BBC Resources Limited
Terms of Trade for the supply of goods, facilities and services
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1. Definitions
"BBC" means the British Broadcasting Corporation of Broadcasting
House, Portland Place, London W1A 1AA; “BBC Resources” means
BBC Resources Limited of BBC Television Centre, Room 2106, Wood Lane,
London W12 7RJ; "BBC Premises" means any premises being owned
or occupied by the BBC; "BBC Resources Premises" means any premises
being owned or occupied by BBC Resources; "Contract" means these
terms of trade and the Contract Document; "Contract Document"
means the BBC Resources contract top sheet detailing the Deliverables
and detailing the Customer, the Goods, the Services, the Facilities, the
Contract Price, the Contract Period and any Special Conditions; "Contract
Period" means, subject to Clause 23, the period specified in the
Contract Document; "Contract Price" means the amount payable
by the Customer to BBC Resources as specified in the Contract Document;
"Customer" shall be the organisation or individual as specified
in the Contract Document to whom BBC Resources is supplying the Deliverables
and shall be where relevant deemed to include all of its offices, employees,
sub-contractors and/or agents, engaged in anyway in the Contract; "Customer's
Premises" means any premises being owned or occupied by the Customer;
“Deliverables” means any or all of the Goods, Facilities and/or
Services; "Facilities" means those parts of BBC and/or BBC Resources
Premises made available to the Customer pursuant to the Contract; "Goods"
means any item(s), including without limitation software and digital codes
to be manufactured and/or provided by BBC Resources pursuant to the Contract;
“Dry Hire” means Goods hired to the Customer, not under the
control of BBC Resources; “IPR” means copyright, patent, trade
mark, design right, topography right, database right, rights of confidence,
broadcast rights and all other similar rights anywhere in the world whether
or not registered and including applications for registration of any of
them; “Safety Requirements” means health, safety, fire and
environmental requirements (whether legislative or otherwise), codes of
practice, guidance and policy; "Services" means the services
of personnel (of whatsoever nature) supplied by BBC Resources pursuant
to the Contract; “Special Conditions” means any amendments
or additional conditions specified in the Contract Document which shall
take precedence over these terms of trade; “Material” means
any good or material provided by the Customer to BBC Resources in connection
with this Agreement.
2. BBC Resources Offer
All bookings made by the Customer for any BBC Resources Deliverables
will be subject to a written offer made by BBC Resources. The offer is
quoted exclusive of VAT (which, if applicable, shall be applied at the
appropriate rate) and is in good faith based on current costs. Written
acceptance of the offer is deemed to be an order for the Deliverables
which shall immediately become binding upon the parties and shall in all
respects be subject to the Contract.
3. Prevailing Contract
The Contract shall prevail at all times to the exclusion of all other
terms and conditions including any terms and conditions which the Customer
may purport to apply except as otherwise agreed in accordance with Clause
31.
4. Contract Price/Payment
(1) In consideration of the Deliverables supplied under the Contract
the Customer shall pay to the BBC the Contract Price exclusive of VAT
(which, if applicable, shall be applied at the appropriate rate) subject
to and in accordance with this Clause 4.
(2) BBC Resources shall submit an invoice to the Customer for payment
due at the address as specified in the Contract Document quoting the relevant
Contract Document number and the Customer shall remit full payment due
within thirty (30) days of date of invoice.
(3) In the event that the Customer fails to make payment by the due date
BBC Resources shall, without prejudice to its other rights under the Contract
(including but not limited to those set out in Clause 23) or otherwise,
at law or in equity be entitled to:
(a) charge the Customer interest from the date specified for payment
of the principal sum described in Clause 4(2) upon the outstanding amount
at such rate as BBC Resources may decide but which in any event shall
not exceed 5% per annum above the BBC's principal banker's normal base
rate from time to time accruing daily until payment of the principal sum
is paid in full.
(b) require payment in advance for the continued performance of the
Contract without incurring any liability whatsoever to the Customer;
(c) refuse to further perform the Contract without incurring any liability
whatsoever to the Customer;
(d) suspend further performance of the Contract until the Customer has
supplied a satisfactory credit reference or bank guarantee;
(e) be reimbursed by the Customer for all costs and expenses incurred
in the collection of any overdue amount.
