Terms and Conditions for Republishing Licence with Newscred Content Delivery
1. Definitions and Interpretation
1.1 These Terms and Conditions together with the Term Sheet form the agreement between the parties (the “Agreement”). In this Agreement, words and phrases have the meaning given to them in the Term Sheet and this Clause 1:
1.2 “Attribution Instructions” means the FT’s attribution instructions issued from time to time.
1.3 “FT Group” means FT and its subsidiaries, its holding companies and their subsidiaries from time to time (and for the purposes of this definition “subsidiary” and “holding company” shall have the meaning given in section 1159 of the Companies Act 2006).
1.4 “FT Trade Marks” means all trade marks, service marks, trade names, logos and other branding (whether registered or not) of FT or its licensors, including the “Financial Times” and “FT” word and logo marks.
1.5 “Intellectual Property Rights” means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, database rights, trade marks, know-how, confidential information, trade secrets, design rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
1.6 “Term Sheet” means a term sheet executed by FT and the Client which incorporates these Terms and Conditions.
1.7 Clause headings are inserted for ease of reference only and shall have no effect in the construction of this Agreement. Unless the context otherwise requires words importing the singular shall include the plural and vice versa; the words “include” and “including” shall be construed as without limitation; and any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending provision. These Terms and Conditions negate and take precedence over any Client terms and conditions and any additional or alternative terms that Client may seek to impose will be void and/or unenforceable.
2.1 In consideration of the continuing and timely payment of the Fees by the Client, FT hereby grants to the Client with effect from the Start Date for the duration of this Agreement a non-transferable non-sublicensable limited right to reproduce the Content in the Client Services only to the extent described under the “Rights Granted to Client” of the Term Sheet, and subject always to the Client’s compliance with the terms of this Agreement.
2.2 The Client shall not make any use whatsoever of the Content that is not expressly permitted by this Agreement and shall not make any representations or warranties regarding the Content to its clients or users.
2.3 The Client shall notify FT promptly on becoming aware of any unauthorized use or reproduction of the Content by any third party and shall provide at FT’s expense such assistance as reasonably requested by FT in taking action to prevent such unauthorized use or reproduction or to protect FT’s Intellectual Property Rights in the Content.
3.1 The Client shall pay to FT the Fees as set out in the Term Sheet.
3.2 Unless specifically agreed to the contrary, all payments will be made by the Client to FT in London in pounds sterling.
3.3 If any sum payable under this Agreement is not paid within 7 days of the due date then (without prejudice to FT’s other rights and remedies) FT reserves the right to a) charge interest on such sum on a day-to-day basis from the due date to the date of payment (both dates inclusive) at the rate of 4 per cent above the base rate of Barclays Bank Plc from time to time in force; and b) suspend the provision of the Content to the Client and/or the licence granted under this Agreement.
3.4 The Fee and all other charges are exclusive of value added tax (VAT) or any other sales or similar taxes which are or may be applicable. All amounts due to be paid to FT hereunder, shall be paid in full, without set-off or counterclaim and free and clear of and without any deduction or withholding for, or on account of, any present or future taxes, duties, levies, imposts or charges of any nature.
3.4.1 If Client is required by any law or regulation to make any deduction or withholding (on account of tax or otherwise) from any payment, Client shall, together with such payment, pay such additional amount as will ensure that FT 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. Client shall promptly forward to FT 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.
3.4.2 The parties agree to comply with the applicable double tax treaty with respect of withholding taxes and FT shall comply with all reasonable requests from Client to file, or to provide Client with such forms, statements or certificates as shall enable Client to apply a reduced rate of tax or exemption from tax in accordance with the applicable double tax treaty.
3.5 All transmission and communication costs incurred in delivery of the Content to the Client shall be paid by the Client.
4. Delivery of Content
4.1 FT shall authorise NewsCred to make the Content available to Client as set out in the Term Sheet.
5. Use of Content
5.1 The Client shall:
5.1.1 only publish the Content, as far as permitted under this Agreement, in the Client Services; and
5.1.2 ensure that the Content displayed or published in the Client Services is verbatim as received from Newscred.
