Any individual and/or company intending to exhibit content owned and/or controlled by Trafalgar Releasing Limited (“TRL”) via theatrical exhibition to a local audience in its territory, shall be required to enter into a binding legal agreement with TRL for the distribution and exhibition of such content on TRL’s Direct Booking Standard Terms and Conditions as set forth below (“Standard Terms and Conditions”).
Please read the below Standard Terms and Conditions carefully, prior to booking any event or content for local release through TRL. By booking the exhibition of any content owned and/or controlled by TRL, the party making such booking (“Exhibitor”) hereby acknowledges and agrees to be bound by the Booking Confirmation which shall incorporate the Standard Terms and Conditions as set forth below (and as may be updated by TRL from time to time in its sole discretion) to form the Agreement.
DIRECT BOOKING STANDARD TERMS AND CONDITIONS
For the avoidance of doubt all capitalised terms in this Agreement shall have the respective definitions as set forth in the Booking Confirmation (as defined below), as defined in the body of these Standard Terms and Conditions or as follows:
“Agreement” shall collectively mean these Standard Terms and Conditions and the Booking Confirmation, together forming a binding legal contract between the Parties.
“Booking Confirmation” shall mean the commercial terms in respect of each Event, or group of Events, licensed under this Agreement, as provided to Exhibitor by TRL. Exhibitor shall be required to notify TRL within five (5) working days if does not accept the terms set forth in the Booking Confirmation, if no such notification is received, the Booking Confirmation shall be deemed accepted on behalf of the Exhibitor. For the avoidance of doubt, until a Booking Confirmation, issued by TRL in its sole and absolute discretion, is received and accepted by Exhibitor, no agreement, approval, booking and/or any other form of permission related to the exhibition of any event shall be deemed given by TRL; and Exhibitor shall not be permitted to carry out any activity related to any event including without limitation any activities set forth herein, without TRL’s express prior written consent in its sole and absolute discretion.
“Booking Confirmation Term” shall mean the licensed term in respect of each Event, or group of Events, as set forth in the Booking Confirmation.
“Content Provider” shall mean any relevant third-party rights owner(s) in respect of each Event whom has granted to TRL (by way of a valid license) the right to distribute the Event(s) and grant the rights hereunder, as set forth in the Booking Confirmation.
“DCP” shall mean a digital cinema package in accordance with the standard industry definition thereof.
“Encore(s)” shall mean any additional Screenings of the Event to be exhibited in a Recorded Format after the First Exhibition Date, subject to TRL’s express prior written consent on a case by case basis. For the avoidance of doubt, where Encores are permitted, TRL shall be entitled to set, in it’s sole discretion, (including but not limited to a maximum encore screening window and/or a specified number of encore screenings) (“Encore Restriction(s)”). If applicable, TRL shall notify Exhibitor in writing of any such Encore Restrictions, and Exhibitor shall strictly adhere to the same, it being acknowledged and agreed that failure to adhere to any such Encore Restrictions shall constitute a material breach of this Agreement.
“Event(s)” shall mean the film(s), performance(s) or stage production(s) to which this Agreement applies, as set forth in each relevant Booking Confirmation.
“First Exhibition Date” shall mean the date on which Exhibitor is required to hold the first Screening of the Event(s), as set forth in the Booking Confirmation.
“Format” shall mean the relevant high definition format in which the event is provided for exhibition, being (a) live by satellite (“Live”); or (b) recorded and/or embodied on a DCP or Blu-Ray, as applicable (“Recorded”), and as set forth in the Booking Confirmation.
“Gross Box Office” shall mean any and all sums actually and indefeasibly received by Exhibitor as a result of its exploitation of the Event in accordance with the license granted to it hereunder.
“Net Receipts” shall mean Gross Box Office less any applicable VAT and actual verifiable refunds, only.
“Screening(s)” shall mean Exhibitor’s actual screening of the Event(s), to which the general public are able to purchase tickets to watch the Event and/or Encore, as applicable, taking place at the Site(s); in accordance with the license granted to it hereunder.
“Sites” shall mean the relevant cinemas and/or other venues with cinema quality facilities where the Exhibitor shall be permitted to screen the Event(s) in accordance with the license granted to it hereunder, as set forth in the Booking Confirmation.
“Territory” shall mean the country or jurisdiction in which Exhibitor is permitted to screen the Event(s), as set forth in the Booking Confirmation.
“TRL’s Share” shall mean the percentage of Net Receipts which are payable to TRL in consideration of the license granted to Exhibitor hereunder, as set forth in the Booking Confirmation.