5. Cancellation
(1) Subject always to the other provisions of the Contract, if the Customer
wishes to cancel the Contract it shall provide written notification thereof
and BBC Resources reserves the right at all times to make a cancellation
charge(s) as specified in the Contract Document.
(2) Notwithstanding the provisions of Clause 5(1) in the event of a cancellation
of the Contract the Customer shall in addition remain liable to repay
BBC Resources all monies committed or incurred by BBC Resources as a result
of the Contract.
6. Expenses
Where the Contract Price does not include travel and subsistence expenses
BBC Resources shall be entitled to reimbursement of all such reasonable
expenses required to be made by any person engaged by BBC Resources for
the performance of the Contract. The level of such expenses shall be at
current BBC Resources rates or where appropriate at actual cost (net of
recoverable VAT) and all payments made by the Customer to BBC Resources
shall have VAT applied at the appropriate rate.
7. Supply of Goods, Facilities and/or Services
(1) BBC Resources shall use its reasonable endeavours to supply the Customer
with Deliverables of such a standard as to enable BBC Resources to service
adequately the requirements of the Customer.
(2) Subject to Clause 7(1) BBC Resources shall use its reasonable endeavours
to remedy, free of charge, any material defect in the Goods and/or Facilities
which becomes apparent up to twelve months or such other period as may
be agreed from the date the Customer has beneficial use thereof (the “Warranty
Period") provided that:
(a) such defects are notified to BBC Resources within a reasonable time
of such defect becoming apparent to the Customer;
(b) BBC Resources is permitted to make a full examination of the alleged
defects;
(c) the defect did not occur as a result of misuse, neglect, alteration,
modification, mishandling or unauthorised adjustment by any person other
than BBC Resources personnel;
(d) the Customer undertakes to install free of charge to BBC Resources
(if applicable) small replacement parts supplied by BBC Resources;
(e) the defect did not arise out of any information, design specification
or materials supplied by the Customer;
(f) non payment by the Customer of any outstanding amount due under
the Contract shall automatically cancel any Warranty Period.
(3) Where Services are supplied any equipment supplied to perform the
Services shall only be operated by BBC Resources personnel unless otherwise
agreed between the parties.
(4) If requested by the Customer, BBC Resources shall within a reasonable
time provide to the Customer any information as may be reasonably required
for the purpose of the Contract as agreed between the parties.
8. Additional Goods, Facilities and/or Services
In the event that the Customer requires any goods, facilities and/or
services in addition to the Goods, Facilities and/or Services supplied
pursuant to the Contract, upon prior notice by the Customer to BBC Resources
thereof, BBC Resources shall use its reasonable endeavours subject always
to its other commitments to provide such additional goods, facilities
and/or services but shall be under no obligation. Payment therefor shall
be negotiated at the time BBC Resources agrees to such supply and shall
be in all respects subject to the Contract. Details of any costs relating
thereto shall be agreed between the parties prior to the charges being
incurred.
9. Health, Safety and Fire
(1) The Customer shall at all times comply with all Safety Requirements
including but not limited to those issued by the Health & Safety Commission
and Executive, the Home Office and those BBC and BBC Resources Safety
Requirements notified orally or in writing to the Customer.
(2) BBC Resources and the Customer may agree Safety Requirements in addition
to or different from those specified in Clause 9(1).
(3) The Customer shall:
(a) assess reasonably foreseeable risks to health and safety (including
fire) that may affect BBC Resources or any third party arising out of
or in any way connected with the performance of the Contract, and provide
a copy of such assessment to BBC Resources upon reasonable request, and
promptly take all reasonable steps to eliminate or adequately control
such risks and shall notify and co-operate with BBC Resources accordingly;
(b) fully co-operate with BBC Resources and any others as necessary
to ensure that all reasonably foreseeable risks to health and safety (including
fire) that may affect BBC Resources arising out of or in any way connected
with the performance of the Contract are eliminated or adequately controlled;
(c) consult with BBC Resources on the procedures to be followed in the
event of serious and imminent danger to any persons that may affect BBC
Resources arising out of or in any way connected with the performance
of the Contract and shall comply therewith.
(4) BBC Resources shall notify the Customer of all risks to health and
safety which are reasonably foreseeable to BBC Resources and which may
affect the Customer or the BBC arising out of or in anyway connected with
the performance of the Contract and the Customer shall have due regard
to these.