5.2 The Client shall not:
5.2.1 cause the Content to be reproduced in any medium other than the Client Services;
5.2.2 except as expressly permitted in this Agreement, copy, adapt, alter, modify, translate, archive, syndicate, redistribute, sell, license, grant or purport to grant any rights in or otherwise make available the Content or facilitate auto-translations;
5.2.3 use the Content in any manner prejudicial to the reputation or interests of FT; or
5.2.4 distort or misrepresent the substance of the Content or any part thereof.
5.3 The Client shall at all times provide FT with full and unrestricted access to the Client Services for the purpose of verifying the Client’s use of the Content and its compliance with the terms of this Agreement.
5.4 FT reserves to itself complete editorial freedom in the form and content of the Content and may alter the same from time to time, such alterations including retracting and cancelling whole or part articles and publishing corrections for whatever reason. Client shall comply with any requests from Newscred to remove Content (or modify it) within 24 hours of such request to do so. FT shall not be liable for any actions, losses, damages, expenses or other liabilities that may arise out of the Client’s failure to comply with any such request.
5.5 Client shall ensure that any use of any Content in the Client Services shall comply with the Attribution Instructions.
5.6 The Client shall not seek to associate itself with FT other than as strictly and expressly permitted by this Agreement nor shall it otherwise misrepresent the nature of its relationship with FT. Client shall not represent or imply that FT endorses the Client or any third party products or services advertised within the Client Services.
6. Intellectual Property Rights in the Content
6.1 The Client acknowledges that FT is throughout the world the owner or licensee of all Intellectual Property Rights in the Content, and that nothing herein transfers any such ownership rights to the Client.
7. FT Trade Marks
7.1 FT hereby grants to the Client a royalty-free, non-exclusive, non-transferable licence for the term of this Agreement to use the FT Trade Marks in the Client Services only for the purposes of and in accordance with the terms of this Agreement and subject to Client’s compliance with the Attribution Instructions and any written directions of FT from time to time. The Client will not otherwise use the FT Trade Marks without obtaining the prior written consent of FT.
7.2 The Client acknowledges and agrees that: (i) all goodwill accrued from use of the FT Trade Marks hereunder inures to the benefit of FT (or its licensors) and FT may at any time call for a confirmatory assignment of that goodwill and the Client shall immediately execute it; (ii) the FT Trade Marks will remain the exclusive property of FT; (iii) nothing in this Agreement shall confer upon the Client any right of ownership in the FT Trade Marks; (iv) the Client shall not now or in the future contest the validity of the FT Trade Marks or take any action impairing the rights of FT in the FT Trade Marks, including, without limitation, seeking to register any of the FT Trade Marks as part of a composite mark or to register any confusingly similar mark; (v) the Client shall not use any FT Trade Marks in a manner which causes or is likely to cause damage to FT’s goodwill and/or reputation or to the distinctiveness or validity of any FT Trade Mark; (vi) the Client shall not authorise any third parties to use the FT Trade Marks; (vii) the Client shall promptly inform FT of any unauthorised use of the FT Trade Marks or of any attack on their validity or registration of which the Client becomes aware; and (viii) the Client shall provide, at the request and expense of FT, all reasonable and necessary assistance in maintaining registrations or prosecuting any applications for registration in respect of the FT Trade Marks.
7.3 FT may immediately terminate Client’s permission to use the FT Trade Marks on written notice if: (i) Client has committed a breach of its obligations relating to use of the FT Trade Marks and the Client has failed to remedy such breach as soon as reasonably practicable but no more than 48 hours from receiving written notice requiring the Client to so remedy; or (ii) a government or court action requires FT or the Client to discontinue use of the FT Trade Marks.
8.1 For each publication of Content, Client shall acknowledge ownership of the Content, in accordance with the Attribution Instructions.
