1. GRANT OF RIGHTS AND RESERVATIONS
1.1 unbound grants and the Partner accepts the Partnership Rights as specified on the Booking Confirmation Form from the Start Date of this Agreement until the End Date (the “Term”), for the territory and in accordance with these terms of business (the “Agreement”).
1.2 All rights not expressly granted to the Partner under this Agreement are reserved to unbound. The Partner acknowledges and agrees that:
(a) unbound is the owner or controller of all proprietary and commercial rights in the unbound Event and of all rights in the unbound Event Marks (together the “Commercial Rights”);
(b) the Partner shall not be entitled to exploit or enter into any commercial or other agreement to exploit any of the Commercial Rights other than the Partnership Rights; and
(c) unbound shall be entitled to enter into any Partnership arrangement with any third party. The Partner agrees that unbound shall not be, nor considered to be, nor deemed to be, in breach of any provision of this Agreement as a result of entering into that arrangement.
1.3 The Partner grants and unbound accepts a worldwide, sub-licensable, non-exclusive, royalty free licence to use the Partner’s Marks:
(a) during the Term for the delivery of the Partnership Rights;
(b) in perpetuity to promote and exploit the unbound Event in any media whether now known or yet to be invented (including in a computer game, on a website or mobile-device application) including by use on promotional material and merchandising.
2. PARTNERSHIP FEE
2.1 In consideration of the Partnership Rights granted to the Partner, the Partner shall pay unbound the Partnership Fee plus any VAT, sales tax or similar taxes properly levied, payable in accordance with the Booking Confirmation Form and without any set off or deduction. All amounts are due in full within 14 days of the date of the invoice or, where the unbound Event is within 14 days of the date of invoice, prior to the unbound Event.
2.2 unbound reserves the right to reschedule the unbound Event and where the unbound Event is reschedules the Partnership Fee shall be applied to the rescheduled unbound Event. If unbound cancels the unbound Event, unbound may apply the Partnership Fee to a new unbound Event.
3. OBLIGATIONS OF THE PARTNER
3.1 The Partner undertakes to unbound:
(a) to exercise the Partnership Rights strictly in accordance with the terms of this Agreement. For the avoidance of doubt, the Partner shall not be entitled to use or exploit any of the Commercial Rights (other than the Partnership Rights) in any way;
(b) to use the unbound Event Marks and other branding materials provided by unbound in accordance with the unbound Event Marks Guidelines;
(c) to apply any legal notices as required by unbound or as set out in the unbound Event Marks Guidelines on all Partner’s unbound Event materials;
(d) to ensure that the manufacture, packaging, distribution, advertising and sale of all Partner’s unbound Event materials shall comply with all applicable laws and the highest standards of business ethics, in particular those relating to child or prison labour;
(e) to immediately at the written request of unbound and at its sole cost, withdraw from circulation any Partner’s unbound Event materials which do not comply with clause 3.1(b);
(f) to comply with all applicable laws relevant to the exercise of its rights and the performance of its obligations under this Agreement;
(g) to provide to unbound, at the Partner’s sole cost and expense, all suitable material including artwork of the Partner’s Marks in a format and within print deadlines reasonably specified by unbound for it to be reproduced under the control of unbound for the fulfilment of the Partnership Rights;
(h) not to apply for registration of any part of the unbound Event Marks or anything confusingly similar to the unbound Event Marks as a trade mark for any goods or services;
(i) not to use the unbound Event Marks or any part of them or anything confusingly similar to them in its trading or corporate name or otherwise, except as authorised under this Agreement;
(j) not to do or permit anything to be done which might adversely affect any of the Commercial Rights or the value of the Commercial Rights;
(k) to provide all reasonable assistance to unbound in relation to unbound’s exploitation of the Commercial Rights;
(l) to use its reasonable endeavours to assist unbound in protecting the unbound Event Marks and not to knowingly do, or cause or permit to be done, anything which may prejudice or harm or which has the potential to prejudice or harm the unbound Event Marks or unbound’s title to the unbound Event Marks or the image of the unbound Event, unbound or the Venue;
(m) to notify unbound of any suspected infringement of the unbound Event Marks, but not to take any steps or action whatsoever in relation to that suspected infringement unless requested to do so by unbound;
(n) to hold any additional goodwill generated by the Partner for the unbound Event Marks as bare trustee for unbound and to assign the same to unbound at any time on request and in any unbound Event following termination of this Agreement;
(o) to execute any further documentation and provide any assistance, both during the Term and after termination, as may reasonably be requested by unbound to protect the unbound Event Marks. This may include recording the terms of this Agreement or any understanding or obligation under this Agreement on any trade mark register or other register, or in any other way.
