This Commercial IP Licence Agreement (“Agreement”) is made the day you sign up to our membership via this website or affiliate pertners (“Effective Date”);
BETWEEN
PARACHEER INTERNATIONAL CIO whose registered office is situated at Flat 10 Nightingale Court, 1-3 Valley Road, Shortlands, Bromley BR2 0DP, England (“PCI”); and
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Paid Member, whose principal place of business is stated on your membership application ("LICENSEE").
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THE PARTIES HEREBY AGREE AS FOLLOWS:
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1. Definitions
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“PCI Marks And Assets” means; (i) all words, symbols or devices that identify PCI as the source and origin of the Licensed IP or are otherwise associated with PCI including without limitation the PCI name, PCI logo, Resources, Merchandise, PCI web-banner and associated link, and any other registered marks set out in Schedules 1 and 2, along with their corresponding notification of intellectual property protection and ownership (“IP Notice”); ii) any and all graphical representations and electronic files irrespective of format that implement i) whether created and/or provided by PCI or not; and iii) any updates to i) and ii) as may be made available to LICENSEE by PCI from time to time.
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“PCI Materials” means any and all materials supplied by PCI to LICENSEE and all elements derived therefrom (which, for clarity, includes without limitation all successors and derivatives thereof, such as content and feature extensions and/or improvements, packaging and display materials, and advertising, promotional and/or marketing materials) and any updates thereto as may be made available to LICENSEE by PCI from time to time.
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1.4 “Licensed IP” means the PCI Marks And Assets and PCI Guidelines.
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1.5 “Confidential Information” means all information received or obtained as a result of entering into or performing this Agreement which relates to the provisions or subject matter of this Agreement, the other party and its plans, activities and products or the negotiations relating to this Agreement.
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1.6 “Intellectual Property” means patent rights and patent registrations, applications, renewals and extensions thereof, copyright (including, but not limited to, ownership rights in all titles, images concepts, artwork, animation, methods of operation, moral rights and any and all related documentation) and (where said registrations, renewals and/or extensions exist) copyright registrations, applications, renewals and extensions thereof, database rights, service marks, registered designs, trademarks and trademark registrations, design rights, unregistered design rights, trade secrets, domain names, rights in trade dress and packaging, and any and all other forms of intellectual property recognised by the laws of England and Wales and other applicable foreign and international laws, treaties and conventions.
1.7 “Use” means the following limited acts;
(i) use of the latest version of the Licensed IP in relation to the Authorised Purpose.
(ii) making two copies of the Licensed IP solely for backup and archival purposes.
“Use” shall specifically exclude: i) the use of any word or words, symbol, image, model or device substantially similar or likely to be confused with the Licensed IP; ii) the modification of any of the Licensed IP.
1.11 “Territory” as set out in Schedule 3.
1.12 “Term” as set out in Schedule 3.
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1.13 “Authorised Purpose” as set out in Schedule 3. For the avoidance of doubt it is agreed that the use of the Licensed IP by LICENSEE in any adaptation of the Authorised Product in other media is not covered by the license grant in Clause 2 of this Agreement. Should LICENSEE wish to make use of the Licensed IP in any other way than the specific Authorised Product LICENSEE will seek a further license from PCI for each such further use, the grant of such being at PCI’s absolute sole discretion.
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1.14 “LICENSEE Marks And Assets” as set out in Schedule 4, including: LICENSEE Name and Logo; LICENSEE Legal Line; LICENSEE Description; LICENSEE Website: and LICENSEE Social Media Channels.
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2. Licence and Ownership
2.1 Subject to LICENESEE’s payment of the Subscription Fee as set out in Section 4.1 and PCI’s written approval in advance as set out in Section 3.1 and termination in accordance with the provisions of Section 9 PCI hereby grants to LICENSEE a non-exclusive licence under PCI’s Intellectual Property for the Term to Use, reproduce and publicly display the Licensed IP as part of the Authorised Purpose set out in Schedule 3 in the Territory.
2.2 LICENSEE shall display the PCI Logo, PCI banner and associated link on the LICENSEE website and shall reproduce and not remove or obscure any symbol or notice incorporated by PCI in the Licensed IP to protect PCI’s Intellectual Property therein. LICENSEE shall incorporate the corresponding IP Notices and such other markings and notifications as PCI may reasonably require as part of LICENSEE’s performance of the whole or any part of the Authorised Purpose.