2.1 Subject to the full and valid execution between the Parties of an accompanying Booking Confirmation, and further subject to the terms and conditions therein, TRL hereby grants to Exhibitor a non-exclusive and non-transferable license to:
(a) exhibit and screen the Event(s) in the Format, at Screening(s) during the Booking Confirmation Term and in the Territory only;
(b) subject to any applicable approvals required under this Agreement, utilize certain marketing materials produced by, or provided to, it during the Booking Confirmation Term; for the purpose of advertising, promoting and/or otherwise maximising sales in relation to the Screenings or otherwise, as may be required to fulfil its obligations under this Agreement.
2.2 Notwithstanding the foregoing and unless expressly stated to the contrary in the Booking Confirmation, it is understood and agreed between the Parties that nothing in this Agreement shall:
(a) place an obligation on TRL to grant a license in respect of any specific Event(s); nor place an obligation on Exhibitor to accept such license;
(b) place an obligation on either Party to execute a Booking Confirmation with the other Party;
(c) limit Exhibitor’s right to screen third party content from any other licensor and/or distributor in the Territory or throughout the world.
- PAYMENT, TAXES, REPORTING AND AUDIT:
3.1 In consideration for the rights granted to it under this Agreement, Exhibitor shall pay to TRL, TRL’s Share of the Net Receipts and, if applicable, any satellite fee; as set forth in the Booking Confirmation. For the avoidance of doubt, Exhibitor shall be entitled to retain the balance of the Net Receipts.
3.2 Commencing on the on-sale date for tickets to each Screening, Exhibitor shall provide TRL with weekly ticket sales reports in respect of such Screening, detailing: (i) the number of tickets sold; (ii) ticket prices; and (iii) anticipated Net Receipts.
3.3 Not later than seven (7) business days following each Screening, Exhibitor shall provide TRL with a report in respect of such Screening, detailing: (i) Gross Box Office; (ii) Net Receipts; (iii) total number of actual admissions; (iv) total number of concessionary admissions; (v) total number of complimentary tickets issued; (vi) total number of refunds issued; (vii) the ticket price paid by each attendee; and (viii) the total number of admissions possible if the Site were filled to full capacity (“Box Office Report”).
3.4 All monies payable to TRL under this Agreement, shall be paid by Exhibitor within ten (10) days of Exhibitors receipt of a valid invoice from TRL.
3.5 Without prejudice any of TRL’s other rights and/or remedies at law, in the event that Exhibitor fails to pay an amount payable by it under this Agreement, TRL shall be entitled to charge interest on the overdue amount from the due date up to the date of actual payment, after as well as before any judgement, at the rate of four per cent (4%) per annum above the base rate for the time being of National Westminster Bank plc. Such interest shall accrue on a daily basis from the date on which payment was due, through to the date of actual payment (before or after any judgement issued for such amount).
3.6 Exhibitor shall comply with and accept full responsibility (financial and otherwise) for, all filing and payment obligations with rights management societies in the Territory and shall promptly pay any and all taxes and duties due as a result of exhibiting the Event(s).
3.7 All amounts payable hereunder shall be subject to all laws, regulations and tax treaties now or hereafter in existence, which require the reporting and/or deduction of withholding taxes from payments made under this Agreement. In the event that a reduced withholding rate is appropriate under the applicable income tax treaty, the Party making the relevant payment shall report or deduct such withholding taxes from such payment hereunder to the other Party at such reduced rate (including, but not limited to, a zero rate of tax) pursuant to the applicable income tax treaty.
3.8 Each Party shall have the right to make such reportings and/or deductions in accordance with such laws, regulations and tax treaties, and the payment and/or reporting thereof to the governmental agency concerned in accordance with such laws, regulations and tax treaties shall constitute payment hereunder. Each Party's right to withhold under this Clause 3.8 is conditional on that Party furnishing the other Party with official tax receipts, certificates or other documentation with respect to withholding taxes so reported and/or deducted within six (6) months of such report and/or deduction. If any Party fails to provide such documentation, then all payments due under this Agreement shall be construed as gross amounts payable without set-off or counterclaim, free and clear of any withholdings or deductions of any kind.
3.9 Each Party shall at the request of the other Party, cooperate with the requesting Party to enable it to enjoy the benefit of any reduced withholding tax rate under the applicable laws, regulations and tax treaties.
3.10 Each Party hereby warrants, represents and undertakes that it shall:
(a) not engage in any activity, practice or conduct which would constitute either:
(i) a UK tax evasion facilitation offence under section 45(1) of the Criminal Finances Act 2017;
(ii) a foreign tax evasion facilitation offence under section 46(1) of the Criminal Finances Act 2017;
(b) Promptly report to the other Party any request or demand from a third-party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017 or any suspected tax evasion offences or facilitation of tax evasion offences, whether under UK law or under the law of any foreign country, in connection with the performance of this Agreement.
