The following definitions and rules of interpretation apply in this agreement.
Brand Guidelines: National Register of LGV Instructors (NRI) guidelines prescribing the permitted form and manner in which the Mark may be used, a copy of which shall be provided by NRI, including any amendments or additions notified in writing by NRI to the Licensee from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date on which this agreement shall commence, as set out in the Contract Details.
Mark: the trade mark, including the listed registrations and applications and any registrations which may be granted pursuant to those applications and any related trade marks, devices and get-ups set out and any registrations of any marks listed that may be notified in writing by NRI to the Licensee from time to time.
Permitted Purpose: signifying attainment and compliance to the NRI Standard.
NRI Standard: the accredited standards offered by NRI.
Territory: the territory in which NRI shall provide the services, as set out in the Contract Details.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Approved Exam Centre Terms and Conditions form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Approved Exam Centre Terms and Conditions.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 References to clauses and Terms and Conditions are to the clauses and Terms and Conditions of this agreement.
1.7 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
1.8 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.9 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.10 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.11 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.12 A reference to writing or written includes email.
1.13 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.14 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 In consideration of the sum of £1 (receipt of which the Licensor expressly acknowledges) NRI hereby grants to the Licensee a non-exclusive licence to use the Mark in connection with the Permitted Purpose in the Territory.
2.2 The Licensee shall be permitted to use the Mark in connection with the Permitted Purpose by:
2.2.1 applying the Mark to stationary such as letterhead paper, compliment slips and business cards;
2.2.2 applying the Mark to a banner or sign which can be permanently or temporarily attached to the side of a permanent or semi-permanent building;
2.2.3 applying the Mark to the side of a van or other commercial trade vehicle;
2.2.4 using the Mark on its website or in connection with any associated social media platform provided that it is accompanied by a link to the Website (www. lgvinstructorregister.com);
2.2.5 using the Mark in any promotional or marketing literature including but not limited to newsletters, leaflets, posters, business adverts in classified directories (or other paid-for service) and event support merchandise; and
2.2.6 applying the Mark to certificates issued by the Licensee to attendees of its materials handling training solutions signifying attainment to the NRI Standard provided that such use is in accordance with the certificate template which has been approved for issue by the Licensor.
2.3 The Licensee may use the Mark for purposes other than the Permitted Purpose provided:
2.3.1 the Licensee sends to NRI full written details of how it wishes to use the Mark including details of all proposed forms of marketing, advertising and promotional material relating to the Permitted Purpose;
2.3.2 within 20 Business Days of receipt by NRI of the written details pursuant to clause 2.3.1, NRI shall inform the Licensee of whether or not it consent to the proposed use; and
2.3.3 in the absence of receipt of written consent by Licensee from NRI pursuant to clause 2.3.2, consent shall be deemed refused.
3 Application of the Mark
3.1 The Licensee shall comply strictly with the directions of NRI regarding the form and manner of the application of the Mark, including the directions contained in NRI’s Brand Guidelines.
3.2 Subject to clause 3.3, apart from the Mark, no other trade mark or logo of NRI may be affixed or used in connection with the Permitted Purpose.
3.3 Nothing in this Agreement shall prevent or restrict the Licensee from using its trade name or the trade name of any 3rd party in connection with its business provided the use of any other trade name does not imply a partnership, endorsement or other commercial relationship between NRI and any 3rd party.
3.4 The Licensee shall not use in its business any other trade mark confusingly similar to the Mark and shall not use the Mark or any word confusingly similar to the Mark as, or as part of, its corporate or trading name or as, or as part of, any domain name without the prior written consent of NRI.
4 Title, goodwill and registrations
4.1 The Licensee acknowledges that NRI is the proprietor of the Mark.
4.2 The Licensee shall take reasonable steps to ensure uses of the Mark (in any quotation, specification or other descriptive literature) be marked with:
“Reproduced and used under licence from NRI. is a trade mark of NRI and all goodwill derived from use of it shall accrue to NRI”,
or with any other statement as notified in writing from NRI to the Licensee from time to time.
4.3 Any goodwill derived from the use by the Licensee of the Mark shall accrue to NRI. NRI may, at any time, call for a document confirming the assignment of that goodwill and the Licensee shall at its own cost immediately execute it.
