1. Definitions and Interpretation
1.1 Unless the context otherwise requires capitalised terms shall have the meaning as set out below:
“Agreement” this Agreement, as amended, supplemented or otherwise modified by us from time to time;
“Brand Guidelines” our brand guidelines as amended, supplemented or otherwise modified by us from time to time, which are available for download in the This Girl Can supporter’s hub if your application is approved;
“Campaign” the “This Girl Can” campaign to promote healthy living, sport and physical activity to women in England, to encourage women’s participation in sport and physical activity in England;
“Campaign Assets” the Physical Materials, the Logo and the Designation;
“Designation” a bespoke partner lock-up using the Logo and your name as illustrated in our Brand Guidelines, as agreed by us in writing on a case by case basis;
“Grant” the non-cash grant we have awarded to you to use the Campaign Assets for the Permitted Purpose;
“Intellectual Property Rights” all copyright, database rights, design rights, registered designs, trade marks, service marks, trade secrets and rights in confidential information and all rights and forms of protection of a similar nature or having an equivalent effect to any of them which may subsist anywhere in the world together with all goodwill attaching or relating thereto, whether or not any of them are unregistered or registered and including application for registration of any of them relating to the Campaign Assets (including any translations thereof);
“Logo” the “This Girl Can” logo identified in our Brand Guidelines and/or “This Girl Can” in the word format, including:
UK Trade Mark Registration No. 3076071 THIS GIRL CAN, International Registration Trade Mark Registration No. 1338370 (designating the EU ):
UK Trade Mark Registration No. 3069563 and International Registration Trade Mark Registration No. 1338233;
“Permitted Purpose” to promote and raise awareness of the Campaign by:
(i) using, exhibiting and distributing the Campaign Assets at your premises and at events organised by you in England, including the right to add your organisation's name, contact details and details of your organisation's sports facilities and services (but not any merchandise, products or other goods) in the allocated text box provided in the relevant Physical Materials and in respect of the template poster, which can be found at https://www.thisgirlcan.co.uk/create-your-own-poster/, the additional right to add your own images; and
(ii) subject to our prior written approval on a case by case basis, using and exhibiting the Logo and/or the Designation on your official website, on your official social media pages, on sports equipment and kits loaned free of charge to members of your club for use at your premises and at events organised by you in England and on promotional materials prepared by you for distribution at your premises and at events organised by you in England and in accordance with paragraph (i) above;
Physical Materials” such physical materials relating to the Campaign that are made available by us for download on the Website if your application is approved at https://www.thisgirlcan.co.uk/brandguidelines, which may include but is not limited to posters, photography and social media assets;
“Term” the term of the Campaign which will run from 20 November 2014 until the Campaign is discontinued or terminated by us;
“we”, “us”, “our” The English Sports Council, a company incorporated by Royal Charter in the United Kingdom under Company No. RC000766, with its registered office at SportPark, 3 Oakwood Drive, Loughborough, Leicestershire, LE11 3QF , United Kingdom;
“Website” www.thisgirlcan.co.uk; and
“you”, “your(s)” an organisation, club or other sporting body in England that wishes to use the Campaign Assets for the Permitted Purpose.
1.2 The headings in this Agreement are for convenience only and do not affect its interpretation.
1.3 In this Agreement, the words “include”, “includes”, “including” and “such as” are to be construed as if they were immediately followed by the words “without limitation”.
1.4 In this Agreement, unless the context clearly indicates another intention, a reference to:
(a) any gender includes other genders and the singular includes the plural and vice versa;
(b) a clause or party is a reference to a clause of or party to this Agreement;
(c) obligations undertaken by more than a single person or company are joint and several obligations; and
(d) any reference to a person shall include natural persons and partnerships, firms and other such unincorporated bodies, corporate bodies and all other legal persons of whatever kind and however constituted.
2. You and Your Organisation
2.1 You warrant that you are an organisation established in England, or an individual residing in England.
2.2 You warrant that all of the information that you have provided to us in connection with the Grant and this Agreement is complete and accurate.
3. Your Grant Obligations
3.1 We have procured the Campaign Assets as a non-cash grant awarded to you (the “Grant”), the cost of which is met from money available to us through the National Lottery.
3.2 You will be available for meetings with us and allow full and free access to your records concerning the Grant and your use of the Campaign Assets, however and wherever held and to any of your offices or buildings to us, or those acting for us or to the National Audit Office.
