LIV-EX LIMITED DATA AND TRADE MARK LICENCE AGREEMENT – Professional Service LICENSEE INFORMATION Licensee Name: Co. Registration number: Registered Office: Email: Commencement Date
X Year(s) (X month(s)) See Schedule 1.
Liv-ex Professional services. (optional Liv-ex Historic Market Pricing) See Schedule 1.
The use of the Licensed Property for internal analysis and the provision of professional services to customers as defined in Schedule 1. (Optional Historic Market Pricing)
Employees of the company and registered customers of the company as defined in Schedule 1
£3,500 minimum per annum. See Schedule 1.
This Agreement (“the Agreement”) consists of this page (“the Cover Sheet”) and the Terms and Conditions attached thereto. Your signature on this page acknowledges that you are duly authorised to execute the Agreement on the Licensee’s behalf and that the Licensee agrees to be bound by the provisions of the Agreement.
Signed for and on behalf of the Licensee:
Signed for and on behalf of Liv-ex Ltd a company incorporated in England and Wales with registered number 03874907, whose registered office is at Battersea Studios 2, 82 Silverthorne Road, London SW8 3HE, England (“Liv-ex”):
TERMS AND CONDITIONS
DEFINITIONS AND INTERPRETATION
Defined terms shall have the meaning set out on the Cover Sheet. In the event of any inconsistency between the Cover Sheet and these Terms and Conditions, the Cover Sheet shall prevail.
The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
References to ‘this Agreement’ mean this Agreement as amended, varied, supplemented, modified or novated from time to time.
References to a “Year” means each period of 12 (twelve) months commencing on the Commencement Date or its anniversary.
Words in the singular include the plural and in the plural include the singular.
Subject to the terms of this Agreement, Liv-ex grants to the Licensee a nonexclusive, non-transferable, revocable licence to use the Licensed Property for the term of this agreement for the purpose of carrying out the Licensed Activities in the Territory.
All rights not expressly granted to the Licensee pursuant to this Agreement are reserved to Liv-ex.
The Licensee: (a)
Shall not use the Licensed Property for any illegal, deceptive, misleading or unethical purpose or otherwise in any manner which may be detrimental to the reputation of the Licensed Property or any person;
shall not do anything or omit to do anything, which may diminish the rights of Liv-ex in the Licensed Property or which may bring the Licensed Property into disrepute;
shall not use the Licensed Property for financial product bench-marking purposes, for valuation of any financial product unless the Licensee is also a holder of a Valuation Licence;
shall not use the Licensed Property to create or inform the creation of another product intended to or has the outcome of competing with the Licensed Property;
shall ensure that any use of the Licensed Property or part thereof, shall be accompanied by a reference to Liv-ex being the source of the Licensed Property in accordance with Liv-ex brand guidelines;
shall provide Liv-ex with a log-in to any external facing service which contains or is derived from the Licensed Property;
shall comply with any directions of Liv-ex in relation to the Licensee’s use of the Licensed Property pursuant to this Agreement; and
shall provide Liv-ex with a written statement once each Year, starting from the first anniversary of the Commencement Date, setting out the information listed in Schedule 2.
For the purposes of ensuring that the Licensee is complying with the terms of this Agreement, the Licensee shall keep appropriate records of use and permit Liv-ex to inspect any records kept pursuant to this Agreement, provided that Liv-ex provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times and no more frequently than once a year.
The Agreement does not give you any right to sub-license, distribute sell or otherwise make the Licensed Property available to third parties (beyond those defined in Schedule 1) without permission of Liv-ex.
The Licensee agrees to pay to Liv-ex the Fees.
All sums payable under this Agreement are exclusive of VAT, for which the Licensee shall be responsible.
Liv-ex may increase the Fees annually by written notice to the Licensee setting out the proposed increase, such notice to be given no later than 60 days before the next anniversary of the Commencement Date from which the increase is to take effect.