4.4 The Licensee shall not do, or omit to do, or permit to be done, any act that will or may weaken, damage or be detrimental to the Mark or the reputation or goodwill associated with the Mark or NRI, or that may invalidate or jeopardise any registration of the Mark.
4.5 The Licensee shall not apply for, or obtain, registration of the Mark for any goods or services in any country
4.6 The Licensee shall not apply for, or obtain, registration of any trade or service mark in any country which consists of, or comprises, or is confusingly similar to, the Mark.
4.7 NRI warrants that it is the owner of the Mark and may, at its discretion, on written notice to the Licensee, delete, amend or add to, any of the entries in Approved Exam Centre Terms and Conditions.
5 Marketing, advertising and promotion
5.1 The Licensee undertakes to ensure that its use of the Mark shall in no way reduce or diminish the reputation, image and prestige of the Mark or of services sold under or by reference to the Mark.
5.2 The Licensee shall bear the costs of all advertising, marketing and promotion for its use of the Mark in the Territory.
6.1 Each party undertakes that it shall not at any time during this agreement, and for a period of two (2) years after expiry or termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party nor any of the terms of this agreement, except as permitted by clause 6.2.
6.2 Each party may disclose the other party’s confidential information:
6.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause; and
6.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights or perform its obligations under or in connection with this agreement.
7 Protection of the Mark
7.1 The Licensee shall immediately notify NRI in writing giving full particulars if any of the following matters come to its attention:
7.1.1 any actual, suspected or threatened infringement of the Mark;
7.1.2 any actual or threatened claim that the Mark is invalid;
7.1.3 any actual or threatened opposition to the Mark;
7.1.4 any claim made or threatened that use of the Mark infringes the rights of any third party;
7.1.5 any person applies for, or is granted, a registered trade mark by reason of which that person may be, or has been, granted rights which conflict with any of the rights granted to the Licensee under this agreement; or
7.1.6 any other form of attack, charge or claim to which the Mark may be subject.
7.2 In respect of any of the matters listed in clause 7.1:
7.2.1 NRI shall, in its absolute discretion, decide what action if any to take;
7.2.2 NRI shall have exclusive control over, and conduct of, all claims and proceedings;
7.2.3 the Licensee shall not make any admissions other than to NRI and shall provide NRI with all assistance that it may reasonably require in the conduct of any claims or proceedings; and
7.2.4 NRI shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.
7.3 Nothing in this agreement shall constitute any representation or warranty that the exercise by the Licensee of rights granted under this agreement will not infringe the rights of any person.
8 Liability, indemnity and insurance
8.1 To the fullest extent permitted by law, NRI shall not be liable to the Licensee for any costs, expenses, loss or damage (whether direct, indirect or consequential, and whether economic or other) arising from the Licensee’s exercise of the rights granted to it under this agreement.
8.2 The Licensee shall indemnify NRI against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by NRI arising out of or in connection with:
8.2.1 the Licensee’s exercise of its rights granted under this agreement, including any claim made against NRI for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection therewith;
8.2.2 the Licensee’s breach or negligent performance or non-performance of this agreement, including any claim relating to any product or service supplied or put to use by the Licensee; or
8.2.3 the enforcement of this agreement.
8.3 The Licensee shall, at its expense, carry comprehensive general liability insurance coverage of an amount adequate to support its liabilities under this agreement. The Licensee shall ensure that such insurance policy remains in effect throughout the duration of this agreement and for a period of 6 years after termination or expiry of the agreement, and shall supply NRI with a copy of such policy on request.
8.4 Nothing in this clause shall restrict or limit NRI’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
8.5 Nothing in this agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence.
9 Additional Licensee obligations
9.1 The Licensee shall:
9.1.1 conduct itself and carry out its business with all due skill, care and diligence including good industry practice;
9.1.2 only make use of the Mark for the purposes authorised in this agreement; and
9.1.3 comply with all applicable industry regulations and practices in force or use in the Territory to (a) safeguard NRI’s rights in the Mark (b) uphold NRI’s goodwill and reputation in the Mark and in connection with NRI’s business.
9.2 The Licensee shall not, nor directly or indirectly assist any other person to:
9.2.1 use the Mark except as permitted under this agreement; or
9.2.2 do or omit to do anything to diminish the rights of NRI in the Mark or impair any registration of the Mark.
