Exhibit 10.83


 


16th December 2009


 


VIRGIN ENTERPRISES LIMITED


 


and


 


VIRGIN MEDIA LIMITED


 






 


TRADE MARK LICENCE


 


relating to use of the “Virgin”
trade marks


in respect of business
communications services


 






 


Arnold & Porter
(UK) LLP


(ref: RKD/JBM/16100.016)


Tower 42


25 Old Broad Street


London


EC2N 1HQ


 


Tel. 020 7786 6100


Fax: 020 7786 6299


 


CONFIDENTIAL


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  ACKNOWLEDGEMENTS

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  GRANT

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  PAYMENT
  OF ROYALTIES

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  CONDITIONS
  OF USE

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  TRADE
  MARK PROTECTION

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  DEALINGS

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  INDEMNITY,
  WARRANTIES AND LIMITATIONS OF LIABILITY

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  TERMINATION
  AND EFFECTS OF TERMINATION

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  INFRINGEMENTS

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  CONFIDENTIALITY

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  NOTICES

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  FORCE
  MAJEURE

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  GENERAL

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE 1

  	
  50

  
	
   

  	
   

  
	
  Part A - Virgin Marks

  	
  50

  
	
   

  	
   

  
	
  Part B - Virgin
  Signature

  	
  51

  
	
   

  	
   

  
	
  SCHEDULE 2

  	
  52

  
	
   

  	
   

  
	
  Part A — Domain Names

  	
  52

  
	
   

  	
   

  
	
  Part B - Names

  	
  52

  
	
   

  	
   

  
	
  SCHEDULE 3 - Service
  Levels

  	
  53

  
	
   

  	
   

  
	
  SCHEDULE 4 - Existing
  Rights Of Licensees

  	
  58

  
	
   

  	
   

  
	
  SCHEDULE 5 - Use Of
  “Virgin” Or “V” By Themselves

  	
  60

  
	
   

  	
   

  
	
  SCHEDULE 6 - TM Guidelines

  	
  61

  



 


i

















 


THIS DEED is dated 16th December 2009


 


BETWEEN:


 


1.                                       VIRGIN ENTERPRISES LIMITED (Company Number 01073929) a company incorporated in
England whose registered office is at The School House, 50 Brook Green, London
W6 7RR (“VEL”); and


 


2.                                       VIRGIN MEDIA LIMITED (Company Number 2591237) a company incorporated in
England whose registered office is at 160 Great Portland Street, London W1W 5QA
(the “Licensee”).


 


RECITALS


 


A.                                   VEL is the legal and beneficial owner of the Marks (as
defined below).


 


B.                                     The Licensee and members of the Virgin Media Group (as
defined below) have been licensed to use the Marks pursuant to the Virgin Media
Consumer Licence (as defined below).


 


C.                                     VEL has agreed to grant the Licensee and members of
the Virgin Media Group a licence to use the Marks in the form of the Names in
relation to Business Communications Services (each as defined below) on the
terms and conditions of this Deed.


 


THE PARTIES AGREE AS FOLLOWS:


 


1.                                      DEFINITIONS


 


1.1                                 In this Deed, the Recitals above and the Schedules to
it, the following terms shall have the following meanings:


 


“Accounting Standards” means in conformity with United States Generally
Accepted Accounting Principles or any generally accepted and applicable
accounting standards used by Virgin Media Inc. from time to time;


 


“Affiliate” means with respect to any person, any corporation, company, partnership
or other organisation which directly or indirectly is within the Control of
such person or over which such person has Control or is under common Control
with such person or over which such person has an option to acquire Control or
common Control;


 


“Ancillary Services” means, subject to the presently existing and
exclusive rights of existing licensees of VEL (as listed in Schedule 4), any
services, software applications or facilities (including Associated Facilities)
which are, from time to time, whether now or in the future:


 


(a)                                              reasonably ancillary to the provision of Business
Communications Services to Business Customers; or


 


(b)                                             equivalent to those ordinarily provided from time to
time by third party providers of services equivalent or substantially similar
to Business Communications Services and offered in conjunction with or as part
of those Business Communications Services; or


 


(c)                                              offered in conjunction with or as part of the Business
Communications


 


1

















 


Services
and approved by VEL in advance in writing (such approval not to be unreasonably
withheld, conditioned or delayed),


 


but excluding Bundled Services or Partner
Services (which are the subject of a separate grant of rights under this Deed);


 


“Annual Report” means Virgin Media Inc.’s financial report to the SEC in respect of
each Financial Year on Form 10-K pursuant to the Securities Exchange Act
of 1934 and any replacement or equivalent report so filed with the SEC;


 


“Associated Facilities” means facilities which are generally non-customer
facing and which are required for use in association with the use of a
Communications Network or Business Communications Services or are required for
the purpose of:


 


(a)                                              making the provision of that network or service
possible;


 


(b)                                             making possible the provision of other services
provided by means of that network or service; or


 


(c)                                              supporting the provision of such other services;


 


“Base Service Levels” means the levels of customer service and complaint
handling set out in section 1 of Schedule 3;


 


“Bundled Services” means a package of products or services incorporating one or more
Business Communications Services offered together with third party or non “Virgin”-branded
Business Communications Services and/or products or services reasonably
ancillary or complementary to Business Communications Services;


 


“Business Communications Services” means communications services, or access to such
services, consisting in or having as their principal feature the conveyance of
messages, information or signals by means of a Communications Network. For
illustrative purposes only and without prejudice to the generality of the
foregoing, the types of services contemplated at the Commencement Date include
the following:


 


(a)                                              broadband and internet access services (which, for
example, includes email/web mail, email addresses, instant messaging,
electronic messaging, provision of webspace, web-hosting, voice/video/data
services transmitted over internet protocol), managed internet access (being
dedicated internet leased line services);


 


(b)                                             television or radio access services;


 


(c)                                              telephone services (which, for example, includes
business phone lines (including standard business phone lines, special rate
phone services, and indirect access via third party service providers),
wireless, Mobile Radio Telecommunication Services, data and text services
(including SMS), telephone and internet conferencing, ISDN services, managed
voice services, hosted call management services for contact centre operations,
remotely hosted central exchanges (commonly known as Centrex) and inbound and
outbound voice services, number transfer services, number translation and/or
number identification services); and


 


(d)                                             data transmission services (which, for example,
include converged voice, data and video solutions, “point-to-point” and “any-to-any”
network


 


2

















 


connectivity
solutions, leased lines, Ethernet, IP virtual private networks, wide area networks
and value added applications and services and application hosting);


 


howsoever and in each case above including:


 


(a)                                              professional services related to the above (which, for
example, includes project management, performance management and reporting, business
services relationship management, consultancy and training);


 


(b)                                             the assessment, design, installation, provision,
maintenance, support and/or management of any of the above, whether by means of
a Communications Network or otherwise;


 


(c)                                              the following services that are a feature of or are ordinarily provided
in conjunction with any of the above: directory enquiries, virus scanning, spam
filtering and managed internet security services (including managed firewalls,
managed authentication services for remote users), registration and/or
provision of domain names and the provision of IP addresses;


 


(d)                                             as any of the above may be:


 


(i)                                                                         received or accessed; and


 


(ii)                                                                      created, developed or may converge from time to time,


 


whether with a technology or
method now in existence or subsequently developed, created or invented;


 


“Business Day” means any day (excluding Saturdays and Sundays) on which banks
generally are open in London for the transaction of normal banking business;


 


“Business Customer” means any person who has
contracted with any member of the Virgin Media Group for the provision of
Business Communications Services either on its own behalf or on behalf of any
other person (excluding any: (a) consumer and/or small business user who
works at or from home; and (b) SME, in each case who receives services (or
who would be entitled to receive services) from the Virgin Media Group pursuant
to the Virgin Media Consumer Licence), where such a person includes, without
limitation, a third party Mobile Radio Telecommunication Service provider,
internet service providers and other network providers;


 


“Business Revenues” means the amount of revenue relating to the Licensed Activities
reported in Virgin Media Inc.’s statement of operations contained in its
Quarterly Report or its Annual Report, as appropriate;


 


“Chief Marketing Officer” means the person appointed pursuant to clause 5.10 of
the Virgin Media Consumer Licence or such other person as may be agreed in
writing between the parties from time to time;


 


“Commencement Date” means the date of this Deed;


 


“Communications Network” means a system or systems for the conveyance of
messages, information or signals serving for the impartation of anything
including Content between persons, between a person and a thing or between
things or for the actuation or control of apparatus, and the apparatus,
software and data comprised in


 


3

















 


such system or systems, comprising:


 


(a)                                              fixed line connections (e.g. copper wire, coaxial
cable, fibre optic cable and/or dark fibre); and/or


 


(b)                                             non-fixed connections using any part of the
electromagnetic spectrum (e.g. satellite, digital terrestrial, analogue
terrestrial, DAB, DVB-H, GSM, GPRS, WIMAX, WIFI, microwave), and


 


howsoever in each case as such system, systems
or connections may be created, develop or converge from time to time, whether
with a technology or method now in existence or subsequently developed, created
or invented;


 


“Content” means any content or material conveyed or generally intended to be
conveyed via a Communications Network including text, speech, music, sounds,
visual images or data of any description or any combination of the foregoing,
but excluding any message, information or signal used for the actuation and
control of the apparatus comprising a Communications Network or for the routing
of any message, information or signal within a Communications Network;


 


“Control” is to be construed in accordance with section 416 of the Income and
Corporation Taxes Act 1988 and “controlling” and “controlled” shall be
construed accordingly;


 


“Core Equipment” means any hardware, equipment, device or accessory (whether now in
existence or which may from time to time be created or developed, or as such
equipment, devices or accessories converge or become multi-purpose) which
either:


 


(a)                                              is primarily intended for the provision, delivery,
reception, access or use of Business Communications Services (including mobile
handsets, SIM cards, Data Cards, telephone handsets, modems, routers, cables,
CCTV cameras and webcams), but excluding, save to the extent that they fall
within sub-paragraph (b) of this definition, personal computers; or


 


(b)                                             has, as an included feature, the capability to
provide, deliver, receive, access or use the Business Communications Services
provided by the Virgin Media Group (including via a built-in decoder, receiver
or internet protocol connection), provided that the Virgin Media Group is
thereby facilitating access to its Business Communications Services in
preference to those of a third party;


 


“Customer Loyalty Service Levels” means the customer loyalty measures
set out in section 3 of Schedule 3;


 


“Data Cards” means data communications cards for use in conjunction with mobile
handsets, laptop computers or other portable computing and communications
devices which allow or enable access to the internet, access to email services,
remote access to private computer networks, fax services, instant messaging and
text messaging services and other communications services through 3G, 2.5G,
GPRS, HSCSD or wireless local area networks or similar;


 


“Direct Sales Channels” means sales methods consisting of face-to-face, on-line, internet,
mail-order, telesales and all other forms of direct or distance selling
methods;


 


4

















 


“Domain Names” means those domain names listed in Part A of Schedule 2 (subject
to the limitations set out therein) together with any additional domain names
registered in accordance with clause 6.3;


 


“Extra-Territorial Services” means Business Communications Services provided
outside the Territory as an incidental part of any Business Communications
Services provided inside the Territory;


 


“Fair Market Value” means the value calculated on a fair market value basis that a willing
buyer, contracting with a willing solvent seller, with neither being under a
compulsion to transact, would pay for the Marks, with both the buyer and the
seller being reasonably cognisant of all relevant factors and circumstances and
in circumstances where both are seeking to protect their maximum economic self
interest;


 


“Financial Year” means the period of twelve months ending on 31st December or such
other financial year as Virgin Media Inc. shall adopt from time to time;


 


“Fit and Proper Person” means a director who:


 


(a)                                              has not at any time been disqualified by a court from
acting as a company director, including a disqualification made pursuant to the
Company Directors Disqualification Act 1986; and


 


(b)                                             is not an undischarged bankrupt or a person in respect
of whom a bankruptcy restrictions order is in force;


 


“Force Majeure Event” means any of the following:


 


(a)                                              acts of God, flood, earthquake, lightning, epidemic,
riots and insurrection, war, terrorism, fire, embargos, third party labour or
industrial disputes, judicial or government action and acts of civil or
military authority, compliance with any law or governmental order; and


 


(b)                                             accidents, breakdown or malfunction of plant or
machinery, computer virus or similar, sabotage or malicious damage, in each
case, to the extent that such event is not within the reasonable control of a
party and where that party has taken reasonable steps to prevent the occurrence
of such event in accordance with current good industry practice;


 


“Holding Company” means any parent undertaking as defined in Section 1162 of the
Companies Act of 2006, save that reference to an undertaking shall be deemed to
include an undertaking registered in an overseas jurisdiction;


 


“Intellectual Property Rights” means all rights in or in relation to any and all
patents, utility models, trade and service marks, rights in designs, get up,
trade, business or domain names, copyrights, moral rights, topography rights
(whether registered or not and any applications to register or rights to apply
for registration of any of the foregoing), rights in inventions, know-how,
trade secrets and other confidential information, rights in databases and all
other intellectual property rights of a similar or corresponding character which
may now or in the future subsist in any part of the world and any rights to
receive any remuneration in respect of such rights;


 


“Insolvency Event” means any of the following events unless remedied or set aside


 


5

















 


within thirty (30) days of such event in
respect of a party:


 


(a)                                              the passing of a resolution for its winding up or
where a court of competent jurisdiction makes an order for a party to be wound
up or dissolved or a party is otherwise dissolved except for the purposes of a
solvent reconstruction, reorganisation, merger or consolidation;


 


(b)                                             where an administrator or receiver is appointed or an
administration order is made or an administrative receiver is appointed or an
encumbrancer takes possession of or sells the whole or part of a party’s
undertaking, assets, rights or revenue;


 


(c)                                              where either party is unable to pay its debts within
the meaning of section 123 of the Insolvency Act 1986;


 


(d)                                             where either party enters into a scheme of arrangement,
composition or voluntary arrangement in satisfaction of its debts with its
creditors; or


 


(e)                                              any event analogous to any to the above occurs in any
relevant jurisdiction;


 


“Licensed Activities” means the activities described in clause 3 and
carried out under the Marks;


 


“Licensed Business Revenues” means Business Revenues less (to the extent not
already deducted in the calculation of Business Revenues):


 


(a)                                              value added tax, sales tax, excise duties and
equivalent taxes and duties; and


 


(b)                                             bad debt expense in accordance with Accounting
Standards (save that such deduction shall not exceed 4% of Licensed Business
Revenues);


 


(c)                                              revenues accruing to the Virgin Media Group from sales
or activities within the Virgin Media Group (including intra-group revenue and
internal re-charges not constituting Licensed Revenue or Licensed Content
Revenue (both as defined in the Virgin Media Consumer Licence));


 


(d)                                             ordinary course zero-margin bilateral voice and data
minute swaps between members of the Virgin Media Group and third party
operators of Communications Networks;


 


(e)                                              any revenues accruing to the Virgin Media Group from
activities carried out other than pursuant to the Marks which have been
included in Business Revenues; and


 


(f)                                                any revenues accruing to the Virgin Media Group from
activities carried out pursuant to the Marks which are properly included in
Licensed Revenues (as defined in the Virgin Media Consumer Licence), Licensed
Content Revenues (as defined in the Virgin Media Consumer Licence) or which are
otherwise properly accounted for under the Virgin Media Consumer Licence;


 


“Marks” means the Virgin Marks and the Names, each as updated from time to
time, together with such other trade mark applications which may be made by VEL
after the date of this Deed in respect of the Licensed Activities and any
resulting registrations;


 


6

















 


“Minimum Term” means a period of three (3) years from the Commencement Date;


 


“Mobile Accessories” means products (excluding Core Equipment) primarily
intended for use in conjunction with Core Equipment relating to Mobile Radio
Telecommunication Services (for example, mobile handset chargers, mobile
telephone cases, in-car accessories, Bluetooth headsets and mobile card
readers/writers);


 


“Mobile Devices” means portable devices capable of playing, receiving, storing or
recording data, provided the device is primarily intended for use in
conjunction with Core Equipment relating to Mobile Radio Telecommunication
Services;


 


“Mobile Radio Telecommunication Services” means Business Communications Services designed or
adapted to be used in motion consisting of the conveyance of any message,
information or signal through the agency of wireless telegraphy;


 


“Names” means: (a) the names listed in Part B of Schedule 2 (as
amended from time to time in accordance with clause 3.17); and (b) any
other names comprising of “Virgin” (whether as a name or in the form of the
Virgin Signature) always used in conjunction with and always in front of any
word or words which is or are suitable to describe or denote the Licensed
Activities, such additional word or words to be approved by VEL in advance in
writing (such approval not to be unreasonably withheld, conditioned or
delayed);


 


“Other Email Services” means the provision of an email address together with
an individual subscriber address facility to enable email communications
including the word “Virgin” to:


 


(a)                                              staff of the Virgin Group or staff of a Virgin Company
in the ordinary course of their business;


 


(b)                                             the customers of or subscribers to a service or
business provided by any Virgin Company solely for the purpose of communicating
with other subscribers or customers of such Virgin Company or such Virgin
Company itself as an ancillary or incidental part of such service or business
not attracting additional payment including, by way of example, dating services
and internet auctions; or


 


(c)                                              the customers of or subscribers to a service or
business provided by any Virgin Company as an ancillary or incidental and minor
part of that service or business not attracting additional payment to enable
email communications by and to such customers or subscribers,


 


provided that such Virgin Company may not
provide any other Business Communications Services under the Marks, unless
otherwise permitted under the terms of this Deed, without the prior written
consent of the Licensee;


 


“Other Equipment” means any equipment, device or accessory (other than Core Equipment)
capable of use with or complementary to the provision, delivery or use of the
Business Communications Services but not branded with the Marks;


 


“Other Webspace Services” means the provision of a URL for webspace to the
customers of or subscribers to a service or business provided by any Virgin
Company solely for the purpose of communicating with other subscribers or
customers of such


 


7

















 


