Counterweight Licence Terms and Conditions

January 2021

The parties are entering into the agreement for the provision of goods and services and in parallel wish to sign up to these License Terms so that the Licensee may access from the Licensor and the Licensor may grant access to the Licensee of the Licensed Materials, Licensed Goods and Programmes.

  1. DEFINITIONS

In these License Terms, the following terms shall have the following meanings:

Authorised Users: are trained health practitioners who are employees of the Licensee(s) accessing the Licensed Goods, Materials and Programmes authorised by the Licensee;

Commencement Date: means the date that the Licensor is in receipt of the first License Fee paid by the Licensee, or is in receipt of any services delivered by the Licensor, whichever is first;

Confidential Information: means all confidential or proprietary information relating to:

(i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Licensor (hereinafter Part 1 Confidential Information); and

(ii) the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Licensor, any information, findings, any and all derivates created including but not limited by the Authorised User, data or analysis derived from the Confidential Information, and any other information that is identified as being of a confidential or proprietary nature of the Licensor (hereinafter Part 2 Confidential Information).

License: means the license granted by the Licensor to the Licensee in accordance with clause 3 below;

License Fee: means the annual fees charged by the Licensor to the Licensee for the License granted herein;

Licensed Goods: means the Counterweight food products displayed on the Website from time to time;

License Period: shall be from the Commencement Date for a period of twelve months (12) and renewing automatically on an annual basis thereafter unless terminated in accordance with clause 9.  For the avoidance of doubt, the Licensee shall pay the Licensor the License Fee upon each automatic renewal of these License Terms;

License Terms: means these license terms and conditions;

Licensed Materials: means all course manuals, learning products, course notes and any other materials related to Programme Delivery Support written by the Supplier or its third-party suppliers to be supplied to the Authorised Users (whether in electronic or hard form) under the terms of this License and during the License Period

Licensee: means the commercial entity or entities employing the Services and/or purchasing the Goods from the Licensor;

Licensor: means Counterweight Limited, incorporated and registered in England and Wales (company number 11278617) with its registered offices at 32 Monk Street, Abergavenny, United Kingdom NP7 5NW;

Programmes: means the Supplier’s Counterweight-Plus and Counterweight-Core programmes or any future programmes offered by the Supplier, as advertised on the Website;

Services: has the meaning given in the Counterweight Provision of Goods and Services Agreement.

Special Terms: any special terms as provided in the quotation issued by the Licensor.

Website: means the Supplier’s website at: www.counterweight.org.

  1. COMMENCEMENT

2.1 These License Terms will commence on the Commencement Date and shall remain in force for the License Period.

  1. GRANT

3.1 Upon the Licensor’s receipt of the License Fee and subject to clause 4, the Licensor grants the Licensee a non-exclusive, non-transferable, limited license to:

(i) allow the Authorised User to deliver and/or use and/or recommend the use of the Licensed Goods for the License Period;

(ii) allow the Authorised User to use the Licensor’s name and trade marks in connection with his or her use of the Licensed Goods for the License Period;

(iii) allow the Authorised User to create derivate materials of the Licensed Materials for the Licensee’s end users.

3.2 Subject to the conditions given in these License Terms, the Licensor will provide training, ongoing support and mentoring to the Authorised Users.

3.3 The Licensee will procure that the Authorised User will not be permitted to use any other brand of meal replacement or TDR products in combination with the Licensed Goods or Programmes.

3.4 All right, title, and interest (including all copyrights and other intellectual property rights) in the Materials, the Licensor’s name and trade marks (in both print and machine-readable forms) belong to the Licensor or its third-party licensors.  The Licensee will not and procures that the Authorised User will not acquire any ownership of copyright or other intellectual property rights or proprietary interest in the Licensed Materials, the Licensor’s name or trade marks, or copies thereof. Furthermore, any derivate materials created by the Licensee shall be assigned to the Licensor absolutely with full title guarantee all its right, title and interest in the derivate materials. 

  1. LICENSEE’S OBLIGATIONS

4.1 The Licensee will pay to the Licensor the License Fee on an annual basis to maintain its rights to use the Materials, Licensed Goods and deliver the Programmes.

