Drinkaware trade mark licence terms
These Trade Mark Licence Terms (“Terms”) are entered into between Drinkaware Trading Limited, a company incorporated in England and Wales under Company Number 11735195 whose registered office is 519 Salisbury House, London Wall, London, United Kingdom, EC2M 5QQ (“Drinkaware”) and the Company (as defined below).
BACKGROUND AND ACCEPTANCE OF THESE TERMS
Drinkaware is a wholly owned subsidiary of The Drinkaware Trust (registered Charity No. 1094586) (the “Charity”). The Charity is the registered proprietor of the Trade Marks (as defined below) and Drinkaware is authorised by the Charity to grant licenses to use the Trade Marks on the basis of these Terms.
By accepting these Terms and/or entering into an Order Form that attaches or incorporates these Terms, the Company agrees to be bound by these Terms. If you are an individual purporting to acting on behalf of the Company, you confirm that you are authorised to bind the Company to these Terms
1 DEFINITIONS
1.1 In these Terms the following words and expressions shall have the following meanings:
“Applicable Law and Regulation” means (a) applicable code of practice, rulings or guidance of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice, the Advertising Standards Authority and the Portman Group; and (b) all applicable laws, regulations, regulatory requirements, codes of practice and guidance in force from time to time relating to the use of the Trade Marks and/or the Licensed Goods/Services;
“Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
“Change of Control” means that the person or persons who controlled or had the power to control the affairs and policies of the applicable entity whether directly or indirectly and either by ownership or share capital, possession of voting power, ability to appoint directors, contract or otherwise, ceases to have such control;
“Charity” has the meaning given above;
“Commencement Date” means the date on which Drinkaware makes the Trade Marks available for digital download by Company as set out in clause 3.2;
“Company” means the company identified in the relevant Order Form;
“Licensed Goods/Services” means any goods and/or services of the Company that (a) relate to the sale and/or consumption of alcohol, and any printed materials and packaging or other information relating to such goods and/or services, and (b) are within the categories set out under heading ‘Goods/Services’ in Schedule 1, and such other types of goods and/or services that Drinkaware approves of in writing;
“Licence Fee” means the fee payable by Company to Drinkaware in consideration of the Trade Mark Licence, as specified in the relevant Order Form;
“Logo Guidelines” means the document attached and/or referenced at Schedule 2 (as amended from time to time by Drinkaware);
“Order Form” means an order form for a Trade Mark Licence that references or attaches these Terms, including the order form located at https://resources.drinkaware.co.uk/products/logo-licence;
“Term” means the period that (i) commences on the Commencement Date and; (ii) ends at 00:00 (midnight) on the first anniversary (where the Order Form specifies a ‘One Year’ licence) or second anniversary (where the Order Form specifies a ‘Two Year’ licence) of the Commencement Date (or such other term specified in the relevant Order Form);
“Territory” means the United Kingdom and any other territory that Drinkaware approves of in writing;
“Trade Mark Licence” means rights granted by Drinkaware for Company to use the Trade Marks, as specified in clause 3 and subject to the acceptance procedure set out in clause 2;
“Trade Marks” any mark consisting of or including the Community (EU) trade marks set out in Schedule 1; and
“Year” means each period of twelve consecutive months beginning on the Commencement Date or any anniversary thereof, and
1.2 The singular includes the plural and vice versa.
1.3 The words and phrases “other”, “including” and “in particular” shall be construed without limitation.
1.4 Unless the context otherwise indicates, references in these Terms to clauses, sub-clauses, recitals and Schedules are to clauses and sub-clauses of, and recitals and Schedules to, these Terms.
1.5 The Schedules to these Terms are an integral part of these Terms.
1.6 The headings in these Terms are included for the purpose of ease of reference only and shall have no effect on the construction or the interpretation of these Terms.
1.7 References to any statute, statutory provision, enactment, order, regulation or other similar instrument shall include (i) any subordinate legislation made under it, (ii) any provision that it has modified or re-enacted (whether with or without modification), and (iii) any provision that subsequently supersedes it or re-enacts it (whether with or without modification) whether made before or after the Commencement Date.
1.8 References to any standards, policies or guidelines (including the PCI Standard and guidelines) shall be to the most recently published version of those standards, policies or guidelines.