3.3 Where reasonably required by us you will acknowledge the Grant publicly as appropriate and as practical. You will acknowledge our support in any published documents that refer to the Grant or in written or spoken public presentations about the Grant
3.4 You hereby consent to any publicity about the Grant as we may from time to time require.
3.5 You will tell us about any changes to information you have previously provided in connection with the Grant and will make sure that the information we hold in connection with the Grant is true and up to date.
3.6 You agree to participate from time to time in such activities (such as completing questionnaires or responding to queries from us) as we may reasonably require in order to evaluate the effectiveness of the Grant.
3.7 You agree to comply with all applicable laws in all matters connected to the Grant.
3.8 You accept that we may share information about the Grant with any parties of our choice as well as with members of the public who make a request for information under the Freedom of Information Act 2000.
3.9 You will pay such amount as we may reasonably determine, up to a maximum of £2,000, if:
(a) you are in breach of any terms and conditions of this Agreement; or
(b) you (whether deliberately, recklessly or accidentally) provided any information to us, dishonestly or that is significantly incorrect or misleading; or
(c) in connection with the Grant members of your governing body, volunteers or staff act dishonestly or negligently or in any way, directly or indirectly, to your detriment or to the detriment of your organisation or to the detriment of our reputation or the Campaign; or
(d) the primary purpose of your application and your receipt of the Campaign Assets was not or is not in line with the objectives of the Campaign.
3.10 For the avoidance of doubt, the figure mentioned in Clause 3.9 above is not a cap on your liability and we reserve the right to take additional action against you and seek additional damages and other remedies, including in accordance with Clause 7.4.
4. Licence to use the Campaign Assets
4.1 In consideration of your warranties under clause 2 and subject to you meeting your obligations under clause 3, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, royalty-free licence to use the Campaign Assets for the Permitted Purpose in accordance with the terms and conditions of this Agreement for a period commencing on the date on which you download the relevant Campaign Assets from the Website until the end of the Term.
4.2 For the avoidance of doubt we do not grant you any rights whatsoever:
(a) to use extracts from the Campaign Assets for any purpose other than the Permitted Purpose;
(b) to edit, adapt, modify and/or amend the Campaign Assets for any purpose, except for the specific rights detailed in the Permitted Purpose; and/or
(c) to use, copy, edit, adapt, modify, amend, incorporate, publish, distribute, communicate to the public, broadcast and/or exhibit the Logo and/or any Designations incorporating the Logo for any purpose, without our express prior written consent.
5. Use of the Campaign Assets
5.1 Once you have received our approval of your registration, the Physical Materials can be downloaded by you from the Website.
5.2 In the event that you wish to use the Logo and/or the Designation, you will need to access the Logo and/or Designation in the supporters hub, download the Logo and/or Designation, and submit to us any proposed artwork in relation to the Logo and/or the Designation (as relevant) by email to [email protected]. We will consider your request and provide you with written confirmation of our approval or rejection by email. Responding to approval requests take a minimum of five (5) working days, but can take longer during particularly busy periods. You must not use the Logo and/or a Designation prior to receiving our approval (if given).
5.3 You hereby agree that:
(a) you shall not use the Campaign Assets (or any part of them) for any use, event or purpose (whether directly or indirectly) which:
(i) violates or infringes in any way upon the rights of others, which is unlawful, offensive, obscene, defamatory, profane or otherwise objectionable which encourages conduct that would constitute a criminal offence, gives rise to civil liability or otherwise violates any law or is in breach of the privacy or any other rights of a third party or of any law;
(ii) would tend to allow them to become liable to mislead the public, or be materially detrimental to or inconsistent with our good name, goodwill, reputation and image;
(iii) would impair our rights in the Campaign Assets (or any part of them);
(iv) is commercial (i.e. promoting any merchandise, products or other goods and/or services);
(v) is promotional, except for the specific rights detailed in the Permitted Purpose;
(vi) suggests that you or your organisation is endorsed by or affiliated with us, including holding yourself out (or holding your organisation out) as a Campaign brand ambassador;
(vii) falsely suggests a client (or other business) affiliation/relationship with us; and/or
(viii) is in any way affiliated to or sponsored by any company, organisations, persons, sponsors and/or media partners that contravene the objective of the Campaign, including without limitation manufacturers, suppliers and retailers of alcohol, cigarette and other tobacco products, carbonated soft drinks, fast food, food or drink supplements and drugs.