Virgin Company or such Virgin Company itself as
an ancillary or incidental part of such service or business not attracting additional
payment including, by way of example, dating services and internet auctions,
provided that such Virgin Company may not provide any other Business
Communications Services, unless otherwise permitted under the terms of this
Deed, without the prior written consent of the Licensee;


 


“Partner Services” means the provision of access by means of any Business Communications
Service, in conjunction with or as part of the Business Communications
Services, to any products or services of a third party, subject to the
provisions of clause 3.5;


 


“Permitted Email Address” means any email address in any form incorporating the
Domain Names or the Names;


 


“Permitted Third Party” has the meaning given to it in clause 7.1(b);


 


“Permitted Webspace Address” means a URL for webspace provided to Business
Customers in any form incorporating the Domain Names or the Names;


 


“Quarter” means each period of three months ending on 31 March, 30 June, 30 September and
31 December;


 


“Quarterly Report” means Virgin Media Inc.’s financial report to the SEC in respect of
each Quarter on Form 10-Q pursuant to the Securities Exchange Act of 1934
and any replacement or equivalent report so filed with the SEC;


 


“Roaming Services” means services comprising a facility enabling a user of any mobile
communications network (other than the network that has allocated the user’s
international mobile subscriber identity number or equivalent number) to obtain
access to any Mobile Radio Telecommunication Services;


 


“RPI” means the United Kingdom retail prices index (all items) as published by
the Office for National Statistics (or by any government department or other
body upon which duties in connection with such index devolve) or other official
cost of living index published in place of that index and which most nearly
represents the current basis of calculation of such index;


 


“Royalties” means the payments described in clause 4;


 


“Royalty Commencement Date” means 1 March 2010;


 


“Sales Channels” means Direct Sales Channels and all other forms of sales
routes (excluding the Licensee’s own retail stores, save for any referrals
resulting from the operation of the Virgin Media Consumer Licence), where such
other forms of sales routes may include third party sales routes;


 


“SEC” means the US Securities and Exchange Commission or its replacement or
successor body;


 


“Securities Exchange Act of 1934” means the Securities Exchange Act of 1934, as amended
from time to time, of the United States of America;


 


“Service Levels”  means the Base Service Levels, Technical Service Levels and Customer Loyalty
Service Levels;


 


8






 










 


“Site” means any of the Virgin Media Group’s internet sites using the Domain
Names;


 


“SME” means any small or medium-sized business, enterprise or company
(including, without limitation, partnerships and sole traders) that employs
less than 25 staff;


 


“Subsidiary” means any subsidiary undertaking as defined in Section 1162 of the
Companies Act of 2006 (as amended), save that reference to an undertaking shall
be deemed to include an undertaking registered in an overseas jurisdiction;


 


“Substitute Annual Report” has the meaning given to it in clause 4.11;


 


“Substitute Quarterly Report” has the meaning given to it in clause 4.11;


 


“Technical Service Levels” means the technical performance measures set out in
section 2 of Schedule 3;


 


“Term” means the term of this Deed which is to be a period starting on the
Commencement Date and ending at midnight (GMT) on 2 April 2036, unless
terminated earlier in accordance with this Deed;


 


“Territory” means the United Kingdom of Great Britain and Northern Ireland, the
Republic of Ireland, the Isle of Man and the Channel Islands;


 


“TM Guidelines” means the “Virgin” guidelines for the usage of the Marks by members of
the Virgin Media Group as supplied by VEL to any member of the Virgin Media
Group pursuant to the Virgin Media Consumer Licence (being the Virgin Red Book
and the Virgin Brand Book) and the direct selling and offshore outsourcing
policies set out in Schedule 6, as amended or updated by agreement in writing
of the parties from time to time;


 


“Viewdata” means the combination of: (a) the
B2B communication platform commonly known as “Viewdata”; (b) the B2B
communication service currently called Traveleye and Endeavour; and (c) a
B2B payment system, in each case substantially as they exist as at the
Commencement Date, that together enable travel agents to search, book and pay
for travel related products directly with tour operators and other travel
providers only using Content provided by such tour operators and other travel
providers;


 


“Virgin Company” means any person (other than any member of the Virgin Media Group or
any other company licensed under the terms of this Deed) which has been
authorised to use the name “Virgin” or the initial “V” whether alone or in
conjunction with any other word, name or mark from time to time;


 


“Virgin Group” means:


 


(a)                                              VEL and any company which is a Holding Company of that
company or a Subsidiary of that company or a Subsidiary of such Holding
Company; or


 


(b)                                             any undertaking which is under the Control whether
directly or indirectly of any person mentioned in (i) to (v) below or
any combination of them:


 


(i)                                                                         R.C.N. Branson (the “Individual”)
together with the trustees of any settlement created by the Individual;


 


9

















 


(ii)                                                                      any spouse of the Individual, or any child or remoter
issue of the Individual’s grandparents and any spouses or such child or remoter
issue;


 


(iii)                                                                   the trustee or trustees for the time being of any
settlement made by any person mentioned in (ii) above acting within that
capacity;


 


(iv)                                                                  any personal representative of the Individual acting
within that capacity; or


 


(v)                                                                     any person acting as bare nominee for the Individual
or any of the persons mentioned in (i) to (iv) inclusive above;


 


“Virgin Marks” means the registered trade marks and trade mark applications listed in Part A
of Schedule 1 and the Virgin Signature (including the logo set out in Part B
of Schedule 1) as updated from time to time;


 


“Virgin Media Consumer Licence” means the trade mark licence between the Licensee and
VEL, dated 3 April 2006, as amended from time to time;


 


“Virgin Media Group” means the Licensee and any undertaking which is a
Holding Company of that undertaking or a Subsidiary of that undertaking or a
Subsidiary of such Holding Company;


 


“Virgin Media Inc.” means the ultimate Holding Company of the Licensee from time to time
or, in the circumstances described in clause 4.11, shall have the meaning set
forth in that clause;


 


“Virgin Signature” means the “Virgin” signature and the signature marks set out in
Schedule 1; and


 


“Vouchers” means any payment or replenishment service, facility or method in card
and electronic form (including top up cards, pre-paid cards, electronic top up
and ATM/SMS top up) through which products or services relating to the Licensed
Activities can be purchased by Business Customers, but excluding gift tokens or
gift vouchers.


 


1.2                                 The headings in this Deed are inserted only for the
purpose of convenience and shall not affect the construction of this Deed.


 


1.3                                 The Schedules form part of this Deed.


 


1.4                                 References to any statute or statutory provision or
order or regulation made thereunder shall include that statute, provision,
order or regulation as amended, modified, re-enacted or replaced from time to
time.


 


1.5                                 Words denoting the singular shall include the plural
and vice versa.


 


1.6                                 References to a party or the parties is to a party or
the parties (as the case may be) to this Deed and shall include any permitted
assignees of a party.


 


1.7                                 References to the masculine, feminine or neuter gender
respectively includes the other genders and any reference to the singular
includes the plural (and vice versa).


 


1.8                                 A person includes any individual, firm, corporation,
unincorporated association, 


 


10

















 


government, state or agency of state,
association, partnership, joint venture or other entity (whether or not
incorporated or having a separate legal personality).


 


1.9                                 A person includes a reference to that person’s legal
personal representatives and successors.


 


1.10                           A company shall be construed so as to include any
company, corporation or other body corporate wherever and however incorporated
or established.


 


1.11                           Writing shall include any modes of reproducing words
in a legible and non-transitory form and “written” shall be construed
accordingly.


 


1.12                           References to “includes” and “including” shall mean “includes
without limitation” and “including without limitation”.


 


1.13                           Where any rights are stated as being licensed under
this Deed on an “exclusive” basis, it shall mean that only the Licensee and
members of the Virgin Media Group are permitted to use such rights and (for the
avoidance of doubt) VEL, any member of the Virgin Group and any Virgin Company
shall not be permitted to utilise such rights.


 


2.                                      ACKNOWLEDGEMENTS


 


2.1                                 The Licensee acknowledges:


 


(a)                                              receipt of the TM Guidelines;


 


(b)                                             that all rights in the Marks belong to VEL;


 


(c)                                              save as expressly set out in this Deed, that no member
of the Virgin Media Group shall acquire or claim any title to any of the Marks
by virtue of the rights granted to them by this Deed or through their use of
the Marks either before or after the date of this Deed;


 


(d)                                             except in respect of trade marks that are the subject
of an assignment to and/or re-filing by Virgin Media pursuant to clauses 7.5,
9.14 or 9.15 of this Deed, that all goodwill generated or accrued by the use of
the Marks by the Licensee and any other member of the Virgin Media Group shall
at all times be deemed to have accrued to VEL and the Licensee shall, and shall
procure that all other members of the Virgin Media Group shall, if so requested
by VEL, execute an assignment in favour of VEL of any and all such goodwill;
and


 


(e)                                              that it and the members of the Virgin Media Group
shall only use the Marks under this Deed in relation to  products and services forming part of the
Licensed Activities.


 


2.2                                 At VEL’s cost (except to the extent that it
specifically falls within the Licensee’s obligations under this Deed) the
Licensee shall do any act and execute and deliver any documents reasonably
required to give effect to clause 2.1.


 


2.3                                 The parties acknowledge that certain rights and/or
obligations under this Deed may overlap and/or conflict with rights and/or
obligations under the Virgin Media Consumer Licence.  For as long as the parties to the Virgin
Media Consumer Licence are the same as the parties to this Deed (or: (a) in
the case of the Licensee, they are a member of the Virgin Media Group; or (b) in
the case of VEL, they are a member of 


 


11

















 


the Virgin Group), in the event of any such
conflict or overlap and unless otherwise expressly stated in this Deed, the
parties agree that the provisions of the Virgin Media Consumer Licence shall
take precedence.


 


2.4                                 For as long as the parties to the Virgin Media
Consumer Licence are the same as the parties to this Deed (or: (a) in the
case of the Licensee, they are a member of the Virgin Media Group; or (b) in
the case of VEL, they are a member of the Virgin Group), the parties shall not
be permitted to take action under this Deed, if action is already being taken
by any party under the Virgin Media Consumer Licence in respect of the same
matter and in respect of the same Losses (as defined in clause 8.14).  For example,
under clause 7.5, the Licensee is granted certain rights in respect of trade
mark registrations for the Names which VEL chooses not to renew.  Similar rights are granted to the licensee
under the Virgin Media Consumer Licence. 
To the extent that the licensee under the Virgin Media Consumer Licence
has exercised its rights under the Virgin Media Consumer Licence, any identical
rights granted under this Deed shall not apply.


 


2.5                                 Nothing in this Deed amends the Virgin Media Consumer
Licence in any way or is designed or intended in any way to limit, restrict or
vary the rights already granted in the Virgin Media Consumer Licence.


 


3.                                      GRANT


 


Exclusive Rights


 


3.1                                 In consideration of the Royalties and the covenants
and undertakings contained in this Deed, VEL hereby grants to the Licensee and
to all members of the Virgin Media Group for the Term with effect from the
Commencement Date the exclusive rights:


 


(a)                                              to use the Marks in the Territory in relation to:


 


(i)                                                                         the provision of Business Communications Services to
Business Customers;


 


(ii)                                                                      the branding (but not the manufacture) of Core
Equipment and the provision of Core Equipment branded with the Marks to
Business Customers;


 


(iii)                                                                   the Communications Networks required for the provision
of the Business Communications Services;


 


(iv)                                                                  the provision and/or interconnection of Communications
Networks, or any individual part(s) thereof;


 


(v)                                                                     the provision of site co-location services (which for
example, includes the housing of equipment for the provision of Business
Communications Services and/or Communications Networks); and


 


(vi)                                                                  offering or making available any of the above to
Business Customers or potential Business Customers through Sales Channels;


 


(b)                                             to use the Names as part of its registered company
names and to use the 


 


12

















 


same
on headed notepaper and other corporate materials and communications which, in
the course of business, bear the company name and in relation to the
non-trading activities and securities listing of any member of the Virgin Media
Group and as may otherwise be required by law during the Term, provided that
when used as a company name such name is always followed by the relevant
company denotation (e.g. Limited) for the relevant type of company and
jurisdiction;


 


(c)                                              subject to clause 3.3(c) below, to use the Names
throughout the world;


 


(d)                                             subject to clauses 3.3(a) and 3.3(c) below,
to use the Domain Names;


 


(e)                                              to use the Names in the Territory on or in relation to
advertisements, sponsorship, promotional brochures, other materials and
magazines (in or on any media) in relation to the Licensed Activities to the
extent of the rights granted exclusively under this clause 3.1.  The parties recognise that there may be
incidental advertising, sponsorship or promotional activities undertaken
outside the Territory by the Licensee, members of the Virgin Media Group or
Permitted Third Parties which are aimed at Business Customers or potential
Business Customers (except in the case of Roaming Services) inside the
Territory and which relate to the Licensed Activities provided within the
Territory (provided that nothing in this clause shall prevent other VEL
licensees conducting similar activities inside the Territory under provisions equivalent
to those found in this clause 3.1(e));


 


(f)                                                to use the Marks in relation to the provision of
Roaming Services provided to Business Customers outside the Territory and
non-Business Customers (other than Customers as defined under the Virgin Media
Consumer Licence) inside the Territory, subject to the right of any other
entity which is licensed by VEL to use the name “Virgin Mobile” outside the
Territory to provide services equivalent to the Roaming Services to that entity’s
customers outside that entity’s licensed territory and to non-customers within
its licensed territory; and


 


(g)                                             to use the Marks in the Territory on or in relation to
Vouchers in respect of the Licensed Activities under this clause 3.1.


 


Non-Exclusive Rights
(except in respect of the Names which is exclusive)


 


3.2                                 In consideration of the Royalties and the covenants
and undertakings contained in this Deed, VEL hereby grants to the Licensee and
to all members of the Virgin Media Group for the Term with effect from the
Commencement Date the following non-exclusive rights (except that this grant is
exclusive in relation to the use of the Names in the Territory):


 


(a)                                              to use the Marks in the Territory in relation to
Ancillary Services;


 


(b)                                             to use the Marks in the Territory in relation to
Bundled Services;


 


(c)                                              to use the Marks in the Territory in relation to
Partner Services;


 


(d)                                             to use the name “Virgin” as part of its registered
company names and to use the same on headed notepaper and other corporate
materials and communications which, in the course of business, bear the company
name 


 


13

















 


and
in relation to the non-trading activities and securities listing of any member
of the Virgin Media Group and as may otherwise be required by law during the
Term, provided that when used as a company name such name is always followed by
the relevant company denotation (e.g. Limited) for the relevant type of company
and jurisdiction;


 


(e)                                              to use the Marks on or in relation to the Site,
advertisements, sponsorship, materials, promotional brochures, other materials,
magazines and the physical assets of members of the Virgin Media Group and
other materials used in each case in the ordinary course of conducting and
promoting the Licensed Activities;


 


(f)                                                to use the Marks in the Territory in relation to
promotional products (including those in electronic form) which are incidental
to the Licensed Activities provided that they are normally distributed free by
members of the Virgin Media Group in the Territory and not by way of commercial
or retail sale;


 


(g)                                             to use the Marks in the Territory in relation to the
sale and supply of:


 


(i)                                                                         Other Equipment, unbranded Mobile Accessories,
unbranded Mobile Devices and unbranded Core Equipment; and


 


(ii)                                                                      branded Mobile Accessories and branded Mobile Devices,


 


in each case via Sales
Channels, provided that the sale and supply of unbranded Core Equipment, Mobile
Accessories, Mobile Devices, and Other Equipment is ancillary or incidental to
the sale and supply of Virgin Media Group’s Business Communications Services
and branded Core Equipment, branded Mobile Accessories and branded Mobile
Devices;


 


(h)                                             to use the Marks in the Territory on or in relation to
Mobile Accessories and Mobile Devices;


 


(i)                                                 to use the Marks in the Territory on or in relation to
Vouchers in respect of the Licensed Activities under this clause 3.2;


 


(j)                                                 to use the Marks in the Territory on or in relation to
software applications specifically designed for use with Core Equipment and/or
Mobile Devices;


 


(k)                                              to use the Marks in the Territory in relation to
Viewdata.


 


Restrictions on the
exercise of the rights granted pursuant to clauses 3.1 and 3.2


 


3.3                                 The following restrictions shall apply to the exercise
of the rights granted pursuant to clauses 3.1 and 3.2:


 


(a)                                              VEL recognises that members of the Virgin Media Group
may:


 


(i)                                                                         use the Domain Names and forms of technology or media
now in existence or developed in the future that are or will be by their nature
accessible worldwide, including the internet and certain TV broadcasts (such as
satellite) which have a larger reach or footprint than can be contained by a
territorial grant of rights;


 


14

















 


(ii)                                                                      provide remote access to any services forming part of
the Licensed Activities to Business Customers temporarily located outside the
Territory;


 


(iii)                                                                   provide any services forming part of the Licensed
Activities from or at locations outside the Territory into the Territory for
the benefit of any Business Customers inside the Territory (other than in the
case of Roaming Services or Extra-Territorial Services); and


 


(iv)                                                                  subject to clause 3.3(b), provide Extra-Territorial
Services to Business Customers,


 


and VEL acknowledges and
agrees that such worldwide or extra-territorial reach or remote access to the
Licensed Activities shall not be considered a breach by the Licensee or any
member of the Virgin Media Group of this Deed provided that the Licensee agrees
that the Licensed Activities (other than the Roaming Services and/or the
Extra-Territorial Services) shall be targeted at Business Customers within the
Territory and that the Licensee shall not itself and shall procure that no
member of the Virgin Media Group shall actively solicit orders from outside the
Territory for any of the goods or services that are the subject of such
Licensed Activities to be supplied and/or provided outside the Territory (other
than Roaming Services and/or Extra-Territorial Services).  Where practicable, the Licensee shall also
include a statement in its user terms to the effect that the Business
Communications Services and the Licensed Activities (other than the Roaming
Services and/or the Extra-Territorial Services) are not made available outside
the Territory;


 


(b)                                             to the extent that the Licensee provides any
Extra-Territorial Services to Business Customers pursuant to the operation of
clause 3.3(a), such Extra-Territorial Services shall only be permitted provided
that they do not account for more than 3% of annual Licensed Business Revenues
or 3% of all physical sites to which the Licensed Activities (taken altogether)
are provided pursuant to the operation of this Deed from time to time;


 


(c)                                              the Licensee acknowledges that VEL may grant other
parties rights to use the Virgin Marks (but not the Names nor the Domain Names)
outside the Territory in relation to activities similar or identical to:


 


(i)                                                                         the Licensed Activities (including Roaming Services or
Extra-Territorial Services) and may grant such rights using forms of technology
or media developed in the future that will by its nature be accessible
world-wide, such that the Virgin Marks may be accessible to persons within the
Territory; or


 


(ii)                                                                      the Extra-Territorial Services to such entity’s
customers outside that entity’s licensed territory and to non-customers within
its licensed territory.