2.3 Except as expressly licensed in Section 2.1, LICENSEE acquires no right, title or interest in PCI Intellectual Property, the Licensed IP or any Intellectual Property therein. In no event shall the licences granted in Section 2.1 be construed as granting LICENSEE expressly or by implication, estoppel or otherwise, licences to any PCI intellectual property other than the Licensed IP.
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2.4 LICENSEE understands, agrees and acknowledges that PCI has and will continue to develop products and/or services that may be substantially similar to the Authorised Purpose and that PCI has been, may have or may be working on products and services similar to the Authorised Purpose either alone or in conjunction with third parties. In connection therewith, LICENSEE, both for itself and on behalf of its assigns, licensees, joint ventures, affiliate companies, principals, shareholders, employees and representatives, hereby agrees to release, defend, indemnify and hold PCI, as well as its directors, officers and employees, harmless from and against any and all future claims, demands, disputes, debts, liabilities, damages, costs, expenses and attorneys' fees (whether or not in connection with litigation), whether such claims(s) or demand(s) are actual or threatened, arising from, related to or in connection with any actual or potential similarity by and between any of PCI’s products or services and the Authorised Purpose (or any portion thereof or any and all updates, enhancements and modifications thereto).
2.5 LICENSEE understands, agrees and acknowledges that any and all materials relating to the Authorised Purpose, including without limitation those derived from PCI’s Event producers pack, Training manual, Team start up pack, terminology sheet, waivers, athlete and coaches code of conduct, scoring systems and score sheets, created by or on behalf of LICENSEE related to the Authorised Purpose and whether created before the Effective Date or otherwise (“LICENSEE Created Materials”) is to be treated as work commissioned by PCI and that consequently all rights in all media now known or hereafter invented, including without limitation copyright and all rights of reproduction, adaptation, licensing and other commercial exploitation in any of the LICENSEE Created Materials, or designs, inventions or improvements relating to the LICENSEE Created Materials (whether Approved or not) shall belong exclusively to PCI from the moment of creation. To the extent that any such rights shall not vest in PCI automatically LICENSEE hereby grants and assigns to PCI all rights therein to hold the same absolutely for exploitation in all media now known or hereafter invented. LICENSEE irrevocably waives all rights (including moral rights if applicable) in respect of the LICENSEE Created Materials and any underlying work to which LICENSEE is now or in the future entitled. For further securing to PCI the rights assigned in the LICENSEE Created Materials LICENSEE agrees that LICENSEE will at PCI’s request and expense do all such further things and execute all such further documents as PCI may from time to time require for the purposes of confirming PCI’s title to the rights in the LICENSEE Created Materials in any part of the world.
2.6 LICENSEE understands, agrees and acknowledges that notwithstanding anything to the contrary in this Agreement the Agreement creates no obligation on PCI to amend the Licensed IP or any other IP it owns to incorporate or otherwise take account of any aspect, corollary or implication of the LICENSEE Created Materials.
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2.7 No right is granted to LICENSEE to sub-licence the rights granted to LICENSEE under this Agreement.
2.8 LICENSEE acknowledges that the performance of its obligations hereunder are of a unique, unusual, extraordinary and intellectual character which gives them a special value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law, that a material breach by LICENSEE of this Agreement will cause PCI great and irreparable injury and damage and, therefore, that PCI will be entitled to injunctive relief to prevent such injury or damage.
2.9 LICENSEE agrees that in the event of any breach of this Agreement by PCI it will be entitled, at its option, to sue for damages which it hereby agrees and acknowledges shall be an adequate and appropriate remedy and in no event shall LICENSEE be entitled to enjoin or restrain the promotion, advertising, licensing, distribution, publication, exhibition, development, production or exploitation of any product or service by or on behalf of PCI anywhere in the world.
2.10 LICENSEE shall provide to PCI free of charge and at its own cost the Supplied Items set out in Schedule 3 for PCI to use for its own purposes.[DW3] [RR4]
3. Approval
3.1 PCI will have prior approval on the following LICENSEE’s uses of the Licensed IP[DW5] [RR6] including without limitation LICENSEE Created Materials and Activities, which it will exercise in its sole discretion. To facilitate such approvals LICENSEE[CE7] will provide access to PCI to items covered by this Agreement at its own cost. An unlimited quantity download link or URL is required for digital items, and 2 copies of physical items are required. PCI does not guarantee any response time regarding written approval decisions but will make commercially reasonable efforts to respond with its written approval or rejection decision (email is hereby agreed to be an acceptable form of written communication for the purposes of this Section 3.1) within 10 working days of LICENSEE’s submission. In cases where approval is not granted PCI may in its sole discretion explain its reasons for rejection so that LICENSEE may re-submit. For absence of doubt i) LICENSEE may not exercise its rights under Section 2.1 of this Agreement without PCI’s advance written approval of LICENSEE’s uses of the Licensed IP; and (b) LICENSEE may not deem approval regardless of whether LICENSEE believes approval has been verbally granted or the length of time PCI may take to respond to LICENSEE’s submission.
