Terms and Conditions for the Licence of Intellectual Property Rights Rights
Unless otherwise defined in these Terms and Conditions, defined terms used herein shall have the same meaning given to them in the Licence Details.
1. TERM
Your request to licence Glencairn’s rights in the Licensed IP and Glencairn’s issue of this Agreement constitutes a request for a licence from Glencairn on Glencairn’s standard terms and conditions of licence. This request is accepted when Glencairn issues a signed copy of this Agreement to You and the contract between the parties will come into force on receipt by Glencairn of a signed copy of this Agreement from You (“Commencement Date“) and shall continue in full force and effect for an initial term of one (1) year (“Initial Term”). Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each a “Renewal Term”) unless, subject to clause 5.2, either party provides written notice of its intention not to renew at least 30 days prior to the end of the Initial Term or any Renewal Term (the Initial Term and any Renewal Term being the “Term”). You shall have no right to use the Licensed IP until you have returned a signed copy of this Agreement.
2. RIGHT OF USE
2.1 Glencairn hereby grants to You a personal, non-transferable, non-exclusive and revocable licence to use Glencairn’s intellectual property rights in the Licensed IP for the Specified Purpose in the Territory and in the Field of Use.
2.2 You shall comply strictly with Glencairn’s directions (written or otherwise) regarding the form and manner of the application of the Licensed IP and/or any use of the Licensed IP.
2.3 You shall not use in Your business or seek to apply or obtain registration of any marks which represent or are confusingly similar to the representation of the Glencairn Glass and/or the Glencairn name and/or the Licensed IP.
2.4 Any goodwill derived from Your use of the Licensed IP shall accrue to Glencairn. Glencairn may, at any time, call for a document confirming the assignation of that goodwill and You shall immediately execute it.
2.5 If You have supplied any part of the Licensed IP to Glencairn, You warrant to Glencairn that you are the owner (or licensee) of the copyright and associated intellectual property rights in the part of the Licensed IP provided by You and that You are entitled to use the part of the Licensed IP provided by You for the Specified Purpose in the Territory.
2.6 You shall not do, or omit to do, or permit to be done, any act that will or may weaken, damage or be detrimental to the Glencairn Glass or the reputation or goodwill associated with the Licensed IP, the Glencairn Glass or the business of Glencairn.
2.7 You shall display the Acknowledgement alongside any use of the Licensed IP.
2.8 You shall send to Glencairn for its prior written approval, the text and layout of all proposed uses of the Licensed IP (including advertisements and marketing and promotional material including the Licensed IP). You shall not use the Licensed IP in any manner that has not been approved in writing by Glencairn.
2.9 You shall comply with all specifications, standards and directions relating to the use of the Licensed IP, as notified in writing by Glencairn from time to time
3. ADDITIONAL OBLIGATIONS
3.1 You shall only make use of the Licensed IP for the Specified Pupose.
3.2 You acknowledge and agree that the exercise of the licence granted to You under this Agreement is subject to all applicable laws, enactments, regulations and other similar instruments in the Territory, and You understand and agree that You shall at all times be solely liable and responsible for such due observance and performance.
3.3 You shall, in exercising Your rights under this Agreement, comply with all applicable laws, regulations and codes of practice and shall ensure any product or service which features the Licensed IP and/or any use of the Licensed IP complies with all applicable laws, regulations and codes of practice.
3.4 You shall provide Glencairn with details of: 1) any complaints You have received relating to the use of the Licensed IP together with reports on the manner in which such complaints are being, or have been, dealt with; and 2) all communications, relating to the Licensed IP with any regulatory, industry or other authority and shall comply with any reasonable directions given by Glencairn in respect thereof.
3.5 You shall immediately notify Glencairn in writing giving full particulars if any of the following matters come to Your attention:
3.5.1 any actual, suspected or threatened infringement of the Licensed IP;
3.5.2 any actual or threatened claim that the Licensed IP is invalid;
3.5.3 any actual or threatened opposition to the Licensed IP;
3.5.4 any claim made or threatened that use of the Licensed IP infringes the rights of any third party;
3.5.5 any other form of attack, charge or claim to which the Licensed IP may be subject.
