Please read these terms carefully. You shall be legally bound by these terms when GNM issues You with a Non-Subscription Sales Quotation or Term Sheet licence for the sale of GNM content. You are advised to print off and keep a paper copy of these terms.
1. Definitions
Any terms not defined below shall have the meaning ascribed to them in the Non-Subscription Sales Term Sheet.
Agreement – the Non-Subscription Sales Term Sheet and these Terms and Conditions for Non-Subscription Content Sales;
Digital Media – together, Website Media, Mobile Media and any digital physical storage medium and any other electronic media capable of receiving the Services, excluding terrestrial television and radio in whatever form;
Exclusivity Period – the period as defined in the Non-Subscription Sales Term Sheet, to run from the date on which the Services were first published by GNM, in which the Client shall have the exclusive right to use the Services within the Territory(ies), Agreed Media and Client Services (where no Exclusivity Period is stated on the Non-Subscription Sales Term Sheet the Services are provided to the Client on a non-exclusive basis);
Facsimile Rights – together, the Facsimile Rights Website and Facsimile Rights Mobile;
Facsimile Rights Website – the right to reproduce and redistribute via Website Media the Services substantially as they were incorporated into the Client Services, once the Client Services have been published or broadcast (e.g. an online version of a Client newspaper);
Facsimile Rights Mobile – the right to reproduce and redistribute via Mobile Media the Services substantially as they were incorporated into the Client Services, once the Client Services have been published or broadcast (e.g. a mobile version of a Client website distributed to mobile phones);
Fee(s) – as stated in the Non-Subscription Sales Term Sheet and subject to any Special Terms;
Format Translate- translation of the Services from one machine language to another or from one media format to another to enable the Client to distribute the Services;
Language Translate – rendering of the Services into the Language(s) by way of text, audio and subtitling where the Services are provided in languages other than the Language(s) and “Language Translation(s)“ and “Language Translated” shall be construed accordingly;
Mobile Media – any portable device using wireless technology including but not limited to cellular phones, smart phones and tablets, personal digital assistants, and pagers, used by an individual to receive the Client Services from a dedicated mobile platform or the internet;
Mobile Rights – the right to reproduce and distribute the Services via Client’s Mobile Media;
RROs – reprographic rights organisations that license collectively the reproduction of copyright-protected material via photocopy and digital cutting services;
Website Media – any internet site or online service owned by the Client; and/or any online channel bearing the Client’s trademarks or brands and on which Client is the publisher, such as a Youtube channel; and
Website Rights – the right to reproduce and distribute the Services via Client’s Website Media.
2. Services and Manner of Use
2.1. The Client shall abide by any editorial or mandatory embargos, any other reasonable limitations or restrictions, and any Special Terms relating to usage in the Client Services as set out in the Non-Subscription Sales Term Sheet and/or otherwise advised to the Client by GNM.
2.2. Where access to the Client Services is restricted, the Client shall provide GNM with reasonable access to it free of charge to enable GNM to verify the Client’s compliance with this Agreement.
2.3. The Client shall not use, reproduce or publicly display any Services in any way except as expressly authorised by this Agreement.
2.4. The Client shall ensure that any headlines or captions inserted by it to accompany the Services shall accurately reflect the material contained in the Services. For the avoidance of doubt, all other modifications, editing, alterations, or abridgements of the Services other than those expressly permitted under this Agreement are prohibited.
2.5. In relation to Clients taking audio or audiovisual content from GNM, as a condition of Client’s licence to publish and transmit such Services, Client must:
2.5.1. retain the GNM identifier that GNM supplies to Client with the Services in the position, form and size as embedded in the Services; and
2.5.2. unless otherwise stated in the Non-Subscription Sales Term Sheet, make the Services available via streaming only (and not for permanent download) on a VOD basis where “VOD” means the exhibition of material whereby the viewer is able to receive such material at the viewer’s discretion as to precise time for viewing.