(5) Where the health, safety and fire requirements of the Contract are
additional to or differ from those as specified in Clause 9(1), BBC Resources
and the Customer shall agree such requirements and shall exchange such
information as is necessary for that purpose (and they shall acknowledge
receipt thereof in writing). BBC Resources and the Customer shall at all
times comply with such requirements as agreed hereunder.
10. Usage of Deliverables
(1) Subject always to Clause 7(3), the Customer shall ensure that any
person engaged by it to carry out any duties in connection with the Deliverables:
(a) is competent for such duties (which includes having relevant experience,
training and/or qualifications) and shall use such due care, skill and
diligence as would reasonably be expected of a competent Customer whilst
discharging its obligations under the Contract,
(b) hold any necessary licence, permit and/or certificate required by
law relating to such duties.
(2) The Customer shall use the Deliverables only for the purpose as specified
in the Contract Document and for no other purpose.
(3) The Customer shall promptly inform BBC Resources of all relevant
facts relating to the use of the Deliverables and shall within a reasonable
time provide all such information as BBC Resources may reasonably require
to execute the Contract.
(4) The Customer warrants that all information provided by it to BBC
Resources under the Contract shall be accurate in all material respects
and that the Customer is entitled to provide the information without recourse
to any third party or that such third party approval has been obtained.
(5) The Customer shall not use the Goods and/or Facilities in any hazardous
manner or at any location or in any manner other than as agreed with BBC
Resources.
(6) Subject to Clause 10(8), the Customer shall at all times keep the
Goods and/or Facilities supplied under the Contract in good condition.
(7) The Goods and/or Facilities are supplied at the Customer's own risk
and the Customer shall be liable to BBC Resources for any loss thereof
or damage thereto (otherwise than in consequence of any negligence on
the part of BBC Resources) and the Customer shall notify BBC Resources
promptly of any such loss or damage.
(8) The Customer shall not carry out any repair to or replacement of
the Goods without the prior consent of BBC Resources. The cost of any
repair or replacement by BBC Resources shall be paid by the Customer.
(9) The Customer shall not make any alteration(s) or addition(s) to the
Goods and/or Facilities without the prior consent of BBC Resources. Where
BBC Resources so consents the Customer shall ensure that any such alteration(s)
or addition(s) is of a temporary nature and the Customer shall be responsible
for restoring the Goods and/or Facilities to their original condition
where applicable at the end of each periodic use thereof (as agreed with
BBC Resources) and either upon expiry of the Contract Period or upon termination
of the Contract, whichever is the earlier. Where the restoration has not
been made to the satisfaction of BBC Resources the cost of any further
restoration by BBC Resources shall be paid by the Customer.
(10) BBC Resources reserves the right to be present at any premises where
the Deliverables are being supplied at all times.
(11) The Customer shall allow BBC Resources full and convenient access
at all reasonable times to the Customer's Premises or such other premises
as required by BBC Resources for the purpose of carrying out the Contract.
(12) The Customer shall not take the Goods and/or Services outside the
United Kingdom without the prior consent of BBC Resources. Where BBC Resources
so consents the Customer shall within a reasonable time obtain all necessary
import permits and export licences if appropriate, licences and customs
clearances and any other permissions whatsoever as required for the Goods
and/or Services and the Customer shall pay all customs and import duties
and any other costs associated with the performance of its obligations
under this sub-clause.
(13) Where applicable at the end of each periodic use of the Deliverables
(as agreed with BBC Resources) and either upon expiry of the Contract
Period or upon termination of the Contract, whichever is the earlier,
the Customer shall:
(a) leave the Goods and/or Facilities in good condition;
(b) in respect of any property of the Customer remove from BBC and/or
BBC Resources Premises all such property and in default BBC Resources
shall be entitled to either arrange for transportation of such property
to the Customer (and the provisions contained in Clause 13(2) shall apply
in respect thereto) or subject to giving the Customer a reasonable period
of notice dispose of such property as BBC Resources sees fit. BBC Resources
shall be entitled to recover from the Customer all costs relating to the
transportation or disposal of such property and in the case of the latter
shall be entitled to retain any portion of any proceeds of sale for that
purpose;
(c) promptly vacate the Facilities and/or cease using the Goods and/or
Services and where applicable return the Goods to BBC Resources (and the
provisions contained in Clause 14(1) and (2) shall apply in respect thereto).
