Sponsorship Terms and Conditions
1. Definitions
1.1 These Sponsorship Terms and Conditions together with the Term Sheet form the agreement between the parties (the “Agreement”). Words and phrases shall have the meaning given to them in the Term Sheet and this Clause 1:
“DPA” means the UK Data Protection Act 1998 and all applicable data protection, privacy and direct marketing laws and regulations as amended from time to time, and “Personal Data” and “Data Subject” will have the meanings given to it in the UK Data Protection Act 1998;
“Editorial Content” means the IB editorial content of any Supplement, the Newspaper (as defined in the Term Sheet) and the Microsite;
“Force Majeure Event” means any event affecting the performance of any provision of this Agreement (other than Sponsor’s obligation to pay the Fees) arising from or attributable to acts, events, omissions or accidents which are beyond the reasonable control of a party, including without limitation, by reason of any failure, interruption, or degradation of any third party telecommunications network or system or hardware or the Internet or any part of it, abnormally inclement weather, flood, lightning, storm, fire, explosion, earthquake, subsidence, structural damage, epidemic, failure or shortage of power supplies, war, military operations, riot, crowd disorder, strike, airport closure or disruption, lock-outs, other industrial action, terrorist action or civil commotion;
“IB Marks” means all trade marks, service marks, trade names, logos and other branding (whether registered or not) of IB or its licensors, including the “Inclusive Boards” and “IB” word and logo marks;
“IB Site” means any online, electronic or digital product or service that is operated or published by IB or any other IB group company.
“IPRs” means all present and future copyright, moral rights, database rights, trade mark rights, trade secrets and all related rights and neighbouring rights and any other intellectual property rights of whatsoever nature throughout the world whether or not registered or capable of registration including all renewals and/or extensions thereof;
“Microsite” where applicable has the meaning set out in the Term Sheet;
“Sponsor Advertisements” means any sponsor advertising material of whatsoever nature to appear in any Supplement, Microsite or IB Site as appropriate;
“Sponsor Marks” means the trade marks of the Sponsor, whether registered or unregistered, including all word and logo marks and brand names;
“Sponsor Materials” means any material provided to IB by Sponsor in connection with any Supplement or the Microsite;
“Supplement” where applicable has the meaning set out in the Term Sheet; and
“Term Sheet” means a term sheet executed by IB and the Sponsor which incorporates these Sponsorship Terms and Conditions.
1.2 The headings in this Agreement do not affect its interpretation. Legislative references in this Agreement shall be deemed to include any subsequent re-enactment or amending provision. Unless the context otherwise requires words importing the singular shall include the plural and vice versa and the words “include” and “including” shall be construed as without limitation. This Agreement negates and takes precedence over any Sponsor or Agency terms and conditions.
2. Advertising Terms and Editorial Control
2.1 In signing the Term Sheet Sponsor confirms that is has read and hereby accepts and agrees to the IB’s terms and conditions, which shall apply to all Sponsor Advertisements. In the event of any inconsistency between the terms and conditions of advertising and this Agreement, this Agreement will prevail to the extent of any inconsistency.
2.2 Both parties agree that the IB editorial team will decide the overall creative scheme for any Supplement and the Microsite, specifically in areas where Sponsor is featured.
2.3 Sponsor agrees and acknowledges that nothing in this Agreement entitles Sponsor to any decision-making power regarding the Editorial Content. The IB editorial team may at its discretion choose to discuss the editorial direction of any Supplement or the Microsite with employees or associates of Sponsor but all decisions regarding content and contributors remain the sole preserve of the IB editorial team. In the interests of editorial objectivity and quality, IB is unable to guarantee coverage of a particular company, individual or editorial topic. The precise dates of any Publication Dates and Hosting Period specified on the Term Sheet remain subject to IB’s editorial discretion.
2.4 For the avoidance of doubt, Sponsor acknowledges that IB shall be entitled to sell advertising space in any Supplement to third parties.