3.2 LICENSEE will prominently display the PCI Logo, the PCI Notice set out in Schedule 3 on all LICENSEE Created Materials,
3.3 LICENSEE will not announce the existence of this Agreement without the prior written approval of PCI, such approval not to be unreasonably withheld.
3.4 PCI may i) announce the existence of this Agreement without the prior written approval of LICENSEE; and ii) refer to and use images of the Authorised Purpose at its sole discretion.
3.5 Notwithstanding anything to the contrary in this Agreement the parties will consult in good faith on and cooperate to implement a program of social media cross-promotion on PCI’s social media channels and LICENSEE Social Media Channels, including without limitation the following of each other’s accounts and re-sharing each other’s relevant posts. To this end each party grants the other a royalty-free, worldwide, license during the Term to display, reproduce and create derivative works of the other’s social media channel content. Any and all publically displayed results of such cooperation that are validly created in accordance with and compliance with the Agreement during the Term will survive termination of the Agreement and do not need to be deleted after the Term.
3.6 PCI will have the right (but not the obligation) to attend LICENSEE’s events during the Term to verify LICENSEE’s adherence to and implementation of the PCI Guidelines (“Verification”). Upon request [DW8] LICENSEE shall provide PCI or its nominated representatives with two free tickets to LICENSEE events during the Term to facilitate Verification. PCI may in its sole discretion either i) notify LICENSEE of its attendance in advance at each such event and receive free tickets at a reasonable time in advance of the event to facilitate such attendance, or ii) submit a reasonable expense claim for its purchase of tickets to LICENSEE which LICENSEE will reimburse within two weeks of receipt. For one LICENSEE event only during the Term PCI may also submit a reasonable expense claim for travel to such event (including accommodation if necessary) to LICENSEE which LICENSEE will reimburse within two weeks of receipt.
4. Fees
4.1 In consideration of the licences granted in Clause 2.1 LICENSEE will pay on the Effective Date an annual Subscription Fee of the amount set out in Schedule 3.
5. Confidentiality And Data Protection
5.1 Except as expressly provided elsewhere under this Agreement, each party shall maintain in confidence the Confidential Information disclosed by the other party and apply security measures no less stringent than the measures which that party applies to protect its own like information (but in any event not less than a reasonable degree of care) to prevent unauthorised disclosure and use of the Confidential Information.
5.2 The parties agree that information shall not be regarded as Confidential Information and that the recipient shall have no obligation with respect to any information which the recipient can demonstrate; (i) is already known to or is in the possession of the recipient prior to its receipt from the disclosing party or which is publicly available at the time of disclosure; or (ii) is or becomes known to the public through no wrongful act of the recipient; or (iii) is received from a third party who is not in breach of any obligation of confidentiality in respect thereof; or (iv) is disclosed to a third party by the disclosing party without a restriction of confidentiality; or (v) is disclosed with the prior written permission of the owner; or (vi) is independently conceived of by the recipient without reference to the Confidential Information; or (vii) it is required to do so by law or any securities exchange or regulatory or governmental body to which it is subject wherever situated; or (viii) it considers it necessary to disclose the information to its professional advisers, auditors and bankers provided that it does so on a confidential basis, and provided such professional advisers, auditors and bankers agree to keep this duty of confidentiality.
5.3 LICENSEE will at all times during the Term (a) maintain a privacy policy and terms of use that are consistent with applicable laws, rules, regulations, ordinances, statutes, policies and recommended guidelines (“Applicable Law”), including, without limitation, United States and European Union data privacy laws, rules and regulations (e.g., the General Data Protection Requirement (“GDPR”)) and industry best practices (as determined by reference to the practices of other consumer-oriented websites and the promulgations of applicable industry standards bodies), (b) make such policy and terms of use easily accessible to all users of LICENSEE’s websites (“Users”), and (c) comply with such policy and terms of use. LICENSEE is solely responsible for the accuracy, quality, integrity, non-infringement, legality, reliability, and appropriateness of its own data, computers and related information technology equipment, and for the development and implementation of any backup and security procedures to protect such. PCI recommends that LICENSEE backup and encrypt all of its data and software systems.