2.6. Client shall render all such services as are usually rendered by a first class publisher and/or platform in connection with the publication and distribution of the Services and in the event of enabling user comments on the Client Services shall ensure that its moderation and community standards shall be no less than those set out at https://www.theguardian.com/community-standards
2.7. Notwithstanding any other term of this Agreement, Client recognises that GNM is a media institution of the highest international rank and GNM shall not be restrained from carrying out its business in the normal course of its affairs. For the avoidance of doubt, GNM (including without limitation any of its publications, whether in digital or print format, and any of GNM’s employees, non-staff contributors or representatives) shall not be restricted or limited in any way by the existence of this Agreement to continue to report on, write and broadcast about matters relating to Client or Client’s products and services and to continue without interference in the normal course of its business.
3. Licence and Rights to Use
3.1. Subject to the terms of this Agreement, GNM hereby grants to the Client for the Agreement Term including any Exclusivity Period a non-transferable, non-sub-licensable licence in the Territory(ies):
3.1.1. to use, reproduce and publicly display the Services in the Client Services in accordance with this Agreement and subject to the Usages specified in the Non-Subscription Sales Term Sheet; and
3.1.2. to distribute or authorise the distribution of cuttings of the Services in the Territory(ies) via local RROs for the RROs’ licensed acts and purposes as amended from time to time only in the same form and context, and to the extent, that such Services have been reproduced in the Client Services in accordance with this Agreement; and
3.1.3. to show Client’s identifiers and branding and serve advertisements in association with distribution of the Client Services.
3.2. Client may distribute the Services via Digital Media when one or more Digital Media rights are granted in the Non-Subscription Sales Term Sheet. Facsimile Rights shall be granted automatically when the primary media by which the Client Services are distributed is not Digital Media.
3.3. For the avoidance of doubt, GNM grants to Client a revocable licence to:
3.3.1. store the Services in internal archives and databases containing the Client Services; and
3.3.2. publish the Services in Digital Media (where Digital Media rights or Facsimile Rights have been granted by GNM) and via RROs
after the Agreement Term only in the same form and context, and to the extent, that such Services have been reproduced in the Client Services during the Agreement Term in accordance with this Agreement.
3.4. End users of the Client Services may use the Services for their own personal, non-commercial use only. The Client shall ensure that the terms of use of its Client Services include restrictions of equivalent or greater affect to those set out in this Clause.
4. Releases
4.1. Unless expressly granted under this Agreement GNM gives no rights and makes no warranties with regard to the use of any names, trademarks, logos, registered, unregistered or copyrighted designs or works of art, and any and all rights in any musical or other recordings (including, without limitation and to the extent applicable, any performance or communication rights) depicted or carried in the Services. Unless otherwise agreed in writing, no model, property, team logo, trademark or other releases are delivered by GNM in connection with the delivery of the Services hereunder.
4.2. The Client shall be solely responsible for the acquisition and payment (including under any collective bargaining agreement or otherwise to any third party (including any rights-holder or other person or entity authorised to receive such payment) of any and all third party clearances, consents, permissions, licences, authorisations, and rights which may be necessary in connection with Client’s exercise of any licence granted to it under this Agreement.
4.3. The Client shall abide by any restrictions or limitations placed on the use of the Services by regulatory or self-regulatory third parties such as sports governing bodies. GNM shall notify such restrictions and limitations to the Client prior to the Client using the relevant Services. In addition, the Client shall use its reasonable endeavours to abide by any restrictions or limitations notified to it by GNM after it has commenced using the Services.
4.4. With regard to any rights granted under this Agreement to use Services originated within English football stadia at domestic English football league matches (including Premier League), Client shall be bound by the terms of the attached Schedules B and C.
5. Language Translations
5.1. Where the Client is authorised to make Language Translations, the Client:
5.1.1. hereby assigns absolutely by way of present assignment of future rights the entire copyright in any Language Translations throughout the universe for the full period of copyright and all renewals, revivals, reversions and extensions thereof together with the right to secure, renew or extend the same in GNM’s name; and
5.1.2. shall always identify itself as having Language Translated the Services and shall bear all costs relating to Language Translation.
5.2. The Client warrants that any Language Translation shall a) be prepared with reasonable skill and care; and b) preserve the context, meaning and integrity of the Services as originally supplied by GNM. GNM accepts no liability in respect of any claim by a third party relating to or arising out of Client’s Language Translation of the Services.