 


The Licensee agrees that the
grant of these rights shall not amount to a breach of VEL’s obligations under
this Deed provided that (save in relation to Roaming Services) VEL does not
authorise these other parties to use the 


 


15

















 


Virgin Marks to solicit
orders or target customers within the Territory for the goods or services that
are the subject of the Licensed Activities to be supplied and/or provided inside
the Territory and where such orders originate from inside the Territory; and


 


(d)                                             the Licensee and members of the Virgin Media Group
shall only use the Marks in the form of the Names and shall not use the name “Virgin”
or the “V” from the Virgin Signature by itself, except in the following
circumstances:


 


(i)                                                                         those listed in Schedule 5;


 


(ii)                                                                      where there are space constraints and where the
Licensee has sought and obtained VEL’s prior written consent (not to be
unreasonably withheld, conditioned or delayed);


 


(iii)                                                                   where the Licensee has sought and obtained VEL’s prior
written consent (not to be unreasonably withheld, conditioned or delayed); or


 


(iv)                                                                  as otherwise permitted by the TM Guidelines.


 


Limitations on Bundled
Services


 


3.4                                 Where members of the Virgin Media Group are offering
Bundled Services, the Licensee shall and shall procure that members of the
Virgin Media Group shall use its or their reasonable endeavours to ensure that
the use of the Marks in relation to the Bundled Services:


 


(a)                                              does not create the impression that any of the Bundled
Services are offered by members of the Virgin Media Group on a standalone basis
separate from Business Communications Services;


 


(b)                                             does not create the impression that the relevant
member of the Virgin Media Group is actually the provider (otherwise as an
intermediary or conduit) of the third party or non-”Virgin” branded elements of
the Bundled Services;


 


(c)                                              could not reasonably be considered to result in
customer confusion (regarding who is providing the third party or non-”Virgin”
branded elements of the Bundled Services); and


 


(d)                                             does not create the impression that any third party
services are branded with the Marks (unless the relevant provider is a Virgin
Company).


 


Limitations on Partner
Services


 


3.5                                 Where members of the Virgin Media Group are providing
Partner Services, the Licensee shall and shall procure that members of the
Virgin Media Group shall use its or their reasonable endeavours to ensure that
the use of the Marks in relation to the Partner Services:


 


(a)                                              does not create the impression that the relevant
member of Virgin Media Group is actually the provider (otherwise as an
intermediary or conduit) of the Partner Services or any of the goods or
services which are subject of the Partner Services;


 


16

















 


(b)                                             could not reasonably be considered to result in
customer confusion (regarding who is providing the Partner Services); and


 


(c)                                              does not create the impression that any third party
goods or services are branded with the Marks (unless the relevant provider is a
Virgin Company).


 


3.6                                 Notwithstanding the provisions of clauses 3.4 and 3.5,
VEL confirms that in connection with provision of Bundled Services and Partner
Services, where the trade marks and trade names of third parties appear along
with or in association with the Marks, the Licensee shall be entitled to
provide registration and authentication services, billing and payment services
and customer and technical support using the Marks.


 


Limitations on Co-Branding


 


3.7                                 The parties acknowledge that the trade marks and trade
names of third parties and any member of the Virgin Media Group may appear
along with or in association with the Marks provided that:


 


(a)                                              such trade marks and trade names are used to identify
the products and services being offered or to identify a trading entity;


 


(b)                                             such trade marks and trade names are not used in
combination with the Marks so as to form a new or composite mark (other than as
expressly permitted under this Deed) without the prior written consent of VEL
(such consent not to be unreasonably withheld, conditioned or delayed); and


 


(c)                                              such trade marks and trade names are not used in any
manner which is not in accordance with honest and commercial practices or without
due cause takes unfair advantage thereof or could reasonably be considered to
result in customer confusion.


 


Domain Names and Internet
Use


 


3.8                                 The parties agree and acknowledge that the Licensee
and members of the Virgin Media Group shall primarily use and market a domain
name and a URL using the Names in the form “Name.com” and “virgin.com/Name” and
that any other Domain Names shall primarily be used to generate additional
traffic to the Site and/or for specific activities or promotions.


 


3.9                                 Throughout the Term, VEL shall procure that a clearly
accessible hyperlink is maintained (and appears ‘above the fold’) on the
Virgin.com website (or such other main portal website operated by or on behalf
of the Virgin Group from time to time) to the Site and the Licensee shall and
shall procure that members of the Virgin Media Group shall ensure that a
hyperlink is maintained on the Site to the Virgin.com website (or such other
main portal website operated by or on behalf of the Virgin Group from time to
time).


 


Reservation of VEL’s Rights


 


3.10                           VEL shall not use or license the use of the Marks, the
name “Virgin”, the letter “V” or anything confusingly similar thereto in the
Territory at any time during the Term in relation to any of the exclusive
Licensed Activities specified in clause 3.1, but VEL and/or any Virgin Company shall not be
prevented by virtue of this Deed from using 


 


17

















 


the
Virgin Marks in relation to:


 


(a)                                              promoting their own business, products and/or services
and/or offering their products and/or services with reference to the “Virgin”
name in the Territory through any third party Business Communications Services
or Communications Network or to the customers of any third party Business
Communications Services or Communications Network;


 


(b)                                             any non-exclusive rights under this Deed;


 


(c)                                              Other Email Services and Other Webspace Services;


 


(d)                                             Business Communications Services provided in the
ordinary course of business within premises and locations ordinarily forming
part of the activities licensed by VEL to such Virgin Company where the
provision of such Business Communications Services is incidental to and a minor
adjunct of their principal business including, retail outlets, health and
fitness centres, hotels, aeroplanes, trains, cars, motorcycles, ships or other
modes or transport, private airport lounges, train station lounges and other
transportation lounges;


 


(e)                                              internet cafes; or


 


(f)                                                sponsorship of any sports events, tournaments, leagues
or teams,


 


provided that:


 


(i)                                                                         all such use of the Virgin Marks in accordance with
this clause, other than in relation to 3.10(f) above, is confined to use
in conjunction with, and always in front of, any word or words which are used
to describe or denote the activities licensed by VEL to the relevant Virgin
Company (subject to any exceptions equivalent to those under clause 3.3(d));


 


(ii)                                                                      this is done in accordance with honest commercial
practices and in the ordinary course of VEL and/or any Virgin Company business
and in such a way which could not reasonably be considered to result in
customer confusion as to who is the actual provider of such services; and


 


(iii)                                                                   where the Licensee is of
the opinion that any Virgin Company is using the Marks in breach of the Licensee’s
exclusive rights under this Deed, then this shall be referred to dispute
resolution in accordance with clause 14.6.


 


No Grant to Third Parties


 


3.11                           VEL agrees that whilst the Virgin Media Consumer
Licence remains in force and effect it shall not use itself nor grant to any
third party the right to use the Names anywhere in the world other than in
accordance with, and subject to, any restrictions contained in, this Deed or
the Virgin Media Consumer Licence.


 


3.12                           Subject to clause 3.11, VEL agrees that it shall not
during the Term and for a period of six (6) months from the date of
termination or expiry of this Deed or, at the Licensee’s option, twelve (12)
months (subject in such latter case to the Licensee


 


18






 










 


paying to VEL a sum equivalent to the amount
paid to VEL in the last two full Quarters for which a royalty was paid,
adjusted to take account of RPI from the date of termination or expiry of the
Deed to the end of the six (6) month period following such termination or
expiry):


 


(a)                                              use itself nor grant to any person other than the
Licensee the right to use the Marks in the Territory in relation to any of the
exclusive Licensed Activities specified in clause 3.1 (except to the extent
other licensees of the Marks are permitted to use them in respect of services
equivalent to Business Communications Services in the manner described in
clause 3.10(d));


 


(b)                                             use itself nor grant to any third party the right to
use the Names anywhere in the world;


 


(c)                                              use itself nor grant to any third party the right to
use the letter “V” (whether plain or in stylised form) in front of: (i) the
word “MEDIA” anywhere in the world; or (ii) any word or words which are
identical or colourably similar to the Names in the Territory; and


 


(d)                                             use itself nor grant to any third party other than the
Licensee the right to use the Marks in respect of the marketing or supply in
physical retail outlets of Business Communications Services and Core Equipment
provided by any third party and sold under that third party brand (and warrants
that it has not granted any such rights prior to the date of this Deed) in the
Territory.


 


Miscellaneous Provisions


 


3.13                           Members of the Virgin Media Group shall be entitled to
do all acts which would otherwise be restricted by the copyright in the Marks
in connection with the carrying on and provision of the Licensed Activities.


 


3.14                           The Licensee undertakes that it and relevant members
of the Virgin Media Group shall make genuine use of the Marks as soon as reasonably
practicable after the Commencement Date (unless otherwise agreed between the
parties) in relation to the Business Communications Services provided from time
to time by the Virgin Media Group for at least the Minimum Term.


 


3.15                           The parties acknowledge that, during the Term, major
technological changes and advancements will occur in relation to the Licensed
Activities which the parties are unable to foresee as at the Commencement
Date.  As such, the parties declare that
it is their common intention that this Deed is intended to cover such changes
and advancements and to enable the Licensed Activities in respect of which the
Marks may be used to develop over the Term. 
The parties further acknowledge that the definitions of “Business
Communications Services” and “Communications Network” provided for in this Deed
are intended to include not only existing communications services and networks,
but also new communications services and networks which result from
innovations, technological developments and discoveries and the trend towards
the convergence of such communications services and networks to ensure that the
Virgin Media Group can effectively compete with new communications services and
networks introduced by others as well as innovate and introduce new
communications services and networks of its own.  The parties agree that this Deed, including
the definitions of “Business Communications Services” and “Communications
Network”, shall be construed accordingly.


 


19

















 


3.16                           Without prejudice to the provisions of clause 3.15,
should either party at any time during the Term be of the view that this Deed
as drafted, including the definitions of “Business Communications Services” and
“Communications Network”, does not fully reflect the common intentions of the
parties as stated in clause 3.15, it may notify the other party to that effect
and the parties will meet within 14 days to agree in good faith appropriate
amendments to this Deed.  In the event
that the parties fail to reach agreement on appropriate amendments within one
hundred and eighty (180) days of any notification given under this clause 3.16,
either party may refer the matter to dispute resolution in accordance with
clause 14.6.


 


3.17                           The Licensee shall be entitled to remove names from
the list of names in Part B of Schedule 2 (as amended from time to time)
at any time on written notice to VEL.


 


4.                                      PAYMENT OF ROYALTIES


 


4.1                                 Except as set out in clause 6.9 and subject to clauses
4.2 and 4.3, the Licensee agrees to pay VEL a royalty the greater of:


 


(a)                                              one quarter of one per cent (0.25%) of the Licensed
Business Revenues; or


 


(b)                                             three hundred and seventy five thousand pounds
Sterling (£375,000),


 


in respect of each Quarter during the Term. In
respect of any part of a Quarter during the Term, the Royalties shall be
determined in accordance with the following provisions of this clause 4, but
shall be reduced pro rata in accordance with the number of days during which
this Deed subsists compared with the number of days in the Quarter in question.


 


4.2                                 Upon each anniversary of the Commencement Date the
royalty set out in clause 4.1(b) shall automatically be increased in
accordance with the most recently published percentage change in RPI over the
12 month period preceding the relevant anniversary date.  Within 30 days after each anniversary of the
Commencement Date VEL shall notify the Licensee in writing of the new royalty
rate in clause 4.1(b) for the 12 month period following the relevant
anniversary date.  In the event that the
Licensee has reasonable grounds to believe that there is an error in the
proposed adjustment of the royalty rate in clause 4.1(b), it shall notify VEL
in writing and the parties shall use reasonable endeavours to resolve any
discrepancies raised by the Licensee. 
Any disputes as to the adjustment of the royalty rate in clause 4.1(b) shall
be referred to the dispute resolution procedure set out in clause 14.6.


 


4.3                                 The royalties set out in clause 4.1 shall become
payable from the earlier of: (a) the Royalty Commencement Date; or (b) the
first external use of the Marks by the Licensee or a member of the Virgin Media
Group under this Deed.


 


4.4                                 The Licensee shall, within ten (10) Business Days
after the date on which Virgin Media Inc. has filed a Quarterly Report with the
SEC in respect of a Quarter, deliver to VEL a statement in respect of such
Quarter, certified as correct by the chief financial officer of Virgin Media
Inc., of the total Licensed Business Revenues and the Royalties due to VEL in
respect of such Quarter.


 


4.5                                 All amounts payable under this Deed are expressed
exclusive of VAT. Each party shall, to the extent required by law, pay VAT on
all sums becoming due from it to the other party under the provisions of this
Deed at the appropriate rate in force, upon 


 


20

















 


receipt of a valid VAT invoice.


 


4.6                                 VEL shall be entitled to render an invoice in respect
of the Royalties due under clause 4.1 upon receipt of the statement referred to
in clause 4.4.  The Licensee shall pay
such Royalties within thirty (30) Business Days following receipt by the
Licensee of an appropriate VAT invoice.


 


4.7                                 The Licensee shall, within ten (10) Business Days
after the date on which Virgin Media Inc. has filed an Annual Report in respect
of a Financial Year, deliver to VEL a statement in respect of such Financial
Year, certified as correct by the chief financial officer of Virgin Media Inc.,
of the total Licensed Business Revenues and the Royalties due to VEL in respect
of such Financial Year. In the event that the sum of the Royalties paid by the
Licensee under clause 4.6 for that Financial Year are less or more than those
certified under this clause 4.7, the Licensee shall pay any additional
Royalties due to VEL or VEL shall return to the Licensee any excess Royalties
paid, as the case may be, within ten (10) Business Days of such
certificate.


 


4.8                                 All payments of Royalties to VEL will be made in
pounds Sterling to VEL’s bank account or as directed by VEL. All payments due
to the Licensee will be made in Sterling to the Licensee’s bank account or as
directed by the Licensee.


 


4.9                                 If either party fails to pay any sum due and payable
under these terms to the other party which is not the subject of a dispute between
the parties, the amount due will bear interest, accruing from the due date
until the date of actual payment, calculated at a daily rate equivalent to two
per cent. above the base rate then in effect of Lloyds TSB Bank plc (or its
successor in title) (both before and after any court judgment).


 


4.10                           Virgin Media Inc.’s Quarterly Reports and Annual
Reports shall be prepared in accordance with Accounting Standards and, in
respect of Annual Reports, shall be audited by Virgin Media Inc.’s auditors. As
such, save as set out in clause 4.11, VEL shall have no rights of inspection or
audit of the Licensee’s books and records nor of any other member of the Virgin
Media Group.


 


4.11                           If at any time Virgin Media Inc. shall no longer be a
registrant reporting under the Securities Exchange Act of 1934, or Virgin Media
Inc. shall no longer report Business Revenues in its Quarterly Report or Annual
Report, the Virgin Media Group shall provide substitute reports to VEL that
include the same information in respect of Business Revenues as would have been
included in its Quarterly Report or Annual Report as contemplated by this Deed
(such substitute reports, respectively, a “Substitute Quarterly
Report” and a “Substitute Annual Report”)
and shall be certified as correct and audited in the manner provided in clauses
4.4, 4.7 and 4.10.  Such Substitute
Quarterly Reports in respect of each of the first three quarters of each
Financial Year shall be due within sixty (60) days of the end of that quarter
and the Substitute Annual Report shall be due within ninety (90) days of the
end of the Financial Year.  In each such
case, Financial Year shall mean the fiscal year of, and the Substitute
Quarterly Reports and Substitute Annual Reports shall be produced in respect
of, a company designated by Virgin Media Group which shall be the company whose
subsidiaries are responsible for 100% of Business Revenues and which has the
most direct supervisory or governance role in respect of such subsidiaries,
references to Virgin Media Inc. in this Deed shall be deemed to refer to such
company, and such Substitute Quarterly Reports Substitute and Annual Reports
shall be deemed to be Quarterly Reports and Annual Reports for the purposes set
forth in this Deed.