3.2 The Partner has no right to sub-license, assign or otherwise dispose of any of the Partnership Rights, including to its Affiliates, without unbound’s prior written consent.
3.3 The Partner shall not engage in joint promotions with any third party in relation to the unbound Event without unbound’s prior written consent.
4. OBLIGATIONS OF UNBOUND
4.1 unbound shall organise or procure the organisation of the unbound Event at the Venue at its sole cost and expense in accordance with the terms of this Agreement.
4.2 unbound shall use its reasonable endeavours to deliver or ensure the delivery of each and all of the Partnership Rights to the Partner.
4.3 unbound shall ensure that all relevant Partner signage and advertising to be delivered as part of the Partnership Rights is properly in place and operational and not concealed or obscured from view at any time.
4.4 unbound confirms that, whenever possible, it will ensure that the Partner’s Marks will be present in accordance with this Agreement and that the Partner’s Marks are incorporated into all promotional, advertising and publicity material.
4.5 unbound shall comply with all applicable laws relevant to its performance of this Agreement as well as any conditions attached to any licences or consents issued in connection with the unbound Event including regarding health and safety and crowd security measures at the Venue.
4.6 unbound accepts that, regardless of the obligations of unbound to promote the unbound Event within the terms of this Agreement, the Partner shall be entitled to advertise, publicise, promote and otherwise commercially exploit its own products, goodwill and reputation through the Partner’s association with the unbound Event on and subject to the terms of this Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1 Each party warrants and undertakes to the other that:
(a) it has full authority to enter into this Agreement and is not bound by any agreement with any third party that adversely affects this Agreement; and
(b) it has and will maintain throughout the Term, all necessary powers, authority and consents to enter into and fully perform its obligations under this Agreement.
5.2 unbound represents to the Partner that:
(a) unbound owns or controls the unbound Event and the unbound Event Marks and that the Partner’s use of the unbound Event Marks and its exercise of the other Partnership Rights in accordance with the provisions of this Agreement shall not infringe the rights of any third party;
(b) it has entered into a bona fide written agreement for the use of the Venue and has made all administrative and financial arrangements necessary for the smooth running of the unbound Event.
5.3 The Partner represents and warrants that:
(a) it owns or is solely entitled to use the Partner’s Marks and any other material supplied to unbound in relation to this Agreement and unbound shall be entitled to see evidence to this effect on request;
(b) unbound’s use of the Partner’s Marks in accordance with clause 1.3 will not infringe the rights of any third party.
6.1 The Partner shall indemnify unbound against all liabilities, costs, expenses, damages and losses (including but not limited to any interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by unbound arising out of or in connection with:
(a) any claim made against unbound by a third party for actual or alleged infringement of a third party’s Intellectual Property Rights or moral rights arising out of or in connection with unbound’s use of the Partner’s Marks in accordance with this Agreement;
(b) any claim made against unbound by a third party arising out of or in connection with the manufacture, production, distribution, handling, advertising, consumption or use of, or otherwise relating to, the Partner’s unbound Event Materials, whether or not any claim arises during the Term. For the avoidance of doubt, any approval by unbound of any use of the unbound Event Marks on the Partner’s unbound Event Materials, relates only to the use of the unbound Event Marks and does not amount to approval of any the Partner’s unbound Event Materials and shall not affect this right of indemnification.
6.2 unbound shall indemnify the Partner against all liabilities, costs, expenses, damages and losses (including but not limited to any interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Partner arising out of or in connection with any claim made against the Partner by a third party for actual or alleged infringement of a third party’s Intellectual Property Rights or moral rights arising out of or in connection with the Partner’s use of the unbound Event Marks in accordance with this Agreement.
6.3 The indemnities in this clause 6 shall not cover the indemnified party to the extent that a claim under it results from the indemnified party’s negligence or wilful misconduct.
6.4 If any third party makes a claim, or notifies an intention to make a claim, against an indemnified party which may reasonably be considered likely to give rise to a liability under an indemnity in this clause 6 (a “Claim”), the indemnified party shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the indemnifying party, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the indemnifying party (such consent not to be unreasonably conditioned, withheld or delayed), provided that the indemnified party may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the indemnifying party, but without obtaining the indemnifying party’s consent) if the indemnified party reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect;
(c) give the indemnifying party and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the indemnified party, so as to enable the indemnifying party and its professional advisers to examine them and to take copies (at the indemnifying party’s expense) for the purpose of assessing the Claim; and
(d) subject to the indemnifying party providing security to the indemnified party to the indemnified party’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the indemnifying party may reasonably request to avoid, dispute, compromise or defend the Claim.
