By clicking the tick box provided you agree to enter into the following agreement as Licensor with Open to Export C.I.C of Export House, Peterborough, PE2 6FT (“Open to Export”) regarding any Content which you submit for use on the Open to export website at opentoexport.com.
THIS LICENCE is entered into between the parties and shall take effect from the Effective Date.
(A) Open to Export operates the Site, as defined below.
(B) The Licensor is the proprietor or authorised licensor of the Intellectual Property Rights in articles and other content (“Content”).
(C) The parties have agreed that the Licensor shall provide the Content to Open to Export and allow Open to Export to use the Content on the Sites subject to the terms and conditions set out in this Licence.
It is agreed:
- The definitions and rules of interpretation in this clause apply in this Licence.
- any banner advertisements, site sponsorship arrangements, performance-based advertising, referrals, click-throughs, leads and bounties and all other similar activities which do not produce revenues through direct selling.
- Confidential Information:
- this Licence and all information, whether technical or commercial (including all traffic statistics, specifications, samples, drawings, designs, reports and other documentation and information disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
- identified at the time of disclosure as confidential; or
- ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
- all textual and graphical content, including text, graphics, information, data, software, executable code, images, Marks, photographs, animation, characterisation, audio, video or audio-visual material in whatever medium or form provided to Open to Export by the Licensor for incorporation in the Sites.
- Delivery Format:
- the format and medium in which the Content is to be provided:
- in the case of initial submissions of Content, via an external API provided by Open to Export; or
- via WordPress templates provided on the Website.
- Effective Date:
- the date on which you successfully register with Opentoexport.com.
- Force Majeure Event:
- any event arising that is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).
- Intellectual Property Rights:
- all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, Marks, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
- Licensor Relationship Manager:
- the person notified by the Licensor to Open to Export in writing from time to time.
- any and all trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans, whether or not registered.
- Review Period:
- Quarterly from the Effective Date.
- the website located at opentoexport.com and any successor, replacement or other website(s) operated by or on behalf of Open to Export from time to time.
- the period of time for which you are validly registered with the Website from the Effective Date until your registration is cancelled or terminated.
- a visitor to one or more Sites.
- Visitor Data:
- all information provided by Visitors when visiting one or more Sites.
Open to Export Commitments: the following commitments made by Open to Export in return for the Licence of the Content:
- Relevant website links to be featured within content pages leading to the relevant pages of the Licensor’s website as agreed by the parties.
- In the event that the Licensor identifies any of its members, group companies, sub-contractors, affiliates or other related parties (“Affiliate”) as potentially wishing to contribute Content to the Site, Open to Export will liaise directly with the Affiliate(s).
- Open to Export C.I.C:
- means any and all of Open to Export, each of its subsidiaries, its holding company and any subsidiary of such holding company as defined in section 1159 of the Companies Act 2006.
- Open to Export Relationship Manager:
- the person notified by Open to Export to the Licensor in writing from time to time.
- Clause and section headings do not affect the interpretation of this Licence. References to clauses and sections are (unless otherwise provided) references to the clauses of and schedules to this Licence. Words in the singular include the plural and those in the plural include the singular. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it. References to “including” and “include(s)” mean respectively including without limitation and include(s) without limitation. A person includes a corporate or unincorporated body. Writing or written includes faxes, but not email.
- The definitions and rules of interpretation in this clause apply in this Licence.
Grant of licence
- In consideration of the Open to Export’s commitments, Licensor grants to Open to Export a non-exclusive, royalty-free licence (including the right to sub-license) to, use, copy and distribute the Content on the Sites.
- The Licence granted under clause 2.1 permits Open to Export to:
- electronically reproduce and distribute, and publicly perform and display the Content on any or all of the Sites; and
- reproduce and distribute through any media now known, or hereafter developed, excerpts of the Content in Advertisements for, and in marketing and promotional materials related to, the Site.
- If agreed between the parties, Open to Export shall provide suitable links from the pages featuring the Content within the Sites to the relevant or agreed pages within the Licensor’s website.
- The Licensor shall deliver the Content to Open to Export in the Delivery Format.
- The Licensor shall:
- be responsible for the accuracy and completeness of the Content and ensure that all Content clearly identifies the Content owner and, where different, the Content author;
- ensure that all Content complies in all respects with any applicable content guidelines as notified by Open to Export including any guidelines posted on the Sites and the provisions of all applicable statutes and statutory instruments; and
- ensure that all Content complies in all respects with any and all guidance, codes or other regulations made available by any competent authority having jurisdiction over or responsibility for the regulation of the Licensor or the Content, including, without limitation, the Committee of Advertising Practice, Ofcom or PhonepayPlus.
- Open to Export has no obligation to the Licensor, and undertakes no responsibility, to review the Content to determine whether any such Content may result in any liability to any third party.
