TERMS FOR THE SUPPLY AND PURCHASE OF GOODS, FACILITIES AND SERVICES
PART A: GENERAL TERMS
1. Definitions “CDPA” means the Copyright Designs and Patents Act 1988 (and any modification thereof); “Company” means the company specifically stated on the Purchase Order (“PO”) as issuing the PO and to whom the Supplier is providing the Goods, Facilities and/or Services (“GFS”) under the Contract and Company shall be deemed to include all its relevant officers, servants and/or agents; “Contract” means these Terms and the PO; “Price” means the price payable by Company to Supplier as specified in the PO; “Facilities” means any facilities to be provided by Supplier pursuant to the Contract; “DA” means the Data Protection Act 2018 and the rules and regulations made or having effect under it and “Personal Data”, “Process” and the 7th and 8th Data Protection Principles (“7th DPP” and “8th DDP”) shall be defined as set out therein; “Goods” means any item(s) to be constructed, manufactured or provided by Supplier pursuant to the Contract or in the case of Services the physical product(s) of the Services; “Company Materials” means any materials, documents, equipment provided by Company to Supplier in connection with GFS; “PO” means the Company pro forma(s) detailing the GFS to be provided; “Services” means any services to be provided by Supplier pursuant to the Contract (which will include any equipment/materials provided by Supplier as part of the Services); “Supplier” means the organisation or individual responsible for providing the GFS under the Contract and the Supplier shall be deemed to include all its relevant officers, servants and/or agents and/or any sub-contractors (“Staff”). All of the Terms apply to GFS unless expressly stated otherwise.
2. Contract The Contract (i) shall prevail at all times to the exclusion of all other terms and conditions including any which Supplier may purport to apply and the provision of the GFS shall be deemed conclusive evidence of Supplier’s acceptance of the Contract, (ii) and any appendices and any documents referred therein constitutes the entire understanding between the parties with respect to the subject matter thereof and supersedes all prior agreements, negotiation and discussions between the parties relating thereto, (iii) does not create or infer any rights under the Contracts (Rights of Third Parties) Act 1999 enforceable by any person not a party to this Contract, and (iv) shall be construed in accordance with the laws of England and Wales. Any amendment or variation to the Contract shall be made by prior written agreement between the parties.
3. Good Faith/Outside Activities The Supplier shall act in good faith towards Company and shall not bring Company into disrepute nor, without the prior consent of Company, make any reference to it in association with any advertising, promotional materials or publications or speak in public about Company or its affairs.
4.1 For GFS provided under the Contract, Company shall pay to Supplier the Price inclusive of VAT (if applicable at the appropriate rate) subject to Clause 4.2 and on receipt of a valid VAT invoice. Supplier acknowledges that the Price represents, and has been agreed on the basis that it represents and includes the complete consideration due to Supplier. Any VAT invoice for the whole or any part of the Price should be submitted to Company at the address overleaf quoting the relevant PO number and production title.
4.2 Company reserves the right to withhold payment where GFS have not been provided in accordance with the Contract.
4.3 Supplier will not pledge Company’s credit, order goods or incur liability on Company’s behalf, without Company’s prior written approval.
4.4 Unless otherwise stipulated in the PO, expenses (including but not limited to travel and subsistence) shall not be payable. Where the PO does provide for payment of travel and subsistence expenses separately to the Price, Supplier shall be entitled to reimbursement of its reasonable travel and subsistence expenditure, and the level of such expenditure and terms of payment shall be agreed in writing between Company and Supplier in advance. Reimbursement will not occur without proper evidence of the same.