6.5 If a payment due from the indemnifying party under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the indemnified party shall be entitled to receive from the indemnifying party such amounts as shall ensure that the net receipt, after tax, to the indemnified party in respect of the payment is the same as it would have been were the payment not subject to tax.
6.6 Nothing in this clause shall restrict or limit the indemnified party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an unbound Event that may give rise to a claim under this indemnity.
7. LIMITATION OF LIABILITY
7.1 Nothing in this Agreement shall limit or exclude a party’s liability:
(a) for death or personal injury caused by its negligence, or the negligence of its employees, agents or representatives;
(b) for fraud or fraudulent misrepresentation;
(c) for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law; or
(d) under the indemnities set out at clause 6.1(a), clause 6.1(b) and [ ]
7.2 Subject to clause 8.1, under no circumstances shall a party be liable to the other for any of the
following, whether in Agreement, tort (including negligence) or otherwise:
(a) loss of revenue or anticipated revenue;
(b) loss of savings or anticipated savings;
(c) loss of business opportunity;
(d) loss of profits or anticipated profits;
(e) wasted expenditure; or
(f) any indirect or consequential losses.
7.3 Subject to clause 8.1, unbound’s maximum aggregate liability in contract, tort (including negligence) or otherwise, however arising, under or in connection with this Agreement shall be limited to the amount of the Partnership Fee paid under or pursuant to this agreement (the “Cap”), always provided that where any sums are refunded to the Partner the Cap shall be reduced by the amount of such refund.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 unbound and the Partner acknowledge as follows:
(a) all rights in the Partner’s Marks, including any goodwill associated with them, shall be the sole and exclusive property of the Partner, and, save as expressly provided in clause 1.3, unbound shall not acquire any rights in the Partner’s Marks, nor in any developments or variations of them;
(b) all rights in the unbound Event Marks, including any goodwill associated with them, shall be the sole and exclusive property of unbound and, save as expressly provided in the Booking Confirmation Form (Partnership Rights), the Partner shall not acquire any rights in the unbound Event Marks, including any developments or variations of them;
8.2 All Intellectual Property Rights in and to any materials produced for the unbound Event by or on behalf of unbound or jointly by unbound and the Partner shall, with the exception of the Partner’s Marks, be the sole and exclusive property of unbound and if the Partner acquires, by operation of law, title to any such Intellectual Property Rights it shall assign them to unbound on request, whenever that request is made.
9.1 The Partner confirms that it holds a comprehensive insurance for the following:
(a) public liability at the Venue during the course of the unbound Event, in respect of the Partner’s products and any other materials or goods owned or controlled by the Partner,
(b) loss, theft or damage to any of the Partner’s products or other materials or goods owned or controlled by the Partner; and
(c) to cover any loss, damage or claim arising directly or indirectly by the public’s use of the specific product or services being promoted by the Partner, together with all other goods or services associated with the Partner’s Marks.
9.2 unbound confirms that it will take out a comprehensive insurance policy for the unbound Event, including adequate public liability insurance for injury or death of any participants or spectators.
10.1 This Agreement shall commence on the Start Date and will continue for Term. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
11. CONSEQUENCES OF TERMINATION
11.1 On termination or expiry of this Agreement:
(a) the Partnership Rights granted by unbound to the Partner under this Agreement shall immediately terminate and revert to unbound.
(b) following termination of the Partnership Rights and their reversion to unbound the Partner shall not exercise the Partnership Rights or use or exploit (directly or indirectly) its previous connection with unbound or the unbound Event;
(c) within 90 days after the date of termination the Partner shall destroy or, if unbound shall so elect, deliver to unbound or any other person designated by unbound, at the Partner’s expense, all Partner’s unbound Event Materials in its possession or control;
(d) each party shall promptly return to the other any property of the other within its possession or control;
(e) each party shall pay to the other any sums that are outstanding and to be accounted for under this Agreement;
(f) the following clauses shall continue in force: clause 6 (Indemnities), clause 7 (Limitation of liability), clause 11 (Consequences of termination), clause 12 (Confidentiality) to clause 14 (Governing law and jurisdiction).
11.2 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 Agreement which existed at or before the date of termination or expiry.
12.1 .Each party undertakes that it shall not at any time, and for a period of five years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
13.1 If a party fails to make any payment due to the other party under this Agreement by the due date for payment, then, without limiting the other party’s remedies, the defaulting party shall pay interest on the overdue amount at the rate of 4% per annum above Barclays’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount.
13.2 a person who is not a party to this Agreement shall not have any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
13.3 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.4 This Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
13.5 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.
13.6 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.
13.7 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.
13.8 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.
13.9 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 this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement
13.10 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing (including email) and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case)
13.11 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
14. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.