2.5 Sponsor shall submit a sample of the proposed creatives for the Sponsor to IB prior to publication. Print samples shall be provided no later than 28 working days prior to the date that the Sponsor Advertisement is envisaged to be published in any Supplement. Digital, online and electronic samples shall be provided no later than 10 working days prior to the date that the Sponsor Advertisement is envisaged to be published in the Microsite or IB Site. IB shall approve or reject the Sponsor Advertisement sample within 5 working days of receipt of the same. Any Sponsor Advertisement sample in respect of which IB has not notified its approval or non-approval to Sponsor shall be deemed approved 6 working days from the date of submission. Should IB provide its non-approval to Sponsor, Sponsor agrees to resubmit a new sample within 3 working days of IB’s non-approval. For the avoidance of doubt, email approval shall be deemed a valid approval by IB for the purposes of this clause.
2.6 Sponsor is entitled to withdraw the Sponsor Advertisements from the Microsite at any time (without refund), but if it does so IB may, at IB’s sole discretion, replace the Sponsor Advertisements with alternative advertising.
3. Intellectual Property
3.1 Subject to clause 3.2, Sponsor acknowledges that as between the parties IB shall retain as the legal and beneficial owner all IPRs in all Editorial Content, IB Marks, the Newspaper, the Supplement, the Microsite (and all related artwork and copy) and all other work created by or on behalf of IB in the course of performing its obligations under this Agreement, and Sponsor hereby assigns to IB all IPRs in the same, which may arise either now or in the future, that may accrue to it as a result of its involvement in the organisation, running, marketing or delivery of any Supplement or the Microsite or otherwise as a result of its participation in this Agreement.
3.2 IB acknowledges and agrees that Sponsor shall retain all IPRs in the Sponsor Advertisements, the Sponsor Materials and the Sponsor Marks and no such IPRs shall be assigned to IB.
3.3 Sponsor hereby grants IB for the Term a worldwide, non-exclusive licence to use Sponsor Advertisements, Sponsor Material and Sponsor Marks and where necessary to link to the Sponsor’s websites for the purpose of carrying out its obligations under this Agreement including all purposes reasonably incidental thereto.
3.4 Sponsor shall not use any IB Marks or any Editorial Content without IB’s prior written approval.
4. Warranties
4.1 Each party warrants and represents to the other that it has full power and authority to enter into this Agreement.
4.2 Each Party warrants that it will not seek to associate itself with the other party other than as permitted by this Agreement and it shall not represent to any third party that the other party endorses it or its products and services nor hold itself out to any third party as representing the other party.
4.3 IB warrants that it will perform the IB Obligations (as described in the Term Sheet) using reasonable care and skill.
4.4 Sponsor warrants and represents that:
(a) it is and shall be authorised to grant the right to use the Sponsor Marks, Sponsor Advertisement and any other materials provided to IB under this Agreement;
(b) it will not do or permit to be done anything which may reasonably be interpreted by IB in any way as being prejudicial, detrimental or denigrating to IB’s brand or business;
(c) the Sponsor Marks, the Sponsor Advertisements and any other materials provided by Sponsor to IB under this Agreement shall:
comply with all applicable laws, regulations and codes of practice;
not be in any way defamatory or libellous; and
not infringe the rights, including the IPRs, of any third party.
4.5 Except as expressly provided in this Agreement and to the extent permitted by law, no warranty, condition, representation or undertaking, express or implied, statutory or otherwise, is given or assumed by any party to this Agreement and all such warranties, conditions, representations and undertakings are hereby excluded.
4.6 Without limiting clause 4.5, IB makes no warranty or representation to Sponsor regarding (a) the return on investment that Sponsor will obtain under this Agreement; (b) the circulation of any Supplement; or (c) the accuracy, timeliness, completeness, performance or availability of the Microsite or its content.
5. Data Protection and Confidentiality
5.1 To the extent required by this Agreement, each party shall comply with its obligations under the DPA.
5.2 Each party will maintain appropriate technical and organisational measures to prevent the accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of Personal Data. Such measures will be appropriate to the harm that might result from the accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of Personal Data.
