TWENTYTHREE’S GENERAL AND ADDITIONAL TERMS OF TRADE FOR THE PURCHASE OF GOODS, FACILITIES AND SERVICES
PART A: GENERAL TERMS
1. Definitions. “twentythree” means twentythree and twentythree shall be deemed to include all of its relevant officers, employees and/or agents; the “Contract” means these Terms and any relevant Purchase Order; the “Contract Period” means the period or date(s) as specified in the Purchase Order; the “Contract Price” means the price payable by twentythree to the Supplier as specified in the Purchase Order; the “Facilities” means any facilities to be provided by the Supplier pursuant to the Contract; the “Goods” means any item(s) to be provided by the Supplier pursuant to the Contract or in the case of Services, the physical product(s) of the Services; the “twentythree Materials” means any materials, documents, equipment provided by twentythree to the Supplier in connection with Goods, Facilities and/or Services; the “Purchase Order” means twentythree’s pro forma(s) detailing the Goods, Facilities and/or Services to be provided; the “Services” means any services to be provided by the Supplier pursuant to the Contract (which will include where appropriate any equipment/materials provided by the Supplier to perform the Services); the “Supplier” means the organisation or individual responsible for providing the Goods, Facilities and/or Services under the Contract and the Supplier shall be deemed to include all its relevant officers, employees and/or agents.
2. Entire Agreement. The Contract shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which the Supplier may purport to apply and the provision of the Goods, Facilities and/or Services shall be deemed conclusive evidence of the Supplier’s acceptance of the Contract.
3. Good Faith/Outside Activities. The Supplier shall act in good faith towards twentythree and shall not bring twentythree into disrepute nor, without twentythree’s prior written consent refer to the Contract with twentythree in association with any advertising or other promotional material or write for publication or speak in public about twentythree or its affairs.
4. Contract Price/Payment
4.1 For the Goods, Facilities and/or Services provided under the Contract, twentythree shall pay the Supplier the Contract Price inclusive of VAT (which if applicable shall be quoted at the appropriate rate) subject to Clause 4.3 and on receipt of a valid VAT invoice;
4.2 The Supplier shall provide twentythree with a valid VAT invoice for the whole or any part of the Contract Price quoting any relevant Purchase Order number and production title. Unless otherwise agreed in writing, twentythree shall remit payment due by the end of the month following that in which the invoice date falls. The Supplier acknowledges that the Contract Price has been agreed on the basis that it represents and includes the full and complete consideration due to the Supplier and is equitable remuneration for the exploitation of the products of the Services including, without limitation, the assignment and exercise of so-called rental and lending rights and the communication to the public;
4.3 twentythree reserves the right to withhold all or part of any payment due to the Supplier where the Goods, Facilities and/or Services have not been provided in accordance with the Contract and shall notify the Supplier accordingly;
4.4 The Supplier will not pledge twentythree’s credit nor order goods nor incur liability on twentythree’s behalf without twentythree’s prior written approval;
4.5 Unless otherwise stipulated in the Purchase Order, expenses (including but not limited to travel and subsistence) shall not be payable. Where the Purchase Order does provide for payment of travel and subsistence expenses separately to the Contract Price, the Supplier shall be entitled to reimbursement of its reasonable travel and subsistence expenditure with the correct VAT applied, and the level of such expenditure (net of recoverable VAT) and terms of payment shall be agreed in writing between twentythree and the Supplier in advance of the Supplier discharging its obligations under the Contract. Any such claim made without proper evidence of such expenditure incurred will not be reimbursed by twentythree.
5. Standard of Goods/Facilities/Services
5.1 The Supplier shall ensure that, where appropriate, any Goods and/or Facilities and/or Services to be supplied to twentythree under a Contract are: (a) fit for the intended purpose and of satisfactory quality as well as tested prior to delivery (and the Supplier shall promptly repair or replace in the event of any fault) and, where appropriate, in the case of Goods, are of good construction, suitable and sound material and adequate strength; (b) comply with all laws, rules and regulations for the time being in force at such places where the Goods/Facilities/Services are produced and all television guidelines laid down by any regulatory body or broadcaster reasonably expected by the Supplier to have jurisdiction over the Supplier and/or twentythree and the Supplier shall use every endeavour to ensure that such rules, regulations and guidelines are known about and complied with by persons engaged by the Supplier; and (c) comply with all current national and international technical standards and procedures and any technical standards, requirements and procedures that twentythree 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), and will use proper care, skill and diligence whilst discharging its obligations under the Contract, execute the Contract in a timely and professional manner and hold 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 the Supplier to perform the Services and twentythree accepts no liability for loss of or damage to the equipment/materials otherwise than in consequence of any negligence on the part of twentythree;
6.2 twentythree may provide a storage area for any equipment/materials provided by the Supplier under Clause 6.1 and where it does so, the 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 the Supplier’s own risk and expense and twentythree accepts no liability in respect of any such stored equipment/materials otherwise than as a direct result of any negligence on the part of twentythree. twentythree reserves the right to reclaim the storage area upon notification;