If any part of the Goods or Facilities is not returned BBC Resources reserves
the right to make further charges to the Customer whilst the Goods or
Facilities are inoperative. In the event that the Customer shall fail
to comply with this Clause 10(13)(c) BBC Resources shall be deemed to
have irrevocably all reasonable powers and authority to do all things
or acts necessary or advisable to retake possession of the Deliverables
and shall be entitled to recover from the Customer all costs relating
thereto.
(14) Any equipment supplied by the Customer that is to be used by BBC
Resources whether at BBC Premises, BBC Resources Premises or otherwise
shall remain at the Customer's own risk and expense and BBC Resources
shall not assume any responsibility for such equipment.
(15) Where the Contract includes the secondment of BBC Resources personnel
(of whatsoever nature) to the Customer, they shall be subject to the direction,
control and management of the Customer. The Customer shall be responsible
for all tasks performed by such persons and BBC Resources shall not be
liable to the Customer for any works which are performed by them.
(16) The Customer shall at its own expense make available for the use
by BBC Resources for purposes of the Contract such supplies of electricity,
water, gas, air and other services as agreed between the parties.
(17) Where the Customer is to use any Goods and/or Customer's property
on BBC Premises or BBC Resources Premises upon prior notification by the
Customer the BBC shall use its reasonable endeavours to provide a secure
area(s) for the Goods and such property as agreed between the parties.
The secure area(s) shall be provided at the Customer's own expense (where
the cost thereof is not included in the Contract Price) and BBC Resources
accepts no liability for the Goods and such property whilst in the secure
area(s) other than in consequence of any negligence on the part of BBC
Resources.
(18) Where the Customer requires the use of any Services away from BBC
Premises or BBC Resources Premises the Customer shall use its reasonable
endeavours to provide a secure area(s) for any BBC or BBC Resources property
as agreed between the parties. The secure area(s) shall be provided at
the Customer's own expense (where the cost thereof is not included in
the Contract Price) and BBC Resources accepts no liability for such property
whilst in the secure area(s) other than in consequence of any negligence
on the part of BBC Resources.
(19) The Customer shall not move or otherwise interfere with any BBC
or BBC Resources property unless specifically authorised by BBC Resources
to do so.
11. Security/Access/Inspection
Where the Contract requires the Customer to attend at BBC Premises or
BBC Resources Premises:
(a) the Customer shall provide to BBC Resources a list of all its personnel
and/or agents who will be attending at BBC Premises or BBC Resources Premises
48 hours in advance of access being required or as soon as practical and
shall update the list as necessary. Such persons shall be given entry
permission or issued with a BBC Resources identification (as determined
by BBC Resources) and where identity cards or entry permits are issued
they shall be displayed by such persons whilst on BBC Premises or BBC
Resources Premises and shall be returned to BBC Resources either upon
expiry of the Contract Period or when no longer required by such persons
or upon termination of the Contract, whichever is the earlier. The identification
issued remains the property of BBC Resources;
(b) BBC Resources may request and shall be supplied with identification
of any person engaged by the Customer whilst on BBC Premises or BBC Resources
Premises and conduct random security checks including checking the Customer's
and/or any such person's possessions and vehicle(s) whilst on BBC Premises
or BBC Resources Premises;
(c) BBC Resources shall at its discretion give to the Customer by prior
agreement such access to BBC Premises or BBC Resources Premises and such
general facilities (for example, catering and sanitary) at the BBC Premises
or BBC Resources Premises as the Customer may reasonably require to fulfil
its duties. However the BBC may refuse admission to, or remove from BBC
Premises or BBC Resources Premises any person whom BBC Resources deems
unacceptable for whatsoever reason other than solely to frustrate the
Contract.
(d) BBC Resources may refuse permission for the Customer to bring on
to BBC Premises or BBC Resources Premises property not essential for the
Customer's use of the Deliverables.
12. Visitors to BBC Premises or BBC Resources Premises
Where the Customer requires any members of the public (including but not
limited to invited guests or visitors) to attend at BBC Premises or BBC
Resources Premises the Customer shall:
(a) ensure that any such persons comply with such rules, regulations and
directions that are notified to them by BBC Resources;
(b) not permit or allow any such persons to attend at BBC Premises or
BBC Resources Premises without the prior written consent of BBC Resources
and such consent maybe granted by BBC Resources upon certain conditions;
(c) take full responsibility for any such persons and shall indemnify
BBC Resources from and against any loss, damage, liability or expense
caused by any such person.