4.2 The Licensee will and will procure that the Authorised User will maintain, and not put at risk, the reputation of the Licensor through the use of its name and trade marks.

4.3 The Licensee will and will procure that the Authorised User will obtain written permission from the Licensor before publishing any text that makes reference to the Licensor, its name or trade marks, the Licensed Goods, Licensed Materials or the Programmes.

4.4 The Licensee will and will procure that the Authorised User will use standard practices to maintain the integrity of the Licensed Materials supplied by the Licensor and will ensure to use only the Licensor’s Goods with any Programme(s) involving TDR and/or meal replacement.

4.5 Except as specifically provided herein, the Licensee will not and will procure that the Authorised User will not use the Licensor’s name or trade marks, Programmes, Licensed Materials or Licensed Goods in any fashion that infringes the copyright or proprietary interests therein.

4.6 The Licensee will not and will procure that the Authorised User will not remove or obscure any copyright notice or other notices that are or may be contained in any or all of the Licensed Goods, Programmes or Licensed Materials.

  1. LIMITED WARRANTY

5.1 The Licensor represents and warrants that it has the right and authority to grant the License to the Licensee under the conditions of these License Terms.

5.2 Except as otherwise provided in clause 5.1, the License is provided on an ‘as is’, ‘as available’ basis and the Licensor makes no express warranties under these License Terms, that any intellectual property herein will or may breach any third party ownership rights.

  1. LIMITATION OF LIABILITY

6.1 To the maximum extent permitted by law, a Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) the conditions given in these License Terms or any negligence of a Covered Party or its employees, contractors or agents in connection with the performance of any obligations under these License Terms.

6.2 "Covered Party" means (a) the Licensor, the Licensors’ affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of the Licensor or the Licensors’ affiliates.

6.3 Nothing in these License Terms are intended to exclude liability for death or personal injury resulting from any negligence by the Licensor.

6.4 The Licensor’s liability to the Licensee for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the Licensee caused or contributed to that loss or damage.

6.5 Subject to clause 6.3, the aggregate liability of the Covered Party in connection with any other claim arising out of or relating to the License shall be limited to £50.

6.6 The Licensee agrees that in the event that the Licensee breaches the Licensor’s intellectual property provisions contained in these License Terms it shall indemnify the Licensor for any actual or alleged infringement of any intellectual property right, including without limitation, trademarks, service marks, patents, copyrights, misappropriation of trade secrets or any similar property rights.  The Licensee further agrees to indemnify and hold the Licensor’s affiliates and their respective officers, directors, employees and agents harmless from and against any and all liabilities, costs, losses, damages and expenses (including reasonable legal fees) associated with such claim or action.

  1. PAYMENT

7.1 In consideration of the rights granted under clause 3, the Licensee will pay the License Fee per year with the first payment to be payable upon the Commencement Date.

7.2 It is an express condition that the Licensee advises the Licensor how many Authorised Users shall be accessing the Programme, Licensed Goods and the Licensed Materials.  The License Fee shall be based on the number of Authorised Users. In the event that the number changes, the Licensee shall immediately notify the Licensor of the same and pay the Licensor the additional amount due.  In the event that the Licensee fails to notify the Licensor of the correct number of Authorised Users the Licensor shall be entitled to treat such failure as a material breach of these License Terms and terminate immediately and pursue the Licensee for all the Licensee’s direct and consequential losses arising from the Licensee’s breach of contract including the Licensor’s legal fees.

7.3 Without prejudice to any other right or remedy that it may have, if the Licensee fails to pay the License Fee under this clause 7 to the Licensor by the due date, the Licensor may charge interest on such overdue sum from the due date for payment up to the date of actual payment at the annual rate of three (3) % above the base lending rate from time to time of the Bank of England, accruing on a daily basis.

7.4 The provisions of this clause 7 shall remain in effect notwithstanding termination or expiry of these License Terms until the settlement of all subsisting claims by the parties.

  1. CONFIDENTIALITY

8.1 Except as otherwise permitted hereunder, the Licensee shall not at any time during the License Period and: (i) for a period of five (5) years after termination disclose to any person any Part 1 Confidential Information disclosed to it by the Licensor; and (ii) for an unlimited period of time after termination disclose to any person any Part 2 Confidential Information disclosed to it by the Licensor.