6.3 The Supplier shall not use any twentythree Materials or equipment without twentythree’s prior written consent.
7.1 The Supplier shall comply, and shall ensure that its officers, employees, agents and/or any sub-contractors (together “Supplier Staff”) comply, with all current UK and twentythree health, safety and fire legislation and office Codes of Practice and Guidelines;;
7.2 Supplier shall: (a) assess risks to health and safety (including fire) that may affect the Supplier Staff and those that may affect twentythree 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 twentythree with a written statement of Supplier’s own safety requirements and a copy of any risk assessment carried out, (c) fully co-operate with twentythree and any others 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 twentythree 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 twentythree shall be responsible to the Supplier for any accidental physical loss or damage to the Goods whilst they are in the charge and control of twentythree provided that the Supplier notifies twentythree promptly and in writing 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 the Supplier’s own risk and expense until the whole or any part thereof are either delivered to twentythree at the Supplier’s risk and expense or collected by twentythree at twentythree’s risk and expense from the point of collection in accordance with the delivery instructions as specified in the Purchase Order. The Supplier shall ensure that the Goods are packed in such a manner as to reach twentythree 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 Purchase Order number;
9.2 Where the Contract consists of the sale of Goods, ownership thereof shall vest in twentythree absolutely at such time as twentythree takes physical possession of the Goods unless the Contract is terminated pursuant to Clause 12 in which case ownership of any part of the Goods for which payment has been made under the Contract shall vest absolutely in twentythree at the time of termination;
9.3 Where any Goods are found by twentythree, upon delivery or collection or subsequently, not to conform with the Contract, twentythree reserves the right to accept or reject the whole or any part thereof and if rejected, to return the Goods to the Supplier at the Supplier’s own risk and expense, such acceptance or rejection being without prejudice to any other remedy available to twentythree.
10. Third Party Liability and Insurance
10.1 The Supplier shall indemnify twentythree against all costs and expenses (including reasonable legal costs) losses and liabilities which twentythree may incur as a result of: (a) the Supplier’s breach or non-compliance with its obligations or warranties; and/or (b) the negligence or wilful default of the Supplier or the Supplier’s Staff; and/or (c) any claims from third parties made as a result of the 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 twentythree against any claim brought against twentythree by any third party for personal injury or loss of or damage to property caused by the Supplier. The 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 two million pounds (£2,000,000) in respect of any one claim or incident and with scope of cover appropriate to the Goods, Facilities and/or Services provided under the Contract. The Supplier agrees to provide copies of such insurance policies to twentythree on twentythree’s written request;
10.2 Where the Supplier engages a sub-contractor in accordance with Clause 17, the Supplier shall ensure that the insurance requirements as specified in Clause 10.1 extend to cover the legal liabilities of the sub-contractor or that the sub-contractor holds its own insurance in accordance with Clause 10.1;
10.3 The Supplier shall be responsible for insuring any equipment provided by the Supplier under the Contract against loss or damage and liabilities to third parties in respect of such equipment.
11. Clearance of Third Party Rights. Except as otherwise agreed, the 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 twentythree harmless in respect of the same so that twentythree 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 the Supplier is the lawful owner or licensee of any software programs or other materials used by the Supplier in the provision of the relevant Goods, Facilities and/or Services
12. Confidentiality. Except where strictly necessary, and then only on a need to know basis, the Supplier shall keep confidential at all times during or after the Contract any information relating to the business of twentythree including but not limited to trade secrets, programme ideas, stories in any stage of development, titles, production methods, technical or financial data, or any other confidential or proprietary information, documentation, photographs or material used or owned by or relating to the programmes, films, operations or processes which is obtained as a result of its relationship with twentythree pursuant to the Contract.