5. Standard of Goods /Facilities /Services
5.1 The Supplier shall ensure that any GFS are: (a) fit for the intended purpose expressly or impliedly made known to the Supplier, of satisfactory quality and tested prior to delivery (and Supplier shall promptly repair or replace in the event of any fault), (b) are of good construction, suitable and sound materials and adequate strength, (c) free from defects in design, materials and workmanship, (d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the GFS, (e) comply with their description, (f) comply with all television guidelines laid down by any regulatory body or broadcaster reasonably expected by Supplier to have jurisdiction over Supplier and/or Company and Supplier shall use every endeavour to ensure that such rules, regulations and guidelines are known about and complied with by persons engaged by Supplier, and (g) comply with all applicable national and international technical standards and procedures and any technical standards, requirements and procedures that the Company specifies to Supplier.
5.2 The Supplier shall be competent to fulfil its obligations under the Contract (which includes having relevant experience, training and/or qualifications), will use proper care, skill and diligence whilst discharging its obligations under the Contract, will perform its obligations in a timely and professional manner (time being of the essence in relation to all dates/times specified in this Contract) and hold and ensure compliance with any licence, permit and/or certificate required by law for the performance of the Contract.
6.1 The Supplier shall be responsible for the care, control, security, insurance and maintenance of any equipment/materials provided by Supplier to perform the Services and Company accepts no liability for loss of or damage to the equipment/materials otherwise than in consequence of any negligence on the part of Company.
6.2 If the Company provides a storage area for any equipment/materials provided under Clause 6.1, Supplier shall ensure that the storage area is fit for the intended purpose and it is used in a proper, careful and secure manner at Supplier’s own risk and expense and Company accepts no liability therefor otherwise than in consequence of any negligence on the part of Company. Company reserves the right to reclaim the storage area upon notification.
6.3 The Supplier shall not use any Company Materials without the prior consent of Company.
7.1 The Supplier shall comply, and shall ensure that its Staff comply, with all current relevant: (a) health, safety and fire legislation and office Codes of Practice and Guidelines, (b) Company’s health, safety and fire requirements, copies of which should have been sent to you (if not please contact the Company).
7.2 Where the health, safety and fire requirements of the Contract are additional to or differ from those specified in Clause 7.1 Company and Supplier shall agree such requirements (and shall exchange such information as is necessary for that purpose) before Supplier commences provision of the relevant GFS.
7.3 Supplier shall: (a) assess risks to health and safety (including fire) that may affect their Staff and those that may affect Company and their staff or any third party arising out of or in any way connected with the performance of the Contract and carry out an appropriate risk assessment and shall take all reasonable steps to eliminate or control such risks, (b) on request, provide Company with a written statement of Supplier’s own safety requirements and a copy of any risk assessment carried out, (c) fully co-operate with Company and any others as necessary on health and safety matters as necessary to ensure all reasonably foreseeable risks to health and safety are eliminated or adequately controlled, and (d) consult with Company on the procedures to be followed in the event of serious and imminent danger to any persons arising out of or in any way connected with the performance of the Contract and comply with such procedures.
8. Hire or Loan of Goods Where the Contract consists of the hire or loan of Goods Company shall be responsible to Supplier for any accidental physical loss or damage to the Goods whilst in the charge and control of Company provided that Supplier notifies Company promptly upon discovery of any such loss or damage.
9. Delivery of Goods
9.1 The Supplier shall ensure that any Goods are kept in a proper, careful and secure manner at Supplier’s own risk and expense until the whole or any part thereof are either delivered to Company at Supplier’s own risk and expense or collected by Company at Company’s own risk and expense from the point of collection in accordance with the delivery instructions as specified in the PO. The Supplier shall ensure that the Goods are packed in such a manner as to reach Company in good condition, clearly labelled in accordance with the delivery instructions and accompanied by delivery notes specifying the quantity and type thereof and the relevant PO number.
9.2 Where the Contract consists of the sale of Goods ownership thereof shall vest in Company absolutely at such time as Company takes physical possession of the Goods unless the Contract is terminated pursuant to Clause 13 in which case ownership of any part of the Goods for which payment has been made under the Contract shall vest absolutely in Company at the time of termination.