The Fees for the first year of this Agreement shall be payable upon the execution of this Agreement. Thereafter, Liv-ex will present to the Licensee an invoice for its Fees and the Fees shall be payable by no later than fourteen (14) days after the anniversary of the Commencement Date.
If any payment owing under this Agreement is overdue then without prejudice to any other right or remedy available to it Liv-ex shall be entitled to terminate all agreements, and/or charge the Licensee interest at a rate of four (4) per cent per annum above the base rate from time to time of HSBC Bank plc (before and after judgment) on the overdue amount, which interest will accrue on a daily basis from the date payment becomes due until Liv-ex has received full payment of the amount due together with all accrued interest.
ACCESS TO THE LICENSED PROPERTY
Once the Fee has been paid in accordance with clause 3, Liv-ex shall make the Licensed Property available to the Licensee from a password protected section of Liv-ex’s website or other site. The Licensee will be provided with a username and password and / or shall submit their static IP address against which a token will be generated. The Licensee shall ensure that all Permitted Users are aware of and comply with all the obligations upon the Licensee under this Agreement. The Licensee is responsible for ensuring the security and proper use of the usernames and passwords and shall not disclose them to any unauthorised person. The sharing of them and any access codes with others (apart from the Permitted Users to the extent expressly permitted by this Agreement) is a material breach of this Agreement.
Without prejudice to any other remedies, in the event that the Licensee is in material breach of any term of this Agreement Liv-ex may upon 24 hours notice suspend the Licensee’s access and that of any of its users to the Licensed Property without a refund of any Fees.
LIMITATION OF LIABILITY
The Licensed Property is supplied by Liv-ex on an “as is” and “as available” basis. The Licensee acknowledges and accepts that the Licensed Property is created through system activity and / or subjective analysis of available data which may be open to other interpretations and as such does not constitute a precise scientific measurement. Liv-ex shall not be liable to the Licensee nor to any third party for any inaccuracies, errors or omissions contained in the Licensed Property, nor subject to clause 6 below, for any loss or damage arising in any way out of this Agreement, whether direct, indirect or consequential and whether suffered by the Licensee or by any other person and irrespective of whether or not the Licensee or such other third party has relied on any data from the Licensed Property, except with respect to fraud or negligence on the part of Liv-ex. Liv-ex shall in no circumstances be liable to the Licensee for any loss of profits, loss of business or depletion of goodwill.
Liv-ex shall not be liable for any failure to perform, or for any delay or defect in the performance of any of its obligations under this Agreement to the extent that such failure, delay or defect in performance is caused by the Licensee.
The exclusions and limitations in clause 5.1 shall apply to the fullest extent permissible at law. In no circumstances (save in the event of fraud or negligence) shall Liv-ex’s aggregate liability to the Licensee in respect of all claims under or in connection with this Agreement arising in any Year exceed an amount equal to the aggregate Fee paid, or accrued, to Liv-ex during that Year by the Licensee.
REPRESENTATIONS AND WARRANTIES
Liv-ex does not give and the Licensee acknowledges and agrees that Liv-ex is not giving any warranty or making any representations as to the performance or profitability of any business activities conducted by the Licensee using the Licensed Property now or in the future, and hereby expressly excludes any such warranty or representation.
Each party represents and warrants that it has full power and authority and has obtained all necessary consents to enter into and perform its obligations under this Agreement.
INTELLECTUAL PROPERTY RIGHTS
The Licensed Property, the Liv-ex brands, the Liv-ex web-site and all of its content are the valuable intellectual property of Liv-ex. The Licensee acknowledges that as between Liv-ex and Licensee all Intellectual Property Rights (as defined below) in the Licensed Property belong and shall continue to belong to Liv-ex, and the Licensee shall have no rights in or to the Licensed Property other than the right to use it in accordance with the terms of this Agreement. The Licensee agrees that all goodwill which arises from its use of the Licensed Property shall belong and accrue automatically to Liv-ex. For the purposes of this Agreement “Intellectual Property Rights” means patents, rights in inventions, copyrights, design rights, trade marks, service marks, rights to restrain unfair competition, trade secrets, know-how,
database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world. 7.2
Liv-ex shall indemnify the Licensee against any actual direct out of pocket loss, cost or expense arising directly from an allegation against the Licensee that the Licensed Property infringes a third party’s intellectual property rights and in respect of which proceedings are issued by that third party PROVIDED THAT (i) the allegation arises directly from the Licensee’s use of the Licensed Property in accordance with this Agreement, (ii) the Licensee allows Liv-ex to control all aspects of the defence and compromise of such proceedings, (iii) the Licensee shall not make any admissions or public statements in respect of them, and (iv) the Licensee promptly provides all necessary cooperation and assistance to Liv-ex in dealing with the claim.