13. Delivery of Goods
(1) Where the Goods are being supplied to the Customer away from BBC
Resources Premises:
(a) the delivery instructions shall be as specified in the Contract
Document;
(b) they shall be supplied at the Customer's own expense;
(c) the risk in the Goods shall pass to the Customer at the time of
despatch from BBC Resources Premises or any other premises from where
they were despatched to the Customer.
(2) In respect of any property of the Customer which BBC Resources transports
on behalf of the Customer such transportation shall be carried out at
the Customer's own risk and expense and insurance responsibility.
14. Title in Goods and/or Facilities
(1) Where the Contract consists of the hiring out or leasing of any Goods
and/or Facilities, they shall remain at all times the sole and exclusive
property of BBC Resources and the Customer shall not sell assign let pledge
mortgage charge encumber or part with possession of or otherwise deal
with the Goods and/or Facilities or any interest therein or create or
allow to be created any lien thereon and BBC Resources may terminate the
Contract with immediate effect upon written notice in the event of the
Customer making any attempt to do so.
(2) Where the Contract consists of the sale of any Goods, title shall
pass from BBC Resources to the Customer when the Contract Price and any
monies outstanding from the Customer to BBC Resources are paid in full.
Notwithstanding that title to the Goods has not passed under this Clause
14 (2) BBC Resources shall be entitled to sue for the Contract Price and
any other monies outstanding once payment thereof has become due.
15. Intellectual Property Rights
(1) All IPR’s arising from the performance of the Contract shall
vest in and be owned by the Customer. For the avoidance of doubt, no assignment
of any Pre-existing IPR will be assigned under this Contract. “Pre-existing
IPR” means any IPR owned by BBC Resources or the BBC at the commencement
of this Contract.
(2) Subject to Clause 15(3), BBC Resources shall, at its own expense,
defend or at its option settle any actions brought against the Customer
which consist of a claim that the sale, distribution or use of any Goods
under the Contract infringes any IPR belonging to a third party and BBC
Resources shall be responsible for all costs and lawyers' fees involved
and pay any damages finally awarded against the Customer in such action
provided that the Customer promptly notifies BBC Resources of such a claim,
gives BBC Resources express authority to proceed as contemplated by this
sub-clause (2) and provides BBC Resources with all available information
and assistance as BBC Resources may reasonably require.
(3) Where under the Contract the Customer provides BBC Resources with
material and/or information which is subject to copyright or third party
IPR’s or otherwise the Customer warrants that it has acquired, at
the Customer's own expense, all necessary consents, permissions and/or
clearances in the rights and shall hold BBC Resources harmless in respect
of the same.
16. Indemnity
The Customer shall indemnify BBC Resources against all liabilities,
claims, demands, damages, losses, costs and expenses (including legal
costs) which may be incurred by or brought against BBC Resources in respect
of:
(a) injury to any person or loss of or damage to any property arising
out of or in connection with the use by the Customer of any Goods and/or
Facilities and/or Services as a result of any negligent act or omission
by the Customer;
(b) any breach of or non-compliance by the Customer of any of its obligations
or warranties under the Contract;
(c) the Customer’s negligence or wilful default;
(d) any claims from third parties made as a result of its acts or omissions
(including relating to infringement of any IPR supplied under or used
in connection with the Contract).
17. Liability
(1) Nothing in the Contract excludes either party’s liability for
death or personal injury caused by that party’s negligence or willful
default.
(2) Subject to Clause 17(1) BBC Resources shall only be liable to the
Customer for accidental loss or damage caused by the negligence or default
of BBC Resources.
(3) In no circumstances shall BBC Resources be liable for any loss of
profits or any indirect or consequential loss of any nature whatsoever.
(4) In any event, and notwithstanding anything contained in the Contract,
BBC Resources’ liability in contract, tort (including negligence
or breach of statutory duty) or otherwise howsoever arising by reason
or in connection with this Contract (except in relation to death or personal
injury) shall be limited to the Contract Price.