- While Open to Export will endeavour to feature the Content on the Sites, the Licensor acknowledges that Open to Export is not obliged to feature any Content on any of the Sites or elsewhere. Notwithstanding anything to the contrary contained in this Licence, Open to Export may remove Content from its Sites or other media at any point. Should Open to Export need to remove Content in such a manner it shall endeavour to inform the Licensor as soon as reasonably practicable.
- The Open to Export Relationship Manager and Licensor Relationship Manager shall meet at the end of each Review Period to discuss this Licence and the any other matters arising out of or in connection with it.
- While Open to Export may adapt the look and format of the Content in order to display it on the Sites, Open to Export shall not alter the Content in any way that is likely to be derogatory or prejudicial to the Licensor.
- Each party acknowledges and agrees for all purposes that all Marks associated with the other party or the other party’s services, products, literature, promotional materials or otherwise, whether or not registered, constitute the other party’s exclusive property.
- Licensor grants to Open to Export a non-exclusive, non-transferable, non-assignable, royalty-free licence to use the Licensor’s Marks solely for the purposes of performing its obligations under this Licence, including in connection with any advertising, marketing and promotional activities undertaken and materials developed pursuant to this Licence.
- All uses of the Licensor’s Marks by Open to Export including all goodwill arising, shall accrue solely to the benefit of the Licensor.
Open to Export Commitments
- In return for the Content, Open to Export shall meet the Open to Export Commitments.
- Each party warrants to the other that it has full power and authority to enter into and perform this Licence.
- The Licensor warrants to Open to Export that any Content delivered as a result of this Licence:
- does not infringe any third party’s Intellectual Property Rights, other proprietary rights or rights of publicity or privacy;
- does not violate any law, statute, ordinance or regulation (including the laws and regulations governing export control);
- is not defamatory, trade libellous, unlawfully threatening or unlawfully harassing or could otherwise be deemed denigratory or harmful to Open to Export or its brands;
- is not obscene or pornographic and do not contain child pornography; and
- does not violate any laws regarding unfair competition, anti-discrimination or false advertising.
- Each party shall use its best endeavours not to introduce into the other party’s systems any viruses, trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
Limitation of remedies and liability
- Nothing in this Licence shall operate to exclude or limit either party’s liability for:
- death or personal injury caused by the negligence of that party or its employees;
- any other liability which cannot be excluded or limited under applicable law; or
- loss, damage, cost, expense or other claim for compensation arising as a direct or indirect result of breach or non-performance of this Licence due to an event of force majeure.
- Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
- Save for clause 7.1 and clause 8.4, each party’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this Licence, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed £25,000.
- Nothing in this Licence shall operate to exclude or limit either party’s liability for:
Intellectual Property Rights
- Open to Export retains all Intellectual Property Rights in the Sites and its Marks. Nothing in this Licence shall be taken to grant any rights to the Licensor in respect of such Intellectual Property Rights.
- Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Content shall remain with the Licensor. Except as expressly provided in this Licence, nothing shall be construed to grant to Open to Export
any right, title or interest in or to the Content.
- Any and all Visitor Data (such as name, address and email address) that is collected through any user registration process or otherwise shall be owned by Open to Export.
- The Licensor shall indemnify Open to Export on written demand against all costs, claims, damages, losses and expenses (including legal expenses and professional fees) arising as a result of any claim or action that the Content and/or the Licensor’s Marks infringe Intellectual Property Rights belonging to a third party.
- The indemnity in clause 8.4 is subject to the following conditions:
- Open to Export promptly notifies the Licensor in writing of the claim or action;
- Open to Export makes no admissions or settlements without the Licensor’s prior written consent;
- Open to Export gives the Licensor all the information and assistance that the Licensor may reasonably require;
- Open to Export allows the Licensor reasonable control over any negotiations, litigation and settlement of any such claim or action; and
- Open to Export uses reasonable commercial endeavours to mitigate any losses incurred by it as a result of such claim (for example, by removing the affected Content and/or the Licensor’s Marks from the Sites in a reasonable time period) upon reasonable request by the Licensor.
Term and termination
- The Contract shall commence on the Effective Date and shall continue for the Term unless earlier terminated in accordance with this clause 9.
- Either party may terminate this Licence upon giving 30 days’ prior written notice to the other.
- Either party may (without prejudice to its other rights) immediately terminate this Licence by notice in writing to the other if:
- a voluntary agreement is approved, or an administration order is made, or a receiver or administrative receiver is appointed over any of the other party’s assets or an undertaking or a resolution or petition to wind up the other party is passed or presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order or a similar event occurs in respect of the other party in any other jurisdiction; or
- the other party ceases to trade; or
- there is a change of control of the other party; or
- the other party commits any irremediable material breach of the provisions of this Licence; or
- in the case of a material breach capable of remedy, the breaching party fails to remedy the breach within fourteen (14) days after receipt of notice giving full particulars of the breach and requiring it to be remedied.