1.9 No terms other than these Terms shall form part of the agreement for the Trade Mark Licence, including any terms that Company seeks to impose on Drinkaware, any terms contained in or referred to in any purchase order issued by Company or elsewhere, or any terms implied by trade, custom practice or course of dealing.
1.10 If and to the extent that there is any conflict or inconsistency between these Terms and an Order Form, these Terms shall prevail.
2 OFFER TO ACQUIRE TRADE MARK LICENCE
2.1 By submitting an Order Form, Company is offering to acquire a Trade Mark Licence on the terms set out in these Terms, which Drinkaware shall be free to accept (in accordance with clause 2.2) or decline at its absolute discretion.
2.2 Drinkaware will accept Company’s offer to acquire a Trade Mark Licence by countersigning the relevant Order Form and/or notifying Company in writing (email sufficient) that it has accepted the Company’s Order Form. As soon as reasonably practicable following such countersignature and/or acceptance, Drinkaware will make available the Trade Marks for digital download by Company.
2.3 If Drinkaware declines Company’s offer to acquire a Trade Mark Licence, Drinkaware will, as soon as is reasonably practicable, notify Company of the same in writing (email sufficient) and issue a refund to Company in respect of any pre-payment by Company of the Licence Fee.
3 GRANT OF LICENCE
3.1 Drinkaware hereby grants to Company a non-exclusive, non-transferable licence to use the Trade Marks in the Territory in relation to Licensed Goods/Services during the Term (unless terminated earlier in accordance with the provisions of these Terms), subject to these Terms.
3.2 Company hereby acknowledges that any rights not expressly granted to it under these Terms are fully reserved to Drinkaware and/or the Charity. For the avoidance of doubt, Company is not permitted to:
use the Trade Marks outside the Territory;
use the Trade Marks in relation to any goods or services other than Licensed Goods/Services;
use the Trade Marks following expiry of the Term; or
assign, transfer, sub-licence mortgage, charge, subcontract, declare a trust over, or deal in any other manner with any or all of its rights under these Terms.
3.3 Drinkaware may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under these Terms.
4 REPRESENTATIONS AND WARRANTIES
4.1 Company represents and warrants that the information relating to it set out in the Order Form, in particular that relating to annual turnover from alcohol sales in the Territory, is accurate.
4.2 Company will notify Drinkaware in writing (email sufficient) within five Business Days if at any point during the Term it becomes aware that its actual or anticipated annual turnover from alcohol sales exceeds or will exceed the amount stated in the Order Form.
4.3 Drinkaware represents that it is has obtained any and all necessary rights and permissions from the Charity to grant the Trade Mark Licence and enter into these Terms.
5 LICENCE FEE
5.1 Company shall pay to Drinkaware the Licence Fee, which shall be paid:
via Drinkaware’s website at the time of submission of its Order Form (in the case of Order Form’s submitted via Drinkaware’s website); or
in accordance with any payment instructions issued by Drinkaware to Company and within 30 days of the date of Drinkaware’s invoice in respect of the same (in the case of other Order Forms).
5.2 Company acknowledges and agrees that, unless Drinkaware otherwise agrees in writing, Drinkaware shall be under no obligation to accept an Order Form (in accordance with clause 2.2 ) unless and until it has received cleared funds in respect of the Licence Fee.
5.3 The payment made by the Company under clause 5.1 is exclusive of VAT and Company shall in addition pay an amount equal to any VAT which is chargeable in respect of the Licence Fee on delivery of a valid VAT invoice. If any VAT invoice is delivered to Company after the payment has been made, Company shall pay the VAT due within five Business Days of Drinkware delivering a valid VAT invoice.
5.4 The sums payable under clauses 3.1 and 3.2 shall be paid free and clear of all deductions unless the deduction is required by law. If any deduction is required by law the Company shall pay to Drinkaware such sum as will, after the deduction has been made, leave Drinkaware with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction.