9.3 The Licensee acknowledges and agrees that the exercise of the licence granted to the Licensee under this agreement is subject to all applicable laws, enactments, regulations and other similar instruments in the Territory, and the Licensee understands and agrees that it shall at all times be solely liable and responsible for such due observance and performance.
10.1 The Licensee shall not grant sub-licences under this agreement.
11 Assignment and other dealings
11.1 The Licensee shall not assign, transfer, mortgage, charge, subcontract, sub-license, declare a trust over, or deal in any other manner with any or all of its rights under this agreement without the prior written consent of NRI.
11.2 NRI may at any time assign, mortgage, charge, declare a trust over, subcontract or delegate in any other manner with any or all of its rights under this agreement to any third party.
12 Duration and termination
12.1 The parties hereby agree that from the day immediately before the Commencement Date, all previous agreements (written or otherwise) between the parties relating to any use by the Licensee of any mark and any other intellectual property right which is similar to or in the Mark and which is used pursuant to the Permitted Purpose shall be deemed terminated.
12.2 This agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 12, until such time as the Licensee is no longer accredited by NRI when it shall expire automatically without notice.
12.3 NRI shall have the right to terminate this agreement on giving the Licensee not less than three (3) months’ written notice of termination.
12.4 Without affecting any other right or remedy available to it, NRI may terminate this agreement with immediate effect by giving notice to the Licensee if:
12.4.1 the Licensee commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of twenty (20) days after being notified to do so;
12.4.2 the Licensee repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
12.4.3 the Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
12.4.4 the Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Licensee with one or more other companies or the solvent reconstruction of the Licensee;
12.4.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Licensee with one or more other companies or the solvent reconstruction of the Licensee;
12.4.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given, or if an administrator is appointed over the Licensee (being a company);
12.4.7 the holder of a qualifying floating charge over the assets of the Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.4.8 a person becomes entitled to appoint a receiver over all or any of the assets of the Licensee or a receiver is appointed over all or any of the assets of the Licensee;
12.4.9 a creditor or encumbrancer of the Licensee attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
12.4.10 any event occurs, or proceeding is taken, with respect to the Licensee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.4.3 to clause 12.4.9 (inclusive);
12.4.11 the Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
12.4.12 there is a change of control of the Licensee or
12.4.13 the Licensee challenges the validity of the Mark.
13 Consequences of termination
13.1 On expiry or termination of this agreement for any reason and subject to any express provisions set out elsewhere in this agreement:
13.1.1 all rights and licences granted pursuant to this agreement shall cease;
13.1.2 the Licensee shall cease all use of the Mark save as set out in this clause;
13.1.3 the Licensee shall return promptly to NRI at the Licensee’s expense any information of a confidential nature communicated to it by NRI, either preparatory to, or as a result of, this agreement to the extent such material remains confidential; and
13.1.3 within 120 days after the date of termination the Licensee shall, at the Licensee’s expense: (a) promptly destroy all tangible material incorporating the Mark; and (b) take down any use of Mark on any website or in any social media and delete all copies thereof.
13.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
13.3 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
14 Further assurance
At its own expense each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16 Entire agreement
16.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
18.2 If any provision or part-provision of this agreement is deemed deleted under Clause 28.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
20 Third party rights
Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
21 No partnership or agency
21.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
21.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22.1 A notice given to a party under or in connection with this agreement shall be in writing and shall be (a) delivered by hand or by pre-paid first-class post (or another next working day delivery service) in either case to that party’s registered office; or (b) sent by electronic mail to an address notified by one party to the other party from time to time.
22.2 A notice shall be deemed to have been received if (a) delivered by hand, at the time the notice is left at the proper address or if sent by pre-paid first-class post (or another next working day delivery service), on the second Business Day after posting, unless such deemed receipt would occur outside 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), in which case receipt will occur when business hours resume in the place of receipt; or (b) sent by email, at 9:00am on the next Business Day following transmission and provided that evidence of successful transmission is retained.
22.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23 Inadequacy of damages
Without prejudice to any other rights or remedies that NRI may have, the Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Licensee. Accordingly, NRI shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this agreement.
24 Dispute Resolution
If any dispute arises in connection with this agreement, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 Business Days of notice of the dispute, the mediator will be nominated by CEDR or as otherwise mutually agreed by the parties.
25 Governing law
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation except that NRI retains the right to seek injunctive relief in any court of competent jurisdiction.
This agreement has been entered into on the date stated at the beginning of it.