9.3 Where any Goods are found by Company, upon delivery or collection or subsequently, not to conform with the Contract, Company reserves the right to accept or reject the whole or any part thereof and if rejected return the Goods to Supplier at Supplier’s own risk and expense, such acceptance or rejection being without prejudice to any other remedy available to Company.
10. Third Party Liability and Insurance The Supplier shall indemnify Company against all costs and expenses (including reasonable legal costs) losses and liabilities which Company may incur as a result of: Supplier’s breach or non-compliance with its obligations or warranties under this agreement; the negligence or wilful default of Supplier or its Staff; and, any claims from third parties made as a result of Supplier’s acts or omissions (including, without limitation, for personal injury or loss of or damage to property and/or relating to infringement of any intellectual property rights supplied under or used in connection with the Contract) and shall indemnify Company against any claim brought against Company by any third party for personal injury or loss of or damage to property caused by Supplier. Supplier shall arrange and maintain with a reputable insurer adequate Public Liability Insurance, and where applicable Product Liability Insurance and/or professional indemnity insurance, with an adequate indemnity limit which shall be no less than three million pounds sterling (£3,000,000) in respect of any one claim or incident and with scope of cover appropriate to GFS provided under the Contract. The Supplier agrees to provide copies of such insurance policies on the request of Company. Supplier shall also be responsible for insuring any equipment such as motor vehicles or mobile plant provided by Supplier to perform the Contract against loss or damage and liabilities to third parties or anyone carried in or on such equipment.
11. Clearance of Third Party Rights Except as otherwise agreed, Supplier shall obtain all necessary consents, permissions and/or clearances in respect of third party rights (whether copyright, intellectual property rights or otherwise) and shall hold Company harmless in respect of the same so that Company shall be entitled to use the Goods provided or the result of the Services without liability to any third party. The Supplier further warrants and represents that Supplier is the lawful owner or licensee of any software programs or other materials used by Supplier in the provision of the relevant GFS.
12. Confidentiality Except where strictly necessary and then only on a need to know basis, Supplier shall keep confidential at all times during or after the Contract any information relating to the business of Company its employees, contributors or customers, including but not limited to trade secrets, programme idea, story, title, production methods, technical or financial data, or any other confidential or proprietary information, Personal Data, documentation, photographs or material used or owned by or relating to the programmes, films, operations, magical tricks and illusions, processes or which is obtained as a result of its relationship with Company under the Contract.
13.1 Where Company considers that Supplier has failed to perform in part or in whole its obligations under the Contract and the failure is in the reasonable opinion of Company capable of remedy Company shall notify Supplier thereof and Supplier shall remedy the failure. If the failure is not remedied to Company’s satisfaction within a reasonable period of time (but in any event within five days) from such notification Company may remedy the failure and recover the costs thereof from Supplier and/or terminate the Contract under Clause 13.2.
13.2 Company may terminate the Contract with immediate effect in writing: (a) if there has been a material breach by Supplier of its obligations under the Contract, (b) if Supplier commits an act of bankruptcy, or makes any composition or arrangement with its creditors, or is declared insolvent, or if any order is made or resolution is passed for the winding up of the Supplier, or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver or administrator over the whole or any part of its assets, (c) if there is a change of control of the Supplier, where control means the ability to direct the affairs of the Supplier whether by virtue of contract, ownership, shares otherwise howsoever,(d) if the continued performance of the Contract is prevented by reason of any event beyond the reasonable control of Company or the Supplier (any such occurrence being deemed an event of force majeure), (e) in accordance with Clause 31, and (f) on provision of ten (10) days’ notice in writing to Supplier.
13.3 Termination of the Contract howsoever arising shall: (a) be without prejudice to any right of action accruing or already accrued to either party at the date of termination, and (b) not in itself give rise to a claim by Supplier for damages or otherwise beyond a claim for payment due under the Contract up to the date of termination.