 


21

















 


4.12                           In the event that VEL has reasonable grounds to
believe that there is a material error in the calculation of the Royalties, it
shall notify the Licensee in writing and the parties shall use reasonable
endeavours to resolve any discrepancies raised by VEL in good faith.  Any disputes as to the calculation of
Royalties shall be referred to the dispute resolution procedure set out in
clause 14.6.  If such dispute has not
been resolved and the mediator appointed pursuant to clause 14.6 decides that a
material error may have been made, VEL shall be entitled to carry out an audit
of the Virgin Media Group’s books of accounts as reasonably necessary to
determine whether there has been a material error in the statements certified
under clauses 4.4 and 4.7 or in the information certified under clause
4.11.  Any such audit shall be conducted
as follows:


 


(a)                                              upon the written request of VEL and not more than once
in each period of twelve months, and only after Virgin Media Inc. has published
its accounts for any given Financial Year, the Licensee shall permit one of
KPMG LLP, Ernst and Young LLP, Deloitte LLP or PricewaterhouseCoopers LLP, or
their successors in title as appointed by VEL and agreed by the Licensee (or,
failing agreement, such other auditing firm of international repute as is
agreed), to have access during normal business hours to such records of the
Virgin Media Group as are reasonably necessary to determine whether there has
been any material error in calculating the Royalties and whether there has been
an overpayment or underpayment of Royalties pursuant to this Deed for any
Quarter in such Financial Year or for the whole of the Financial Year in
question. In the absence of material error, such accounting firm shall not be
entitled to question the application of the Virgin Media Group’s judgement in
applying the Accounting Standards (or that of their accountants and auditors);


 


(b)                                             the Licensee, at the cost of VEL, shall and shall
procure that relevant members of the Virgin Media Group will provide such
assistance to the accounting firm as is reasonably necessary in connection with
the audit, provided that the Licensee has received reasonable advance notice of
such audit from VEL. Such accounting firm shall execute a confidentiality undertaking
no less strict than the confidentiality obligations set forth in this Deed in a
form reasonably acceptable to the Licensee and suitable for the purpose of
performing the audit under this clause 4.12. 
Such accounting firm shall carry out its audit within two (2) calendar
months and report only on matters which bear on whether the Royalties paid or
due to be paid by the Licensee were determined and accurately calculated in
accordance with this Deed. The report shall be addressed to both VEL and the
Licensee;


 


(c)                                              these rights with respect to any Quarter or any
Financial Year shall terminate twelve (12) months after the end of such Quarter
or Financial Year;


 


(d)                                             if, after consultation with the parties, such
accounting firm concludes that there was an overpayment or underpayment, the
Licensee shall pay the additional royalties due to VEL or VEL shall return to
the Licensee any excess royalties paid, as the case may be, and in each case
together with interest thereon, within thirty (30) days after the accounting
firm’s written report is delivered to both VEL and the Licensee. The fees and
disbursements charged by such accounting firm shall be paid by VEL unless 


 


22

















 


the
accounting firm concludes that there has been an underpayment by more than five
percent (5%) of the royalties due, in which case the Licensee shall pay its
reasonable fees and disbursements. Neither VEL nor the Licensee shall consult
with such accounting firm in person or orally unless the other parties are
given reasonable advance notice of and the opportunity to participate in such
consultation; all communications made in writing shall be copied to the other
party who may respond to the accounting firm in question with a copy to the
other parties; and


 


(e)                                              the decision of the accounting firm, acting as expert
and not as arbitrator, shall be final and binding upon the parties (save in the
case of fraud or a material error), and not subject to dispute resolution
procedures under clause 14.6 or otherwise. Should either party fail to comply
with the decision, the cost of any proceedings brought to enforce same shall be
at the sole expense of the non-complying party, who shall reimburse the
complying party for its reasonable attorneys’ fees and reasonable
disbursements.


 


4.13                           VEL and the Licensee shall treat all information
subject to review under this clause 4 in accordance with the confidentiality
provisions of this Deed.


 


4.14                           The Licensee agrees to provide, at the reasonable
request of VEL, a monthly revenue report with sufficient information for the
purposes of determining the royalties due and payable under this Deed (as
generally distributed within the Virgin Media Group to senior management).


 


5.                                      CONDITIONS OF USE


 


5.1                                 The Licensee acknowledges that the value and
reputation of the Marks is such that they denote high quality status and agrees
to and shall procure that relevant members of the Virgin Media Group shall:


 


(a)                                              use all reasonable endeavours to apply the Marks to
goods and services of a style, appearance and quality so as to maintain the
value and reputation of the Marks;


 


(b)                                             subject to clause 5.2, use the Marks in accordance
with the TM Guidelines; and


 


(c)                                              use all reasonable endeavours to apply the Marks to
goods and services of a standard consistent with good industry practice and
standards.


 


5.2                                 The Licensee shall not be obliged to consult VEL as to
its manner of use of the Marks where such use is in accordance with the TM
Guidelines.  However, the Licensee may
submit designs and/or proposed advertising, marketing or promotional materials
using the Marks to VEL for approval, such approval not to be unreasonably
withheld, conditioned or delayed.  Where
VEL has not sent (by courier, post, email or facsimile) to the Licensee at its
then usual business or email address a written response in relation to the
designs and/or materials submitted by the Licensee within five Business Days
(or such other period as may be agreed between the parties) of receipt of such
designs and/or materials, VEL shall be deemed to have approved the designs
and/or materials for the purposes of this clause.


 


5.3                                 In the event that either party wishes to create any
logo incorporating the Marks 


 


23

















 


specific to the Licensee, then the parties
shall work together to create such logo, provided that the Licensee agrees that
VEL shall have the right of final design approval of such logo in respect of
matters such as brand consistency.


 


5.4                                 The Licensee shall use all reasonable endeavours to
comply with the following conditions of use:


 


(a)                                              where reasonably practicable, and upon request from
VEL, the Licensee shall display and shall procure that the relevant members of
the Virgin Media Group shall display a statement in the following terms:


 


“Virgin” and the Virgin
Signature logo are registered trade marks of Virgin Enterprises Limited and are
used under licence.”;


 


(b)                                             the Marks may not be used in combination with any
other marks, names, words, logos, symbols or devices to form a new or composite
mark (except as specified in this Deed) without the prior written consent of
VEL, such consent not to be unreasonably withheld, conditioned or delayed;


 


(c)                                              the exercise of the rights granted by this Deed to the
members of the Virgin Media Group shall comply in all material respects with
all applicable laws and regulations in force within the Territory save to the
extent that such compliance is made impractical by the action or inaction of
VEL;


 


(d)                                             the Licensee shall and shall procure that relevant
members of the Virgin Media Group shall obtain and comply in all material
respects with all necessary consents, licences and authorisations required in
connection with the provision of the Licensed Activities within the Territory
save to the extent that such compliance is made impractical by the action or
inaction of VEL; and


 


(e)                                              the Marks shall not be used in any manner which,
knowingly, wilfully or recklessly, would bring them into disrepute or otherwise
materially damage the goodwill or reputation of the Marks or materially damage
VEL’s right in and to the Marks.


 


5.5                                 During the Term the Licensee
shall not use, and shall procure that no relevant members of the Virgin Media
Group use, without VEL’s prior consent (such consent not to be unreasonably
conditioned, withheld or delayed):


 


(a)                                              any marks which
are confusingly similar to but not identical with the Marks in relation to the
Licensed Activities; or


 


(b)                                             the Marks or
any marks which are confusingly similar to but not identical with the Marks in
relation to any activities other than the Licensed Activities.


 


5.6                                 In order to ensure that any relevant member of the
Virgin Media Group is complying with the obligations under this Deed, the
Licensee shall, and shall procure that relevant members of the Virgin Media
Group shall, on reasonable written request from VEL:


 


(a)                                              provide reasonable quantities of free samples of any
materials (including all advertising, marketing and promotional materials)
bearing the Marks used in 


 


24

















 


connection
with the Licensed Activities prior to or in the course of their installation,
sale or distribution;


 


(b)                                             provide VEL as soon as practicable with full
particulars of proposed advertising campaigns bearing the Marks used in
connection with the Licensed Activities;


 


(c)                                              promptly provide VEL on an aggregate basis with
sufficient details of all material complaints made by customers, distributors,
retailers and/or members of the public (but shall not be obliged to supply personal
data or identify complainants where to do so would be in breach of the Data
Protection Act 1998) relating to the Licensed Activities conducted under the
Marks together with reports on the resolution of such complaints and shall
comply with any reasonable directions or recommendations given by VEL in
respect thereof;


 


(d)                                             provide VEL with details of any material claims,
litigation, arbitration or administrative proceedings, investigations or
enquiries which are in progress or threatened in writing against the relevant
member of the Virgin Media Group concerning the Licensed Activities carried out
using the Marks. This clause shall not require any member of the Virgin Media
Group to waive or jeopardise its rights to any privilege in relation to such proceedings,
investigations or enquiries;


 


(e)                                              meet with VEL once in each calendar year in order to
review the exercise of the rights granted by this Deed to the members of the
Virgin Media Group;


 


(f)                                                where VEL has reasonable grounds to believe that any
member of the Virgin Media Group is not complying with this Deed, VEL (or its
nominated representatives) may upon reasonable notice in writing during
business hours, enter the premises of any member of the Virgin Media Group at
which the Licensed Activities are carried out, or the Marks are otherwise used
and have access to all documents which may be reasonably requested to assess
whether the relevant member of the Virgin Media Group is complying with the
obligations under the terms of this Deed provided that:


 


(i)                                                                         VEL shall use its reasonable endeavours to ensure that
it shall cause as a little disruption as possible whilst on such premises;


 


(ii)                                                                      VEL acknowledges that it or its nominated
representative shall be under the supervision of the relevant member of the
Virgin Media Group whilst at the premises; and


 


(iii)                                                                   VEL shall not interfere in any way with the computer
systems of any member of the Virgin Media Group but where access to any
computer systems is reasonably necessary for VEL’s inspection under this clause,
such access shall be carried out by a representative of the Virgin Media Group
to the reasonable direction of VEL or its nominated representative, subject to
compliance with the Data Protection Act 1998;


 


(g)                                             provide VEL with the reports referred to in Schedule 3
and, to the extent only any such materials are actually produced by or on
behalf of the 


 


25

















 


Licensee,
copies of customer service scripting, copies of pro-forma letters sent to
customers and any brand tracking studies/reports undertaken by or on behalf of
the Virgin Media Group.


 


VEL acknowledges and agrees that the Licensee
shall be deemed to have complied with the provisions of clause 5.6(a) and
5.6(b) if the information and materials requested under such provisions is
provided to or made available to the Chief Marketing Officer.


 


5.7                                 If at any time the Licensee or any member of the
Virgin Media Group fails to comply in any material respect with the conditions
of use or standards of quality and presentation set out in this clause 5 (other
than with respect to Service Levels), VEL may direct the Licensee or such
member of the Virgin Media Group, in writing, to take such reasonable steps as
may be necessary to ensure compliance with this clause 5 and the Licensee shall
procure that the relevant member of the Virgin Media Group shall, within twenty
five (25) days or any such period as the parties may agree, correct any such
non-compliance.  In relation to the TM
Guidelines this may include the withdrawal of non-complying advertising,
marketing or promotional materials where reasonably practicable.


 


5.8                                 The parties shall comply with the obligations set out
in Schedule 3 with respect of the Service Levels.


 


5.9                                 The Licensee recognises that it is part of a group of
companies and businesses licensed by VEL to use the Marks and agrees that it
shall cooperate in Virgin Group activities and initiatives, including
charitable initiatives associated with Virgin Unite, procurement initiatives,
marketing forums, promotions of the virgin.com website, provided that the
Virgin Media Group shall not be required to participate in any activity or
initiative where it considers in its absolute discretion that such
participation may be detrimental to the Virgin Media Group or its business,
operations or other activities.  Where
any Virgin Company requests its products or services be accessible through the
Business Communications Services provided by the Virgin Media Group and/or be included
as part of the Partner Services, then the Licensee shall consider in all good
faith such requests on terms that are no less favourable than those offered to
any other third party where such request does not unreasonably impact on its
business. VEL shall use all reasonable efforts to facilitate activities and
initiatives proposed by the Licensee in conjunction with any Virgin Company and
on terms no less favourable than those offered to any other third party.


 


5.10                           VEL shall provide reasonable support and guidance to
the members of the Virgin Media Group engaged in the Licensed Activities, as
may be requested from time to time, in relation to the members of the Virgin
Media Group’s use and/or proposed use of the Marks.


 


5.11                           VEL shall use all reasonable efforts to ensure that
the members of the Virgin Media Group are treated no less favourably than other
Virgin Companies.


 


6.                                      TRADE MARK PROTECTION


 


6.1                                 The Licensee acknowledges VEL’s right, title and
interest in the Marks (subject to this Deed) and undertakes not to do and shall
procure that the members of the Virgin Media Group shall not do any act which
would jeopardise or invalidate the registration of the Marks nor to do any act
which could give rise to any application to 


 


26

















 


remove the Marks or which would otherwise
prejudice in a material way VEL’s right, title and interest in the Marks.


 


6.2                                 The Licensee and VEL each undertake that they shall,
and the Licensee shall procure that relevant members of the Virgin Media Group
shall, at the other’s request and at their own expense, execute or procure the
execution of any document which may be necessary to allow recordal of the
rights granted to the members of the Virgin Media Group by this Deed and the
corresponding cancellation of such recordal on the expiry or termination of
this Deed, for whatever reason.


 


6.3                                 The Licensee shall not and shall procure that no
member of the Virgin Media Group shall seek any registration of any trade mark,
copyright, domain name (in relation to domain names only, either itself or on
behalf of any third party) or analogous right which is identical with or
confusingly similar to any of the Marks or which otherwise incorporates the “Virgin”
name. VEL agrees, at the Licensee’s cost, to register any additional and available
domain names comprising a new and relevant domain name suffix relating to the
Licensed Activities and containing the Names as are reasonably requested by the
Licensee, and all such domain names shall, when registered, automatically be
deemed “Domain Names” for the purposes of this Deed. The Licensee shall be
responsible for administering sub-domains for which no registration in required
and applying for and maintaining SSL licences (e.g. certificates for secure
websites) in the name of VEL, for which purpose VEL consents to the use of its
name on such applications and registrations and agrees to provide its
reasonable assistance (including, without limitation, information) as the
Licensee may from time to time require for these purposes.


 


6.4                                 VEL shall take all reasonable steps to ensure that the
registrations of the Marks cover (and, if applicable, are extended to cover)
the scope of the Licensed Activities and shall accordingly make all such formal
trade mark applications in its own name as are, in its reasonable opinion,
necessary (at its cost).


 


6.5                                 VEL shall:


 


(a)                                              use all reasonable endeavours to prosecute any pending
applications for the Marks to registration as soon as reasonably practicable
hereafter which shall include seeking in good faith to overcome all oppositions
and objections;


 


(b)                                             ensure that the registrations of such of the Marks as
are registered are renewed as and when they fall due for renewal;


 


(c)                                              upon the written reasonable request, and at the
expense of the Licensee, apply and prosecute further trade mark registrations
in the Territory which feature the Marks in the form of the Names, following
which such applications and registrations shall be added to Schedule 1.  The Licensee shall have the right to review
and provide comment on any such pending applications, and VEL shall, in good
faith, consider such comments; and


 


(d)                                             maintain and protect the goodwill and reputation of
the Marks, provided that VEL shall not be in breach of this clause 6.5(d) to
the extent that diminution of the goodwill and reputation of the Marks is
caused by a breach of this Deed by the Licensee or a member of the Virgin Media
Group.


 


6.6                                 Other than those additional trade marks and additional
domain names requested by the 


 


27

















 


Licensee in accordance with clauses 6.3 and
6.5(c), the costs of filing, pursuing and renewing other formal trade mark
applications and other any registrations in the Territory for any of the Marks
and the Domain Names under clause 6 which relate in whole or in part to the
Licensed Activities shall be paid in full and in a timely manner by VEL.


 


6.7                                 The Licensee shall and shall procure that relevant
members of the Virgin Media Group shall, at the reasonable request and expense
of VEL, provide reasonable assistance in connection with the protection and
maintenance by VEL of its rights in and to the Marks as VEL may from time to
time in its reasonable discretion determine necessary including providing
details of sales figures, Business Customer numbers, marketing spend, launch
dates and dates of first use of the Marks by the members of the Virgin Media
Group.


 


6.8                                 Without prejudice to the rights of the members of the
Virgin Media Group under this Deed, the Licensee shall and shall procure that
relevant members of the Virgin Media Group shall immediately stop using, or as
VEL may direct, modify the use of, any Marks in relation to any part or parts
of the Licensed Activities, on receipt of written notice from VEL that such use
infringes or is reasonably likely to infringe the Intellectual Property Rights
of a third party (other than any Virgin Company) provided always that:


 


(a)                                              VEL gives the Licensee full details of the alleged
infringement, together with a written opinion from competent external and
independent legal counsel specialising in intellectual property law to the
effect that such use constitutes, or is reasonably likely to constitute, an
infringement of the Intellectual Property Rights of a third party; and


 


(b)                                             VEL shall permit the relevant members of the Virgin
Media Group to recommence use of the Marks if, and as soon as reasonably
practicable after, VEL settles the matter with the third party with the effect
that use by the members of the Virgin Media Group is permitted or would no longer
amount to an infringement of such third party’s Intellectual Property Rights,


 


provided that nothing in this clause 6.8 shall
prevent the members of the Virgin Media Group from exercising any rights they
may have against VEL.


 


6.9                                 The Licensee shall not be required to make any Royalty
payments in relation to those Licensed Activities in respect of which it is
unable to use the Marks for any period during which such use of the Marks by
any member of the Virgin Media Group is suspended under clause 6.8.