5.3 Each party will ensure that prior to disclosing any Personal Data to the other, if applicable, that appropriate consents for the sharing of that Personal Data, as required by the DPA, have been obtained from the Data Subjects. Neither party will transfer any Personal Data provided to it by the other pursuant to this Agreement, to a third party, unless otherwise agreed to and as set out in the Term Sheet. Any such transfer shall comply with the requirements of the DPA.
5.4 Each of the parties undertakes to the other to keep confidential the terms of the Term Sheet and all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussion leading up to the entering into or the performance of this Agreement save that which is: (a) trivial or obvious; (b) already in its possession other than as a result of a breach of this clause; (c) in the public domain other than as a result of a breach of this clause; or (d) required by a government body, a court of competent jurisdiction, or otherwise by law to be disclosed.
5.5 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 5.4 by its employees, agents and sub-contractors. The foregoing obligations as to confidentiality shall survive any termination of this Agreement.
5.6 No press releases, promotions or marketing of any Supplement, Microsite or the sponsorship thereof, other than as expressly set out in this Agreement, shall be undertaken by Sponsor without the prior written consent of IB.
5.7 Clauses 7.2 and 7.3 shall not apply in respect of any liability arising out of a breach or other non-compliance with this clause 5 by either party.
6. Termination
6.1 Either of the parties shall be entitled to terminate this Agreement immediately by notice in writing to the other party if:
(a) the other party commits any material or persistent breach of its obligations under this Agreement and shall fail to remedy such breach (if capable of remedy) within 14 days after being given written notice by the first party to do so; or
(b) the other party shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors, or shall be unable to pay its debts as they fall due or any event analogous to the other occurs in any jurisdiction.
6.2 IB shall be entitled to terminate this Agreement immediately by notice in writing to Sponsor if:
(a) Sponsor fails to pay any amount due under this Agreement on the due date for payment and remains in default 7 days after being notified by IB in writing to make such payment; or
(b) there is a change in the name or brand of Sponsor; or
(c) there is a change in the control (meaning the majority shareholding or the capacity to control day to day management) of Sponsor; or
(d) Sponsor is in breach of its obligations under clauses 4.2, 4.4 or 5; or
(e) Sponsor (or any of its shareholders or directors) becomes subject to any Sanction, or continuation of this Agreement would (in the reasonable opinion of IB) expose IB or any of its affiliated companies to any Sanction, where “Sanction” means any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, United Kingdom, Hong Kong or United States of America.
6.3 Sponsor shall be entitled to terminate this Agreement immediately by notice in writing to IB if:
(a) there is a change in the name or brand of IB; or
(b) IB is in breach of its obligations under clauses 4.2 or 5.
6.4 If IB terminates this Agreement under clauses 6.1 or 6.2 above:
(a) IB shall remove all Sponsor Marks and Sponsor Advertisements from any further Supplements to be published, from the Microsite and as otherwise on IB.com to promote any Supplement, save that IB will not be required to remove or make amendments in respect of any Supplements published prior to the date of termination;
(b) IB shall be released from any further obligations to provide branding or advertisements or other IB Obligations for the Sponsor as set out in the Term Sheet;
(c) IB shall have the right at its sole discretion to seek alternative sponsorship and/or advertisement for any Supplement and Microsite;
(d) The Sponsor shall not be entitled to recover any Fees already paid to IB and will remain fully liable for any amount of the Fee still to be paid in accordance with the Term Sheet and clause 8. For the avoidance of doubt no refund or reduction in the Fee shall be due to Sponsor as a result IB exercising its right of termination under clauses 6.1. or 6.2.
6.5 If IB determines, in its reasonable opinion, that the continued hosting of the Microsite and further publication of any Supplement could seriously prejudice its reputation or brand or be otherwise editorially inappropriate then IB shall have the right to cancel any Supplement and suspend hosting of any Microsite upon 7 days written notice to Sponsor. If IB cancels any Supplement and suspends hosting of any Microsite in accordance with this clause 6.5 (except in cases of Sponsor’s default) a full refund of the Fees paid by Sponsor up until the date of cancellation will be made to Sponsor and this Agreement shall automatically terminate.