3.6 In respect of any of the matters listed in clause 5:
3.6.1 Glencairn shall, in its absolute discretion, decide what action if any to take;
3.6.2 Glencairn shall have exclusive control over, and conduct of, all claims and proceedings;
3.6.3 You shall not make any admissions other than to Glencairn and shall provide Glencairn with all assistance that it may reasonably require in the conduct of any claims or proceedings; and
3.6.4 At its sole discretion, Glencairn may bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account
3.7 You shall:
3.7.1 ensure that any products containing and/or displaying and/or provision of services using the Licensed IP are safe for the use for which they were intended;
3.7.2 obtain at Your own expense all licences, permits and consents necessary for the use of the Licensed IP and/or sale or creation of any products and/or provision of services containing and/or displaying the Licensed IP in the Territory;
3.7.3 perform Your obligations in connection with the use of the Licensed IP and/or sale or creation of any products and/or provision of services containing and/or displaying the Licensed IP with all due skill, care and diligence including good industry practice;
3.7.4 only make use of the Licensed IP for the purposes authorised in this Agreement; and
3.7.5 comply with all regulations and practices in force in the Territory to safeguard Glencairn’s rights in the Licensed IP.
4. LIABILITY, INDEMNITY AND INSURANCE
4.1 To the fullest extent permitted by law, Glencairn shall not be liable to You for any costs, expenses, loss or damage (whether direct, indirect or consequential, and whether economic or other) arising from Your exercise of the rights granted to You under this Agreement.
4.2 You hereby indemnify Glencairn against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation 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 Glencairn arising out of or in connection with:
4.2.1 Your exercise of the rights granted under this Agreement, including any claim made against Glencairn for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection therewith or
4.2.2 any action You may take against Glencairn upon termination of this Agreement;
4.2.3 Your breach or negligent performance or non-performance of this Agreement; or
4.2.4 the enforcement of this Agreement; and
4.2.5 any claim made against Glencairn by a third party for death, personal injury or damage to property arising out of or in connection with Your use of the Licensed IP or any products created by You which contain or display the Licensed IP or any services provided by you using the Licensed IP.
4.3 If a payment due from You under this clause 2 is subject to tax (whether by way of direct assessment or withholding at its source), Glencairn shall be entitled to receive from You such amounts as shall ensure that the net receipt, after tax, to Glencairn in respect of the payment is the same as it would have been were the payment not subject to tax.
4.4 Nothing in this clause shall restrict or limit Glencairn’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
4.5 Nothing in this Agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence or any other liability that cannot be excluded under applicable law.
4.6 You shall, at Your expense, carry product liability and/or comprehensive general liability insurance for an amount adequate to support Your liabilities under this Agreement.
5. ROYALTIES
5.1 If stated on the Licence Details, you shall pay to Glencairn the Annual Royalty during each year during the Term within 30 days of (i) the date of signing the Commencement Date, and (ii) the start of each Renewal Term thereafter.
5.2 Glencairn will review the Annual Royalty for each Renewal Term, and reserves the right to increase the Annual Royalty at its discretion for such Renewal Term. Where Glencairn increases the Annual Royalty, it will notify You of the revised Annual Royalty no less than 28 days prior to the beginning of the next Renewal Term. You will have 21 days to reject any revised Annual Royalty, and if You do so, Glencairn may terminate this Agreement in accordance with clause 2. If you do not reject the revised Annual Royalty within such 21 day period, you will be deemed to have accepted the revised Annual Royalty.
5.3 The Annual Royalty and other sums payable under this agreement are exclusive of VAT (or similar tax) and shall be paid free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law. If any deduction or withholding is required by law You shall pay to Glencairn such sum as will, after the deduction or withholding has been made, leave Glencairn with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. If You are required by law to make a deduction or withholding, You shall, within five business days of making the deduction or withholding, provide a statement in writing showing the gross amount of the payment, the amount of the sum deducted and the actual amount paid.
5.4 You shall pay all sums pursuant to this clause 5 in pounds sterling into the Glencairn Bank Account on the relevant payment dates.