(b) you shall not amend, adapt, use or position the Campaign Assets (or any part of them) so as to suggest that we, you or any of the persons appearing in the Physical Materials, endorse any commercial product or service or any political party or belief without our prior approval in writing;
(c) you shall discharge your obligations in connection with the use of the Campaign Assets with all due skill, care and diligence and comply with any applicable laws, regulations and/or industry codes; and
(d) you shall at all times (notwithstanding the termination of this Agreement) be liable for, indemnify and hold us harmless (together with our officers, employees and agents) against all liabilities, actions, proceeds, costs, claims, damages and other expenses of any nature whatsoever incurred by, suffered by or awarded against us and compensation agreed by us in consequence of any breach or non-performance by you of any of your obligations under this Agreement.
5.4 When you exercise your right to add your organisation's name, contact details and details of your organisation's sports facilities and services (but not any merchandise, products or other goods) and prices in the allocated text box provided in the relevant the Physical Materials and in respect of the template poster, which can be found at https://www.thisgirlcan.co.uk/create-your-own-poster/, you exercise the additional right to upload your own images to the relevant Physical Materials, you hereby agree that:
(a) you shall submit such revised Physical Materials to us for approval prior to your use. We will consider your request and provide you with written confirmation of our approval or rejection. You must not use any revised Physical Materials prior to receiving our approval (if given);
(b) in the event that you use your own image in such revised Physical Materials, where permitted via the poster toolkit:
(i) your image(s) are your own original work, that you are the sole creator, author and owner of your image(s);
(ii) that you have the right to use your image(s) in accordance with the Permitted Purpose; and
(iii) that you have obtained all necessary consents from any persons that appear in your image(s) to use it in accordance with the Permitted Purpose and you shall hold and on our request supply copies of all such consents, permissions, confirmations and releases;
(c) your image(s) and any text that you incorporate into such revised Physical Materials do not contain any content which violates or infringes upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, indecent or otherwise objectionable, which encourages conduct or is conduct that would constitute a criminal offence, gives rise to civil liability or otherwise violates any applicable law; and
(d) your image(s) and any text that you incorporate into such revised Physical Materials do not infringe any law or any third party rights, for example any trade mark or copyright or otherwise violates anyone's right of privacy or publicity.
6. Intellectual Property Rights
6.1 The legal and beneficial ownership of the physical Campaign Assets and the Intellectual Property Rights belongs to us or our affiliates.
6.2 You agree that this Agreement does not give you any ownership, any claim, any right, title or interest in or to the Campaign Assets (or any part of them) except the rights of use as are specifically set out in this Agreement and you hereby acknowledge and agree that the benefit of all such use by you shall at all times enure to us. You shall hold all goodwill accruing to the Campaign Assets as a result of your use of the Campaign Assets as bare trustee for our benefit.
6.3 All uses of the Physical Materials must be displayed by you in the manner that has been presented for download on the Website, without amendment, except for the specific rights detailed in the Permitted Purpose.
6.4 Subject to complying with the terms of the Brand Guidelines, you are not in any circumstances whatsoever permitted to amend or adapt the Logo or the Designation (as approved by us) in any form whatsoever, including that you do not have the right to change the size, font or colour of the Logo or the Designation (as approved by us), unless expressly agreed with us in advance in accordance with Clause 5.2. For the avoidance of doubt, such approvals are given at our sole discretion and we can withhold our consents and approvals for any reason.
6.5 All uses of the Logo and the Designation must be displayed by you in a manner approved by us in accordance with clause 5.2, without amendment and shall be used in accordance with our Brand Guidelines accompanied by clear marking to show that the Intellectual Property Rights in the Logo and the Designation are owned by us or our affiliates and are being used with our permission.
6.6 You are not in any circumstances whatsoever permitted to include any third party (whether commercial or non-commercial) brands or logos in any materials and/or content and/or at any events and activities in connection with the Campaign.
7. Protection of the Campaign Assets and the Intellectual Property Rights
7.1 You shall not apply to register or pursue registrations of the Campaign Assets (or any part of them) or any Intellectual Property Rights in your own name.
7.2 You shall notify us in writing of any infringements or misuses of the Campaign Assets (or any part of them) and/or the Intellectual Property Rights by third parties of which you become aware.