Any breach of failure to comply with the provisions of this Clause 3.10 shall constitute a material breach of this Agreement.
3.11 Exhibitor covenants and agrees that it shall keep and maintain, complete and accurate books of account and records at its principal place of business of all transactions relating to or affecting this Agreement, during the Booking Confirmation Term and for no less than six (6) years thereafter (“Records”).
3.12 At any time during the Booking Confirmation Term (and up to one (1) year following termination or expiry of the Booking Confirmation Term) but in any event, no more than once during any calendar year, TRL may appoint an independent auditor to audit the Records at Exhibitor’s principal place of business for the sole purpose of verifying the amounts due from Exhibitor to TRL under this Agreement (“Audit”).
3.13 In the event an Audit reveals any under payment of five per cent (5%) or more in any calendar year, Exhibitor shall promptly make an appropriate correcting payment of any monies due to TRL together with a reimbursement of the TRL’s costs (including professional fees and expenses) incurred in conducting or procuring the Audit and producing any Audit report (including professional fees and expenses).
- DELIVERY AND SCREENING OF CONTENT:
4.1 Where an Event is intended to be exhibited at a Screening in a Live Format, as specified in the relevant Booking Confirmation:
(a) TRL shall ensure that such Event is supplied to good technical standards; and in order to ensure the technical quality of the transmissions, verify signals, and permit sufficient time to troubleshoot and resolve any issues therewith, on the day of the Event, the live feed shall commence broadcasting not less than one (1) hour prior to the planned exhibition time of the Event.
(b) Exhibitor hereby confirms that the satellite receiving equipment currently fitted at each Site pointing to the relevant satellite (as notified to Exhibitor by TRL in advance) is suitable for the live downlinking of any Event(s) and such equipment meets minimum industry standards for high definition satellite equipment and is capable of meeting minimum output requirements, namely that it is:
(i) 1920x1080 capable of displaying 50i 16x9 image formats, with no less than 7000 lumens brightness; and
(ii) includes digital 5.1 and stereo sound.
For the avoidance of doubt technical specification which does not meet the requirements herein, shall require TRL’s prior written approval, ahead of any Screening by Exhibitor.
(c) Prior to each Screening, and where applicable, during each Event, Exhibitor shall:
(i) make itself available for, and participate in, satellite signal path tests for the transmission signal in respect of the Event, at such times as notified to Exhibitor by TRL and on sufficient notice to allow for any changes or repairs to be organised and completed prior to the Event (“Satellite Tests”);
(ii) use reasonable endeavours to clear the relevant areas of each Site, of any members of the general public, for a minimum of two (2) hours prior to the planned exhibition time on the day of Screening, to allow Satellite Tests to be carried out by TRL and/or Content Provider (as relevant). In the event that such Site is not able to be kept clear as required herein, then Exhibitor shall check the signal via a TV Monitor located elsewhere at the Site;
(iii) ensure that a qualified projectionist technician is available and on duty at all times during active transmission of the live feed (including Satellite Tests), and shall provide contact details for such technician to TRL in advance of any such testing or broadcast;
(iv) adjust its technical receivers to correspond with the relevant tuning information supplied to it by TRL; and
(v) periodically review its equipment (including but not limited to the provision of sufficient technical support and supervision, in advance of and on the day of the Screening) to ensure and maintain the good local quality of Event(s) licensed hereunder and shall promptly report any technical issues to the nominated technical support helpline, details of which shall be supplied to Exhibitor by TRL ahead of any relevant transmission.
(d) In the event that TRL (acting reasonably) has any doubts about the technical capability of the satellite equipment or its operation, then TRL shall not be obliged to supply the Event(s) to Exhibitor and this Agreement shall be terminated (in full or in part, as relevant to the particular circumstances thereof) with immediate effect.
4.2 Where an Event is intended to be exhibited at a Screening in Recorded Format, as specified in the relevant Booking Confirmation:
(a) TRL shall provide each individual Event on a DCP or Blu-Ray, whichever is applicable, to Exhibitor in advance of the screening date. Exhibitor shall test the DCP or Blu-Ray on its arrival and shall notify TRL immediately of any issues with such material;
(b) Exhibitor hereby confirms that the equipment currently fitted at each Site meets the minimum industry standards for high definition projection and is capable of meeting minimum output requirements, namely with no less than 7000 lumens brightness; and digital 5.1 sound.