8.2 The Client shall not remove, shrink or otherwise modify the copyright or any other proprietary notice or any branding or logo of FT (or its licensors) contained within the Content.
9. Term and Termination
9.1 This Agreement shall continue for the Term unless and until terminated in accordance with the provisions of this Agreement.
9.2 FT shall be entitled to terminate this Agreement at any time immediately on written notice if:
9.2.1 the Client is in material or persistent breach of any of its obligations under this Agreement, and in the event of a breach capable of being remedied, has failed to remedy such breach within 14 days of receipt of notice in writing specifying the nature of the breach (or within 48 hours of receipt of such notice in the case of any infringement or misappropriation of FT’s Intellectual Property Rights);
9.2.2 the character or quality of the Client Services materially changes (and the Client shall be required to notify FT of the same);
9.2.3 Client (or any of its shareholders or directors) becomes subject to any Sanction, or continuation of the Agreement would (in the reasonable opinion of FT) expose FT 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;
9.2.4 FT reasonably believes that the continued publication of the Content in any of the Client Services would or may damage FT’s reputation; or
9.2.5 the ownership or control of the Client or the Client Services changes or passes to a third party (and the Client shall be required to notify FT of the same).
9.3 This Agreement will automatically terminate in the event of the termination of the Newscred Agreement. In such circumstances Client shall not be entitled to any refund of the Fee and shall remain liable for any amount of the Fee still to be paid. The Client shall immediately notify FT if the Newscred Agreement terminates.
9.4 Client shall be entitled to immediately terminate this Agreement on written notice if FT is in material or persistent breach of any of its obligations under this Agreement, and in the event of a breach capable of being remedied, has failed to remedy such breach within 14 days of receipt of notice in writing specifying the nature of the breach.
9.5 Either party may terminate this Agreement immediately by written notice to the other party if the other party makes an arrangement with or assignment in favour of its creditors or goes into liquidation (other than a voluntary liquidation for the purposes of amalgamation or reconstruction) or has a receiver or administrator appointed over its property or assets or any part thereof or any event analogous to any of the foregoing occurs in relation to the other party in any jurisdiction.
9.6 Any termination 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.
9.7 All licences granted hereunder shall immediately terminate upon expiry or termination of this Agreement.
9.8 Within two working days of termination or expiry of this Agreement, the Client shall remove from and cease all use of the FT Trade Marks and cease publishing all Content on the Client Services.
10.1 The Client shall indemnify and keep FT, its officers, directors and employees fully and effectively indemnified against all actions, proceedings, claims, demands, losses, expenses and other liability suffered and which arise from:
10.1.1 the inaccurate, incorrect, incomplete or misleading publication and/or display by the Client of the Content or any FT Trade Mark;
10.1.2 publication and/or display of the Content by the Client where such use is deemed to be unlawful; and
10.1.3 use by the Client of the Content or any FT Trade Mark outside the scope of this Agreement.
11. Limitation of Liability
11.1 FT’s total liability to Client in respect of any breach of FT’s obligations under this Agreement or any representation, statement, negligent act or omission arising under or in connection with this Agreement will be limited to damages for direct losses actually incurred by Client and also limited in total to the Fees paid by Client to FT under this Agreement in the 12 months prior to the event giving rise to the claim.
11.2 FT will not be liable for (a) any indirect, consequential, incidental or special loss or damages whatsoever or (b) for any loss of profits, revenues, income or goodwill or loss of data or anticipated savings arising from this Agreement, in each case whether reasonably foreseeable or actually foreseen and regardless of the cause of action.
11.3 Except as expressly provided in this Agreement no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition quality performance, durability or fitness for purpose of the Content is given or assumed and all such warranties, conditions, undertakings and terms are hereby excluded to the fullest extent permitted by law.
11.4 Nothing in this Agreement shall operate to exclude or restrict:
11.4.1 either party’s liability for: (a) death or personal injury caused by that party’s negligence; (b) fraud or fraudulent misrepresentation; (c) any claim under an indemnity contained in this Agreement; or (d) any liability which cannot be limited or excluded by law.