5.3. If requested by GNM the Client shall submit its Language Translations to GNM for GNM’s purposes. The format, delivery method and regularity of such submission shall be agreed between the parties and any attributable costs excluding the cost of Language Translation shall be borne by GNM.
5.4. Where Digital Media rights are granted to Client, Client is authorised to Format Translate the Services.
6. Credits and Logos
6.1. The Client must display i) in a prominent position (not in page gutters) adjacent to the Services; and ii) in no lesser font sizes than the Services the credits as set out in the attached Schedule A. If Services are supplied by GNM with a contributor by-line the Client shall not remove or alter such accreditation at any time.
6.2. In the event Client is in breach of this Clause 6, Client shall pay GNM on demand an amount as calculated in accordance with the following formula as liquidated damages:
Number of users x 0.01% (the assumed conversion) x lifetime value calculation = total liquidated damages
Examples:
200,000 x 0.01% x GBP 100.00 (print) = GBP 2,000.00
2,000,000 x 0.01% x GBP 10.00 (digital) = GBP 2,000.00
The parties confirm that this sum represents a genuine pre-estimate of GNM’s loss.
7. Intellectual Property
7.1. All rights with respect to the Services and GNM’s name, logos and trademarks, whether now existing or which may subsequently come into existence, which are not expressly granted to Client under this Agreement are reserved to GNM. Any goodwill generated through Client’s use of GNM’s name and trademarks will inure solely to GNM.
7.2. Client acknowledges that without prejudice to the exclusivity of rights, the Services may be receivable and/or distributed in the Territory(ies) via the services of third parties located outside the Territory(ies) and that this is not a breach of this Agreement.
8. Restrictions
8.1. Notwithstanding anything else in this Agreement, the Services may not be used in any publication that contains any material which is reasonably considered by GNM to:
8.1.1. be illegal;
8.1.2. be sexually explicit;
8.1.3. promote violence;
8.1.4. be discriminatory against race, gender, religion, nationality, disability, sexual orientation or age or otherwise; or
8.1.5. be derogatory.
8.2. Notwithstanding anything else in this Agreement, the Services may not be used in any publication that contains any material which brings, or may bring, GNM into disrepute. For the avoidance of doubt, the restrictions in this Clause do not apply to any editorial material in the Client Services referring to GNM or its products.
8.3. The Client shall not include any advertising or sponsorship in connection with the Services which:
8.3.1. violates the privacy rights, publicity rights, copyrights, contractual rights or any other rights of any person; or
8.3.2. does not comply with all applicable laws, regulations codes of practice and guidelines, or other applicable matters of a similar nature where the Client Services may be viewed; or
8.3.3. falsely implies that the advertiser or sponsor is associated with GNM or the Services.
9. Legal Notices and Deletions
9.1. The Client acknowledges that on occasion, either during the Agreement Term or following termination of this Agreement, GNM may need to remove from, or cease circulation of, certain parts of the Services for legal reasons and accordingly the Client shall, on receipt of a notice from GNM by the Client’s Legal Contact Name(s), cease to reproduce or distribute the relevant part of the Services, including where relevant the immediate removal from any Digital Media. In the event that any part of the Services identified in such legal notice from GNM is reproduced in new editions of the Client Services after receipt of such notice and/or is not removed from Digital Media within twenty-four (24) hours, the Client agrees to indemnify GNM from and against all costs, claims and expenses attributable to and/or resulting from such non-removal.
For the avoidance of doubt this Clause 9.1 shall not apply to the removal or cessation of circulation of items from the Services which at the time of Client’s receipt of GNM’s notice have already been distributed in printed editions of the Client Services.
9.2. The Client shall:
9.2.1 follow any instructions contained in any notice that GNM issues to Client in relation to printing any corrections, clarifications or apologies in respect of the Services immediately on receipt of notice to do so from GNM; and
9.2.2. keep confidential the existence and content of any notice sent to Client by GNM if so required by GNM in terms stated on the face of such notice.