For the avoidance of doubt technical specification which does not meet the requirements herein, shall require TRL’s prior written approval, ahead of any Screening by Exhibitor.
(c) Where Exhibitor is screening any Event via DCP, Exhibitor hereby confirms that it has the capacity do to the same and will ingest the content onto their servers on receipt.
(d) If applicable, TRL shall arrange for delivery (prior to the Event) and collection (after the Event) of the DCP and shall notify Exhibitor of the relevant delivery and collection dates in advance thereof. Exhibitor hereby acknowledges and undertakes that it must be ready to release the DCP by the specified collection date and at the collection time; any delay in such release may incur a charge (payable by Exhibitor at its sole cost) of up to Two Hundred Pounds Sterling (£200).
4.3 In the event that Exhibitor is authorised (pursuant to the Booking Confirmation) to exhibit any Encore(s) in relation to a specific Event, Exhibitor shall be responsible for capturing the Live content locally during the Event for exhibition at a later date.
- MARKETING AND PROMOTIONAL OBLIGATIONS:
5.1 Each Party shall use reasonable commercial endeavours to promote each Event in accordance with this Agreement, and in particular shall carry out the relevant obligations set forth in this Clause 5.
5.2 Exhibitor hereby:
(a) agrees that it shall utilise all communication channels to adequately and professionally promote the Event(s) including: on location at each Site, online and via e-mail;
(b) agrees that it shall provide a link, via the appropriate section of its own website, to the Content Provider’s website;
(c) acknowledges and agrees that all Exhibitor generated marketing materials and/or materials which have been provided by TRL or Content Provider but subsequently altered by Exhibitor, shall be submitted for approval by TRL and/or Content Provider (as applicable) in accordance with Clause 7 below.
(d) agrees that it shall adhere to any and all marketing obligations specified in the relevant Booking Confirmation.
5.3 TRL hereby agrees that it shall, in liaison with Content Provider, and where relevant, provide Exhibitor with access to any marketing materials which exist for the applicable Event, including but not limited to:
(b) digital delivery of posters; and/or
(c) other marketing materials as agreed between the Parties in good faith.
6.1 Exhibitor acknowledges that TRL and/or its Content Provider may seek sponsorship for the Event(s) and in such instances the content and/or marketing materials may include details thereof; and Exhibitor shall not be entitled to any remuneration as a result of such sponsorship.
6.2 Exhibitor acknowledges and agrees that in no event shall it be permitted to remove any sponsorship messaging from any materials provided or created hereunder, without TRL’s express prior written approval.
7.1 Unless expressly stated to the contrary, herein or in the Booking Confirmation, Exhibitor shall submit to TRL, for TRL’s and/or Content Provider’s (as applicable) prior written approval, to be granted in its sole and absolute discretion:
(a) all marketing materials created by Exhibitor (including without limitation, printed advertisements, brochure advertising, posters, flyers, postcards, online and or e-mail advertising materials);
(b) materials which have been provided by TRL or Content Provider but subsequently altered by Exhibitor (excepting only customary re-sizing of images); and/or
(c) all press releases created by or on behalf of Exhibitor;
Notwithstanding the foregoing, in no event shall Exhibitor be permitted to alter any logos and/or credits on marketing materials provided by TRL or Content Provider.
7.2 Any request for approval, consents and/or consultation required under this Agreement may be satisfied by email and/or telephone correspondence between the Parties using their Contact details as set forth in the Booking Confirmation; or as otherwise agreed between the Parties. Following submission of an approval request, Exhibitor shall give TRL and/or Content Provider (as applicable) a commercially reasonably opportunity to consider the matter and/or materials in respect of which such approval, consent or consultation is sought; and any response shall be provided by the approving party in writing within a reasonable timeframe. Under no circumstance shall any approval be deemed from any negative, silence or delayed response from the approving party.
7.3 For the avoidance of doubt, any approval given under this Agreement shall be expressly granted in writing, and where such written confirmation is not received, the relevant matter and/or material shall be deemed not-approved.
- REPRESENTATIONS, WARRANTIES, AND UNDERTAKINGS:
8.1 Each Party warrants to the other that it has full power and authority to enter into this Agreement, and in the case of TRL that it has full power and authority to grant to Exhibitor the rights licensed under this Agreement.
8.2 Exhibitor hereby warrants, represents and undertakes that:
(a) it shall keep the Site(s) available, and in good state of repair and cleanliness, for the Screenings and shall use reasonable care and skill to ensure that each Site and the Screenings are of the highest quality;
(b) it shall screen the Event(s) in their entirety without any cuts or alterations;
(c) it shall not during any Screening, exhibit any image other than those transmitted by TRL and/or Content Provider, without TRL’s prior written consent.