6 USE OF THE TRADE MARKS
6.1 The Company acknowledges that Drinkaware and/or the Charity’s principal objective is to promote the responsible sale and consumption of alcohol (“Objective”). Company shall:
ensure that its use of the Trade Marks is consistent with the Objective;
ensure that the Licensed Goods/Services and marketing materials supplied by it under the Trade Marks conform to and comply in all respects with all Applicable Law and Regulation;
obtain at its own expense all licences, permits and consents necessary for the provision of the Licensed Goods/Services in the Territory.
not or do (or omit to do) any act or thing that (a) is detrimental to or inconsistent with the good name, goodwill, reputation and image of Drinkaware or the Charity; (b) is contrary to the Objective or might in Drinkaware’s opinion bring the alcoholic drinks industry into disrepute; or (c) denigrates the value of, or renders invalid or in any way detract from the value of, the Trade Marks;
use the Trade Marks in accordance with the Logo Guidelines comply with any requirements, guidelines or directions relating to the use of the Trade Marks that are reasonably imposed by Drinkaware, as may be notified to Company in writing (email sufficient) by Drinkware from time to time; and
not cause the Trade Marks to become generic, lose their distinctiveness, or become liable to mislead the public.
6.2 For the purposes of clause 6.1.6, Company agrees that the Trade Marks will be deemed to used in a manner that misleads the public if the Trade Marks are used in any way to imply any endorsement by Drinkaware or the Charity of the Licensed Goods/Services and/or Company.
6.3 Company shall discharge its obligations in connection with the provision of the Licensed Goods/Services with all due skill, care and diligence, including but not limited to good industry practice and in accordance with Company's own established internal procedures.
6.4 Company represents and warrants that, it shall not be, and has not been, involved in any commercial activity that might reasonably be considered to be obscene, libellous, blasphemous, pornographic or unlawful or contrary to any regulatory code under the laws of the Territory or which would reasonably be expected to bring Company, the Trade Marks, Drinkaware or the Charity into disrepute.
6.5 Company shall not use the Trade Marks in conjunction with any other trade marks (whether registered or not) or words describing the Licensed Goods/Services unless the Trade Marks are sufficiently distinguished from the surrounding and adjacent text and the Charity (for the avoidance of doubt, ‘The Drinkaware Trust’) is clearly identified as the licensor of the Trade Marks.
6.6 Company shall not adopt or use any trade mark, symbol or device which incorporates or is confusingly similar to, or is a simulation or colourable imitation of, the Trade Marks, or unfairly competes with the Trade Marks.
6.7 Company shall promptly, on request by Drinkaware and/or the Charity, supply Drinkaware and/or the Charity with samples of the Licensed Goods/Services that bear the Trade Marks.
6.8 Company shall not at any time, whether during or after termination of these Terms, use the Trade Marks as part of any corporate business, trading name, style or domain name of Company.
6.9 Company shall not at any time, whether during or after termination of these Terms, apply anywhere in the world to register any trade mark that is identical or similar to the Trade Marks.
7 OWNERSHIP OF THE TRADEMARKS AND GOOD WILL
7.1 Company acknowledges that all right, title and interest in the Trade Mark shall remain vested in the Charity and that Company has and will acquire no right, title or interest in the Trade Marks, except the rights of use as are specifically set out in these Terms, by virtue of the discharge of its obligations under this Agreement or uses of the Trade Mark.
7.2 Any goodwill derived from the use by the Company of the Trade Marks shall accrue to the Charity. Drinkaware and/or the Charity may, at any time, call for a document confirming the assignment of that goodwill and the Company shall immediately execute it.
7.3 Should any such right, title or interest in the Trade Mark become vested in Company (by the operation of law or otherwise), the parties agree that such rights are hereby assigned to the Charity with full title guarantee in consideration for the Trade Mark Licence.
8 PROTECTION OF THE TRADE MARKS
8.1 If Company learns of any infringement or threatened infringement of the Trade Marks or of any action detrimental to the Trade Marks or of any third party allegation that the Trade Marks are liable to cause deception or confusion to the public, Company shall promptly notify Drinkaware in writing, giving full particulars of such circumstances, and Company shall make no comment or admission to any third party in respect of such circumstances.
8.2 Drinkaware and/or the Charity shall have the conduct of all proceedings relating to the Trade Marks and shall in its sole discretion decide what action (including litigation, arbitration or compromise) 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 of the Trade Marks. Neither Drinkaware nor the Charity shall be obliged to bring or defend any proceedings whether for infringement or otherwise in relation to the Trade Marks if it decides in its sole discretion not to do so and Company shall not be entitled to bring any action for infringement regardless of any such decisions.