10. Fees and Cancellations
10.1. The Client shall pay to GNM the Fee(s) in the Currency.
10.2. GNM shall issue an invoice and such invoice shall be payable within 28 days of the invoice date. The Client shall pay any VAT properly applied to the Fee(s) due at the applicable rate.
10.3. The Client shall pay, on demand, interest on all amounts which are overdue for more than 30 days, such interest to be calculated from the day after the date when payment fell due to the date of actual payment at the rate of four per cent (4.00%) above the base rate of the Bank of England from time to time. GNM may suspend and/or terminate provision of all or part of the Services if the Client is in arrears with the payment of Fee(s) at any time and the Client’s Commercial Contact has been given 7 days written notice prior to suspension and/or termination.
10.4. GNM reserves the right to charge a cancellation fee of 50% of the quoted Fee(s) should the Client cancel their purchase following acceptance of GNM’s quotation.
11. Warranties and Indemnities
11.1. Subject to Clause 12 both parties warrant that they have necessary authority to enter into and perform their obligations under this Agreement.
11.2. Subject to Clauses 4 and 12 GNM warrants that it either owns or has the right to license to the Client the copyright in the Services on the terms of this Agreement.
11.3. GNM agrees to indemnify Client (subject to Clauses 11.5 and 12) against any claim, loss, damage or expense incurred as a result of a claim by a third party against Client as a result of GNM’s breach of Clause 11.2.
11.4. Client shall indemnify GNM (subject to Clauses 11.5 and 12) against any direct loss or cost (including, but not limited to, reasonable legal fees and costs of investigation) it incurs arising out of any breach of this Agreement by the Client, any claim by a third party relating to or arising out of the Client Services or any other activities of Client directly or indirectly related to use of the Services (including, but not limited to, infringement of any third person’s intellectual property rights), unless and to the extent such claim arose out of Client’s use of the Services as provided to Client and in accordance with the terms of the Agreement, and/or Client’s Language Translation of the Services.
11.5. Any obligation under this Agreement to indemnify arises only if:
11.5.1. the indemnified party promptly notifies the indemnifying party of any claim; and
11.5.2. the indemnifying party is given immediate and complete control of the indemnified claim; and
11.5.3. the indemnified party mitigates, to the fullest extent possible, any claim; and
11.5.4. the indemnified party co-operates at the expense of the indemnifying party and does not materially prejudice the conduct of such claim; and
11.5.5. in no event shall the indemnifying party agree to any settlement of any claim that involves any admission of any fault or liability, or the payment of any sums, on the part of the indemnified party, without the written consent of the indemnified party, which shall not be unreasonably withheld.
11.6. GNM makes no warranty that any resource made available for the delivery of the Services (for example, a website, FTP service or API) shall be:
11.6.1. uninterrupted and error free;
11.6.2. regularly swept for viruses and other programs with contaminating or destructive properties.
11.7. Content within the Services may contain links to websites provided by independent third parties. GNM shall not be responsible for the availability or content of such sites and shall not be responsible for any transaction concerning goods or services available from those sites.
12. Limitation of Liability
12.1. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, GNM MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, REGARDING THE SERVICES. EACH PARTY SHALL NOT BE LIABLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, LOST PROFITS OR OTHER DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE AND ACCEPT THAT THE OTHER PARTY’S PERFORMANCE OR DELIVERABLES UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND THAT THEY WILL NOT NECESSARILY MEET THE REQUIREMENTS OR DEMANDS OF THE OTHER PARTY OR END-USERS OR BE UNINTERRUPTED OR ERROR-FREE.
12.2. Save for the indemnity in Clause 11.3, GNM’s liability to the Client in contract, tort (including negligence) or otherwise in relation to this Agreement is limited to the Fees payable by the Client under this Agreement, provided that GNM shall not exclude or limit liability for death or personal injury resulting from its negligence.
13. Termination
13.1. Either party may terminate this Agreement by giving written notice to the other in any of the following events:
13.1.1. if the other party commits any breach of any of the terms of this Agreement and fails to remedy that breach (if capable of remedy) within 30 days after notice from the other party giving full particulars of breach and requiring it to be remedied; or
13.1.2. if any step, action, application or proceeding is taken in relation to the whole or any material part of the other party for a voluntary arrangement or composition or reconstruction of its debts or winding up, dissolution, administration or receivership (administrative or otherwise) or there is a threat of the same.