(d) it shall not act in any manner which may (i) be harmful to the goodwill of TRL and/or Content Provider; (ii) bring TRL and/or Content Provider into disrepute or otherwise prejudice or detrimentally affect the business thereof; (iii) be defamatory, obscene or otherwise actionable in law; and/or (iv) or infringe the intellectual property rights of TRL, Content Provider or any other third-party rights holder.
(e) it shall maintain and observe commercially reasonable measures (both technological and procedural) to monitor and prevent the misappropriation of TRL and/or Content Provider’s property, and specifically shall:
(i) carry out such commercially reasonable continual security checks, in the event that Exhibitor receives a digital file or tape of the Event(s) for a recorded Screening, as are required to protect and ensure the security of such files;
(ii) immediately notify TRL as soon as it becomes aware of any materially significant vulnerability in its internal security system.
(iii) promptly notify TRL of any infringement, of which it becomes aware, relating to TRL and/or Content Provider’s intellectual property rights (including without limitation, trademark infringement, and/or any unauthorised screening, reception or recording by a third party of any Event performance).
(iv) it shall not alter or impair any copyright notice or acknowledgement of TRL and/or Content Provider’s other intellectual property rights or any credit(s) that may appear in the Event(s) and/or any associated marketing materials, including but not limited to any and all trademark or similar notices (any production and/or sponsorship credits) which need to be used and displayed therein.
9.1 Each Party shall fully indemnify and keep indemnified the other Party on demand from and against any claim made against such Party in respect of any liability, loss, damage, injury, cost or expense sustained by the indemnified Party’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of this Agreement by the indemnifying Party.
9.2 TRL shall have no liability whatsoever in respect of any claim for loss or damage (and/or any costs or expenses related thereto) or any other liability whatsoever in respect of any person attending any Screening(s) arising out of any breach in the security or safety of the of the Site(s) and/or any negligent act or omission on the party of employees or third-party contractors on the Site(s); and Exhibitor fully and expressly indemnifies TRL in respect of any such claim.
9.3 Any and all indemnities provided hereunder shall be subject to the Party seeking to rely on such indemnity:
(a) promptly notifying the other Party, in writing, if any third party makes a claim, or is likely to make a claim, which may reasonably be considered to give rise to a liability under this Clause 9 (“Relevant Claim”);
(b) not making, nor having made, any admission of liability, agreement or compromise in relation to such Relevant Claim without the prior consent of the indemnifying Party (such consent not to be unreasonably conditioned, withheld or delayed), provided that the indemnifying Party shall be given sole control over the defence or settlement of such Relevant Claim (after giving prior notice to, but without requiring any further consents or approvals from, the Party seeking to rely on such indemnity);
(c) allowing the indemnifying Party access at reasonable times (and on reasonable prior notice) to: (i) its premises, employees, officers, directors, agents, representatives and/or advisers; and/or; (ii) any documents and or records within its control and/or possession (which the indemnifying Party shall be permitted to examine and take copies of); so as to enable the indemnifying Party and its professional advisors to fully assess and defend the Relevant Claim; and
9.4 Nothing contained in this Agreement shall restrict or limit either Party’s general obligation at law, to mitigate any loss it may suffer or incur as a result of any event which may give rise to a Relevant Claim under this Clause 9.
10.1 Each Party hereby agrees and undertakes that it shall not disclose, and procure that its directors, employees and agents shall not disclose, to any third party Confidential Information belonging to the other Party; save to the extent that such disclosure is:
(a) to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the Party’s obligations under this Agreement; and/or
(b) as may be required by law, court order or any governmental or regulatory authority;
10.2 Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations under this Agreement.
10.3 Further, each Party agrees and undertakes that it shall not release any press statement or issue any other announcement or publicity regarding the terms of this Agreement or which otherwise relates to the relationship between the Parties, without the prior consent in writing of the other Party; and
10.4 Neither Party shall for any reason, give any interview, provide any information or make any statement, whether in writing or orally, to any person, television company, radio station, newspaper, magazine or other media organisation or conduct themselves in such a manner which is and/or which they know or have reason to believe is defamatory, derogatory, disparaging or prejudicial to the goodwill or reputation of the other Party (or its Group Companies) or otherwise adversely affect any advertising or promotional campaign of the other Party.
10.5 The provisions of this Clause 10 shall apply at all times during the Booking Confirmation Term and shall continue after termination or expiration of this Agreement.
