basis of this Agreement the parties shall negotiate in good faith to amend and modify the provisions and terms of this Agreement as may be necessary or desirable in the circumstances.

13. General

13.1    This Agreement constitutes the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings or arrangements between them relating to the subject matter of this Agreement.  Neither party shall be entitled to rely on any agreement, understanding or arrangement which is not expressly contained in this Agreement and no change may be made to it except in writing signed by duly authorised representatives of both parties.

13.2    No failure or delay on the part of either of the parties to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy as the case may be.  The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.

14. Notice

14.1    Any notice or other document to be given under this Agreement shall be in writing and shall be deemed to have been duly given if left at or sent by hand or by registered post to a party at the address set out in Part 1 of this Agreement for such party or such other address as one party may from time to time designate by written notice to the other.

14.2    Any such notice or other document shall be deemed to have been received by the addressee two working days following the date of dispatch if the notice or other document is sent by registered post, or simultaneously with the delivery by hand.

15. Interpretation

15.1    The headings in this Agreement are inserted only for convenience and shall not affect its construction.

15.2    Where appropriate words denoting a singular number only shall include the plural and vice versa.

15.3    Reference to any statute or statutory provision includes a reference to the statute or statutory provision as from time to time amended, extended or re-enacted.

16. Governing Law and Jurisdiction

16.1    The validity, construction and performance of this Agreement shall be governed by English law, and shall be subject to the exclusive jurisdiction of the High Court of Justice in England.

17. Register

17.1    A register shall be kept at the address of the Licensor (the "Register"), which shall contain the name, address and trade activities of the Licensee, the description of the Products in relation to which the Licensee is authorised to use the Trade Mark, the Commencement Date and in the case of termination of this Agreement for whatever reason, such termination date. 

17.2    Upon entering into this Agreement the Licensee agrees and consents to the information in clause 17.1 being retained in the Register and the Licensee also agrees and consents to the Register being open to inspection by the public. 

IN WITNESS WHEREOF the parties have set their seals the day and year first before written


September 2018


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