13.4 Upon termination of the Contract for whatsoever reason Supplier shall promptly deliver up to Company at Supplier’s own risk and expense the whole or any part of the Goods for which payment has been made under the Contract up to and including the date of termination, and any Company Materials provided under the Contract. Company shall be deemed to have given irrevocably all powers and authority to enter Supplier’s premises or any other premises to recover and remove such items and recover the costs thereof from Supplier.
13.5 The rights and obligations of either party under Clauses 3, 4.3, 7, 10, 11, 12, 20, 29 & 30 shall survive termination of the Contract.
14. Equal Opportunities/Anti-Bribery/Anti-Slavery Requirements
The Supplier shall: (a) comply with all current relevant (i) anti-discriminatory legislation (e.g. equal opportunities, equal pay, fair employment), (ii) anti-bribery and corruption legislation (including the Bribery Act 2010 and not give, provide, or offer to Company, its staff or agents any loan, fee, reward, gift or any emolument or advantage whatsoever) and (iii) anti-slavery legislation (including the Modern Slavery Act 2015 e.g. (A) not to employ, support or condone any form of modern slavery or trafficking (B) not to use forced, involuntary or underage labour, (C) provide suitable working conditions and terms, (D) treat employees fairly), and (b) adhere to the current relevant Codes of Practice published by the Equal Opportunities Commission, the Commission for Racial Equality, the Department of Employment and the Fair Employment Commission (Northern Ireland).
15. Notices Any notice required to be given by either party to the other party shall be in writing and served upon the addressee at such address as it may notify to the other party for such purpose and if none at the addressee’s address stated on the PO by prepaid first class mail (airmail if overseas) or by personal delivery with a copy by email and shall be deemed to have been received immediately in the case of personal delivery and at the end of the second business day after posting if posted to an address within the United Kingdom and at the end of the seventh business day after posting if sent to or posted from an address outside the United Kingdom.
16. Waiver The failure of either party to exercise or enforce any right conferred upon it by the Contract shall not be deemed to be a waiver of any such right or operate so as to bar the exercise of enforcement thereof at any time(s) thereafter. No waiver of any term or condition of the Contract shall operate as a waiver of another or constitute a continuing waiver.
17.1 The Supplier shall not without the prior written consent of Company assign or sub-contract any of its rights or obligations under the Contract to any third party. Company shall be entitled to assign the benefit of this Contract either in whole or in part to any third party.
17.2 Any sub-contractor engaged by Supplier in accordance with Clause 17.1 shall be subject to the same obligations as Supplier is subject to under the Contract (including, but not limited to, the insurance requirements as specified in Clause 10 being extended to cover the legal liabilities of the sub-contractor or that the sub-contractor holds its own insurance in accordance with Clause 10, and Clause 14) and Supplier shall do all things necessary to ensure that the sub-contractor complies therewith.
18. No Agency, Partnership or Joint Venture Nothing in this Contract shall be deemed to constitute either party as the agent of the other or create a partnership or joint venture between the parties and Supplier shall have no power to bind Company or to contract in the name of or create a liability against Company in any matter whatsoever.
19. Severability The unenforceability of any single provision of the Contract shall not affect any other provision thereof. Each and all of the several rights and remedies provided for in this Contract shall be construed as being cumulative and no one of them shall be deemed to be exclusive of the others or of any right or remedy allowed by law or equity, and pursuit of any one remedy shall not be deemed to be an election of such remedy, or a waiver of any other remedy. The sole right of the Supplier as to any breach or alleged breach hereof by Company shall be the recovery of money damages only (and in no event injunctive or equitable relief) and the rights granted hereunder by Supplier shall not be terminated by reason of such breach.
20. Compliance If requested by Company, Supplier shall provide evidence of compliance with any of Supplier’s obligations hereunder.
21. Budgetary Limits The Supplier shall comply with the relevant budgetary limits, details of which Company shall provide.