11.1 In the event that, at any time prior to delivery of the Event materials to Exhibitor, circumstances should arise meaning that, in TRL’s reasonable opinion, it would no longer be commercially viable for TRL to continue with the current booking arrangement (including but not limited to the cost of distribution being outweighed against an insufficient number of ticket sales in respect of Screenings), TRL may terminate this Agreement immediately by giving written notice to Exhibitor.
11.2 Without prejudice to any other right or remedy, either Party may terminate this Agreement immediately by giving written notice to the other if:
(a) the other commits (i) a material breach; (ii) any other breach of this Agreement which is not capable of remedy; or (iii) a breach which is capable of remedy and fails to remedy such breach within seven (7) days following receipt of a written notice from the Party not in default, such notice having provided sufficient details of such breach, and expressly required that it be remedied;
(b) the other commits repeated breaches of the terms of this Agreement and/or any associated Booking Confirmations;
(c) the other is unable or admits inability to pay its debts as they fall due or is deemed or declared to be unable to pay its debts under Applicable Laws; or
(d) the other becomes insolvent, goes into liquidation, has a receiver or similar functionary appointed over any or all of its assets (save for the purposes of a solvent reorganisation), makes any arrangement with its creditors or otherwise ceases, or threatens to cease to carry on its business.
11.3 In the event that, at any time during the Booking Confirmation Term, the Content Provider terminates its license agreement with TRL in respect of any Event(s), for any reason whatsoever, with the result that TRL shall no longer hold the requisite rights required to grant Exhibitor the license granted under this Agreement, TRL shall notify Exhibitor and this Agreement shall terminate with immediate effect.
- EFFECT OF TERMINATION:
12.1 Upon termination or expiry of this Agreement and/or each Booking Confirmation:
(a) Exhibitor shall immediately: (i) return any digital files and/or tapes of the Event(s); (ii) delete any local recordings of the Event(s); and (iii) return or destroy any recording(s) of the Event(s) and/or any associated marketing materials in its possession at such time; and
(b) any and all monies payable to TRL at such time shall immediately become due and payable by Exhibitor, and Exhibitor agrees that it shall make such payments.
12.2 Termination of this Agreement (for whatever reason) is without prejudice to the rights, duties and liabilities of either Party accrued at or prior to termination, and any clauses in these Standard Terms and Conditions and/or the Booking Confirmation which expressly or impliedly have effect after termination (including without limitation Clauses 2, 3, 8, through 10 (inclusive) 13, and 18) will continue to be enforceable.
- LIMITATION OF LIABILITY:
13.1 Nothing in this Agreement shall operate to exclude or limit a Party’s liability for: (i) fraudulent misrepresentation; (ii) death; (iii) personal injury caused by that Party’s negligence; and/or (iv) any other liability not capable of being excluded by law.
13.2 All warranties, conditions and other terms implied by: (i) statute, (ii) common law, or (iii) otherwise, are excluded from this Agreement to the fullest extent permitted by law.
13.3 Specifically excluding any liability in respect of payments actually owed by one Party to the other hereunder (including but not limited to Distribution Costs and Net Receipts) and/or clearances, licenses or other payment required as a pre-requisite to, or a consequence of, exploitation of the Licensed Rights hereunder, each Party’s total liability to the other in contract, tort (including negligence or breach of statutory duty) or otherwise, arising in connection with this Agreement shall be limited to a maximum value of two hundred and fifty thousand pounds sterling (£250,000).
13.4 Save as expressly set forth in this Clause 13, neither Party shall be liable to the other in contract, tort (including negligence or breach of statutory duty) or otherwise, for any direct or indirect loss of profit, direct or indirect loss of revenues, and loss of business contracts or anticipated savings or for any special, indirect or consequential loss or damage of any nature.
- 14. FORCE MAJURE:
14.1 Neither Party will be liable for any failure to perform or delay in performing its obligations under this Agreement where such failure or delay arises from or is attributable to:
(a) acts, events, omissions or accidents beyond the reasonable control of that Party including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Party so prevented or of the other Party), failure of a utility service or transport network, act of God, war, armed conflict or terrorist attack, nuclear, chemical or biological contamination, sonic boom, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant, machinery and/or any other technical equipment, fire, flood, storm or extreme weather; or
(b) the closure of the Event venue as a result of the scenarios listed in in Clause 14.1(a) or due to national mourning, epidemic or on any order of the licensing or other public body.
(each a ‘Force Majeure Event’), subject to the affected Party promptly notifying the other in writing of the cause of the delay or non-performance and the likely duration of the delay or non-performance and using all reasonable endeavours to limit the effect of the delay or non-performance on the other Party.