TERM AND TERMINATION
This Agreement shall continue for a minimum term of 12 (twelve) months from the Commencement Date (the “Minimum Term”). It shall thereafter continue automatically unless either party terminates the Agreement in accordance with clauses 8.2, 8.3 or 8.4.
Either party may terminate this Agreement by giving the other party no less than 30 days written notice of termination, to expire by no later than the end of the Minimum Term, or an anniversary thereof.
If either party breaches any term of the Agreement and, if the breach is capable of remedy, fails to do so within 30 days after receiving notice from the other party giving details of the breach and requiring the breaching party to remedy it, the other party may terminate the Agreement immediately by giving notice to the breaching party.
Either party may terminate this Agreement immediately by giving notice if the other party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
Termination of this Agreement shall be without prejudice to the rights and obligations of the parties accrued prior to the date of such termination.
Upon expiration of this Agreement or earlier termination for any reason all rights granted to the Licensee under this Agreement shall cease and the Licensee shall, within seven (7) days after termination or expiration: (a)
cease all activities authorised by this Agreement and ensure that all authorised users also so cease;
pay to Liv-ex any sums due to Liv-ex under this Agreement; and
destroy or return to Liv-ex (at Liv-ex´s option) all copies of the Licensed Property then in its possession, custody or control and, in the case of destruction, certify to Liv-ex that it has done so.
The provisions of this Agreement shall survive its termination to the fullest extent necessary for their enforcement and for the realisation of their benefit for the party in whose favour they operate.
FORCE MAJEURE No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause 9 shall excuse the Licensee from any payment obligations under this Agreement.
CONFIDENTIALITY Each party undertakes that it shall not at any time during this Agreement, and for a period of five (5) years after termination of this Agreement (by any means) disclose to any person any information identified as confidential or information concerning the business, affairs, customers, clients or suppliers of the other party without the other party’s prior written consent.
WAIVER No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
SEVERABILITY If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
AMENDMENTS Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
THIRD PARTY RIGHTS No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.
No party may assign all or any part of the benefit of, or its rights under, this Agreement to its successor without the prior written consent of the other party (which shall not be unreasonably withheld or delayed).
Nothing in this Agreement or any arrangement contemplated by it shall constitute either party a partner, agent, fiduciary or employee of the other party and Licensee undertakes to not purport to be an agent or other related entity expect within the definitions of membership and brand guidelines.
No amendment or variation of the terms of this Agreement shall be effective unless made or confirmed in writing and signed by both parties.
If any provision of this Agreement shall be found by any Court or body or authority of competent jurisdiction to be wholly or partly invalid or unenforceable, such provision shall be severed from the remainder of this Agreement which shall remain in full force and effect to the extent permitted by law.
The rights and remedies provided by this Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law.
This Agreement does not create, confer or purport to create or confer any benefit or right enforceable by any person not a party to it (except that a person who is a permitted successor to or assignee of the rights of a party to this Agreement shall be deemed to be a party to this Agreement).
This Agreement is governed by its express terms and its subject matter to the exclusion of any terms and conditions which the Licensee purports to apply at any time or which are implied by trade, custom or course of dealing.
The content and structure of the Licensed Property may change from time to time due to additions or removals of fields or individual points. Where possible, Liv-ex will provide a minimum of thirty (30) days notice of any significant changes.
