Drinkaware Trademark 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 First Floor, Michael House, 35 Chiswell Street, London EC1Y 4SE (“Drinkaware”) and each company directed to these Terms in order to license the Trade Marks (defined below) (“Licensee” or “you”).

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 and Drinkaware is authorised by the Charity to grant licenses to use the Trade Marks on the basis of these Terms.

By paying the Licence Fee (defined below) and using the Trade Marks (defined below), you agree to be bound by these Terms. If you are an individual purporting to acting on behalf of the Licensee, you confirm that you are authorised to bind the Licensee 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 Drinkaware makes the Trade Mark availabile for download by Licensee as set out in Clause 3.2;“Licensed Goods/Services” means any goods and/or services of the Licensee 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 outunder heading ‘Goods/Services’ inSchedule 1, and such other typesof goods and/or services thatDrinkaware approves of in writing; 

“Licence Fee” means the fee payable by Licensee to Drinkaware Trading Limited in consideration of the Trade Mark Licence;

“Logo Guidelines” means the document attached (as amended from time to time by Drinkaware);

“Term” means the period that (i) commences on the Commencement Date and; (ii) ends at 00:00 (midnight) on the first anniversary of the Commencement Date;

“Territory” means the United Kingdom and any other territory that Drinkaware approves of in writing;

“Trade Mark Licence” means rights granted by Drinkaware for Licensee to use the Trade Marks, as specified in clause 2;

“Trade Marks” the trade marks set out in Schedule 1; 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 Licensee seeks to impose on Drinkaware, any terms contained in or referred to in any purchase order issued by Licensee or elsewhere, or any terms implied by trade, custom practice or course of dealing.

2 Grant of Licence

2.1 Subject to Licensee’s payment of the Licence Fee and Licensee’s compliance with these Terms, Drinkaware hereby grants to Licensee 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).

2.2 Licensee hereby acknowledges that any rights not expressly granted to it under these Terms are fully reserved to Drinkaware and/or the Charity, as applicable. For the avoidance of doubt, Licensee is not, unless agreed in writing with Drinkaware, permitted to:

2.2.1 use the Trade Marks outside the Territory;

2.2.2 use the Trade Marks in relation to any goods or services other than Licensed Goods/Services;

2.2.3 use the Trade Marks following expiry of the Term; or

2.2.4 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.

2.3 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.

2.4 Licensee shall, on Drinkaware’s written request, promptly provide Drinkaware with: (i) samples of all Licensee’s advertising materials and packaging; and/or copies of Licensee’s online (including via social media) advertising materials which incorporate the Trade Marks.

3 Licence fee

3.1 Licensee shall pay to Drinkaware Trading Limited the Licence Fee, which shall be paid within 30 days of the date of Drinkaware’s invoice in respect of the same (or as otherwise agreed between the parties in writing).

3.2 The payment made by the Licensee under clause 3.1 is exclusive of VAT and Licensee 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.

3.3 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 Licensee 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.

4 Use of the Trade Marks

4.1 The Licensee acknowledges that Drinkaware and/or the Charity’s principal objective is to promote the responsible sale and consumption of alcohol (“Objective”). Licensee shall:

4.1.1 ensure that its use of the Trade Marks is consistent with the Objective;

4.1.2 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;

4.1.3 obtain at its own expense all licences, permits and consents necessary for the provision of the Licensed Goods/Services in the Territory.

4.1.4 not 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 detracts from the value of, the Trade Marks;

4.1.5 use the Trade Marks in accordance with the Brand 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 Licensee in writing (email sufficient) by Drinkware from time to time; and

4.1.6 not cause the Trade Marks to become generic, lose their distinctiveness, or become liable to mislead the public.

4.2 For the purposes of clause 4.1.6, Licensee agrees that the Trade Marks will be deemed to be 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 Licensee. 

4.3 Licensee 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.

4.4 Licensee 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 Licensee, the Trade Marks, Drinkaware or the Charity into disrepute.

4.5 Licensee 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.

4.6 Licensee 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.

4.7 Licensee 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.

4.8 Licensee 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 Licensee.

4.9 Licensee 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.

5 Ownership of the Trade Marks and goodwill

5.1 Licensee acknowledges that all right, title and interest in the Trade Mark shall remain vested in the Charity and that Licensee 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 these Terms or uses of the Trade Mark.

5.2 Any goodwill derived from the use by the Licensee 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 Licensee shall immediately execute it.

5.3 Should any such right, title or interest in the Trade Mark become vested in Licensee (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.

6 Protection of the Trade Marks

6.1 If Licensee 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, Licensee shall promptly notify Drinkaware in writing, giving full particulars of such circumstances, and Licensee shall make no comment or admission to any third party in respect of such circumstances.