 


7.                                      DEALINGS


 


7.1                                 Save as otherwise specified in this Deed, the rights
granted under this Deed are personal to the Licensee and the other members of
the Virgin Media Group and they shall not delegate, assign, sub-license or
sub-contract any of those rights (except by way of mortgage, charge or
security, and only until such time as that funding shall be repaid notice of
which shall be given to VEL) to any third party without the prior written
consent of VEL (such consent not to be unreasonably withheld or delayed, except
in respect of an assignment to a third party where VEL may give or withhold
consent in its absolute discretion) provided that:


 


28














 


(a)                                              the Licensee may assign all of its rights and
obligations under this Deed to a solvent member of the Virgin Media Group as
part of a reorganisation of the Virgin Media Group without the prior written
consent of VEL provided that:


 


(i)                                                                         notice of any such assignment and details of the
assignee shall be provided to VEL by the Licensee and the assignee is
thereafter deemed to be the Licensee for the purposes of this Deed;


 


(ii)                                                                      the Licensee shall procure that, in the event of such
assignee ceasing to be a solvent member of the Virgin Media Group, any such
rights and/or obligations assigned shall revert automatically back to the
Licensee or such other member of the Virgin Media Group as the Licensee shall
direct;


 


(iii)                                                                   this Deed shall be binding on any successors or
permitted assignee of the Licensee and the Licensee shall and shall procure
that any such successor or permitted assignee of the Licensee is notified of
the terms of this Deed; and


 


(iv)                                                                  such assignee is resident in the U.K. for tax
purposes;


 


(b)                                             the Licensee shall be entitled to authorise third
parties to use the Marks in relation to the services they provide to the
members of the Virgin Media Group engaged in the Licensed Activities or in
connection with the promotion or sale of the Virgin Media Group’s products and
services (a “Permitted Third Party”), provided
that:


 


(i)                                                                         such third parties agree in writing to be bound by
terms relating to use of the Marks no less onerous than under this Deed;


 


(ii)                                                                      such parties shall only be permitted to use the Marks
in accordance with honest commercial practices and in a way which does not take
unfair advantage of the Marks and which is not misleading and could not
reasonably be considered to result in customer confusion;


 


(iii)                                                                   for the avoidance of doubt, any authorisation granted
pursuant to this clause 7.1(b) shall terminate immediately on termination
of this Deed;


 


(c)                                              the Licensee shall be permitted to grant to Business
Customers a non-transferable right (without the right to sub-license) to use
their Permitted Email Address and Permitted Webspace Address and to reproduce
the same upon materials for the purpose of providing the Permitted Email
Address and Permitted Webspace Address to third parties;


 


(d)                                             any rights granted to or enjoyed by a member of the Virgin
Media Group shall automatically cease subject to clauses 9.10, 9.12, 9.14 and
9.15 on that member ceasing to be part of the Virgin Media Group; and


 


(e)                                              any act or omission on the part of any member of the
Virgin Media Group or any third party authorised to use the Marks under this
Deed which would constitute a breach of any term or condition of this Deed
shall constitute a 


 


29

















 


breach
of that term or condition by the Licensee provided that this shall be without
prejudice to VEL’s rights to take direct action as against that member or third
party.


 


7.2                                 In the event of any assignment by the Licensee in
accordance with clause 7.1, the Licensee shall execute and procure the
execution by the assignee of a novation agreement with VEL (and VEL agrees to
execute such novation agreement) so as to give effect to the transfer and to
bind the assignee to all provisions to this Deed.


 


7.3                                 Save as otherwise specified in this Deed, the rights
granted under this Deed are personal to VEL and VEL shall not delegate, assign,
sub-license or sub-contract any of those rights including its rights under the
Marks (except by way of mortgage, charge or security, and only until such time
as that funding shall be repaid notice of which shall be given to the Licensee)
to any third party without the prior written consent of the Licensee (such
consent not to be unreasonably withheld, conditioned or delayed), provided that
VEL may assign all of its rights and obligations under this Deed including its
rights under the Marks to a solvent member of the Virgin Group as part of a
reorganisation of the Virgin Group without the prior written consent of the
Licensee, provided that:


 


(a)                                              notice of any such assignment and details of the
assignee shall be provided to the Licensee by VEL and the assignee is
thereafter deemed to be the Licensor for the purposes of this Deed;


 


(b)                                             VEL procures that the assignment of the relevant marks
is subject to the Licensee’s rights under this Deed;


 


(c)                                              VEL shall procure that the assignee shall take subject
to the Licensee’s rights under this Deed in relation to those marks;


 


(d)                                             VEL shall procure the execution by the assignee of a
novation agreement with the Licensee (and the Licensee agrees to execute such
novation agreement) so as to give effect to the transfer and bind the assignee
to all provisions to this Deed; and


 


(e)                                              such assignee is resident in the United Kingdom for
tax purposes.


 


7.4                                 This Deed shall be binding on any successors or
permitted assignee of the Licensee and the Licensee shall procure that any such
successor or permitted assignee of the Licensee is notified of the terms of
this Deed. This Deed shall be binding on any successors or permitted assignee
of VEL and VEL shall procure that any such successor or permitted assignee of
VEL is notified of the terms of this Deed.


 


7.5                                 In the event that VEL:


 


(a)                                              chooses not to renew any one or all of the trade mark
registrations for the Names VEL agrees to notify the Licensee and, at the
Licensee’s request, VEL agrees that in consideration for one hundred pounds
(£100), all title to those Names it has chosen not to renew and the goodwill
associated with such marks in the Territory shall be assigned to the
Licensee.  This obligation to assign
shall not apply in respect of any Community Trade Marks which VEL shall, at the
Licensee’s request and cost, either convert to a series of national marks and
in respect of any such national conversions in the Territory, assign those
solely relating to the Territory to the Licensee or 


 


30

















 


cancel
them in which event VEL confirms that the Licensee shall be entitled to
register a national mark in the form of any such Community Trade Mark; or


 


(b)                                             irremediably fails (with no prospect of mitigating or
resolving such failure) to renew any of the trade mark registrations for the
Names VEL acknowledges that it shall not object to the Licensee seeking to
re-file such marks.  VEL agrees to notify
the Licensee of any such failure to renew as soon as it discovers such failure
and the Licensee agrees to notify VEL should it become aware of any impending
or missed deadline for renewal.


 


7.6                                 For the purposes of clause 7.5(a) and 7.5(b), VEL
hereby irrevocably appoints any of the officers and directors of the Licensee
from time to time to be its true and lawful attorney (each an “Attorney”) with the full power and authority of VEL in its
name to execute on VEL’s behalf in whatever manner required any document or
thing lawfully necessary in such form as the Attorney in his absolute
discretion may reasonably deem necessary or desirable to give effect to the
assignment referred to in clause 7.5(a) and any refiling pursuant to
clause 7.5(b) and/or any documents required to facilitate any such refiling
and its prosecution to grant and VEL undertakes to ratify whatever the Attorney
may do in its name or on its behalf in exercising such powers.


 


8.                                      INDEMNITY, WARRANTIES AND LIMITATIONS OF LIABILITY


 


Warranties


 


8.1                                 VEL warrants to the Licensee that:


 


(a)                                              it is a limited company duly organised, existing and
in good standing under the laws of England and resident in the United Kingdom
for tax purposes and is beneficially entitled to the Royalties paid pursuant to
clause 4.1 of this Deed;


 


(b)                                             it is either (as applicable) the owner or registered
proprietor of, or applicant for registration of the Marks and the Domain Names,
and that it has the right to grant the rights granted to the members of the
Virgin Media Group under this Deed and it has not granted and will not grant
those or any conflicting rights to any other person in the Territory during the
Term;


 


(c)                                              at the date of this Deed it has paid all current
renewal fees necessary to ensure the continued registration of the Marks and
the Domain Names where applicable and that it, or any third party acting on its
behalf in such matters, has a secure system in place prompting payment of all
renewals in a timely manner before they become due and shall pay all renewal
fees as they become due (subject to clause 7.5);


 


(d)                                             it is not aware of any other rights whose grant under
this Deed would be necessary to enable the members of the Virgin Media Group to
carry on the Licensed Activities under the Marks;


 


(e)                                              it will not itself exercise, and it has not appointed,
authorised or allowed and it will not appoint, authorise or allow anyone else
to exercise, any rights which are inconsistent with the rights granted
hereunder;


 


(f)                                                it is not aware of any actual, proposed or threatened
claims, litigation or 


 


31

















 


challenges
as to its ownership of the Marks or the Domain Names or claims of Intellectual
Property Rights infringement by third parties in relation to the use of the
rights licensed hereunder;


 


(g)                                             as far as it is aware, use of the Marks and the Domain
Names by members of the Virgin Media Group in accordance with the terms of this
Deed will not infringe the Intellectual Property Rights of any third party; and


 


(h)                                             VEL owns all such goodwill as exists in the Marks.


 


Indemnity and limitations and exclusions of
liability


 


8.2                                 The provisions of the remainder of this clause 8 set
out each party’s entire liability (including any liability for the acts and
omissions of its employees or agents) to the other party in respect of:


 


(a)                                              any breach of its contractual obligations arising
under this Deed; and


 


(b)                                             any representation, statement or tortious act or
omission including negligence arising under or in connection with this Deed.


 


8.3                                 Any act or omission of a party falling within clause
8.2 shall for the purposes of this clause 8 be known as an “Event of Default”.


 


8.4                                 Neither party excludes or limits liability to the
other party for fraud or for death or personal injury due to its own negligence
or its employees’ or agents’ negligence whilst acting in the course of their
employment, or any breach of any obligations implied by Section 12 of the
Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services
Act 1982.


 


8.5                                 Subject to clause 8.4, in respect of any claim arising
in respect of an Event of Default only (but not, for the avoidance of doubt, in
respect of any Intellectual Property Rights claim pursuant to clause 8.6),
neither party shall be liable to the other in respect of any Event of Default
for:


 


(a)                                              any loss or damage suffered by the other as a result
of a claim or action brought by a third party (except to the extent that such
party is entitled to recover in respect of such a claim or action under any
express term of this Deed); or


 


(b)                                             any special, indirect or consequential loss or damage,
even if such loss or damage was reasonably foreseeable or such party had been
advised of the possibility of the other party incurring the same.


 


8.6                                 Subject to clause 8.7, VEL agrees to indemnify and
hold harmless the Licensee from and against all costs (including the costs of
enforcement, reasonable legal costs, fees and expenses and value added tax),
liabilities, injuries, direct, special, indirect and consequential loss and
expenses, actions, proceedings, claims, demands and damages arising directly or
indirectly from a claim or threatened claim by a third party against the
Licensee that any exercise of the Intellectual Property Rights licensed to it
under this Deed infringes the Intellectual Property Rights of any third party.
The benefit of this indemnity shall, for the avoidance of doubt, extend to
claims made against the Virgin Media Group by any other Virgin Company
conducting similar activities outside the Territory in respect of the provision
by the Virgin Media Group of the 


 


32

















 


Licensed Activities in accordance with this
Deed.


 


8.7                                 Subject to clause 8.4, the maximum liability of each
party during the Term, in aggregate, in respect of:


 


(a)                                              any and all Events of Default; and/or


 


(b)                                             any and all claims pursuant to clause 8.6 where they
arise in respect of use by the Virgin Media Group of the non-”Virgin” part of
the Names and where such claims relate primarily to the non-”Virgin” part of
the Names (and not primarily to the use of the Virgin Marks or the name “Virgin”
in association or conjunction with the non-”Virgin” part of the Names),


 


shall be limited to a sum not exceeding two
hundred million pounds sterling (£200,000,000), save that any claim for
indemnification pursuant to clause 8.6 in respect of use by the Virgin Media
Group of the Virgin Marks and/or where the claim relates primarily to the use
of the Virgin Marks or the name “Virgin” in association or conjunction with the
non-”Virgin” part of the Names and/or any other Intellectual Property Rights
licensed under this Deed shall be unlimited.


 


8.8                                 The monetary limits of liability set out in clause 8.7
shall be subject to a 1% increase on each anniversary of the Commencement Date.


 


8.9                                 A failure by either party to perform its obligations
under this Deed shall not be treated as an Event of Default if and to the
extent such failure was caused wholly or mainly by the other party’s failure to
perform any of its obligations under this Deed.


 


8.10                           Nothing in this clause shall confer any right or
remedy upon a party to which it would not otherwise be legally entitled.


 


8.11                           The parties expressly agree that should any limitation
or exclusion in this clause 8 be held to be invalid or void under any
applicable statute or rule of law it shall, to that extent, be deemed
omitted, but if any party thereby becomes liable for loss or damage which would
otherwise have been excluded, such liability shall remain subject to the other
limitations and provisions set out herein.


 


8.12                           The provisions of this clause shall continue to apply
notwithstanding the termination or expiry of this Deed for any reason
whatsoever.


 


8.13                           Save for those expressly set out in this Deed, all
warranties, terms, conditions, undertakings and obligations, whether express or
implied, by statute, common law, trade usage, course of dealing or otherwise
are excluded to the maximum extent legally possible.


 


8.14                           The parties acknowledge that neither party shall be
liable to the other in respect of any costs (including the costs of
enforcement, reasonable legal costs, fees and expenses and value added tax),
liabilities, injuries, direct, special, indirect and consequential loss and
expenses, actions, proceedings, claims, demands and damages (together defined
as “Losses”) arising pursuant to the Deed to the extent that such Losses are
recoverable from such other party under the Virgin Media Consumer Licence.


 


9.                                      TERMINATION AND EFFECTS OF TERMINATION


 


9.1                                 The Deed shall commence on the Commencement Date and
shall continue for the 


 


33

















 


Term unless terminated earlier in accordance
with the terms of this Deed. This Deed (and any authorisations granted by the
Licensee to third parties pursuant to clause 7.1(b)) shall expire automatically
without need for further notice on expiration of the Term. The Licensee shall
be entitled to renew this Deed following the Term on reasonable commercial
terms in accordance with sub-clauses 9.1(a) to 9.1(c) of this clause
9.1.  If the Licensee wishes to renew
this Deed:


 


(a)                                              it shall give notice in writing at least twelve (12)
months prior to the expiry date of its intention to renew;


 


(b)                                             the parties shall commence negotiation of the terms
for the renewed agreement within three (3) months of such notice and shall
devote such resource as is required to ensure that the negotiation is completed
at least six (6) months prior to the original expiry date (provided that
if the negotiations have not been completed prior to expiry of the Term this
Deed will terminate automatically); and


 


(c)                                              the parties shall act reasonably and in good faith in
the conduct of such negotiation.


 


9.2                                 In the event that VEL has reasonable and bona fide
grounds to believe that the use of the Marks under this Deed by any member of
the Virgin Media Group (including the Licensee) has been or is reasonably
likely to result in a long-term and material diminution in the value of the
Marks including the reputation or goodwill in the Marks, then:


 


(a)                                              VEL shall serve written notice in accordance with
clause 12.1 specifying the same and the parties shall call a meeting of their
senior representatives to discuss the issues raised;


 


(b)                                             the parties shall agree a plan to resolve the issues
raised during a period of thirty (30) days (“Resolution
Plan”) following the written notice referred to in clause 9.2(a) above;


 


(c)                                              if the parties fail to agree such a Resolution Plan,
then each party’s chief executive officer, chief operating officer or
equivalent officer shall meet in a good faith effort to resolve the outstanding
issues and agree a Resolution Plan with the original thirty (30) day
period.  In the event of any failure to
resolve such issues and/or agree a Resolution Plan within the original thirty
(30) day period such issues shall be referred to the dispute resolution
procedure in clause 14.6;


 


(d)                                             if the Resolution Plan is agreed under clauses 9.2(b) or
9.2(c), then immediately on agreement thereof, each party shall implement any
duties, actions or responsibilities allocated to it in such Resolution Plan in
order to resolve the dispute in good faith, such Resolution Plan to be
implemented within a further period of ninety (90) days from agreement of the
Resolution Plan or such other period as may be agreed in the Resolution Plan;


 


(e)                                              if the Virgin Media Group complies with its
obligations under the Resolution Plan, then no further action will be taken by
VEL in respect of that particular breach. In the event that the Resolution Plan
fails to substantially remedy the breach or alleged breach, or there is a new
breach, 


 


34

















 


then
the procedure in this clause 9.2 shall be repeated; and


 


(f)                                                if the Virgin Media Group fails to comply with its
obligations under the Resolution Plan within the agreed timetable (and provided
that such failures are not attributable to any act or omission of VEL) and the
use or lack of use of the Marks by any member of the Virgin Media Group in the
reasonable view of VEL remains materially damaging on a long term basis to the
Marks or VEL (or is still likely to be), or the dispute resolution process
under clause 14.6 has been unsuccessful, 
then VEL shall be entitled to terminate this Deed on one hundred and
eighty (180) days written notice (provided that any damage shall cease
immediately). If the Virgin Media Group in good faith disputes the fairness or
validity of such notice, then this shall be referred to dispute resolution in
clause 14.6 to the extent that failure to agree a Resolution Plan in respect of
the same had not already been referred to dispute resolution.


 


9.3                                 In the event that any member of the Virgin Media Group
commits persistent and material breaches or a flagrant and material breach of
any term or condition of this Deed then:


 


(a)                                              VEL shall serve written notice in accordance with
clause 12.1 specifying the same and the parties shall call a meeting of their
senior representatives to discuss the issues raised;


 


(b)                                             the parties shall agree a plan to resolve the issues
raised during a period of sixty (60) days (“Contract
Resolution Plan”) following the written notice referred to in clause
9.3(a) above;


 


(c)                                              if the parties fail to agree such a Contract
Resolution Plan, then each party’s chief executive officer, chief operating
officer or equivalent officer shall meet in a good faith effort to resolve the
outstanding issues and agree a Contract Resolution Plan within the original
sixty (60) day period.  In the event of
any failure to resolve such issues and/or agree a Contract Resolution Plan
within the original sixty (60) day period such issues shall be referred to the
dispute resolution procedure in clause 14.6;


 


(d)                                             if the Contract Resolution Plan is agreed under
clauses 9.3(b) or 9.3(c), thereafter each party shall implement any
duties, actions or responsibilities allocated to it in such Contract Resolution
Plan in order to resolve the dispute in good faith, such Contract Resolution
Plan to be implemented within a further period of one hundred and eighty (180)
days from agreement of the Contract Resolution Plan or such other period as may
be agreed in the Contract Resolution Plan;


 


(e)                                              if the Virgin Media Group complies with its
obligations under the Contract Resolution Plan, then no further action will be
taken by VEL in respect of that particular breach or alleged breach.  In the event that the Contract Resolution
Plan substantially fails to remedy the breach or alleged breach, or there is a
new breach, then the procedure in this clause 9.3 shall be repeated; and


 


(f)                                                if the Virgin Media Group fails to comply with its
obligations under the Contract Resolution Plan within the agreed timetable (and
provided that 


 


35

















 


such
failures are not attributable to any act or omission of VEL) and the breach
remains a material breach, on a long term basis, in the reasonable view of
VEL  or the dispute resolution process
under clause 14.6 has been unsuccessful, then VEL shall be entitled to
terminate this Deed on one hundred and eighty (180) days written notice
(provided that any such material breach shall cease immediately). If the Virgin
Media Group in good faith disputes the fairness or validity of such notice,
then this shall be referred to dispute resolution in clause 14.6 to the extent
that failure to agree a Contract Resolution Plan in respect of the same had not
already been referred to dispute resolution.