11.4.2 Client’s liability for the use of the Content or FT Trade Marks outside the scope of this Agreement.
12.1 The Client agrees that any promotion, advertising or other material concerning this Agreement, the Content or the Client’s relationship with FT shall be accurate, in good taste, and shall not disclose the details of this Agreement. The Client agrees to seek FT’s written approval before issuing any such material and agrees to vary the same as FT may reasonably require.
13. No Partnership or Agency
13.1 Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties or constitute or be deemed to constitute one party as agent of the other for any purpose whatever and neither party shall 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 that it is the correspondent of the other or to represent the other in any matter whatsoever.
14.1 Each of the parties undertakes to the other to keep confidential 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.
14.2 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 this clause 14 by its employees agents and sub-contractors. The foregoing obligations as to confidentiality shall survive any termination of this Agreement.
15. Force Majeure
15.1 Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of God, war, civil commotion, third party industrial dispute or any failure, interruption, or degradation of any third party telecommunications network or system or hardware or the Internet or any part of it or third party software used to carry or make available the Content to the Client or its end users. If such delay or failure continues for at least ninety (90) days, either party will be entitled to terminate this Agreement by notice in writing to the other. In the event that either party terminates the Agreement in accordance with this clause 15 due to FT’s inability to perform its obligations under this Agreement, then FT shall provide the Client with a pro rata refund of any Fees paid which relate to the unexpired period of the Term.
16.1 No variation to this Agreement shall be valid unless it is in writing and signed by a duly authorised representative of each of the parties.
16.2 A failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents a further exercise of the right or remedy or the exercise of another right or remedy. The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law.
16.3 This Agreement may be executed in any number of counterparts, each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
16.4 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.
16.5 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.
16.6 Any notice must be in writing, and be addressed to the other party’s Relationship Manager. Notices must be delivered by hand or by recorded delivery or courier. Any notice shall be deemed to have been served if delivered by hand, at the time and date of delivery and if sent by recorded delivery or courier, upon the date of receipt (as evidenced by signature). Any such communication made by FT shall be sent to the address of the Client shown on the Term Sheet. Any such communication made by the Client shall be sent to The Financial Times Limited, Bracken House, 1 Friday Street, London, EC4M 9BT and copied to its General Counsel.
16.7 This Agreement constitutes the entire agreement, and supersedes any previous agreements between the parties relating to the Content.
16.8 The Client may not assign at law or in equity its rights under this Agreement or sub-contract any of its duties or obligations under this Agreement without the prior written consent of FT.
16.9 The Client shall, promptly at FT’s request, do or procure to be done all such further acts and things and the execution of all such other documents as FT may from time to time require for the purpose of securing for FT the full benefit of this Agreement, including all right, title and interest in and to the Intellectual Property Rights assigned to FT in accordance with clause 7.2.
16.10 If the Client’s principal place of business is in any jurisdiction other than the United States then these Terms and Conditions will be governed by English law and subject to the exclusive jurisdiction of the courts of England and Wales, provided that for the exclusive benefit of FT, FT retains the right to bring proceedings against the Client in the applicable courts of the Client’s place of business.
16.11 If the Client’s principal place of business is in the United States then these Terms and Conditions will be governed by the laws of the state of New York without regard to its conflicts of law provisions and the parties submit to the exclusive jurisdiction of the federal and state courts located in New York City.
17. Version of Terms and Conditions
17.1 This version of the Terms and Conditions applies to Term Sheets executed by the FT and the Client at any time from 1 May 2019 until this version of the Terms and Conditions is superseded by a new version.
17.2 FT may at any time and at its sole discretion change, update or amend these Terms and Conditions by posting a new version of the Terms and Conditions at http://help.ft.com/legal-privacy/legacy-pages/terms-and-conditions-republishing-licence-newscred-content-delivery/. Any such change under this clause 17.2 will not affect any Term Sheets that have already been executed by FT and the Client.