22. Credits Any credits awarded to Supplier in connection with the Contract shall be in accordance with the credit guidelines applicable to the relevant broadcaster and subject to Company’s discretion.
23. Sub-contracting Where Supplier engages a sub-contractor in accordance with Clause 17 for work involving aircraft (including helicopters, balloons, gliding, microlights, model aircraft, parachutes, drones); armourers; asbestos; diving; explosives; pyrotechnics and fire effects; flying ballet; hydraulic work platforms; lasers; location lighting; scaffolding and similar structures; specialised rigging and wirework; smoke effects; urea-formaldehyde snow effects in enclosed areas and stunt artists Supplier shall only use those sub-contractors approved by Company for that purpose.
24. Further Documents The Supplier shall do all such acts and execute such documents as Company may reasonably require to vest in or confirm to Company or its successors in title and licensees the copyright and all other rights assigned or granted or purported to be assigned or granted by Supplier to Company under this Contract.
25. Claims The Supplier warrants that there are no potential, threatened or actual claims by or against it by any party including without limitation by its agents or subcontractors in respect of GFS and any intellectual property rights.
26. Data Protection If and to the extent that the Supplier Processes any Personal Data on behalf of the Company under this Agreement, the Supplier undertakes to the Company that the Supplier: (i) shall comply with the obligations imposed by the Security Data Protection Principles in the DA, namely: (ii) to maintain technical and organisational security measures sufficient to comply at least with the obligations imposed on the Company by the 7th DPP and take reasonable steps to ensure the reliability of any employees of the Supplier who have access to Personal Data; (iii) only to Process Personal Data for and on behalf of the Company for the purpose of performing and in accordance with this Agreement (and where necessary only on instructions from the Company to ensure compliance with the DA); (iv) to allow representatives of the Company to audit the Supplier’s compliance with the requirements of this Clause 26 on reasonable notice and/or, at the option of the Company, on request to provide the Company with evidence of its compliance with such requirements; (v) to not engage another processor without prior specific or general written authorisation of the Company; (vi) not to transfer any Personal Data outside the European Economic Area without the prior written consent of the Company, and in granting consent to the transfer, the Company may impose such terms on the Processing of the Personal Data and on the Supplier and/or any overseas processor of the data as the Company requires to ensure that the Personal Data is adequately protected (as required by the 8th DPP); and (vii) shall assist the Company to comply with any obligations imposed on Company by the DA in relation to any Personal Data Processed by the Supplier including: (viii) providing the Company with reasonable assistance in complying with any subject access request served on the Company under the DA; (ix) promptly informing the Company about the receipt of any subject access request received by the Supplier in relation to Personal Data Processed pursuant to this Contract; and (x) not disclosing any Personal Data in response to a subject access request without first consulting with and obtaining the consent of the Company. Supplier will notify Company of any actual or suspected fraudulent use, loss, theft, misuse, or compromise of Personal Data and hereby indemnifies Company in full against any loss, claims, costs, expenses or other liabilities that the Company incurs as a result of any breach of this Clause 26.
PART B: ADDITIONAL TERMS FOR SERVICES
27.1 The Supplier hereby grants and assigns to Company with full title guarantee (where appropriate by way of present assignment of future copyright) the entire present and future copyright and all other rights of whatsoever nature in and to the product of the Services hereunder, including the benefit of any assignments from Staff, licensees and agents, engaged by Supplier (which assignments Supplier hereby warrants have been granted to Supplier with full title guarantee) throughout the world for the full period of copyright, together with all and any renewals and extensions thereof and thereafter (insofar as Supplier is able to grant the same) in perpetuity to the extent permitted by law and so that such assignment shall be without reservation or condition and so that no right of any kind, nature or description is reserved by Supplier. For the purpose of United States copyright law, products of the Services shall be deemed “works made for hire” for Company.