6.6 Any termination or expiry of this Agreement for whatever reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination (including without limitation payment of the Fees).
6.7 If IB is unable to perform its obligations under this Agreement by reason of a Force Majeure Event, the performance of IB’s obligations under this Agreement will be suspended. IB shall not be liable for any failure to perform or delay in performing any obligation under this Agreement if this is caused by a Force Majeure Event. If the Force Majeure Event hinders, delays or prevents the performance by IB of its obligations under this Agreement for more than 30 days, either party may immediately terminate this Agreement by written notice to the other party (provided that the Force Majeure Event is still continuing on the date of that notice).
7. Limitations of Liability and Indemnities
7.1 Nothing in this Agreement shall operate to exclude or restrict either party’s liability for death or personal injury caused by that party’s negligence, fraud or fraudulent misrepresentation or any liability which cannot be limited or excluded by law.
7.2 Neither party will be liable to the other for any indirect, special, incidental or consequential loss, damage, costs, expenses or other claims whatsoever.
7.3 Without prejudice to Sponsor’s payment obligations under this Agreement, the total liability of either party whether in contract, tort or otherwise in respect of any breach of its obligations under this Agreement or any representation, statement, negligent act or omission arising under or in connection with this Agreement will be limited to direct damages which in no event shall exceed 200% of the Fee.
7.4 Sponsor agrees to indemnify, and keep fully and effectively indemnified, IB and any of its employees, agents and sub-contractors against any actions, proceedings, claims, losses, costs and expenses (including reasonable legal fees) and any other damage suffered or incurred arising out of or in connection with a third party claim against IB that the Sponsor Marks, the Sponsor Advertisements or any other materials provided by Sponsor to IB under this Agreement infringe the rights, including the IPRs, of that third party. Clauses 7.2 and 7.3 shall not apply to this indemnity.
8. Payment
8.1 Sponsor shall pay the Fees as set out in the Term Sheet.
8.2 If Sponsor is required by any law or regulation to make any deduction or withholding (on account of tax or otherwise) from any payment, Sponsor will, together with such payment, pay any additional amount as will ensure that IB receives, free and clear of any tax or other deduction or withholding, the full amount which it would have received if no such deduction or withholding had been required. Sponsor will promptly forward to IB copies of official receipts or other evidence showing that the full amount of any such deduction or withholding has been paid over to the relevant taxation or other authority.
8.3 The parties agree to comply with the applicable double tax treaty with respect of withholding taxes and IB will comply with all reasonable requests from Sponsor to file, or to provide Sponsor with such forms, statements or certificates as will enable Sponsor to apply a reduced rate of tax or exemption from tax in accordance with the applicable double tax treaty.
8.4 If Sponsor fails to pay the Fees within the period specified in the Term Sheet, then, without limiting IB’s remedies under clauses 6 or 8.5, Sponsor will pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC base rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Sponsor will pay the interest together with the overdue amount.
8.5 If Sponsor fails to make any payments when due under this Agreement IB shall have the right (in addition to any other available rights and remedies) to suspend the publication of any Supplement, Sponsor Advertisements or hosting of any Microsite until payment is received.
9. General
9.1 Nothing in this Agreement will constitute or be deemed to constitute a partnership between IB and the Sponsor or constitute or be deemed to constitute IB or the Sponsor as agent of the other for any purpose whatever and neither IB nor the Sponsor will have authority or power to bind the other or to contract in the name of and create a liability against the other or to represent the other in any matter whatsoever.
9.2 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
9.3 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. Nothing in this sub-clause shall limit or exclude any liability for fraud.