7.3 We have the sole right to determine whether any action shall be taken on account of all proceedings relating to the Campaign Assets (or any part of them) and/or the Intellectual Property Rights and will in our sole discretion decide what action (including litigation, arbitration or compromise) if any to take in respect of any infringement or alleged infringement of the Campaign Assets (or any part of them) and/or the Intellectual Property Right or any other claim or counterclaim brought or threatened in respect of the use of the Campaign Assets (or any part of them) and/or the Intellectual Property Right. We shall not be obliged to bring or defend any proceedings whether for infringement or otherwise in relation to the Campaign Assets (or any part of them) and/or the Intellectual Property Right if we in our sole discretion decide not to do so.
7.4 In any infringement proceedings which are brought by us, we shall be entitled to claim in respect of any loss suffered or likely to be suffered by you and shall be entitled to retain any damages awarded in respect of such claim.
7.5 For the avoidance of doubt, nothing herein comprises a licence to use any Designation, Logo or other trade mark in connection with or in relation to any goods or services.
8. Limitation Of Liability
8.1 We do not warrant that the use of the Campaign Assets by you will not infringe the rights of any third party and exclude all implied warranties or representations to the fullest extent permitted by law.
8.2 Our only responsibilities with respect to the Campaign Assets are set out in this Agreement. To the fullest extent permitted by law, we exclude all liability for loss or damage arising out of or in connection with your use of the Campaign Assets (or any part of them) for any reason except where caused by our negligence, fraud, misrepresentation or fraudulent misrepresentation. Nothing in this Agreement will exclude or limit our liability for death or personal injury caused by our negligence.
8.3 You acknowledge that we will have no liability for any indirect or consequential losses or damage you may suffer or incur (including any loss of savings you expect to make, loss of business or business opportunity, or loss of profit or revenue) arising from your use of the Campaign Assets. You hereby waive any claim or cause of action arising out of any termination of this Agreement and you release us, and our affiliates and our respective officers, employees and agents from any and all such claims and causes of action.
9.1 The rights granted to you under this Agreement will terminate automatically upon a breach by you of the terms of this Agreement.
9.2 We may, in our absolute and sole discretion, at any time terminate the Grant and/or terminate your rights under this Agreement and/or cease to make available the Campaign Assets to you, including without limitation where:
(a) you are in breach of the terms of this Agreement;
(b) we decide to discontinue the Campaign;
(c) we do not have available adequate money from the National Lottery to enable us to fund the continued provision of the Campaign Assets;
(d) you undergo, or we reasonably believe that you have undergone or may undergo, any form of insolvency or event connected to an insolvency; or
(e) we determine (including without limitation on the basis of any information or notification that you provide or fail to provide pursuant to this Agreement) that you are not suitable for the receipt of the Campaign Assets in accordance with the eligibility criteria for the Campaign, or for Grant recipients generally, from time to time; or
(f) we suspect that your primary purpose of receiving the Campaign Assets is not in line with the objectives of the Campaign.
9.3 We will be entitled to terminate this Agreement for any reason by providing notice to you.
9.4 Termination of this Agreement will be without prejudice to any existing rights and/or claims that we may have against you, and will not relieve you from fulfilling the obligations accrued prior to such termination.
9.5 You acknowledge that we will have no liability arising out of any alleged wrongful termination of this Agreement. You hereby waive any claim or cause of action arising out of any termination of this Agreement and you release us, our affiliates and our respective officers, employees and agents from any and all such claims and causes of action.
9.6 On termination of this Agreement:
(a) you will immediately cease all use of the Campaign Assets, including all copies of the Physical Materials, whether or not you have incorporated your own text and/or images and destroy or upon our request return to us all such materials containing the Campaign Assets in your possession or control; and
(b) all rights granted to you under this Agreement or however acquired and any goodwill associated therewith shall revert and enure to us.
10.2 If any provision of these terms and conditions is held to be illegal, invalid or unenforceable in whole or in part the remainder of this Agreement will continue to be valid and enforceable.
10.3 No failure or delay in exercising rights under this Agreement shall operate as a waiver of such rights.
10.4 This Agreement does not make either party the agent of the other nor does it create a partnership or joint venture between the parties.
10.5 This Agreement expresses the entire agreement between us and you.
10.6 This Agreement is personal to you and you will have no right to assign, novate or otherwise transfer any of your rights, obligations and liabilities under this Agreement.
10.7 We may assign, novate or otherwise transfer all of its rights, obligations and liabilities under this Agreement to a successor body to us or to any successor distributor of Lottery funding, and you will consent to any such assignment, novation or other transfer without delay.
10.8 The award of the Grant, this Agreement and all non-contractual disputes arising in connection with the Grant shall be governed by and construed according to English law and be subject to the exclusive jurisdiction of the English Courts.