18. Insurance
(1) The Customer shall arrange and maintain insurance throughout the
Contract Period to cover its legal liabilities and the responsibilities
imposed by the Contract including but not limited to Public liability
insurance with a scope of cover appropriate to the Deliverables supplied
under the Contract 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. For the avoidance of doubt, such minimum
insurance level shall not be a limit of liability under the Contract.
(2) Where the Customer engages a sub-contractor the Customer shall ensure
that the insurance requirements as specified in Clause 18(1) extend as
necessary to cover the liabilities and responsibilities of the sub-contractor
under the Contract or that the sub-contractor holds its own insurance
in accordance with Clause 18(1).
(3) The Customer shall provide to BBC Resources prior to the commencement
of the Contract Period satisfactory evidence of compliance with this Clause
18.
(4) Where the Contract consists of Dry Hire of Goods or Facilities:,
(a) the Customer shall arrange and maintain adequate insurance in relation
to the
loss of or damage to any Goods or Facilities hired or loaned to the Customer
by
BBC Resources.
(b) the Customer shall be responsible to BBC Resources for the prompt
repair or
replacement (at BBC Resources’ option) of Goods or Facilities lost
or damaged whilst in the charge and control of the Customer, other than
to the extent that the loss or damage is caused by the BBC Resources’
breach of any of the provisions of the Contract or any other of its omissions.
(5) BBC Resources shall not be liable for any consequential or indirect
loss, including any loss of profits revenues and/or business, anticipated
savings, whether or not in the contemplation of the parties at the time
of entering into the Contract, incurred by the Customer as a result of
the loss of or damage to the Goods and Facilities (by whatever means)
during the course of their being hired or loaned by BBC Resources, and
the Customer is advised to arrange and maintain insurance in respect of
such loss.
19. Warranties
The Customer undertakes, warrants and represents that:
(1) Except as otherwise agreed prior to performance of the Contract,
it shall obtain for BBC Resources all necessary consents, permissions
and/or clearances in third party rights (including IPR’s) with respect
to the Material.
(2) All Material is fit for the purpose for which it is supplied and,
where relevant, is of satisfactory quality, good construction, suitable
and sound material and adequate strength and has been tested prior to
delivery.
20. Force Majeure
(1) Neither party shall be liable for any failure to fulfil its obligations
under the Contract by reason of any event beyond its reasonable control
including but not by way of limitation Acts of God, strikes, lockouts,
war, riot, civil commotion, order or Act of Government (whether national
or international), any such occurrence being deemed an event of force
majeure.
(2) If either BBC Resources or the Customer is prevented or delayed from
or in performing any of its obligations under the Contract by an event
of force majeure then that party shall be entitled by notice in writing
to the other party given at any time during the subsistence of the event
to suspend the Contract for the duration of the event. Where the party
giving notice is unable to proceed with the Contract by reason of matters
arising from the event for a reasonable period of time following notice
of suspension then such party shall have the right to terminate the Contract
with immediate effect in writing.
21. BBC Resources Authority
The Customer shall comply with any directions given to it by any personnel
or agent of BBC Resources with regard to a matter within the competence
of such person and the Customer shall ensure that all its personnel and/or
agents and any other person present at the instance of the Customer shall
comply with such directions.
22. Compliance
The Customer shall provide, if requested by BBC Resources, evidence
of compliance with any of its obligations under the Contract.
23. Termination
(1) BBC Resources shall be entitled to terminate the Contract with immediate
effect in writing if at any time during the Contract Period:
(a) the Customer shall fail to make any payment due under the Contract
in full in accordance with Clause 4;
(b) the Customer shall commit or cause to be committed any breach of
its obligations under the Contract and
(i) the breach is capable of remedy and the Customer fails to remedy
the breach within 7 days (or such shorter period as may be reasonable)
of receipt of a written notice to the Customer specifying the breach and
requiring its remedy (in which case BBC Resources may remedy the breach
and recover the costs thereof from the Customer and terminate the Contract
in accordance with this Clause 23; or
(ii) the breach is not capable of remedy; or
(iii) the breach is a material breach or a breach of a material term.