9.4 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
9.5 Each provision of this Agreement is severable and distinct from the others. If a provision of this Agreement is, or becomes, to any extent illegal, invalid or unenforceable, it shall to that extent be deemed not to form part of this Agreement but that will not affect the legality, validity or enforceability of any other provision of this Agreement, which shall continue in force and effect provided that the operation of this clause would not negate the commercial intent and purposes of the parties under this Agreement.
9.6 This Agreement is not intended to nor shall it create any rights, entitlements, claims or benefits enforceable by any person that is not a party to it. Accordingly, no person shall derive any benefit or have any right, entitlement or claim in relation to this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.
9.7 No provision of this Agreement may be amended, modified, discharged or terminated other than by the express written agreement of the parties.
9.8 This Agreement may be executed in counterparts, each of which when executed and delivered is an original, but together constitute the same document. Transmission of an executed counterpart of this Agreement (but for the avoidance of doubt not just a signature page) by e-mail (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Agreement.
9.9 Neither party shall assign or otherwise transfer this Agreement or any of its rights or obligations under it, whether in whole or in part, without the prior written consent of the other, except that IB may sub-contract all or part of its duties and obligations provided that it shall remain liable to Sponsor for all acts and/or omissions of its sub-contractors as if such act or omission had been committed or omitted by IB itself.
9.10 Any notice, consent or other communication required to be given hereunder shall be made in writing and shall be delivered by hand, recorded delivery or courier to the other party and shall be deemed to have been received, if delivered by hand, at the time and date of delivery; and if sent by recorded delivery or courier, upon receipt (as evidenced by signature). Any such communication made by IB shall be sent to the address of the Sponsor shown on the Term Sheet. Any such communication made by the Sponsor shall be sent to the Company Secretary, The Inclusive Boards Limited, Number One Southwark Bridge, London SE1 9HL.
10. Disputes and Governing Law
10.1 Each party agrees to respond promptly to any issues referred to it by the other party relating to this Agreement and shall seek to resolve any disputes arising through its Relationship Manager as quickly and effectively as possible.
10.2 Subject to Clause 10.1, if the parties cannot satisfactorily resolve any dispute within 14 days of referral to the Relationship Managers then that dispute shall be escalated to a director (or equivalent) of both parties. If the parties cannot satisfactorily resolve any dispute within 14 days of referral to a director (or equivalent) then either party may seek its legal remedies as provided in Clause 10.4.
10.3 This Clause 10 shall not restrict either party from seeking immediate legal or equitable relief for any infringement of its intellectual property rights.
10.4 All contractual and non-contractual claims arising from or in connection with this Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts, provided that for the exclusive benefit of IB, IB retains the right to bring proceedings against the Sponsor in the applicable courts of the Sponsor’s place of business.
11. Anti-Bribery
11.1 Each party shall at all times comply with all applicable laws related to bribery, corruption and related matters including the US Foreign Corrupt Practices Act and the UK Bribery Act.
11.2 Sponsor warrants and represents that:
(a) it has not done, nor will it do, any act in breach of clause 11.1; and
(b) it has no reason to believe that any of its employees, agents, or representatives have done, nor will they do, any act in breach of clause 11.1.
11.3 Sponsor shall report any breach or potential breach of clauses 11.1, or 11.2 to IB as soon as it becomes aware of them.
11.4 IB shall have the right to terminate this Agreement with immediate effect should it have reason to believe the Sponsor acted, or will act, in breach of clauses 11.1 or 11.2 without any further liability to the Sponsor.
12. Version of Sponsorship Terms and Conditions
12.1 This version of the Sponsorship Terms and Conditions applies to Term Sheets executed by the IB and the Client at any time from 26 May 2016 until this version of the Sponsorship Terms and Conditions is superseded by a new version.
12.2 IB may at any time and at its sole discretion change, update or amend these Sponsorship Terms and Conditions by posting a new version of the Sponsorship Terms and Conditions at http://help.InclusiveBoards.co.uk/legal/content-sponsorship-terms-and-conditions. Any such change under this clause 12.2 will not affect any Term Sheets that have already been executed by IB and the Client.