NOTICES Any notice required to be given pursuant to this agreement shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party on the Cover Sheet. Notices must be sent by email to the email address provided for the Licensee on the Cover Sheet or to [email protected]
in the case of notices to Liv-ex. Notices shall be deemed to have been received instantaneously upon transmission.
GOVERNING LAW AND JURISDICTION This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English Courts.
ENTIRE AGREEMENT This Agreement sets out the entire agreement and understanding between the parties relating to its subject matter and supersedes all prior representations, agreements, arrangements and understandings between the parties whether oral or written relating to the subject matter of this Agreement.
SCHEDULE 1: Licensed Property: Liv-ex Professional service constitutes the following data feeds and content: Data Feed Names: Live Exchange Offer, Live Exchange Bid, Pricing and Reserves, Marketplace - collectively known as Professional services; and where optionally purchased Historic Pricing Data Content: The data included in these feeds is as identified by the Liv-ex Data Summary at commencement date available via download from the data section on the Liv-ex website. The Licensee may only store and display the most recently collected price data known as Current Pricing, unless Historic Pricing is included on the Cover Sheet. The Licensee is only allowed to display the Licensed Property on a password protected section of its website to its customers as part of a Professional Service. The Licensee will provide a login for this section to Liv-ex. The agreement allows the Licensee to display prices for up to a maximum of 25 wine vintage combinations on a public section of its website. Licensed Activity: Internal Analysis – the use of the Licensed Property to undertake internal activities such as; stock valuation, trading opportunity alerts, trade analysis and market comparison. Only the most recent price points may be used and storage of the data beyond that necessary to carry out an immediate task is prohibited. Professional Services – the use of the Licensed Property to deliver professional services to the Licensees customers such as; private reserves valuation, trade opportunity alerts, trading services and cellar management services. Only the most recent price points may be used and storage of the data beyond that necessary to carry out an immediate task is prohibited, with the exception of written reports to customers, for which an electronic copy in PDF form can be retained for audit purposes. Historic Pricing – if this option is selected, the Licensee is able to access historic market pricing data feeds and in addition is granted rights to store and maintain the Licensed Property in a secure database whilst the licence is in effect. Normal termination clauses apply as per section 8. Permitted Users: i)
Employees of the Licensee authorised to carry out the Licensed Activity
Sub-contractors of the employee when they are expressly involved in the development of systems or processes to enable the Licensed Activities
Registered customers of the Licensee who are in receipt of the Professional Services of the Licensee
License Term: This agreement runs for a maximum term of xx years starting on the Commencement Date as written on the Cover Sheet of the agreement, subject to Section 8 of the Terms and Conditions. Access: Access to the feeds will be from datafeed.liv-ex.com or other site as provided by Liv-ex and utilise RESTful technology. The Licensee will access the feed using a username and password supplied by Liv-ex or will need to register their static IP address and obtain a token from Liv-ex. Fees: Minimum charge At the start date of this agreement, Liv-ex will be entitled to the charge, being the sum £3,500, (£6,000 including Historic Pricing) payable in advance. Additional data The above fee covers the display of up to 2,500 wine vintage combinations. Additional lines will incur an additional annual fee of £1.20 per line (£1.40 per line including Historic Pricing). A line is defined as an LWIN18 – Wine, vintage, bottle size, pack size. VAT Fees are exclusive of value added tax, which, where applicable, will be charged and invoiced to Licensee in addition to the Fees.
SCHEDULE 2 USAGE STATEMENT Please provide Liv-ex with answers to the following questions. The questions relate to how the Licensed Property has been used in the period since the Commencement Date or since your last usage statement.
Please state how the Licensed Property has been used: (If the Licensed Property was used for marketing purposes, please give brief details.)
Please state the number of units valued using the Licensed Property:
Please state the value of the wine valued using the Licensed Property:
Please state the number of customers that were given access to the Licensed Property: (If the Licensed Property was made available on a website, please provide the number of unique users.)