14.2 Should any Force Majeure Event arise; the Parties shall meet as soon as practicably possible to negotiate in good faith alternative arrangements for fulfilling their respective obligations under this Agreement.
- DATA PROTECTION:
15.1 Each Party agrees that it shall, in relation to any personal data collected and processed by such Party in connection with this Agreement (the “Data”):
(a) collect and/or process the Data in accordance with the relevant applicable data protection legislation in the relevant jurisdiction on the protection of individuals with regard to the processing of personal data and on the movement of such data;
(b) without prejudice to the generality of Clause 15.1(a) above, ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of personal data for the purpose of performing its obligations under this Agreement and pursuant to Clause 15.1(c) below;
(c) process the Data only so far as is necessary for the purpose of promoting and/or marketing the Content or such similar events or content in accordance with the consents given by the data subject.
(d) not disclose Data or to allow access to it other than by employees or third parties engaged by the disclosing Party to perform the obligations imposed on it under this Agreement, and ensure that such employees or third parties are subject to written contractual obligations concerning the Data which are no less onerous than those imposed on it by this Agreement; and
(e) where applicable, assist the other Party to comply with such obligations as are imposed on it by the local legislation relevant to data protection in the relevant jurisdiction, including but not limited to those obligations which relate to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators;
(f) maintain technical and organizational security measures sufficient to comply at least with the obligations imposed by the local legislation in the jurisdiction relevant to data protection, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to: (a) the harm that might result from the unauthorised or unlawful processing, or accidental loss, destruction or damage; and (b) the nature of the data to be protected, having regard to the state of technological development and the cost of implementing such measures. For the avoidance of doubt, such measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that the availability of and access to personal data can be restored in a timely manner after an incident, and regularly addressing and evaluating the effectiveness of the technical and organisational measures adopted by it;
(g) ensure that all personnel who have access to and/or process Data are obliged to keep such Data confidential; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 15 and make such records available for Audit.
(i) notify the other Party without undue delay on becoming aware of any Data breach;
15.2 Without prejudice to the requirements set forth in Clause 15.1 above, in respect of any personal data which is collected and/or processed within the European Economic Area (“EEA”), each Party further agrees that it shall not transfer such data outside of the EEA unless the following conditions are met:
(a) it has obtained the prior written consent of the data subject, and the transfer is made in full compliance with any reasonable instructions provided therewith and/or any other reasonable instructions notified to it by the other party prior to the transfer;
(b) it has provided appropriate safeguards in relation to the transfer; and
(c) the data subject has enforceable rights and effective legal remedies.
15.3 Each Party shall indemnify the other against all claims and proceedings and all liability, loss, costs and expenses incurred as a result of any claim made or brought by an individual or other legal person in respect of any loss, damage or distress caused to them as a result of unauthorized processing, unlawful processing, destruction of
15.4 In this Clause 15 ‘personal data’ and ‘processing’ shall have the same meaning as set out in the relevant data protection legislation and shall be construed according to that legislation.
15.5 For the avoidance of doubt, the obligations in this Clause 15 shall be in addition to, and do not relieve, replace or remove either Party’s obligations under any and all relevant applicable data protection legislation in the relevant jurisdiction.
- ANTI-BRIBERY AND CORRUPTION:
16.1 Each Party shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
(b) in respect of any activity taken outside of the UK, not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) have and maintain, throughout the Booking Confirmation Term, adequate procedures in place to ensure compliance with the Relevant Requirements, and enforce them where appropriate;
(d) promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by it, or any of its employees, officers, representatives or advisers in connection with the performance of this Agreement; and
(e) immediately notify the other Party in writing if a foreign public official becomes an officer or employee of the relevant Party, or acquires a direct or indirect interest in such Party and such Party warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of this Agreement);
For the avoidance of doubt, any breach of this Clause 16 shall be deemed a material breach of this Agreement.
16.2 For the purpose of this Clause 16, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
17.1 Any written notice given to a Party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at the address set forth in the Booking Confirmation; or
(b) sent by e-mail to the recipients set forth in the Booking Confirmation.
17.2 Any written notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting or at the time recorded by the delivery service.
(c) if sent by e-mail, at 9.00 am on the next business day after transmission.
17.3 This Clause 17 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18.1 Nothing in these Standard Terms and Conditions and/or any associated Booking Confirmation shall be deemed to constitute a partnership or joint venture between the Parties, nor engage or permit either Party to act or hold itself out as an agent for the other Party for any purpose.