5.5 In the event of any delay in paying any sum due under this agreement by the due date, You shall pay to Glencairn:
5.5.1 interest (calculated on a daily basis) on the overdue payment from the date when such payment was due to the date of actual payment at a rate of 4% over the base rate of Bank of England time to time;
5.5.2 an amount equal to any penalties incurred by Glencairn as a direct result of the delay.
5.6 You shall keep proper records and books of account showing the description and price of products supplied or put into use incorporating the Licensed IP. Such records and books shall be kept separate from any records and books not relating solely to the Licensed Products and be open during normal business hours to inspection and audit by Glencairn (or its authorised representative), who shall be entitled to take copies of or extracts from them. If such inspection or audit should reveal a discrepancy in the royalties paid from those payable under this agreement, you shall immediately make up the shortfall and reimburse Glencairn in respect of any professional charges incurred for such audit or inspection. Such right of inspection of Glencairn shall remain in effect for a period of two years after the termination of this agreement.
5.7 The provisions of this clause 5 shall remain in effect after termination or expiry of this agreement until the settlement of all subsisting claims by Glencairn.
6. TERMINATION
6.1 You agree that this Agreement applies to the use of the Licensed IP to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
6.2 Glencairn may terminate this Agreement by notice with immediate effect if:
6.2.1 You commit a material breach of any term of this Agreement and, if such breach is remediable, you fail to remedy that breach within a period of 14 days after being notified in writing to do so; and
6.2.2 You reject any revised Annual Royalty amount in accordance with the process set forth in clause 2.
6.3 On expiry or termination of this Agreement for any reason and subject to any express provisions set out elsewhere in this Agreement all rights and licences granted pursuant to this Agreement shall cease and You shall cease all use of the Licensed IP and promptly, at our discretion, destroy or deliver to Glencairn at your own expense all stocks of all products bearing or incorporating the Licensed IP (“Licensed Products”), save that where the agreement expires, or is terminated other than in accordance with clause
6.3.1 You shall have a period of 90 days after the date of termination to dispose of all stocks of all products bearing or incorporating the Licensed IP (“Licensed Products”) in your possession or in the course of manufacture at the date of termination; and
6.3.2 Within 120 days after the date of termination You shall promptly, at our discretion, destroy, or deliver to Glencairn at your own expense, all Licensed Products that You have not disposed of within 90 days after the date of termination in accordance with clause 3.1.
6.4 You hereby agree that failure to cease all use of the Licensed IP after termination of this Agreement, other than as permitted by clause 3, shall cause Glencairn irreparable harm.
6.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
6.6 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the licence which existed at or before the date of termination or expiry.
7. GENERAL
7.1 EXCLUSIONS: The provisions of sections 101 and 101A of the Copyright, Designs and Patents Act 1988 (or equivalent legislation in any jurisdiction) are expressly excluded.
7.2 NO WARRANTY: Nothing in this Agreement shall constitute any representation or warranty that:
7.2.1 the Licensed IP is valid; and/or
7.2.2 the exercise by You of rights granted under this Agreement will not infringe the rights of any person
7.3 SUB-LICENSING: You shall not grant sub-licences or sub-contract any rights under this Agreement.
7.4 ASSIGNATION AND OTHER DEALINGS: You shall not assign, transfer, mortgage, charge, subcontract, sub-license, declare a trust over, or deal in any other manner with any or all of Your rights under this Agreement without the prior written consent of Glencairn. Glencairn 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 this Agreement.
7.5 FURTHER ASSURANCE: Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
7.6 WAIVER: No failure or delay by a party to exercise any right or remedy provided under this 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.
7.7 ENTIRE AGREEMENT: This Agreement constitutes 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.
7.8 VARIATION: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
7.9 SEVERANCE: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
7.10 THIRD PARTY RIGHTS: Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce any term of this Agreement.
7.11 NO PARTNERSHIP OR AGENCY: Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party and each party confirms it is acting on its own behalf and not for the benefit of any other person.
7.12 GOVERNING LAW: This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with Scots law.
7.13 JURISDICTION: Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.