6. Intellectual Property Warranties and Indemnity
6.1 In the event of a suit against LICENSEE based upon a claim that the Licensed IP, as delivered by PCI to LICENSEE under this Agreement, infringe any third party Intellectual Property; (i) LICENSEE will promptly notify PCI of any threats, claims and proceedings related thereto; (ii) PCI shall have sole control of the defence and any settlement thereof; (iii) LICENSEE shall not settle or compromise any such claim without PCI's prior written consent; (iv) LICENSEE will furnish to PCI, upon request, any information available to LICENSEE relating to the defence of such claim; (v) LICENSEE will provide reasonable assistance to PCI in the defence of such claim; and (vi) PCI, at its option and expense, may; (a) obtain for LICENSEE the right to continue to use the Licensed IP; or (b) replace or modify the Licensed IP so that it becomes non-infringing.
6.2 PCI shall have no liability under Clause 6.1 for any infringement arising from; (i) the combination of the Licensed IP with other intellectual property not supplied by PCI if such infringement would not have occurred but for such combination; or (ii) the modification by LICENSEE of the Licensed IP if such infringement would not have occurred but for such modification.
6.3 As between the parties Clause 6.1 states the entire liability of PCI and LICENSEE’s exclusive remedy for infringement by the Licensed IP of any third party Intellectual Property.
7. Warranties
7.1 Except as expressly provided in this Agreement, the Licensed IP are licensed “as is” and PCI gives no further warranties express, implied or statutory, including, without limitation, the implied warranties of satisfactory quality or fitness for a particular purpose in respect thereof.
7.2 LICENSEE warrants that both its activities and its Use of the Licensed IP will comply with the usage guidelines provided in Schedule 2 (“PCI Guidelines”) and as may be updated by PCI from time to time in its sole discretion.
7.3 LICENSEE warrants that it will use the latest available version of the Licensed IP and implement any and all updates within one week of such update being made available to LICENSEE by PCI.
7.4 LICENSEE warrants that it will use its best efforts to ensure that any and all LICENSEE Created Materials are consistent with the Licensed IP.
7.5 LICENSEE warrants that its Use of the Licensed IP will not i) subject PCI to legal liability; and/or ii) damage or defame PCI, its business partners or its Intellectual Property, including without limitation the Licensed IP; and/or iii) compete with PCI and its products regardless of how such products are sold and/ or distributed.
7.6 LICENSEE warrants that during the Term it will prominently display the PCI Logo, PCI Banner and PCI Notice, on its website.
7.7 PCI warrants that during the Term it will use the LICENSEE Marks and Assets on its website in the form of a directory listing and/or external links page in PCI’s sole discretion and for any agreed social media cooperation under Section 3.5.
8. Limitation of Liability
8.1 IN NO EVENT SHALL PCI BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO THE COST OF REMOVAL AND REINSTALLATION OF GOODS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF USE OF DATA, INTERRUPTION OF BUSINESS OR OTHER ECONOMIC LOSS) WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT OR BREACH OF CONTRACT OR OTHERWISE EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE MAXIMUM LIABILITY OF PCI TO LICENSEE IN AGGREGATE FOR ALL CLAIMS MADE AGAINST PCI IN CONTRACT TORT OR OTHERWISE UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL OF SUMS PAID BY LICENSEE TO PCI UNDER THIS AGREEMENT.
8.3 NOTHING IN THIS CLAUSE 8 SHALL OPERATE TO EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM EITHER PARTY'S NEGLIGENCE.
9. Term and Termination
9.1 This Agreement is subject to the condition precedent of payment by LICENSEE of the Subscription Fee and shall commence on the Effective Date and shall continue in force for the Term as set out in Schedule 3.
9.2 PCI shall have the right to terminate this Agreement if LICENSEE is in breach of its warranties in Clauses 7.2, 7.3, 7.4, 7.5 and 7.6.
9.3 Without prejudice to any other right or remedy which may be available to it, PCI shall be entitled summarily to terminate this Agreement by giving written notice to LICENSEE (written notice to include email); (i) for convenience at PCI’s sole discretion; (ii) LICENSEE has committed a material breach of any of its obligations hereunder which in PCI’s sole opinion is not capable of remedy; (iii) LICENSEE has committed a material breach of any of its obligations hereunder which is capable of remedy but which has not been remedied within a period of thirty (30) days following receipt of written notice to do so; (iv) LICENSEE makes any voluntary arrangement with its creditors for the general settlement of its debts or becomes subject to an administration order; or (v) LICENSEE has an order made against it or passes a resolution for its winding-up (except for the purposes of amalgamation or reconstruction) or has an encumbrancer take possession or has a receiver or similar officer appointed over all or substantially all of its property or assets.