8.2 The Licensee may disclose the Licensor’s Confidential Information to its affiliates, employees, officers, agents, consultants or sub-contractors (“Representatives”) who need to know such information for the purposes of carrying out the Licensee’s obligations under these License Terms, provided that the Licensee takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 8 as though they were a party to these License Terms. The Licensee shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause 8.

8.3 The Licensee will not be in breach of any obligation to keep any information confidential to the extent that it:

8.3.1 is known to the Licensee prior to the Licensor’s disclosure, and not already subject to any obligation of confidentiality;

8.3.2 is or becomes publicly known to the Licensee without any breach of these License Terms or any other undertaking to keep it confidential;

8.3.4 has been obtained by the Licensee from a third party in circumstances where the Licensee has no reason to believe that there has been a breach of an obligation of confidentiality owed to the Licensor;

8.3.5 has been independently developed by the Licensee prior to receiving the disclosure;

8.3.6 is approved for release in writing by an authorised representative of the Licensor; or is required to be disclosed pursuant to the requirement of any law or regulation or the order of any Court of competent jurisdiction provided that, to the extent practicable and permitted by applicable law, the Licensee required to make such disclosure has informed the Licensor in writing of the requirement to disclose prior to such disclosure in order to allow the Licensor a reasonable opportunity to seek an appropriate protective order or other means to protect the confidentiality of such Confidential Information; and if required to disclose Confidential Information of the Licensor: (i) discloses only such Confidential Information as it is required to disclose; and (ii) reasonably cooperates with and assists the Licensor in trying to obtain confidential treatment of such Confidential Information.

8.4 The Licensor reserves all rights in its Confidential Information. No rights or obligations in respect of the Licensor’s Confidential Information other than those expressly stated in these License Terms are granted to the Licensee or to be implied from these License Terms.

  1. DURATION AND TERMINATION

9.1 These License Terms shall continue for the License Period unless terminated in accordance with this clause 9.

9.2 The Licensor may terminate these License Terms upon giving the Licensee ninety (90) days’ previous written notice.

9.3 Either party may immediately terminate these License Terms by giving notice in writing to the other party in the event that:

9.3.1 either party commits a material breach under these License Terms, provided that, in a case where the  parties  agree  the  breach  to  be  remediable,  such  notice from the terminating party shall also require the failing party to remedy such breach and if the failing party so remedies within thirty (30) days of such notice being served, such notice to terminate these License Terms shall be deemed to be void and of no effect; or

9.3.2 either party ceases to do business; or; becomes unable to pay its debts when they fall due; or an interim order is applied for or made, or a voluntary arrangement approved, or a petition for a bankruptcy order is presented or a bankruptcy order is made against either party; or a receiver or trustee in bankruptcy is appointed of the party’s estate or a voluntary arrangement is proposed or approved or an administration order is made, or a receiver, administrator, or administrative receiver is appointed of any of either party’s assets or undertaking; or a winding-up resolution or petition is passed or presented (otherwise than for the purposes of solvent reconstruction or amalgamation).

9.4 Subject to prior observance of clause 9.2.1, the Licensor may immediately terminate these License Terms if it is proven that the Licensee has used the Licensor’s name or trade marks, or permitted any of Licensee’s employee to use, the Licensor’s name or trade marks in material breach of these License Terms. As soon as it receives notice from the Licensor of such material breach under these License Terms, the Licensee shall promptly take commercially reasonable actions to refrain from using the Licensor’s name and trade marks in violation of these License Terms. For the avoidance of doubt, any breach of the obligations given by the Licensee in clause 3 above shall be construed as a material breach for the purposes of clause 9.2.1.

9.5 In the event of expiry or termination of these License Terms howsoever arising, and subject to any express provisions set out elsewhere in these License Terms:

9.5.1 all outstanding undisputed sums payable by the Licensee to the Licensor shall immediately become due and payable;

9.5.2 perpetual and irrevocable licences granted pursuant to these License Terms (notably under clause 2 above) shall continue;

9.5.3 unless termination is made in accordance with clause 9.3 above and except for continued use in accordance with the license granted in clause 2.1, the Licensee shall remove all reference to the name and trade marks from all its marketing materials, including that of its associates/Licensee’s affiliates, within three (3) months of the date of termination.