13.1 Where twentythree considers that the Supplier has failed to perform in part or in whole its obligations under the Contract and the failure is in the reasonable opinion of twentythree capable of remedy, twentythree shall notify the Supplier accordingly, and the Supplier shall remedy the failure. If the failure is not remedied by the Supplier to the satisfaction of twentythree within a reasonable period of time from such notification, twentythree may remedy the failure and recover the costs thereof from the Supplier and/or terminate the Contract;
13.2 twentythree may terminate the Contract with immediate effect in writing: (a) if there has been a material breach by the Supplier of its obligations under the Contract; (b) if the 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 or otherwise howsoever; (d) if the continued
performance of the Contract is prevented by reason of any event beyond the reasonable control of twentythree or the Supplier (any such occurrence being deemed an event of force majeure); and (e) on the provision of ten (10) days notice in writing to the Supplier by twentythree;
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 the Supplier for damages or otherwise beyond a claim for payment due under the Contract up to and including the date of termination;
13.4 Upon termination of the Contract for whatsoever reason Supplier shall promptly deliver up to twentythree at the 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, any twentythree equipment/materials provided under the Contract. twentythree shall be deemed to have irrevocably all powers and authority to enter the 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 arising under Clauses 3, 4.3, 7, 10, 11, 12, 24 and 33 shall survive termination of the Contract.
14. Equal Opportunities Requirements. The Supplier shall: (a) comply with all current relevant anti-discriminatory legislation (e.g equal opportunities, equal pay, fair employment); and (b) adhere to the current relevant Codes of Practice published by ACAS, the Equal Opportunities Commission, the Commission for Racial Equality and the Department of Employment.
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 Purchase Order by prepaid first class mail (airmail if overseas) or by personal delivery 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 twentythree assign or sub-contract any of its rights or obligations under the Contract to any third party. twentythree 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 the Supplier in accordance with Clause 17.1 shall be subject to the same obligations as the Supplier is subject to under the Contract and the Supplier shall do all things necessary to ensure that the sub-contractor complies therewith.
18. No Agency, Partnership or Joint Venture. Nothing in the 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 the Supplier shall have no power to bind twentythree or to contract in the name of or create a liability against twentythree in any matter whatsoever.
19. Variation. Any amendment or variation to the Contract shall be made by prior written agreement between the parties.
20. 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 the 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. The 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 twentythree shall be the recovery of monetary damages only (and in no event injunctive or equitable relief) and the rights granted hereunder by the Supplier shall not be terminated by reason of such breach.
21. Whole Contract The Contract 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. These Terms do not create or infer any rights under the Contracts (Rights of Third Parties) Act 1999 enforceable by any person who is not a party to the Contract.
22. Law. The Contract shall be construed in accordance with the laws of England and Wales.
23. Expenses. Unless otherwise stipulated in the Special Provisions, expenses (including but not limited to travel and subsistence) shall not be payable. Where the Special Provisions do provide for payment of travel and subsistence expenses separately to the Contract Price, the Supplier shall be entitled to reimbursement of its reasonable travel and subsistence expenditure which shall have VAT applied at the appropriate rate, the level of such expenditure (which shall be net of recoverable VAT) and terms of payment shall be agreed in writing between twentythree and the Supplier in advance of the Supplier discharging its obligations under the Contract. Any such claim made without evidence of such expenditure incurred will not be reimbursed by twentythree.
24. Compliance. If requested by twentythree, the Supplier shall provide evidence of compliance with any of the Supplier’s obligations hereunder.
25. Technical Standards. The Supplier shall comply with all current relevant national and/or international technical standards and procedures.
26. Budgetary Limits. The Supplier shall, where appropriate, comply with the relevant budgetary limits, details of which twentythree shall provide.
27. Broadcaster Policy. Where relevant, the Supplier shall comply with all current relevant broadcaster policies including those contained in the relevant broadcaster’s guidelines, details of which twentythree shall supply to Supplier on request.
28. Credits. Any credits awarded to the Supplier in connection with the Contract shall be in accordance with the credit guidelines applicable to the relevant broadcaster and subject to twentythree’s discretion.
29. Sub-contracting. Where the Supplier engages a sub-contractor in accordance with Clause 17, the Supplier shall only use those sub-contractors previously approved by twentythree.
30 Further Documents. The Supplier shall do all such acts and execute such documents as twentythree may reasonably require to vest in or confirm to twentythree or its successors in title and licensees the copyright and all other rights assigned or granted or purported to be assigned or granted by the Supplier to twentythree under the Contract.