10. Effect of Expiry or Termination
10.1 Upon expiry of this Agreement or termination of this Agreement in accordance with Section 9.2 and / or Section 9.3, the licences granted to LICENSEE under Section 2.1 shall cease immediately and LICENSEE shall immediately cease the Use of the Licensed IP and destroy all copies of the Licensed IP, PCI Materials and any LICENSEE Created Materials that use the Licensed IP in their possession.
10.2 Without limitation to the survival of other terms as expressly set out elsewhere under the terms of this Agreement, upon termination of this Agreement the provisions of Sections 1, 4 (to the extent that any payment has accrued and is outstanding), 2.5, 2.8, the right to use Supplied Materials provided under 2.10, 5, 8 and 11 shall survive such termination.
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11. General
11.1 LICENSEE shall not assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of PCI.
11.2 Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of the right in the future to enforce that or any other provision.
11.3 This Agreement, including all Schedules and documents referenced herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter. No amendment to, or modification of, this Agreement shall be binding unless in writing and signed by a duly authorised representative of both parties.
11.4 All notices and other communications required or permitted under this Agreement (“notice”) will be in writing and sent by personal delivery, electronic mail (“email”) or registered mail, addressed to the parties as first set forth in the introductory paragraph of this Agreement or if by email:
PCI: info@paracheer.org
LICENSEE: email address provided upon membership application
Notice shall be deemed received as applicable on the earlier of the day of personal delivery, the business day following receipt of email, or the day receipt of registered mail is confirmed. The address to which notice shall be given may be changed from time to time by notice served in the manner set forth above. The Parties shall not attempt to avoid service of notice.
11.5 This Agreement shall be governed by and construed in accordance with the laws of England and Wales, and the parties submit to the exclusive jurisdiction of the courts of England and Wales. Any litigation or other dispute with respect to this Agreement will take place in England. The parties consent to personal jurisdiction of and venue in the courts within or having jurisdiction over England, and waive any objection they might otherwise have had on the basis of the doctrine of forum non conveniens.
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SCHEDULE 1
PCI MARKS AND ASSETS
The PCI Marks And Assets and associated IP Notices can be accessed by LICENSEE via PCI’s password protected site located at https://www.paracheer.org/membership
PCI will provide LICENSEE with login details.
The PCI Marks And Assets and associated IP Notices may be subject to change (including additions and withdrawals) from time to time, and following any such change LICENSEE must update its use of the PCI Marks And Assets and associated IP Notices in accordance with Section 7.3.
For absence of doubt LICENSEE’s use of any and all PCI Marks And Assets and associated IP Notices is subject to approval by PCI in accordance with Section 3 of this Agreement.
PCI Logo (for use on website only)
PCI Banner (linked to PCI website, for use on LICENSEE website only)
The ParaCheer UK trademark.
SCHEDULE 2
PCI GUIDELINES
The PCI Guidelines can be accessed by LICENSEE via PCI’s password protected site located at https://www.paracheer.org/membership
PCI will provide LICENSEE with login details.
If for any reason the password protected site is unavailable, LICENSEE should contact PCI directly for guideline support.
The PCI Guidelines maybe subject to change (including additions and withdrawals) from time to time, and following any such change LICENSEE must update its use of the PCI Guidelines in accordance with Section 7.3.
Items listed on the website www.paracheer.org under your current subscription model
SCHEDULE 3
Commercial Schedule
Authorised Purpose:
To promote equal opportunities in cheerleading via the inclusion of disabled participates in unified teams of disabled and non-disabled athletes.
PCI Notice:
Inclusive cheerleading resources and related guidelines © 2018 ParaCheer International CIO. ‘PARACHEER’ and the ParaCheer International name, logo and the ‘Approved by ParaCheer International’ logo are trademarks of ParaCheer International CIO. All rights reserved.
Subscription Fee:
£ 50.00 fifty pounds for Teams
£ 10.00 Ten pounds for Coaches
£5.00 Five pounds for Athletes
Payment Currency:
£ GBP
Term:
The period of one year from the Effective Date inclusive unless otherwise terminated in accordance with the provisions of Clause 9.2 and / or Clause 9.3.
Territory:
World wide
Supplied Items:
Photographs, any documentation which contains the ParaCheer Logo or word mark, new training practices and adaptations create by the Licensee, team composition details and from time to time research data requested by ParaCheer International CIO.
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