(c) the Customer commits an act of bankruptcy or insolvency, is unable
to pay its debts as or when they fall due or makes any composition or
arrangement with its creditors, or goes into liquidation whether voluntary
or compulsory, or if any order is made or a resolution is passed for the
winding up of the Customer (except for the purpose of a solvent amalgamation
or reconstruction), or if it ceases or prepares to cease trading, or if
it suffers the appointment of a receiver, administrative receiver, administrator
or similar officer over the whole or part of any of its assets; or
(d) there is a change of control of the Customer. For the purposes of
this paragraph (d) "control" means the ability to direct the
affairs of the Customer whether by virtue of contract, ownership of shares
or otherwise howsoever in relation to the subject matter of the Contract;
(e) BBC Resources exercises its rights under Clause 14 (1); or
(f) the continued performance thereof is prevented by reason of any event
beyond the reasonable control of BBC Resources or the Customer (any such
occurrence being deemed an event of force majeure).
(2) The Customer shall be entitled to terminate the Contract with immediate
effect in writing if at any time during the Contract Period BBC Resources
shall commit or cause to be committed any breach of its obligations under
the Contract provided that in the case of a breach capable of remedy the
Customer shall have first given written notice to BBC Resources specifying
the breach complained of and requiring the same to be remedied within
a reasonable period of time from notification thereof and BBC Resources
shall have failed to comply therewith.
(3) Termination of the Contract howsoever arising shall be without prejudice
to any rights accruing or already accrued to either party at the date
of termination.
(4) Upon termination of the Contract for any cause whatsoever all sums
accrued due to BBC Resources under the Contract shall immediately become
due and payable to BBC Resources.
(5) The rights and obligations of either party arising under Clauses
14, 15, 16, 17, 20, 22, 23(5), 25, 27, 29 and 34 shall survive termination
of the Contract.
24. Assignment
The Customer shall not without the prior written consent of BBC Resources
assign the benefit of the Contract in whole or in part or any of its obligations
under the Contract.
25. Good Faith/Outside Activities
The Customer shall act in good faith towards the BBC and BBC Resources
and shall not bring the BBC or BBC Resources into disrepute.
26. Screen Credits/Advertising Material
If requested by BBC Resources, the Customer shall use its best endeavours
to afford BBC Resources a credit in the end roller credits of any programme(s)
produced by the Customer utilising the Deliverables and in any associated
advertising or other material.
27. Information and Confidentiality
(1) Except to the extent required for the purposes of performing its
obligations under the Contract, the Customer will not use or make available
at any time during or after the Contract to any third party any information
relating to the business or affairs of the BBC or BBC Resources which
is disclosed or otherwise is in its possession under or in respect of
the Contract, including this Contract and its subject matter except in
relation to information which:
(a) is or later comes into the public domain otherwise than through an
act or omission of the Customer; or
(b) was already known to the Customer at the time of disclosure otherwise
by an unauthorised disclosure by a third party; or
(c) disclosure is required by law, order of court, the requirements of
any regulatory authority or taxation authority or the rules of any stock
exchange; or
(d) the Customer has the prior written consent of BBC Resources to do
so.
(2) Notwithstanding Clause 27 (1), the Customer may disclose information
to its employees, professional advisors, agents and subcontractors solely
on a need-to-know basis provided that the Customer procures that the person
to whom such disclosure is made complies with the obligations under this
Clause 27 as if it were a party to the Contract.
28. Notices
Any notice required to be given pursuant to the Contract shall be in
writing and sent either by hand, prepaid recorded delivery, registered
post, telefacsimile transmission or electronic mail to BBC Resources or
the Customer at the address as specified in the Contract Document and
the notice shall be deemed to have been received by the addressee at the
time of delivery (if by hand) or within seventy two (72) hours of posting
or twenty four (24) hours if sent by telefacsimile transmission or electronic
mail to the correct telefacsimile transmission number (with correct answerback)
or correct electronic mail number of the addressee.
29. 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 or 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.
30. 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 Customer shall have no power to bind BBC Resources
or to contract in the name of or create a liability against BBC Resources
in any matter whatsoever other than as set out in the Contract.
31. Variation
Any amendment or variation to the Contract shall be made by prior written
agreement between the parties.
32. Severability
The unenforceability of any single provision of the Contract shall not
affect any other provision thereof.
33. Whole Contract
The Contract and any appendices and any documents annexed thereto and/or
referred to therein constitutes the entire understanding between the parties
with respect to the subject matter thereof and supersedes all prior agreements,
negotiations and discussions between the parties relating thereto.
34. Law
The Contract shall be construed in accordance with the laws of England
and Wales.
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