6.2 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 Licensee shall not be entitled to bring any action for infringement regardless of any such decisions.

6.3 Licensee 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.

6.4 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.

7 Maintenance of Trade Marks

7.1 Drinkaware and/or the Charity will pay all renewal fees for the registration of the Trade Marks falling due during the Term.

7.2 Licensee 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.

7.3 Licensee 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.

8 No representations, warranties or indemnities

8.1 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.

9 Indemnities and liability

9.1 Licensee 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 Licensee of these Terms or resulting from any and all liability claims arising from Licensed Goods/Services provided by Licensee in the Territory.

9.2 Subject to clause 9.4, neither Drinkaware nor the Charity shall under any circumstances whatsoever be liable to Licensee, 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, foreseen or otherwise.

9.3 Subject to clause 9.4, the maximum liability owed by Drinkaware (and, to the extent applicable, Charity) to Licensee 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 Trading Limited from Licensee.

9.4 Nothing in these Terms 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. 

10 Termination

10.1 Drinkaware may terminate the Trade Mark Licence by immediate written notice (email sufficient) in the event that:

10.1.1 Licensee ceases or threatens to cease to carry on business;

10.1.2 Licensee goes into liquidation;

10.1.3 Licensee ceases to use the Trade Marks;

10.1.4 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;

10.1.5 an administrative receiver or receiver and manager or administrator is appointed for Licensee or its assets or Licensee enters into a voluntary arrangement with its creditors or suffers any similar insolvency process or process which affords Licensee protection from its creditors;

10.1.6 in Drinkaware’s opinion, in its sole discretion, Licensee has breached, or is likely to be in breach of, these Terms;

10.1.7 in Drinkaware’s opinion, in its sole discretion, Drinkaware’s association with the Licensee is damaging, or is likely to cause damage, to the Drinkaware brand;

10.1.8 Licensee undergoes a Change of Control; or

10.1.9 Licensee challenges the validity of the Trade Marks or Drinkaware’s ownership of the Trade Marks.

10.2 Drinkaware may terminate the Trade Mark Licence without cause on 3 months written notice (email sufficient)

10.3 In the event of a termination under clause 10.1.4, Drinkaware shall issue a pro-rated refund in respect of the License Fee for any of the remaining Term.

10.4 Clause 10.2 sets out the Licensee’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 10.1.4,

10.5 The Trade Mark Licence shall automatically expire at the end of the Term subject to any renewal agreed between the parties (such renewal being subject to Licensee agreeing to these Terms as may be updated from time to time and payment of an additional licence fee).

10.6 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 Licensee and shall not relieve Licensee from fulfilling the obligations accrued prior to such termination.

11 Consequences of termination

11.1 In the event of termination or expiry of the Trade Mark Licence howsoever arising:

11.1.1 all rights granted to Licensee in respect of the Trade Mark shall immediately terminate and, for the avoidance of doubt, Licensee shall within 3 months of the termination date cease all use of the Trade Marks, 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. 

11.1.2 Licensee 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 Licensee by reason of the use of the Trade Marks and by Licensee being connected with the Trade Marks in the course of trade and all such rights (if any) as may have accrued to Licensee in relation to the Trade Marks by reason of such use.

11.1.3 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.

11.2 Subject to the provision of this clause 11 Licensee shall do nothing after the termination or expiry of the Trade Mark Licence which might lead any person to believe that Licensee is still licensed to use the Trade Marks or is in any way connected with Drinkaware and/or Charity.

11.3 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.

12 Inadequacy of damages

12.1 Without prejudice to any other rights or remedies that Drinkaware and/or the Charity may have, Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of these Terms by Licensee. 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.

13 General

13.1 These Terms constitute the entire agreement between the parties and supersede and extinguish 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 these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Terms.

13.2 If any term of these Terms 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 Terms and shall in no way affect the legality, validity or enforceability of the remaining terms.

13.3 No failure or delay by a party to exercise any right or remedy provided under the Terms 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.

13.4 Nothing in these Terms 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.

13.5 No amendment or other variation to these Terms 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. 

13.6 Any notices sent under or in connection with these Terms 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 registered address of Licensee as stated at Companies House at the time of notice or any other address notified to Drinkaware by Licensee; or (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.

13.7 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 13.6) 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.

13.8 If any party commences legal proceedings relating to these Terms, the claim form or other process by which it is started may not be served by email.

13.9 Except as otherwise expressly stated in clause 13.10 or elsewhere in these Terms, a person who is not a party to these Terms has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.

13.10 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 these Terms at all times as if it were a party to these Terms.

13.11 The consent of the Charity is not required for any rescission or variation of these Terms.

13.12 These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.

13.13 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 these Terms or their subject matter or formation (including non-contractual disputes or claims).