 


9.4                                 VEL shall have the right, by giving one hundred and
eighty (180) days notice in writing to the Licensee and/or any relevant party
or parties, to terminate this Deed if:


 


(a)                                              the Licensee or any relevant party suffers an
Insolvency Event;


 


(b)                                             the Licensee or any relevant party challenges the
validity of or the entitlement of VEL to use or license the use of any of the
Marks (other than where such use or licence is in breach of the rights and
licences granted to the Licensee under this Deed), except that action by the
Licensee under clauses 6 and 8 shall not be treated as any such challenge; and


 


(c)                                              the Licensee or any relevant party ceases or threatens
to cease to use the Marks and/or carry on the whole or any material part of the
Licensed Activities.


 


9.5                                 The Licensee shall notify VEL if:


 


(a)                                              there is a disposal of all, or substantially all, of
the assets owned by members of the Virgin Media Group and which are used in
connection with the provision of the Business Communications Services (the “Assets”); or


 


(b)                                             there is a change of Control of the Licensee, or any
Holding Company of the Licensee (except for Virgin Media Inc.) other than as
part of a group re-organisation or where the shareholders of the Licensee or
Holding Company of the Licensee following a re-organisation remain
substantially the same,


 


where, within thirty (30) days of such
notification, either party shall have the right by giving one hundred and eighty
(180) days notice in writing to the other to terminate this Deed.


 


9.6                                 VEL shall notify the Licensee if there is a change of
Control of VEL, or any Holding Company of VEL other than as part of a group
re-organisation or where the shareholders of VEL or Holding Company of VEL
following a re-organisation remain substantially the same.  If any member of the board of directors of
the ultimate Holding Company of the company acquiring such Control of VEL, or
the acquirer itself, is not a Fit and Proper Person then, within thirty (30)
days of such notification, the Licensee shall notify VEL of such fact and its
intention to exercise its right to terminate this Deed under this clause 9.6
unless VEL procures the removal of such director.  VEL shall have a further thirty (30) days to
procure the removal of such director.  In
the event that VEL fails to procure such removal, then the Licensee shall have
the right by giving one hundred and eighty (180) days notice in writing to VEL
to terminate this Deed.


 


36

















 


9.7                                 The Licensee shall have the right to terminate this
Deed at any time:


 


(a)                                              by giving twelve (12) months’ notice in writing to
VEL; or


 


(b)                                             by giving one hundred and eighty (180) days’ notice in
writing to VEL if VEL suffers an Insolvency Event or ceases to trade or carry
on business.


 


9.8                                 In the event that:


 


(a)                                              in each case in respect of the Licensed Activities,
the value and reputation of the Marks materially diminishes such that they no
longer denote high quality status, have become generic, have lost their
distinctiveness or no longer represent the Virgin brand values and/or continued
use by the Licensee and/or any member of the Virgin Media Group has been or is
likely to be damaging to the goodwill or reputation of such member of the
Virgin Media Group on a long term basis (other than as a result of any breach
of this Deed by the Licensee or any member of the Virgin Media Group or any
third party authorised to use the Marks by or on behalf of the Licensee). (For
the avoidance of doubt the parties agree that the diminution in value, loss of
high quality status, distinctiveness or change of brand value may be caused by
or attributable to the act or omission of any Virgin Company or any
representative thereof or spokesperson therefor); or


 


(b)                                             VEL directs the Licensee to stop using or materially
modify the use of the Marks in relation to a material part of the Licensed
Activities under clause 6.8 and such direction has significant impact on the
Licensee’s business or part thereof or if the Licensee is otherwise prevented
by law or by order of a court of competent jurisdiction from exercising a
material part of the rights granted to it under this Deed for the remainder of
the Term; or


 


(c)                                              VEL commits a persistent and material or flagrant and
material breach of any term or condition of this Deed,


 


then:


 


(i)                                                                         the Licensee shall serve written notice in accordance
with clause 12.1 specifying the same and the parties shall call a meeting of
their senior representatives to discuss the issues raised;


 


(ii)                                                                      the parties shall agree a plan to resolve the issues
raised during a period of sixty (60) days (“VEL
Resolution Plan”) following the written notice referred to in clause
9.8(c)(i) above;


 


(iii)                                                                   if the parties fail to agree such a VEL Resolution
Plan, then each party’s chief executive officer, chief operating officer or
equivalent officer shall meet in a good faith effort to resolve the outstanding
issues and agree a VEL Resolution Plan within the original sixty (60) day period.  In the event of any failure to resolve such
issues and/or agree a VEL Resolution Plan within the original sixty (60) day
period such issues shall be referred to the dispute resolution procedure in
clause 14.6;


 


(iv)                                                                  if the VEL Resolution Plan is agreed under clause
9.8(c)(ii) or 


 


37

















 


9.8(c)(iii),
thereafter each party shall implement any duties, actions or responsibilities
allocated to it in such VEL Resolution Plan in order to resolve the dispute in
good faith, such VEL Resolution Plan to be implemented within a further period
of one hundred and twenty (120) days from agreement of the VEL Resolution Plan
or such other period as may be agreed in the Resolution Plan;


 


(v)                                                                     if VEL complies with its obligations under the VEL
Resolution Plan, then no further action will be taken by the Licensee, in the
event that the VEL Resolution Plan substantially fails to remedy the issue then
the procedure in this clause 9.8 shall be repeated; and


 


(vi)                                                                  if VEL fails to comply with its obligations under the
VEL Resolution Plan within the agreed timetable (and provided that such
failures are not attributable to any act or omission of the Licensee), and the
breach, or alleged breach, remains unrectified in the reasonable view of Virgin
Media Group, or the dispute resolution process under clause 14.6 has been
unsuccessful, then the Licensee shall be entitled to terminate this Deed on one
hundred and eighty (180) days written notice. If VEL in good faith disputes the
fairness or validity of such notice, then this shall be referred to dispute
resolution in clause 14.6 to the extent that failure to agree a VEL Resolution
Plan in respect of the same had not already been referred to dispute
resolution.


 


9.9                                 If this Deed is:


 


(a)                                              terminated by the Licensee pursuant to clauses 9.5,
9.7(a) or 9.16; or


 


(b)                                             terminated by VEL pursuant to clauses 9.5 or 9.16,


 


and any such termination takes effect at any
time during the Minimum Term, the Licensee shall pay VEL an amount calculated
as follows:


 


B x { t=1∑t=A  [1  /  ( 1
+ i ) t ] }


 


where


 


A = the number of Quarters between
the date of termination of this Deed and the expiry of the Minimum Term rounded
to the nearest whole number;


 


B = the average of the royalty
payments made by the Licensee in respect of the four full Quarters which
immediately preceded the date of termination;


 


i = quarterly effective interest
rate calculated as follows:


 


i = { [ [ (r – g) / (1 + g) ] +1 ] ^
0.25 } -1;


 


g = 2%;


 


38





















 


r = the weighted average cost of
capital (“WACC”) for the Virgin Media Group to be agreed at the relevant time
of change of control and, in the absence of agreement between the parties, to
be determined by a jointly appointed independent investment bank of
international repute.


 


A worked example of this formula is
set out, for illustrative purposes only, in the Virgin Media Consumer Licence.


 


9.10                           Subject to clause 9.11, upon expiration of the Term or
earlier termination of this Deed for any reason, the Licensee, and any relevant
party or parties, shall have a period of no more than one hundred and eighty
(180) days thereafter; to:


 


(a)                                              cease all use of the Marks provided that the Licensee,
and any relevant party or parties, shall immediately cease to use the Marks to
acquire any new customers other than as part of an orderly winding down of the
use of the Marks in accordance with this clause 9.10;


 


(b)                                             remove from any establishment or place (including the
internet and any websites) all representations of the Marks including all signs
or display material bearing the Marks where it is reasonably practicable or
financially proportionate to remove such representations;


 


(c)                                              deliver (at its expense) to VEL (or to any person,
firm or company nominated by VEL) such products and other materials in its
possession or under its control which reproduce or display the Marks or, at the
election of VEL, destroy such products and other materials and provide VEL with
satisfactory evidence of their destruction, provided that the Licensee shall be
entitled to sell and/or distribute to existing Business Customers only any
existing products and/or materials produced in relation to the Licensed
Activities during the one hundred and eighty (180) period following termination
or expiry; notwithstanding the foregoing, the Licensee shall have the absolute
right to re-brand or otherwise remove, delete or cover up the Marks on any
products or materials and to sell, distribute and market such products or
materials so long as the Marks are not displayed on such products or materials
and it is obvious that the Marks were previously displayed on such products or
materials; and


 


(d)                                             change its name to a name that does not incorporate
the Marks or any part thereof or anything colourably similar thereto or
starting with “V” (including a name consisting of “V” by itself) and cease to
use the name “Virgin” as a business or trading name or part thereof,


 


provided that in relation to any early
termination under clauses 9.2(f) or 9.3(f), any damaging use of the Marks
or any material breach of this Deed giving rise to such termination shall cease
immediately upon termination.


 


9.11                           If this Deed is:


 


(a)                                              terminated by the Licensee pursuant to clauses 9.5,
9.7(a) or 9.16; or


 


(b)                                             terminated by VEL pursuant to clauses 9.5 or 9.16,


 


the rights granted in clause 9.10 shall be
subject to the continued payment of royalties


 


39














 


by the Licensee in accordance with clause 4 for
as long as any such rights are used.  In
all other circumstances, the rights granted in clause 9.10 shall be royalty
free.


 


9.12         Upon a member of the Virgin Media Group ceasing to be a member of the
Virgin Media Group in circumstances where this Deed otherwise continues, the
departed member shall have a period of ninety (90) days thereafter (on a
royalty free basis) to:


 


(a)                                              cease all use of the Marks provided that the departed
member shall immediately cease to use the Marks to acquire any new customers
other than as part of an orderly winding down of the use of the Marks in
accordance with this clause 9.12;


 


(b)                                             remove from any establishment or place (including the
internet and any websites) owned by such departed member all representations of
the Marks including all signs or display material bearing the Marks where it is
reasonably practicable or financially proportionate to remove such
representations;


 


(c)                                              deliver (at such departed member’s expense) to VEL (or
to any person, firm or company nominated by VEL) such products and other
materials in such departing member’s possession or under its control which
reproduce or display the Marks or, at the election of VEL, destroy such
products and other materials and provide VEL with satisfactory evidence of
their destruction, provided that the departed member shall be entitled to sell
and/or distribute to existing Business Customers only any existing products
and/or materials produced in relation to the Licensed Activities during the
ninety (90) day period following departure from the Virgin Media Group;
notwithstanding the foregoing, the departed member shall have the absolute
right to re-brand or otherwise remove, delete or cover up the Marks on any
products or materials and to sell, distribute and market such products or
materials so long as the Marks are not displayed on such products or materials
and it is obvious that the Marks were previously displayed on such products or
materials;


 


(d)                                             change its name to a name that does not incorporate
the Marks or any part thereof or anything colourably similar thereto or
starting with “V” (including a name consisting of “V” by itself) and cease to
use the name “Virgin” as a business or trading name or part thereof.


 


9.13         For the avoidance of doubt, notwithstanding the time limits set out in
clauses 9.2, 9.3 and 9.8, the parties shall be under an obligation to remedy
any breach as soon as reasonably practicable.


 


9.14         Termination of this Deed for any reason shall otherwise be without
prejudice to the rights of either party which may have accrued up to the date
of such termination or during the phase out period under clauses 9.10 and 9.11.  In addition,
in relation to a termination pursuant to clause 9.7(b), the Licensee shall have
the option to take an assignment of the Names, such assignment to be subject
to: (a) the rights of any existing licensees of such Names; and (b) payment
by the Licensee of a sum representing the Fair Market Value of the Names.  Termination or expiry of this Deed does not
affect the survival of Clauses 1 (Definitions), 3.11 and 3.12 (No Grant to
Third Parties), 8 (Indemnity, Warranties and Limitations of Liability), 9.9 to
9.12 (Termination and Effects of Termination), 9.14 (Termination and Effects of



 


40

















 


Termination), 9.15 (Termination and Effects of
Termination), 11 (Confidentiality), 12 (Notices), 14 (General) and any other
provision of this Deed which is expressly or by implication intended to continue
to have effect after this Deed has come to an end.


 


9.15         For the purposes of giving effect to the assignment in accordance with
clause 9.14, VEL shall promptly execute an assignment of the Names in favour of
the Licensee in a form reasonably satisfactory to the Licensee and VEL
irrevocably and severally appoints the Licensee and any person nominated for
the purpose by the Licensee (in writing and signed by an officer of the
Licensee) as its attorney (with full power of substitution and delegation) in its
name and on its behalf and as its act and deed to execute such assignment and
any other deed, assurance, agreement, instrument, act or thing which may be
required to give effect to the assignment of the Names in favour of the
Licensee, and VEL covenants with the Licensee to ratify and confirm all such
acts or things made, done or executed by that attorney.


 


9.16         For as long as the parties to the Virgin Media Consumer Licence are the
same as the parties to this Deed (or, in the case of the Licensee, they are a
member of the Virgin Media Group), at any time after the service of written
notice by either party to the Virgin Media Consumer Licence validly terminating
the Virgin Media Consumer Licence for any reason (but prior to the date of
expiry of such notice validly terminating the Virgin Media Consumer Licence),
either party to this Deed shall have the right to terminate this Deed on
written notice to the other, such termination taking effect from when the
Virgin Media Consumer Licence terminates. 
Prior to either party exercising this right, however, the parties shall
discuss (each acting reasonably and in good faith) whether or not this Deed can
or should continue after the Virgin Media Consumer Licence has terminated.


 


9.17         Except as otherwise provided herein, neither party may terminate this
Deed without the written consent of the other.


 


10.          INFRINGEMENTS


 


10.1         Each party shall promptly notify the other of any unauthorised use or
infringement or suspected or threatened infringement of the Marks or of any
passing off or of any other act or thing which might materially vitiate or
prejudice the rights of VEL or the members of the Virgin Media Group in and to
or under the Marks respectively that comes to its notice at any time giving
reasonable particulars thereof.


 


10.2         Subject only to clause 10.5 below, VEL shall have the exclusive right in
its absolute discretion and at its expense to take whatever action it believes
necessary and proper in connection with any unauthorised use, infringement,
suspected or threatened infringement, passing off, or other unlawful
interference with the rights of VEL in the Marks save that in taking such
action it shall also act in the interests of the Licensee and other members of
the Virgin Media Group to the extent that to do so does not significantly
prejudice VEL and/or VEL’s rights in the Marks.


 


10.3         The Licensee agrees to provide to VEL all reasonable assistance which
VEL may require in connection with any action it may decide to take in relation
to any unauthorised use, infringement, suspected or threatened infringement,
passing off or other unlawful interference with the rights of VEL (including,
without limitation, bringing or joining in proceedings or lending its name to
any proceedings brought by VEL and providing VEL with details of sales figures,
Business Customer numbers, 


 


41

















 


marketing spend, launch dates and dates of
first use of the Marks by members of the Virgin Media Group). The Licensee and
any other member of the Virgin Media Group shall be fully indemnified by VEL in
respect of all costs and expenses incurred by the Licensee or any other member
of the Virgin Media Group in providing such assistance save that VEL shall not
be liable under such indemnity:


 


(a)                                              for costs or expenses which would have been incurred
during the ordinary course of business notwithstanding such action; or


 


(b)                                             if the aggregate costs or expenses which arise out of
such action (or series of actions arising out of similar facts or circumstances)
does not exceed one thousand pounds (£1,000).


 


10.4         The provisions of Section 30(2) of the Trade Marks Act 1994
(as amended, re-enacted or replaced from time to time) or similar or equivalent
legislation in any country of the world, if any, are expressly excluded by the
parties for the purposes of this Deed.


 


10.5         If, having been requested in writing by the Licensee to do so, VEL fails
to take action in respect of any event described in clause 10.2 for a period
exceeding twenty five (25) days, the Licensee shall be entitled to do so, at
its own expense, in its own name and, if appropriate, that of VEL and VEL
agrees to provide the Licensee all reasonable assistance which the Licensee may
require in connection with the action it takes provided always that:


 


(a)                                              the Licensee notifies VEL in writing of its intention
to do so;


 


(b)                                             the Licensee shall only be permitted to take such
action if failure to do so would have a material adverse effect on the Licensed
Activities carried out under the Marks;


 


(c)                                              the Licensee shall not be permitted to take such
action if it would have a material adverse effect on the Marks or VEL. For the
avoidance of doubt, nothing in this Deed shall other than as set out in this
clause 10 prevent or restrict the Licensee from enforcing any right arising
under this Deed, provided it does so in a manner consistent with this clause
10, or any agreement it may have with any third party;


 


(d)                                             the Licensee will indemnify VEL from and against all
costs and expenses (including, without limit, disbursements, reasonable legal
costs, fees and expenses and value added tax), actions, proceedings, claims,
demands and damages arising directly from such action; and


 


(e)                                              the Licensee keeps VEL up-to-date with details of the
status of such proceedings,


 


where such action is taken against another
licensee of the Marks, VEL reserves the right to intervene between the parties
and require the dispute and any proceedings to be suspended for a period of
thirty (30) days whilst negotiations to resolve the issues take place.  The Licensee agrees to act in good faith in
respect of any such negotiations.  In the
event that any such resolution requires amendments to be made to the respective
Deeds of the Licensee and any other licensee of the Marks, VEL will use its
reasonable endeavours to effect the necessary changes as soon as practicable.


 


10.6         The proportion of the costs and damages recovered in respect of any
action pursuant 


 


42

















 


to clauses 10.2 or 10.5 shall first, reimburse
the party who brought the action in respect of all costs and expenses incurred
as a result of bringing the action and the remainder shall be divided between
the parties in such proportions as is fair and reasonable, reflecting the
effect on their respective businesses and the loss suffered.