8.3 Company will, at the request of Drinkaware and/or the Charity, give full co-operation to Drinkaware and/or the Charity (including the provision of documentation and making relevant people available) in any action, claim or proceedings brought or threatened in respect of the Trade Marks.
8.4 Company will, at the request, of Drinkaware and/or the Charity issue cease and desist letters to any third parties that Drinkaware and/or the Charity reasonably believes are using, or are about to use, the Trade Marks other than under the terms of a valid licence for such use.
8.5 In any infringement proceedings which are brought by Drinkaware and/or the Charity, Drinkaware and/or the Charity shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.
9 MAINTENANCE OF TRADE MARKS
9.1 Drinkaware and/or the Charity will pay all renewal fees for the registration of the Trade Marks falling due during the Terms.
9.2 Company undertakes not to do or permit to be done any act which would or might jeopardise or invalidate the registration of the Trade Marks nor to do any act which might assist or give rise to an application to remove the Trade Marks or which might prejudice the right or title of the Charity to the Trade Marks.
9.3 Company will on request give to Drinkaware and/or the Charity or their authorised representative any information as to its use of the Trade Marks which Drinkaware and/or the Charity may require and will render any assistance reasonably required by Drinkaware and/or the Charity in maintaining or defending the registration of the Trade Marks.
10 NO REPRESENTATIONS, WARRANTIES OR INDEMNITIES
10.1 Nothing in these Terms shall be or be deemed to be a representation, warranty or indemnity by Drinkaware as to the existence, ownership, validity, enforceability or value of the Trade Marks.
11 INDEMNITIES AND LIABILITY
11.1 Company shall indemnify Drinkaware and/or the Charity against any and all liability, loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by Drinkaware or the Charity arising out of the performance or non-performance by Company of these Terms or resulting from any and all liability claims arising from Licensed Goods/Services provided by Company in the Territory.
11.2 Subject to clause 8.4, neither Drinkaware nor the Charity shall under any circumstances whatsoever be liable to Company, whether in contract, tort, negligence, by statute or otherwise, in respect of any special, indirect, incidental or consequential loss or damage arising out of or in connection with the Trade Mark Licence, whether it is foreseeable, known or foreseen or otherwise.
11.3 Subject to clause 8.4, the maximum liability owed by Drinkaware (and, to the extent applicable, Charity) to Company in relation to each Year for all and any loss or damage arising under or in connection with the Trade Mark Licence, whether in contract, tort, negligence, by statute or otherwise, shall in no circumstances exceed the amount of the Licence Fee received by Drinkaware from Company in respect of the relevant Year.
11.4 Nothing in this Agreement shall exclude or limit the liability of either party in respect of fraud, or death or personal injury caused by its negligence or any other liability which may not be excluded or limited by law.
12 TERMINATION
12.1 Drinkaware may terminate the Trade Mark Licence by immediate written notice (email sufficient) in the event that:
Company ceases or threatens to cease to carry on business;
Company goes into liquidation;
Company ceases to use the Trade Marks;
in the event that the Trade Marks are found (or, in Drinkaware’s reasonable opinion, are likely to be found) to infringe the trade marks or other intellectual property rights of a third party;
an administrative receiver or receiver and manager or administrator is appointed for Company or its assets or Company enters into a voluntary arrangement with its creditors or suffers any similar insolvency process or process which affords Company protection from its creditors;
in Drinkaware’s opinion, in its sole discretion, Company has breached, or is likely to be in breach of, these Terms;
in Drinkaware’s opinion, in its sole discretion, Drinkaware’s association with the Company is damaging, or is likely to cause damage, to the Drinkaware brand;
Company undergoes a Change of Control;
Company challenges the validity of the Trade Marks or Drinkaware’s ownership of the Trade Marks; or
in Drinkaware’s reasonable opinion Company’s annual turnover from alcohol sales exceeds or is likely to exceed the amount stated in the Order Form (if applicable).
12.2 Company shall be entitled to terminate the Trade Mark License by immediate written notice (email sufficient) in the event that the Trade Marks are found to infringe the trade marks or other intellectual property rights of a third party.
12.3 In the event of a termination under clause 12.1.4 or 12.2, Drinkaware shall issue a pro-rated refund in respect of the License Fee for any of the remaining Term.