27.2 The Supplier grants to Company all consents and permissions necessary to enable Company to make the fullest use of the product of Supplier’s services hereunder under the CDPA and the Services of all or any Staff and licensees of the Supplier. The Supplier hereby, waives irrevocably and warrants that any Named Individual(s) and any agent(s) or subcontractor(s) engaged by Supplier to assist in providing the Services have waived irrevocably the benefits of any provision of the law known as “moral rights” (including, but not limited to, any rights of Supplier, the Named Individuals, agents, or sub-contractor under Sections 77 and 85 and Sections 205C and 205N of the CDPA and under any resale right arising from EU law) or any similar laws of any jurisdiction. The Supplier recognises that Company has the unlimited unconditional right to edit, copy, alter, add to, take from, adapt and/or translate the products of the Services as Company wishes.
27.3 Without prejudice to the generality of the assignment of rights set out in Clause 27.1, Supplier hereby agrees that such assignment includes any and all rental and lending rights, whether now known or hereafter existing in any country of the world and Supplier hereby confirms that it shall not seek to enforce any rights to equitable remuneration in respect of any rental and lending rights and rights of communication to the public, acknowledging that the Price represents, and has been agreed on the basis that it represents and includes all equitable remuneration which may accrue pursuant to the Copyright and Related Rights Regulations 1996 save insofar as the said legislation provides for separate payments relating thereto to be collected on Supplier’s behalf by the relevant national collection agencies (in which case Supplier’s claim shall be against the collection agency).
27.4 The Parties agree that Company shall be entitled but not obliged to exercise the rights granted to it under this Contract and Company has no obligation to use all or part of the GFS.
28. Standard of Services In providing the Services the Supplier shall: (a) co-operate with the Company in all matters relating to the Services, and comply with all instructions of the Company, (b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade, (c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract, (d) provide all equipment, tools and vehicles and such other items as are required to provide the Services, and (e) comply with all relevant legislation, regulations and guidelines applicable to the Services.
29. Contract for Services It is hereby agreed and declared that this agreement constitutes a contract for services, not a contract of employment, and accordingly Supplier shall be solely and fully responsible for all Staff’s taxes, national insurance, social security contributions, holiday pay, pension entitlement, contribution or provision that may arise in connection with Services under this Contract and other employment rights, matters, liabilities, assessments or claims arising out of or made in connection with the Price or otherwise in respect of the Supplier’s or its Staff’s services hereunder (including, but not limited to, in respect of any hours worked over and above 48 hours per week) and Supplier shall indemnify Company against all costs and expenses and any penalty, fine or interest incurred or payable by Company in connection with or in consequence of any such liability, assessment or claim. Supplier further warrants that all personnel and Named Individual(s) engaged or procured by Supplier in any capacity in connection with this Contract shall be entitled to work in the UK in accordance with the Asylum and Immigration Act 1996 (or otherwise in respect of other locations, in accordance with relevant local laws), and that prior to any such individuals commencing services hereunder, Supplier shall have verified via receipt of the relevant documentation (UK or EEA Passport or otherwise proving that such individuals are legally able to work in the UK (or such other applicable location(s)).
30. Health/Safety/Fire The Supplier shall establish and maintain appropriate health and safety arrangements and up-to-date training or re-training for personnel and Named Individual(s) engaged or procured by Supplier in any capacity in connection with this Contract. In addition to any skill or work specific health and safety training in respect of their role, general health and safety training to have also been successfully recently provided prior to commencement of this Contract.
31. Replacement of Named Individual(s) Where the Contract specifies that Supplier shall provide named individual(s) to perform in whole or in part Supplier’s obligations, and the individual(s) for whatever reason become unable to do so, Supplier shall promptly notify Company thereof whereupon Company shall be entitled in its discretion to terminate the Contract. If Company elects to continue with the Contract, Supplier shall, as promptly as is reasonably possible, provide a suitable replacement(s).