13.2. On termination of this Agreement all rights and obligations of the parties shall terminate.
13.3. The provisions of Clause 3.3 (Licence and Rights to Use), Clause 9 (Legal notices and deletions), Clause 11 (Warranties and Indemnities), Clause 12 (Limitation of Liability), Clause 14 (Dispute Resolution) and Clause 15 (Equitable Relief) shall survive any termination or expiration of this Agreement.
14. Dispute Resolution
14.1. If any dispute or difference shall arise out of or in relation to this Agreement, the parties shall first attempt to resolve it by discussion between the Commercial Contacts, as specified in the Non-Subscription Sales Term Sheet. Both parties must use reasonable efforts to attempt to resolve the dispute.
14.2. In the event that the Commercial Contacts cannot resolve such dispute despite their reasonable efforts, then the dispute shall be subject to the exclusive jurisdiction of the English courts.
15. Equitable Relief
15.1. Both parties to this Agreement acknowledge that the Services belonging to GNM are a unique and valuable asset of GNM. Use of the Services in breach of this Agreement will result in irreparable injury to GNM for which monetary damages alone shall not be an adequate remedy.
15.2. Therefore, the parties agree that in the event of a breach or threatened breach of the terms of this Agreement, GNM shall be entitled to specific performance, injunctive relief or other relief prohibiting any breach of this Agreement without giving an undertaking as to damages. Any such remedy shall be in addition to and not in lieu of, other appropriate relief at law to which GNM may be entitled.
16. General
16.1. This Agreement shall be governed by and construed in accordance with English law.
16.2. The parties do not intend for any third party to have any rights under this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.3. Neither party shall assign or transfer its rights or obligations under this Agreement without the other party’s prior written consent except that no consent shall be required for an assignment or transfer of GNM’s rights and obligations under this Agreement to any entity within its Group. In this Agreement, “Group” shall mean the companies controlling, controlled by or in current control with GNM.
16.4. This Agreement represents the entire agreement between the parties in relation to its subject matter. Any variation to this Agreement must be agreed in writing by the parties. In the event of any conflict between any provision of the Non-Subscription Sales Term Sheet and these Non-Subscription Sales Terms and Conditions, the provisions of the Non-Subscription Sales Term Sheet shall prevail.
16.5. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties. No party shall have the authority to bind the other party or to contract in the name of or create a liability against the other party in any way for any purpose.
16.7. No failure or delay by any party in exercising its rights under this Agreement shall operate as a waiver of that right nor shall any single or partial exercise by either party of any right preclude any further exercise of any other right.
17. Revision History
17.1 Revisions posted on 29/11/18 to incorporate amendments to clause 4.1
17.2 Revisions posted on 26/03/19 to incorporate amendments to clause 9.1 to clarify the exception of the removal of Services from Client Services already distributed in print at the time of receipt of deletion notice.
17.3. Revisions posted 28/09/2021 adding clauses relating to licensees’ moderation standards and GNM editorial independence.
17.4. New clause 11.5.5. added: “in no event shall the indemnifying party agree to any settlement of any claim that involves any admission of any fault or liability, or the payment of any sums, on the part of the indemnified party, without the written consent of the indemnified party, which shall not be unreasonably withheld.”
Schedule A
CREDITING RULES
1. Text
Print usage: credit source publication, i.e. The Guardian OR The Observer OR theguardian.com
Digital usage: www.theguardian.com as hyperlink
2. Images
[Photographer name] / The Guardian OR [Photographer name] The Observer depending on source publication;
Where space does not permit the above credit, use “Guardian” OR “Observer” depending on source publication
3. Video
Clips usage: “The Guardian” onscreen watermark
Standalone video: Guardian pre-roll identifier
4. Audio
Clips usage: On-page and in-programme credit to www.theguardian.com
Standalone audio: Guardian pre-roll identifier