12.4 Clauses 12.2 and 12.3 set out the Company’s sole and exclusive remedy in the event that the Trade Marks are found to infringe the trade marks or other intellectual property rights of a third party or Drinkaware exercises its right to terminate the Trade Mark License under clause 12.1.4,
12.5 The Trade Mark Licence shall automatically expire at the end of the Term.
12.6 Termination or expiry of the Trade Mark Licence shall be without prejudice to any existing rights and/or claims that Drinkaware and/or the Charity may have against Company, and shall not relieve Company from fulfilling the obligations accrued prior to such termination.
13 CONSEQUENCES OF TERMINATION
13.1 In the event of termination or expiry of the Trade Mark Licence howsoever arising:
all rights granted to Company in respect of the Trade Mark shall immediately terminate and, for the avoidance of doubt, Company shall within 3 months cease all use of the Trade Mark, including by removing or obliterate the Trade Marks from the Licensed Goods/Services and/or all and any materials used in connection with the Licensed Goods/Services.
Company shall if so requested by Drinkaware and/or the Charity execute an assignment in favour of Drinkaware or the Charity (or such other person as Drinkaware or the Charity may direct) of any property and all goodwill in the Trade Marks or marks identical or similar to the Trade Marks as may have accrued to Company by reason of the use of the Trade Marks and by Company being connected with the Trade Marks in the course of trade and all such rights (if any) as may have accrued to Company in relation to the Trade Marks by reason of such use
all provisions of these Terms which in order to give effect to their meaning need to survive its termination shall remain in full force and effect after termination.
13.2 Subject to the provision of this clause 10 Company shall do nothing after the termination or expiry of the Trade Mark Licence which might lead any person to believe that Company is still licensed to use the Trade Marks or is in any way connected with Drinkaware and/or Charity.
13.3 Termination or expiry of the Trade Mark Licence shall not affect the rights or liabilities of either party accrued prior to and including the date of termination or expiry.
14 INADEQUACY OF DAMAGES
14.1 Without prejudice to any other rights or remedies that Drinkaware and/or the Charity may have, Company acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of these Terms by Company. Accordingly, Drinkaware and/or the Charity shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of these Terms.
15 GENERAL
15.1 These Terms together with the relevant Order Form (together the “Agreement”) constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Terms.
15.2 If any term of the Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from the Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.4 Nothing in the Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
15.5 If applicable, an Order Form may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
15.6 No amendment or other variation to the Agreement between the parties in respect of the Trade Mark Licence shall be effective unless it is in writing is dated and is signed by a duly authorised representative of each party.
15.7 Any notices sent under or in connection with the Agreement must be in writing and may be served by personal delivery or by sending the notice by special delivery post or email to (a) the address given on the Order Form (if such notice is sent to Company); of (b) logos@drinkaware.co.uk or such other address as Drinkaware may give for the purpose of service of notices under or in connection with the Trade Mark Licence (if such notice is sent to Drinkaware). Every such notice shall be deemed to have been served on delivery if served by hand or at the expiration of two (2) Business Days after despatch of the same if delivered by special delivery post or if sent by email at 10 a.m. local time of the recipient on the next Business Day following despatch.
15.8 To prove service of any notice it shall be sufficient to show: in the case of a notice delivered by hand, that the same was duly addressed and delivered by hand; and in the case of a notice served by special delivery post, that the same was duly addressed prepaid and posted in the manner set out above. In the case of a notice given by email, it shall be sufficient to show that it was despatched in a legible and complete form to the correct email address (as set out in clause 15.7) without any error message, provided that a confirmation copy of the transmission is sent to the recipient by special delivery post in the manner applicable to notices sent by special delivery post set out above. Failure to send a confirmation copy shall invalidate the service of notice by email.
15.9 If any party commences legal proceedings relating to the Agreement, the claim form or other process by which it is started may not be served by email.
15.10 Except as otherwise expressly stated in clause 15.11 or elsewhere in these Terms, a person who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
15.11 In accordance with section 1 Contracts (Rights of Third Parties) Act 1999, the Charity shall be entitled to enforce all of the rights and benefits under the Agreement at all times as if it were a party to this Agreement.
15.12 The consent of the Charity is not required for any rescission or variation of the Agreement agreed to by Drinkaware and the Company, or any termination of the Trade Mark License or the Agreement by Drinkaware or the Company.
15.13 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
15.14 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).