9.5.4 the provisions of any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect.

9.6 Termination of these License Terms for whatever reason shall not affect the accrued rights of the parties as at the date of termination of any provisions provided herein and remain in full force and effect.

  1. NOTICES

10.1 Any notice or other document to be given under these License Terms shall be in writing in the English language and shall be deemed to have been duly given if left at or sent by courier, (provided a confirmation copy is sent by email), recorded mail or registered mail to a party at the address set out above for such party or such other address as the party may from time to time designate by written notice to the other party. Any notice given pursuant to this clause 10 shall be deemed to have been received:

10.1.1 in the case of delivery by hand, when delivered; or

10.1.2 in the case of sending by post, on the fifth day following the day of posting.

  1. ASSIGNMENT

Neither party shall assign or transfer any interest in these License Terms, or any of its rights or obligations under it without prior written approval of the other party, such consent not to be unreasonably withheld, conditioned or delayed.

  1. SEVERANCE

In the event that any clause or any part of any clause in these License Terms are declared invalid or unenforceable, by the judgment or decree by consent or otherwise of a court of competent jurisdiction from whose decision no appeal is or can be taken, all other provisions contained in these License Terms shall remain in full force and effect and shall not be affected by such finding for the License Period.

  1. NO WAIVER

No relaxation, forbearance, delay or indulgence by either party in enforcing any term or condition of these License Terms, or the granting of time by either party to the other, shall prejudice, affect or restrict the rights and powers of that party, nor shall any waiver by either party of any breach of these License Terms operate as a waiver of, or in relation to, any subsequent or continuing breach of it.

  1. FORCE MAJEURE

14.1 If a party (the “Non-Performing Party”) is unable to carry out any of its obligations under these License Terms due to Force Majeure, these License Terms shall remain in effect but the Non-Performing Party’s relevant obligations under these License Terms and the relevant obligations of the other party (the “Innocent Party”) under these License Terms shall be suspended for a period equal to the duration of the circumstance of Force Majeure provided that:

14.1.1 the suspension of performance is of no greater scope than is required by the Force Majeure;

14.1.2 the Non-Performing Party gives the Innocent Party prompt notice describing the circumstances of Force Majeure, including the nature of the occurrence and its expected duration, and continues to furnish regular reports during the period of Force Majeure;

14.1.3 The Non-Performing Party uses all reasonable efforts to remedy its inability to perform and to mitigate the effects of the circumstance of Force Majeure; and

14.1.4 as soon as practicable after the event which constitutes Force Majeure the parties will discuss how best to continue their operations as far as possible in accordance with these License Terms.

14.1.5 If Force Majeure is continuing at the expiry of two (2) continuous months following the start of the Force Majeure event, the Innocent Party may give sixty (60) days written notice to terminate these License Terms to the Non-Performing Party and termination shall occur if the Force Majeure is continuing at the end of that sixty (60) days’ notice period.

  1. VARIATION

These License Terms may only be amended by a document in writing signed by a duly authorised officer of each party.

  1. FURTHER ASSURANCE

The parties shall execute all further documents as may be necessary or desirable to give full effect to the conditions given in these License Terms and to protect the rights of the party under it.

  1. ENTIRE AGREEMENT

These License Terms, any Special Terms and applicable Provision of Goods and Services Agreement Terms constitute the entire agreement between the Licensor and Licensee and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

  1. RIGHTS OF THIRD PARTIES

No person other than a party to these License Terms shall have any rights to enforce any condition given in these License Terms.

  1. NO PARTNERSHIP

Nothing in these License Terms shall constitute a partnership, joint venture, representative or agency relationship between the parties hereto or be construed or have effect as constituting any relationship of employer and employee between the parties. Neither party shall have the authority to bind or pledge the credit of or oblige the other in any way without obtaining the other’s prior written consent.

  1. GOVERNING LAW AND JURISDICTION

20.1 These License Terms and any disputes or claims arising out of or in connection with it or their subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.

20.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these License Terms or their subject matter or formation (including non-contractual disputes or claims).