 


11.          CONFIDENTIALITY


 


11.1         Each of the parties shall keep secret and confidential any information
which it may obtain relating to the business of the other. Such information
shall be treated as proprietary and confidential to the party imparting the
same. Each party hereby agrees that it shall use such information received or
procured by it from the other solely for the purposes of this Deed and that it
shall not at any time during or after completion, expiry or termination of this
Deed disclose the same whether directly or indirectly to any third party
except:


 


(a)                                              with the prior written consent of the other party;


 


(b)                                             to the extent necessary to comply with any law or the
valid order of a court or tribunal of competent jurisdiction or the rule,
regulation or direction of any governmental or other regulatory authority or
agency ( including the rules of any listing authority or exchange) in
which event the relevant party shall so notify the other as promptly as
reasonably practicable (and if possible prior to making any disclosure) and
shall use its reasonable endeavours to seek confidential treatment of such
information;


 


(c)                                              to its auditors, legal advisers and other professional
advisers provided that it uses its reasonable endeavours to procure that such
persons maintain such confidentiality;


 


(d)                                             in order to enforce its rights under this Deed; and


 


(e)                                              to any person with a bona fide and legitimate interest
in such information who enters into a confidentiality agreement including a
prospective purchaser of Virgin Media Inc. or any part of its business and
provided that such person agrees to use the information only for the purpose of
such bona fide and legitimate interest.


 


11.2         The provisions of clause 11.1 shall not apply to:


 


(a)                                              any information in the public domain otherwise than by
breach of this Deed;


 


(b)                                             information obtained from a third party who is free to
divulge the same;


 


(c)                                              information that was already known to the receiving
party prior to disclosure under this Deed and was not previously acquired by
the receiving party from the disclosing party under an obligation of
confidentiality or non-use towards the disclosing party; or


 


(d)                                             information that can be shown by documentary evidence
to have been created by one party to this Deed independently from work under
this Deed.


 


11.3         Neither party nor any representative thereof or spokesperson therefor
shall make any public statement, announcement or press release regarding the
other party without the other party’s prior written consent (not to be
unreasonably withheld, conditioned or 


 


43

















 


delayed), nor make any negative or derogatory
public comments or statements (expressly or by implication) regarding the other
party or any aspect of the relationship between the parties.


 


11.4         VEL and the Licensee shall divulge information the subject of this
clause only to those employees who are directly involved in the performance of
this Deed and shall ensure that such employees are aware of and comply with
these obligations as to confidentiality.


 


11.5         Each party acknowledges and agrees that damages would not be an adequate
remedy for any breach of this clause and that either party shall be entitled to
seek the remedies of injunction, specific performance and other equitable
relief for any threatened or actual breach of this clause.


 


11.6         The obligations contained in this clause shall survive the termination
or expiration of this Deed.


 


12.          NOTICES


 


12.1         Any notice or other communication required or authorised to be given
under this Deed shall be in writing and either be delivered by hand or sent by
first class post or facsimile transmission (provided that in the case of
facsimile transmission, the notice is confirmed by being delivered by hand or
sent by first class post within forty eight hours of transmission) as follows:


 


Address for notices to VEL:


Virgin Enterprises Limited


The School House


50 Brook Green


London W6 7RR


 


Attention:


Intellectual Property Department


Fax: 020 3126 3610


 


Address for notice to the Licensee:


Virgin Media Limited


Virgin Media House


Bartley Wood Business Park


Hook


Hampshire


RG27 9UP


 


Attention:


Virgin Media Legal Department


Fax: 01256 752170


 


12.2         The parties may change the address, facsimile number or the name of the
person for whose attention notices are to be addressed by serving a notice on
the other party in accordance with the provisions of this clause.


 


12.3         All notices given in accordance with clause 12.1 above shall be deemed
to have been served as follows:


 


44

















 


(a)                                              if delivered by hand, at the time of delivery;


 


(b)                                             if posted, at the expiration of 3 Business Days after
the envelope containing the same was delivered into the custody of the postal
authorities; or


 


(c)                                              if communicated by facsimile, at the time of
transmission,


 


provided that where, in the case of delivery by
hand or transmission by facsimile, such delivery or transmission occurs after 6 p.m.
on a Business Day or on a day which is not a Business Day, service shall be
deemed to occur at 9 a.m. on the next following Business Day. References
to time in this clause are to local time in the country of the addressee.


 


12.4         In proving such service it shall be sufficient to prove that the
envelope containing such notice was properly addressed and delivered either to
the address shown or into the custody of the postal authorities as a pre-paid
first class letter, or that the facsimile transmission was made after obtaining
in person or by telephone appropriate evidence of the capacity of the addressee
to receive the same, as the case may be.


 


13.          FORCE MAJEURE


 


13.1         No party shall be deemed in breach or default of this Deed or otherwise
liable to the other party for any failure or delay in performing any of its
obligations under this Deed where and to the extent that the delay or
non-performance is due to a Force Majeure Event, provided that:


 


(a)                                              if a party is prevented or delayed in the performance
of any of its obligations under this Deed by Force Majeure Event that party
shall, immediately upon becoming aware of that fact, give written notice to the
other party of the nature, extent and expected duration of the circumstances
giving rise to the Force Majeure Event;


 


(b)                                             the party claiming to be prevented or delayed in the
performance of any obligations under this Deed by reason of the Force Majeure
Event shall take all steps as are reasonably practicable to bring the Force
Majeure Event to a close or to find a solution by which this Deed may be
performed despite the continuance of the Force Majeure Event and shall keep the
other party regularly informed of the status and progress of its efforts to
bring the Force Majeure Event to a close or to find an alternative solution by
which its obligations under this Deed may be performed;


 


(c)                                              immediately after the end of the Force Majeure Event
the affected party shall give written notice to the other that the Force
Majeure Event has ended and shall resume performance of its obligations under
this Deed; and


 


(d)                                             if the Force Majeure Event continues for a period of
more than six (6) months the party not subject to the Force Majeure Event
may terminate this Deed by giving not less than ninety (90) days written notice
of such termination to the other party. No party shall have any liability to
the other in respect of the termination of this Deed due to the Force Majeure
Event, but any rights or liabilities, which accrued prior to termination, shall
subsist.


 


45

















 


14.          GENERAL


 


No Breach and Waiver


 


14.1         No delay, failure or indulgence by either party to perform any provision
of this Deed shall operate or be construed as a waiver of that party’s powers
or rights under this Deed or prejudice that party’s rights to subsequent
action. Any waiver by either party of its rights under this Deed shall not
operate as a waiver in respect of any subsequent breach. No single or partial
exercise of any power or right by either party shall preclude any other or
further exercise thereof or the exercise of any such other power or right under
this Deed.


 


Modifications


 


14.2         Except for any amendments or modifications to this Deed made by the
Licensee in accordance with clause 3.17 (which shall be effective and binding
immediately upon written notice to VEL), no amendment or modification to this
Deed will be effective or binding unless it is in writing, signed by all the
parties and specifically states that it is an amendment to this Deed.


 


Invalidity


 


14.3         If at any time any one or more of the provisions (or part of one or more
of the provisions) of this Deed becomes invalid, illegal or unenforceable in
any respect, under any law, the validity, legality and enforceability of the
remaining provisions (or part or parts) shall not in any way be affected or
impaired.


 


Entire Agreement


 


14.4                           Except for the Virgin Media Consumer Licence, this
Deed sets out the entire agreement and understanding between VEL and the
Licensee and relevant members of the Virgin Media Group in respect of the use
of the Marks by the Licensee and relevant members of the Virgin Media Group in
respect of the Licensed Activities and supersedes all previous representations,
understandings, licences or agreements, whether oral or written, in relation to
such use. It is agreed that:


 


(a)                                              no party has entered into this Deed in reliance upon
any representation, warranty or undertaking of any other party which is not
expressly set out or referred to in this Deed;


 


(b)                                             subject only to clause 14.4(c) below, no party
shall have a claim or remedy in respect of misrepresentation (whether negligent
or otherwise) or untrue statement made by any other party; and


 


(c)                                              this clause shall not exclude any liability for
fraudulent misrepresentation.


 


Independent Contractors


 


14.5         Nothing in this Deed shall create, or be deemed to create, a
partnership, a joint venture, an agency, a fiduciary duty or employment between
the parties. The only relationship created by this Deed is that of independent
contractors, and, except as expressly provided herein, neither party by virtue
of this Deed has authority to transact any business in the name of the other
party or on its behalf or incur any liability for or on behalf of the other
party.


 


46

















 


Disputes


 


14.6         In the event of any dispute or difference which may arise between the
parties in connection with or arising out of this Deed, directors or other
senior representatives of the parties with authority to settle the dispute
will, within ten (10) Business Days of a written notice from one party to
the other, meet in a good faith effort to resolve the dispute.  If the dispute is not resolved at that
meeting, the parties will attempt to settle it by mediation in accordance with
the CEDR Model Mediation Procedure.  For
the avoidance of doubt, in the case of any dispute arising under clauses 9.2,
9.3 or 9.8 the escalation process under those clauses shall apply before
referring the matter to a mediation under the CEDR Rules.   Unless otherwise agreed by the parties the
mediator will be nominated by CEDR.  To
initiate the mediation a party must give notice in writing to the other parties
to the dispute requesting mediation.  The
mediation will begin within thirty (30) days following receipt of such notice
and shall last no more than one (1) day unless otherwise determined by the
mediator. No party may commence any Court proceedings in respect of any dispute
arising out of this Deed until it has attempted to settle the dispute by
mediation and either the mediation has terminated or the other party has failed
to participate in the mediation, provided that the right to issue proceedings
is not prejudiced by delay.  Neither
party may initiate legal action until the above process has been completed
provided that nothing in this clause shall be construed as prohibiting a party
from applying to a court for interim injunctive relief at any time where either
party has reasonable cause to do so to avoid damage to its business or to
preserve any right of action it may have.


 


Governing Law and
Jurisdiction


 


14.7         This Deed and any dispute or claim arising out of or in
connection with it or its subject matter or formation (including
non-contractual disputes or claims) shall be governed by and construed in accordance with English law.  Subject to clause 14.6, the parties
irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to
settle any dispute or claim that arises out of or in connection with this Deed
or its subject matter or formation (including non-contractual disputes or
claims).


 


Counterparts


 


14.8         This Deed may be executed in counterparts, each of which shall be
considered an original, with the same effect as if the parties or their
representatives signed the same instrument.


 


Further Assurances


 


14.9         VEL and the Licensee shall, at their own expense, execute and deliver
all such documents and take or procure the execution of all such documents (in
a form reasonably satisfactory to both parties) as may from time to time be
required to give full effect to this Deed.


 


Third Party Rights


 


14.10       Other than members of the Virgin Media Group (or departed members of the
Virgin Media Group), a person who is not party to this Deed shall have no
rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of this Deed. This clause does not affect any right or remedy of any
person which exists or is available 


 


47

















 


otherwise than pursuant to
that Act.


 


Costs


 


14.11       Each party shall bear its own costs in connection with the negotiation,
preparation and implementation of this Deed.


 


Successors


 


14.12       The provisions of this Deed shall be binding upon and shall inure for
the benefit of VEL, the Licensee, members of the Virgin Media Group and their
respective successors in title and assignees permitted in accordance with the
terms of this Deed.


 


48

















 


IN WITNESS of which this Deed has been executed as a
Deed and has been delivered on the date stated at the beginning of this Deed.


 




	
  EXECUTED as a deed by

  VIRGIN ENTERPRISES

  LIMITED

  acting by J. Bayliss,
  in the

  	
  )

  )

  )

  )

  	
   

  	
  /s/ Josh Bayliss

  
	
  presence of:

  	
   

  	
   

  	
  Director

  






 


 




	
  Signature of witness:

  	
  /s/ Mark James

  
	
  Name of witness:

  	
  Mark James

  
	
  Witness’ occupation:

  	
  LP Manager

  
	
  Witness’ address:

  	
  [Intentionally Omitted]

  






 


 




	
  EXECUTED as a deed by

  VIRGIN MEDIA LIMITED

  acting by R.
  Mackenzie, in the

  presence of:

  	
  )

  )

  )

  )

  	
   

  	
  /s/ Robert MacKenzie

  
	
   

  	
   

  	
   

  	
  Director

  






 


 




	
  Signature of witness:

  	
  /s/ Lucy Merritt

  
	
  Name of witness:

  	
  Lucy Merritt

  
	
  Witness’ occupation:

  	
  Personal Assistant

  
	
  Witness’ address:

  	
  Virgin Media, Bartley Wood
  Bus PK, Hook, RG27 9UP

  






 


49














 


SCHEDULE 1


 


Part A - Virgin Marks


 


	
  Trade Mark

  	
   

  	
  Application/ Registration 

  Number

  	
   

  	
  Country

  	
   

  	
  Class

  	
   

  	
  Status

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VIRGIN

  	
   

  	
  1371870

  	
   

  	
  UK

  	
   

  	
  38

  	
   

  	
  Registered

  
	
  Virgin Signature

  	
   

  	
  1371869

  	
   

  	
  UK

  	
   

  	
  38

  	
   

  	
  Registered

  
	
  VIRGIN

  	
   

  	
  1369779

  	
   

  	
  UK

  	
   

  	
  9

  	
   

  	
  Registered

  
	
  Virgin Signature

  	
   

  	
  1369812

  	
   

  	
  UK

  	
   

  	
  9

  	
   

  	
  Registered

  
	
  VIRGIN

  	
   

  	
  1559467

  	
   

  	
  UK

  	
   

  	
  9

  	
   

  	
  Registered

  
	
  Virgin Signature

  	
   

  	
  1559468

  	
   

  	
  UK

  	
   

  	
  9

  	
   

  	
  Registered

  
	
  VIRGIN

  	
   

  	
  1120875

  	
   

  	
  UK

  	
   

  	
  9

  	
   

  	
  Registered

  
	
  Virgin Signature

  	
   

  	
  1120874

  	
   

  	
  UK

  	
   

  	
  9

  	
   

  	
  Registered

  
	
  VIRGIN

  	
   

  	
  1120876

  	
   

  	
  UK

  	
   

  	
  16

  	
   

  	
  Registered

  
	
  VIRGIN

  	
   

  	
  1230088

  	
   

  	
  UK

  	
   

  	
  16

  	
   

  	
  Registered

  
	
  Virgin Signature

  	
   

  	
  1259731

  	
   

  	
  UK

  	
   

  	
  16

  	
   

  	
  Registered

  
	
  Virgin Signature

  	
   

  	
  229679

  	
   

  	
  Ireland

  	
   

  	
  9,38

  	
   

  	
  Registered

  
	
  VIRGIN

  	
   

  	
  229682

  	
   

  	
  Ireland

  	
   

  	
  9,38

  	
   

  	
  Registered

  
	
  VIRGIN

  	
   

  	
  611459

  	
   

  	
  European Community

  	
   

  	
  38

  	
   

  	
  Registered

  
	
  Virgin Signature

  	
   

  	
  611467

  	
   

  	
  European Community

  	
   

  	
  38

  	
   

  	
  Registered

  
	
  VIRGIN

  	
   

  	
  217182

  	
   

  	
  European Community

  	
   

  	
  9

  	
   

  	
  Registered

  
	
  V

  	
   

  	
  2140053

  	
   

  	
  UK

  	
   

  	
  3,5,9,12,14, 16, 18, 25,
  28, 32, 33, 35, 36, 38, 39, 41, 42

  	
   

  	
  Registered

  
	
  VIRGIN MEDIA

  	
   

  	
  2429892

  	
   

  	
  UK

  	
   

  	
  9, 35, 38, 41

  	
   

  	
  Registered

  
	
  Virgin Media Logo

  	
   

  	
  2439120

  	
   

  	
  UK

  	
   

  	
  9, 35, 38, 41, 42

  	
   

  	
  Registered

  



 


50

















 


Part B - Virgin Signature


 





 


51

















 


SCHEDULE 2


 


Part A — Domain Names


 


The
..co.uk, .com, .net and .biz variants of the following domain names:


 


www.virginmediabusiness


www.virginmediabusinesscommunications


www.virginmediabusinesstelecoms


www.virginmediatelecoms


www.virginmediacommunications


www.virginmediawholesale


www.virginmedianetworkservices


 


Part B - Names


 


Virgin
Media Business


Virgin
Media Business Communications


Virgin
Media Business Telecoms


Virgin
Media Telecoms


Virgin
Media Communications


Virgin
Media Wholesale


Virgin
Media Network Services


 


52

















 


SCHEDULE 3 - Service Levels


 


For the purposes of
this Schedule 3:


 


“Category A Business
Customers” means Emergency
Services Customers or Business Customers who spend more than £400,000 per year
(or such other figure as the Licensee shall determine from time to time) on
Business Communications Services with the Licensee or members of the Virgin
Media Group;


 


“Closed” means, in respect of any complaint received, remedial
action(s) and a specific timeline for completion are set and agreed with
the relevant Business Customer;


 


“Development Customers” means those Business Customers with 100 or more
employees who spend less than £35,000 (or in the case of Business Customers in
London less than £25,000) per year (or such other figure as the Licensee shall
determine from time to time) on Business Communications Services with the
Licensee or members of the Virgin Media Group;


 


“Emergency Services
Customers” means those Business
Customers who are a police force, fire brigade service, emergency ambulance
service or a hospital;


 


“Major
Service Outages” means faults affecting one or more Category A
Business Customer including, for example: (a) faults causing a significant
loss of or severe degradation to customer service where there is no immediate
workaround, redundancy or fallback system; (b) faults causing a significant
loss of or severe degradation to service affecting one or more Category A
Business Customers’ major bespoke networks or more than two customer sites
belonging to Category A Business Customers; (c) a power alarm at any
critical or high category site (as per the site listing maintained by the
Virgin Media Group from time to time) even if not yet service affecting; (d) any
fault that has an immediate major financial impact of more than £50,000; (e) any
fault that has a major impact on business due to customer satisfaction,
reputation, revenue and / or health & safety being at risk, which
might result in legal action being commenced against the Licensee or any member
of the Virgin Media Group; or (f) any fault requiring additional incident
management and supporting resource to complement the business as usual
resource;


 


“Service Desk” means the customer management centre which deals with
those Business Customers who spend £35,000 (or in the case of Business
Customers in London £25,000) per year (or such other figure as the Licensee
shall determine from time to time) or more on Business Communications Services
with the Licensee or members of the Virgin Media Group; and


 


“SMB” means those Business Customers who spend less than
£35,000 (or in the case of Business Customers in London less than £25,000) per
year (or such other figure as the Licensee shall determine from time to time)
on Business Communications Services with the Licensee or members of the Virgin
Media Group.