31 Claims. The Supplier warrants that the are no potential, threatened or actual claims by against it by any party including, without limitation, its agents or subcontractors in respect of the Services and the Goods and any intellectual property rights.
PART B: ADDITIONAL TERMS FOR SERVICES
32.1 The Supplier hereby grants and assigns to twentythree 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 employees, licensees, individuals, Supplier Staff, agents or sub-contractors engaged by the Supplier (which assignments the Supplier hereby warrants have been granted to the 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 the 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 the Supplier. For the purpose of United States copyright law, products of the Services shall be deemed “works made for hire” for twentythree;
32.2 The Supplier grants to twentythree all consents and permissions necessary to enable twentythree to make the fullest use of the product of the Supplier’s services hereunder under the Copyright, Designs and Patents Act, 1988 and any amendment thereto and the Services of all or any approved substitutes, employees, licensees and sub-contractors of the Supplier and the benefit of waivers of all moral rights from the same. The Supplier recognises that twentythree has the unlimited unconditional right to edit, copy, alter, add to, take from, adapt and/or translate the products of the Services as it wishes;
32.3 Without prejudice to the generality of the assignment of rights set out in Clause 32.1, the 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 in and the Supplier hereby confirms that it shall not seek to enforce any rights to equitable remuneration in respect of any rental and lending rights 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 the Supplier’s behalf by the relevant national collection agencies (in which case the Supplier’s claim shall be against the collection agency);
32.4 The Supplier grants to twentythree any and all consents under the Copyright Designs and Patents Act 1988 (and any modification thereof) as it may require to exploit the Products of the Supplier’s Services hereunder. The Supplier hereby waives irrevocably and warrants that the Individual(s) and any agent(s) or subcontractor(s) engaged by the Supplier to assist in providing the Products and 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 Individuals, agents, or sub-contractor under Sections 77 and 85 and Sections 205C and 205N of the Copyright Designs Patents Act 1998 and under any resale right arising from EU law) or any similar laws of any jurisdiction;
32.5 The Parties agree that twentythree shall be entitled, but not obliged, to exercise the rights granted to it under the Contract and twentythree has no obligation to use all or part of the Goods, Facilities and/or Services.
33. Contract for Services.
33.1 It is hereby agreed and declared that these Terms refer to and apply to a contract for services and not a contract of employment. Accordingly, the Supplier shall be solely and fully responsible for all the Supplier’s and any individuals supplied by the Supplier’s taxes, national insurance, social security contributions, holiday pay, pension entitlement or provision (including but not limited to in respect of any pension auto-enrolment obligations (including as to contributions) that may arise in connection with the Services under the Contract) and other employment rights, matters, liabilities, assessments or claims arising out of or made in connection with the Contract Price payable hereunder or otherwise in respect of the Supplier’s and individual’s services hereunder (including, but not limited to, holiday pay (if applicable) or pension, or in respect of any hours worked by the crew, and any individual over and above 48 hours per week) and the Supplier shall indemnify twentythree against all costs and expenses and any penalty, fine or interest incurred or payable by twentythree in connection with or in consequence of any such liability, assessment or claim.
33.2 The Supplier further warrants that all personnel and named individual(s) engaged or procured by the Supplier in any capacity in connection with the Contract shall be entitled to work in the UK in accordance with the Asylum and Immigration Act 1996 (or otherwise in respect of any other locations, in accordance with relevant local laws), and that prior to any such individuals commencing services hereunder, the Supplier shall have verified. via receipt of the relevant documentation (UK or EEA Passport or other relevant visa/document), proving that such individuals are legally able to work in the UK (or such other location if applicable).
34. Health/Safety/Fire. The Supplier shall establish and maintain appropriate health and safety arrangements and up-to-date training or re-training for personnel engaged or procured by the Supplier in any capacity in connection with the 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 provided within the last three years and prior to commencement of this Contract, for (a) all senior production personnel on the basis of suitable “face to face” management level health & safety course within the last three years and prior to commencement of the Contract, (b) all other personnel on the basis of at least suitable on-line training.
35. Replacement of Named Individual(s). Where the Contract specifies that the Supplier shall provide named individual(s) to perform in whole or in part the Supplier’s obligations under the Contract, and the individual(s). for whatsoever reason. become unable to do so, the Supplier shall promptly notify twentythree. twentythree shall be entitled to terminate the Contract at its entire discretion. If twentythree elects to continue with the Contract, the Supplier shall, as promptly as is reasonably possible, provide a suitable replacement(s).