- On termination of this Licence for any reason:
- Open to Export may elect either (i) to remove the Content from the Sites, or (ii) to continue to publish and display some or all of the Content on the Sites unless and until the Licensor requests that Open to Export remove some or all of the Content from the Sites, in which case Open to Export shall do so within 30 days of receipt of such request;
- the termination shall be without prejudice to any right or remedy accrued to either party prior to such termination;
- each party shall return or, at the other party’s direction, securely destroy, all of the other party’s Confidential Information; and
- such termination shall not affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination.
Force Majeure Event
Neither party shall be liable for failure or delay to perform its obligations under this Licence due to a Force Majeure Event, provided that it forthwith notifies the other party, and shall inform the other of the period for which it is estimated that such failure or delay shall continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event and if the Force Majeure Event continues for a period exceeding 10 days the party that is not prevented from performing its obligations shall be entitled to terminate this Licence on written notice.
- Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
- Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
- The obligations set out in this clause 11 shall not apply to Confidential Information which the receiving party can demonstrate:
- is or has become publicly known other than through a breach of this clause 11; or
- was in possession of the receiving party prior to disclosure by the other party; or
- was received by the receiving party from an independent third party who has full right of disclosure; or
- was independently developed by the receiving party; or
- was required to be disclosed by governmental authority, provided that the party subject to such requirement to disclose gives the other prompt written notice of the requirement.
- The obligations of confidentiality in this clause 11 shall not be affected by the expiry or termination of this Licence.
Each party shall, and shall procure that its officers, employees, agents and service providers shall: (a) at all times comply with all anti-corruption laws applicable to either party; and (b) not, directly or indirectly offer, promise or give (or agree to offer, promise or give) any financial or other advantage and/or to obtain any benefit for the other party which would violate any anti-corruption laws applicable to either party. If either party becomes aware of any breach or suspected breach of this clause 12, that party shall promptly notify the other. The other party may immediately suspend or terminate further discussions and/or presentations. Each party may investigate the breach or suspected breach and the other party shall assist in any such investigation.
- A notice given under this Licence:
- shall be in writing;
- shall be sent for the attention of the person, and to the address or fax or email number given in this clause 13; and
- shall be sent by fax, sent by email together with a read receipt confirmationor sent by pre-paid first class post, recorded delivery or registered post.
- The addresses for the service of notice are:
- for Open to Export: For the attention of: Open to Export Relationship Manager Address: Export House, Peterborough, PE2 6FT
- for the Licensor, to the email address as set out in the registration form submitted to Open to Export.
- A notice is deemed to have been received:
- in the case of fax, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery; or
- in the case of an email at the time indicated on the read receipt confirmation notice;
- in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or
- if deemed receipt under the previous paragraphs of clause 13.3 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), deemed receipt shall be when business next starts in the place of receipt.
- To prove service, it is sufficient to prove that the notice was transmitted by fax to the correct fax number of the relevant party or, in the case of email upon production of the read receipt confirmation, or, in the case of post, that the envelope containing the notice was properly addressed and posted.
- A notice given under this Licence:
- No public, media or industry or other announcement shall be made by either party in relation to this agreement without the prior written consent of the other’s Relationship Manager.
- The Licensor may not assign or transfer any of its rights or obligations under this Licence. Open to Export may assign or transfer any of its rights or obligations under this Licence to another other third party, but not without the consent of the Licensor.
- Except as set out in this clause 14.3, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it upon which it relied in entering into this Licence (Misrepresentation). This Licence constitutes the only terms governing the contractual relationship between Open to Export the Licensor in relation to the Content and neither party shall have any liability other than pursuant to the express terms of this Licence. Nothing in this Licence shall exclude or limit either party’s liability for any Misrepresentation made knowing that it was untrue. Each party’s liability for Misrepresentation as to a fundamental matter, including as to a matter fundamental to that party’s ability to perform its obligations under this Licence, shall be subject to the limit set out in clause 7.3.
- This Licence is made solely for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person by virtue of the Contracts (Rights of Third Parties) Act 1999, but this shall not affect any right or remedy of a third party which exists or is available apart from that Act. The right of the parties to terminate, rescind or agree any amendment, variation, waiver or settlement under this Licence is not subject to the consent of any person who is not a party to this Licence.
- Any variation of this Licence shall be in writing and signed by or on behalf of both parties. A waiver of any right under this Licence is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
- If any provision (or part of a provision) of this Licence is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- This Licence and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Licence or its subject matter or formation (including non-contractual disputes or claims).