 


53

















 


1.                                     BASE SERVICE LEVELS


 


1.1.                             Subject to section 5 below, with regard to services
and/or products provided under the Marks, the Licensee agrees, and shall
procure that relevant members of the Virgin Media Group agree, to use all
reasonable endeavours to comply with the following:


 


	
  Service

  	
   

  	
  Target

  	
   

  	
  Stretch Target

  	
   

  
	
  Complaints from SMB
  Closed within 1 day

  	
   

  	
  ≥
  75.0

  	
  %

  	
  N/A

  	
   

  
	
  Acknowledging all
  complaints from Business Customers within 2 days

  	
   

  	
  =
  100.0

  	
   

  	
  N/A

  	
   

  
	
  Complaints from SMB
  Closed within 21 days

  	
   

  	
  ≥
  95.0

  	
  %

  	
  ≥
  98.0

  	
  %

  
	
  Complaints to the
  Service Desk Closed within 21 days

  	
   

  	
  ≥
  95.0

  	
  %

  	
  ≥
  98.0

  	
  %

  



 


1.2.                             With regard to services and/or products provided under
the Marks, the Licensee agrees, and shall procure that relevant members of the
Virgin Media Group agree, to use all reasonable endeavours to have:


 


1.2.1.                    ≥ 75% of all calls to the SMB customer management
centre answered within 20 seconds (PCA20), assessed quarterly;


 


1.2.2.                    no more than 10% of calls to the SMB customer
management centre abandoned (PCA), assessed quarterly;


 


1.2.3.                    ≥ 90% of all calls to the Service Desk answered within
20 seconds (PCA20), assessed quarterly; and


 


1.2.4.                    no more than 5% of calls to the Service Desk abandoned
(PCA), assessed quarterly.


 


1.3.                             With regard to services and/or products provided under
the Marks, the Licensee agrees and shall procure that relevant members of the
Virgin Media Group agree, to use all reasonable endeavours to follow the TM
Guidelines and to uphold the Virgin brand values of:


 


1.3.1.       value for money;


 


1.3.2.       good quality;


 


1.3.3.       brilliant customer service;


 


1.3.4.       innovation;


 


1.3.5.       competitive challenge; and


 


1.3.6.       fun.


 


54

















 


2.                                     TECHNICAL SERVICE LEVELS:


 


2.1.                             With regard to a particular service or product and
with effect from the date on which the Business Communications Services are
provided by the Virgin Media Group under the Marks, the Licensee agrees, and
shall procure that relevant members of the Virgin Media Group agree, to use
reasonable endeavours to comply with the following:


 


Broadband


 


2.1.1.                     broadband service availability target of ≥ 99% (uptime) — defined as
availability of IP core network from regional headends (UBR’s), through
national IP network and delivered to www interconnect;


 


Fixed line telephone


 


2.1.2.                     fixed line dial tone availability of ≥ 99% - defined as availability
of dial tone measured from the street cabinet as it is distributed to the
customer’s premises;


 


2.1.3.                     fixed line telephony ‘lost calls’ of ≤ 0.5% (as
published by Ofcom) — defined as calls lost after being set-up through failure
of telephony switch hardware or software (note: the metric is reported as the
inverse and the Ofcom target is ≥
99.5%);


 


Faults fixed within SLAs


 


2.1.4.                     faults fixed within SLAs of ≥ 90.0%  -
defined as service being restored to Business Customers following a fault
within any target service restoration time set out in the relevant service
level agreements as measured in accordance with the terms of such service level
agreements, excluding indirect access voice services and business CATV
services;


 


Major Service Outages


 


2.1.5.                    average Major Service Outage rate for the previous 12
months of ≤ 2.5% - defined
as the ratio of Major Service Outages to Business Customers (excluding SMB) in
each of the previous 12 months and taking the average result over that period.


 


3.                                     CUSTOMER LOYALTY SERVICE LEVELS


 


3.1.                             Subject to section 5 below, with regard to services
and/or products provided under the Marks, the Licensee agrees, and shall
procure that relevant members of the Virgin Media Group agree, to use
reasonable endeavours to comply with the following:


 


	
  Service

  	
   

  	
  Target

  	
   

  	
  Stretch Target

  	
   

  
	
  A customer satisfaction
  level of “satisfied” (i.e. score 5-10/10)*

  	
   

  	
  ≥
  50

  	
  %

  	
  ≥
  80

  	
  %

  
	
  A customer
  satisfaction level of “delighted” (i.e. score 9-10/10)*

  	
   

  	
  ≥
  10

  	
  %

  	
  ≥
  20

  	
  %

  
	
  Percentage of
  people who “do recommend” to their peers and are “likely to recommend” to
  their peers (i.e. score 7-10/10)**

  	
   

  	
  ≥
  50

  	
  %

  	
  ≥  60

  	
  %

  
	
  Percentage of people
  who “do recommend” to their peers and would “definitely recommend” to their
  peers (i.e. score 9-10/10)**

  	
   

  	
  ≥
  10

  	
  %

  	
  ≥
  25

  	
  %

  



 


55

















 






*assessed quarterly by polling a combination of
at least 1,000 Business Customers (excluding SMB (save for Development
Customers)) “Overall, how satisfied are you with the performance of Virgin
Media?”


 


**assessed quarterly by polling a combination
of at least 1,000 Business Customers (excluding SMB (save for Development
Customers)) “If you were advising a colleague or business contact, how likely
would you be to recommend  Virgin Media to others?”


 


4.                                     MEASUREMENT AND REPORTING


 


4.1.                             The Licensee agrees to report the following in
connection with the Service Levels described above and provide VEL with a copy
of such report within 10 Business Days of the end of each measurement period:


 


4.1.1.                     produce a satisfaction report on at least a quarterly
basis (to include total number of customers polled);


 


4.1.2.                     produce a complaints report on at least a quarterly
basis for the purposes of the measurement in section 1.1 above;


 


4.1.3.                     produce a report setting out performance against the
percentage of calls answered and abandoned targets on a quarterly basis;


 


4.1.4.                     produce a report setting out performance against
Technical Service Levels on a quarterly basis additionally including the
approximate length of any periods of downtime affecting sections 2.1.1 and
2.1.2 above;


 


4.1.5.                     produce a report setting out performance against
faults fixed within SLAs target as set out in section 2.1.4 above; and


 


4.1.6.                     produce a report setting out performance against Major
Service Outage target as set out in section 2.1.5 above.


 


5.                                     TARGETS AND STRETCH TARGETS


 


5.1.                             The table set out in sections 1.1 and 3.1 above
contain “Targets” and “Stretch Targets” for certain Service Levels.  Subject to section 5.2 below, where both a
Target and Stretch Target are specified, the Target is the Service Level for
the first 24 months after the Commencement Date.  However, from the start of the 25th month after the
Commencement Date, the Target shall be automatically replaced with the Stretch
Target for the remainder of the Term. 
For example, from the start of the 25th month 


 


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after the Commencement Date, the target Service Level for obtaining a
customer satisfaction level of “delighted” (i.e. score 9-10/10) shall
automatically increase from ≥ 10%
to ≥ 20% (i.e. from the Target to the Stretch Target).


 


5.2.                             Within 30 days after the end of the first 12 months
after the Commencement Date, representatives of the parties shall jointly
review the Stretch Targets and, where both parties agree in writing, amend any
or all of them.  Where the parties do not
agree to amend a particular Stretch Target within 60 days after the start of
the joint review process, the Stretch Target shall remain unchanged.


 


6.                                     FAILURE TO MEET SERVICE LEVELS


 


6.1.                             The parties acknowledge that the Service Levels are
guidelines only and failure to achieve such Service Levels shall not constitute
a breach of this Deed or otherwise give rise to a right to terminate.  However, the parties acknowledge that where
the actual service levels are persistently and significantly lower than the
Service Levels, VEL may take into account the Licensee’s performance in respect
of the Service Levels as compared with good industry practice and standards
(where reliable and quality data relating to such good industry practice and
standards is available to the parties) together with other evidence of material
breach of this Deed and/or material damage to the Marks or VEL, in determining
whether to exercise its rights pursuant to clauses 9.2 and 9.3.


 


6.2.                             Where the actual service levels are persistently and
significantly lower than the Service Levels, the Licensee shall immediately put
in place a remedial action plan to the reasonable satisfaction of VEL.


 


6.3.                             The parties shall meet on a six monthly basis to
review performance against the Service Levels.


 


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SCHEDULE 4 - Existing Rights Of Licensees


 


All rights are exclusive save as
otherwise stated.


 


Virgin.com:


Main website for the Virgin Companies;


 


Virgin Books:


Publishing and distribution of books (branded)
and online retailing of books (branded and unbranded);


 


Virgin Active:


Operation of gyms and fitness centers;


 


Virgin Balloon Flights:


Operation of passenger balloon flights;


 


Virgin Experience Days:


Provider of experience gift vouchers and
certificates;


 


Virgin Nigeria:


Nigerian airline;


 


Virgin Money:


Provider of banking, insurance and investment
products and services;


 


Virgin Trains:


Train operator;


 


Virgin Unite:


The Virgin Group’s
independent charitable arm;


 


Virgin Wines:


Online retailer of wine;


 


Virgin Life Care:


Incentivised
wellness programmes;


 


Virgin Stem Cells / Health Bank:


Storage of cord
blood;


 


Virgin Incentives/ The Virgin Voucher:


Voucher redeemable against Virgin and
non-Virgin goods and services;


 


Virgin Atlantic:


International airline;


 


Virgin Atlantic Cargo:


Air cargo and freight services;


 


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Virgin Holidays and Virgin Vacations:


Holiday tour operators;


 


Virgin Galactic:


Sub orbital space flight experiences and space
tourism;


 


Virgin Limited Edition / Virgin Hotels (non-exclusive):


Operation,
management and marketing of hotels, clubs, restaurants, public houses and cafes
including premium properties such as Necker Island, Ulusaba, Kasbah Tamadot and
The Roof Gardens;


 


Virgin Games:


Online and remote
gaming and gambling- games of chance, skill and chance and skill combined;


 


Virgin Drinks:


Manufacture and distribution of soft drinks;


 


Virgin Limobike:


Passenger motorbike services;


 


V Festival:


Music festivals;


 


Virgin Records/Music:.


Record label and music publisher;


 


Virgin Green Fund:


Investment in renewable energy and resource
efficiency services;


 


Virgin Earth Challenge:


Competition for commercially viable removal of
greenhouse gasses from the atmosphere;


 


Virgin Digital Help:


Digital support services for consumers;


 


Formula 1:


Sponsorship arrangements;


 


Virgin Flight Store:


Travel industry flight brokerage.


 


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SCHEDULE 5 - Use Of “Virgin” Or “V” By Themselves


 


The Licensee is permitted to use the word
“Virgin” or the letter “V” from the “Virgin” signature by itself on any of the
following equipment, provided that in the case of use of the letter “V” this
shall be limited as applicable to use on a specific button or key on any of the
following:


 


Telephone handsets


 


Telephone displays/screens


 


Remote controls


 


SIM Cards


 


Keyboards


 


Data Cards


 


Head Sets


 


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SCHEDULE 6 - TM Guidelines


 


PART 1 - VIRGIN GROUP
POLICY ON BUSINESS TO BUSINESS SELLING TECHNIQUES


 


PART 2 - OFFSHORE
OUTSOURCING - OVERALL BRAND APPROACH


 


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PART 1


 


VIRGIN GROUP POLICY ON SELLING TECHNIQUES


 


BUSINESS-TO-BUSINESS
DIRECT SELLING


 


Overall
viewpoint:


 


Virgin’s policy is to help consumers to make a
buying choice rather than to sell in an unsolicited or aggressive manner.


 


In return, consumers can expect that Virgin will not
interrupt them with an unsolicited attempt to make a sale and that if engaged
in a sales conversation with Virgin that they will not be pressurised, forced
or embarrassed into buying something.


 


In
the business-to-business environment, cold telemarketing is not a preferred or
common activity for a Virgin company. 
However, speculative contact is part of the business world and
businesses are set up to deal with cold calling so it is not as intrusive or
disrespectful as it is when contacting consumers.  However, there still remains the concern that
Virgin is therefore seen to be slightly desperate to get a sale and not
displaying the kind of confidence that people expect from the brand.  The policy would be:


 


·                  Only call to
follow up a piece of direct mail or email which has been sent to the business.


·                  Only call to
follow up on a recommendation or to operate within a relationship, which
already exists.


·                  Pursue the sale
if the customer is interested but respect the “no” that a customer gives —
especially an emphatic or repeated “no”.


·                  Describe the
benefits of the product in a no-nonsense, peer-to-peer friendly way and allow
the customer to make up their own mind about it.


·                  Get to the
point quickly — don’t waste their time.


·                  Don’t be afraid
to ask for the sale if you think they may want to buy.


·                  Finish the call
politely and graciously, ensuring that the customer feels positive at the end
of the experience.


·                  Don’t use other
parts of the Virgin Group as a way in to the conversation (e.g. name dropping
other Virgin successes) without their prior consent.


 


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PART 2


 


OFFSHORE OUTSOURCING - OVERALL BRAND APPROACH


 


·      Our
ultimate goal is to save money and improve our businesses


·      We should
save as much money as we possibly can, as long as the Virgin brand reputation
and customer service quality are not compromised


 


SUMMARY
OF BRAND PREFERRED CHOICES ON OFFSHORE OUTSOURCING


 


·                  Putting seats offshore as a result of growth or
attrition is preferred to making any UK employees redundant.


 


·                  If higher cost issues in South Africa could be
overcome then SA would be less of a risk for front line customer service
quality, and it also makes sense to strengthen our ties with a territory we are
already investing in.


 


·                  Tapping into current operations (e.g. Atlantic’s
offices in Johannesburg) would allow us to trial offshore outsourcing
underneath the radar of publicity.


 


·                  Creating our own function that we can control &
manage would allow us to stamp the Virgin culture on an operation, enjoy cost
savings from working together & not giving profit margins to an
outsourcer.


 


·                  Outsourcing operations that support the business
rather than the customer service function would give us the chance to save
money without it affecting our customer service (e.g. accounts payable, IT,
payroll).


 


·                  Finding one common function to outsource together
onshore, such as payroll, would give us the chance to trial group outsourcing
for the first time in a bite-sized way before taking a riskier step (more
functions; overseas).


 


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BRAND GUIDELINES FOR A BEST PRACTICE APPROACH TO OFFSHORE OUTSOURCING


 


1.                                       Management of the operation


 


The overall approach is to put more effort into
the offshore outsourced operation than we would a UK one.  This is to ensure that we don’t lose customer
service quality and to protect the brand reputation.


 


·                  Put a minimum of one Virgin person on site to manage
the operation full time.


·                  Give all of the staff in the outsourced operation a
full induction into Virgin’s way of doing businesses — including brand, culture
and customer service.  This should
include an initiation trip around current Virgin businesses in the home
territory for as many people as possible.


·                  Work with the local community and government to make
sure that the benefit to the economy is not just ring-fenced but truly adding
value to the local community and economy.


 


2.                                       Training and treatment of local staff


 


The overall approach is to respect the staff in
the same way as we would UK staff.  This
may require some investment that the local outsourcer may think is unnecessary
but this protects the brand reputation and will also decrease attrition.


 


·                  Develop a training programme that is more extensive
than anything currently in use in the UK. 
Initial and on-going training should include:-


·                  Skills & software training


·                  Full immersion into Virgin — brand, personality,
customer expectations etc.


·                  Customer familiarisation — their lifestyle, needs and
attitudes, why they buy this product, how they buy it, how they use it etc.


·                  Conversational tips & phrases, and teach a
level of informality that the local staff will probably find a bit strange.


·                  Language training....


·                  Positive language training is critical, but the key is
to be respectful to the staff and their identities and to be transparent about
where we are servicing our customers from:


·                  Difficult names can be shortened or real nick-names
used, but fake British names should not be used.


·                  Watching British TV can be part of the language
training but agents should not pretend to be in the UK watching e.g.
Eastenders, Coronation Street.


·                  Agents should not pretend to be in the UK by quoting
the weather.


·                  Work with local trade & labour experts to
develop a pay and benefits package that is fair and respectful.  Not necessarily more than the going rate, but
well thought out, based on the needs and attitudes of the local staff, and
winning their loyalty just as we would UK employee’s.


·                  Put career paths in place so staff know they can
progress with the company.


·                  Treat staff like our own employees — access to Virgin
extranet, Tribe, secondments around the group, etc.


·                  Organise job swaps between offshore operation and home
country.


 


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·                  Listen to, and act upon what staff say in employee
forums and focus groups.


·                  Involve their families


·                  Invest in the physical environment — the space per
staff member, the chairs they sit on, paint, posters, plants.  Invest in plenty of chill-out areas:  relaxing rooms & cafes


·                  Invest in the safety and security of the staff —
transport to work, security guards etc. where necessary.


 


3.                                       Treatment  of UK redundancies


 


·                  Totally transparent and fair treatment of the staff
who are made redundant.


·                  PR strategy to minimise risk...


 


Please refer to Angela Smith, Group HR Manager,
for full strategy.


 


4.                                       PR strategy to minimise risk


 


The PR strategy will hinge upon the fair
treatment of UK staff who are being made redundant, how we are respecting &
benefiting the local staff and what we are doing to help the local community,
as previously covered.


 


Please refer to Group PR Department for full strategy: Director of Media
Relations.


 


Please advise Group PR
Department in advance of any known planned redundancies.


 


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