18.2 Except to the extent of any misrepresentation or breach of warranty which constitutes fraud, these Standard Terms and Conditions together with the Booking Confirmation constitutes the entire agreement between the Parties relating to the Event(s) and supersedes any and all prior understandings or agreements whether oral or written. Each Party acknowledges that, in entering into this Agreement it does not rely on any statement, representation, assurance or warranty of any person other than as expressly set out in this Agreement.
18.3 Variations to this Agreement will only be effective if agreed in writing between the Parties.
18.4 Save to the extent explicitly authorised under each Booking Confirmation (in respect of Exhibitor’s right to sublicense the rights granted to it hereunder to the owners of any applicable Site(s)), neither Party shall be permitted to assign, transfer (save in respect of such instance where the Party in question is acquired by a third party, in its entirety, as a going concern), sub-license, mortgage or place any other encumbrance upon this Agreement, or any part thereof; and any attempted or purported assignment or other transfer (save in respect of such instance where the Party in question is acquired by a third party, in its entirety, as a going concern), sublicense, mortgage or other encumbrance of this Agreement (or part thereof) by either Party without the prior written approval of the other Party shall be void and of no effect.
18.5 Each of the terms, conditions and warranties for the benefit of TRL contained in this Agreement shall benefit any group company of TRL in accordance with the Contracts (Rights of Third Parties) Act 1999. Notwithstanding the foregoing, the Parties do not intend that any of the terms of this Agreement will be enforceable by virtue of that Act by any person not a Party to it; and the right of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a Party to this Agreement.
18.6 No exercise or failure to exercise or delay in exercising any right, power or remedy vested in a Party shall constitute a waiver by that Party of that or any other right or remedy.
18.7 The clause headings and sub-headings of this Agreement are for convenience only and shall not affect the interpretation of this Agreement or any clause thereof.
18.8 In the event that any provision of these Standard Terms and Conditions and/or the Booking Confirmation is found to be invalid, illegal or unenforceable then (and only to the extent that it invalid, illegal or unenforceable) such provision will be given no effect and will be treated as if it were not included in these Standard Terms and Conditions and/or the Booking Confirmation but it will not affect the validity or the effectiveness of the remainder the relevant provision and/or of this Agreement in its entirety; and where applicable, the Parties agree to negotiate in good faith to agree an alternative provision having substantially the same commercial effect (to the extent permissible by applicable law).
18.9 This Agreement and all disputes, claims, actions, suits or other proceedings or questions arising out of or in connection with this Agreement including but not limited to the interpretation, performance, termination or expiration of this Agreement hereunder shall be exclusively governed by, and construed in accordance with, the substantive laws and decisions of the laws of England and Wales; and each Party hereto hereby (a) irrevocably submits to the sole and exclusive jurisdiction of the courts of England and Wales; and (ii) irrevocably consents to the exercise of personal jurisdiction over each of the parties by such courts and waives any right to plead, claim or allege that England and Wales is an inconvenient forum or to serve proceedings in any other jurisdiction.
18.10 Each Party hereto hereby absolutely, irrevocably and unconditionally waives to the fullest extent permitted by law all right to trial by jury in any litigation directly or indirectly arising out of, pertaining to or associated with (i) this Agreement, (ii) the actions of the Parties hereto in connection herewith or (iii) any agreement, instrument or document entered into by the Parties in connection with this Agreement.
18.11 If applicable, and where signature is required, these Standard Terms and Conditions and/or the Booking Confirmation may be executed in counterparts, each of which shall constitute an original but which, when taken together, shall constitute one instrument. A counterpart signature page of these Standard Terms and Conditions and/or the Booking Confirmation executed by a Party and transmitted electronically as a tagged image format file (TIFF) or in portable document format (PDF) shall be treated as an original, fully binding and with full legal force and effect, and the Parties waive any rights they may have to object to such treatment.
18.12 Any alternative language/translated version of these Standard Terms and Conditions and/or the Booking Confirmation as provided by either Party is provided by that Party purely for informational purposes. Neither Party makes any warranty, gives any indemnity nor accepts any liability as to the accuracy nor completeness of any foreign language translated version. This Agreement shall be interpreted, governed and construed in accordance with the English language version and not the translated version. In the event of any conflict, between the English language version and the translated version, the English language version shall prevail.
This Agreement includes and incorporates the provisions of these Standard Terms and Conditions, the Booking Confirmation, and exhibits, forms, schedules and riders, if any, annexed thereto and made a part of this Agreement. Immediately on receipt and acceptance of the Booking Confirmation, the Parties agree to the incorporation by reference of these Standard Terms and Conditions.
In the event that there is an inconsistency between any of the terms contained in any relevant Booking Confirmation and these Standard Terms and Conditions or exhibits, forms, schedules and riders, the Booking Confirmation shall govern and control.