TERMS OF TRADE FOR THE PURCHASE OF GOODS, FACILITIES AND SERVICES
PART A: GENERAL TERMS
1. Definitions “Tiger” means Tiger Aspect Productions Limited to whom the Supplier is providing the Goods, Facilities and/or Services under the Contract and Tiger shall be deemed to include all its relevant officers, servants and/or agents; the “Contract” means these Terms of Trade and the Purchase Order; the “Contract Period” shall be the period or date(s) as specified in the Purchase Order; the “Contract Price” means the price payable by Tiger to Supplier as specified in the Purchase Order; the “Facilities” means any facilities to be provided by Supplier pursuant to the Contract; the “Goods” means any item(s) to be constructed, manufactured or provided by Supplier pursuant to the Contract or in the case of Services the physical product(s) of the Services; the “Tiger Materials” means any materials, documents, equipment provided by Tiger to Supplier in connection with Goods, Facilities and or Services; the “Purchase Order” means the Tiger pro forma(s) detailing the Goods, Facilities and/or Services to be provided; the “Services” means any services to be provided by Supplier pursuant to the Contract (which will include where appropriate any equipment/materials provided by 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, servants and/or agents.
2. Existence of Contract The Contract shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which Supplier may purport to apply and the provision of the Goods, Facilities and/or Services shall be deemed conclusive evidence of Suppliers acceptance of the Contract.
3. Good Faith/Outside Activities The Supplier shall act in good faith towards Tiger and shall not bring Tiger into disrepute nor, without the prior consent of Tiger, make any reference to it in association with any advertising or other promotional material or write for publication or speak in public about Tiger or its affairs.
4. Contract Price/Payment
4.1 For the Goods, Facilities and/or Services provided under the Contract Tiger shall pay to 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 submit a valid VAT invoice for the whole or any part of the Contract Price to Tiger at the address overleaf quoting the relevant Purchase Order number and production title and Tiger 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 represents, and has been agreed on the basis that it represents and includes, the full and complete consideration due to 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 Tiger reserves the right to withhold payment where the Goods, Facilities and/or Services have not been provided in accordance with the Contract and shall notify Supplier accordingly.
4.4 Supplier will not pledge Tiger’s credit nor order goods nor incur liability on Tiger’s behalf without Tiger’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 Supplier shall be entitled to reimbursement of its reasonable travel and subsistence expenditure with correctVAT applied, and the level of such expenditure (net of recoverable VAT) and terms of payment shall be agreed in writing between Tiger and Supplier in advance of Supplier discharging its obligations under the Contract. Any such claim made without proper evidence of such expenditure incurred will not be reimbursed by Tiger.
5. Standard of Goods/Facilities/Services
5.1 The Supplier shall ensure that any Goods and/or Facilities and/or Services are: (a) fit for the intended purpose of satisfactory quality as well as tested prior to delivery (and 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 Supplier to have jurisdiction over Supplier and/or Tiger and Supplier shall use every endeavour to ensure that such rules, regulations and guidelines are known about and complied with by persons engaged by Supplier, and (c) comply with all current national and international technical standards and procedures and any technical standards, requirements and procedures that the Tiger 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 Supplier to perform the Services and Tiger accepts no liability for loss of or damage to the equipment/materials otherwise than in consequence of any negligence on the part of Tiger.
6.2 Tiger may provide a storage area for any equipment/materials provided under Clause 6.1 and where it does so Supplier shall ensure that the storage area is fit for the intended purpose and it is used in a proper, careful and secure manner at Supplier’s own risk and expense and Tiger accepts no liability therefor otherwise than in consequence of any negligence on the part of Tiger. Tiger reserves the right to reclaim the storage area upon notification.
6.3 The Supplier shall not use any Tiger Materials or equipment without the prior consent of Tiger.
7.1 The Supplier shall comply, and shall ensure that its officers, servants, agents and/or any sub-contractors (collectively “Staff”) comply, with all current relevant: (a) health, safety and fire legislation and office Codes of Practice and Guidelines, (b) Tiger’s health, safety and fire requirements, copies of which should have been sent to you (if not please contact Maria Keaveney, HR Manager on 0207 4324 6700 for a copy)
7.2 Where the health, safety and fire requirements of the Contract are additional to or differ from those specified in Clause 7.1 Tiger and Supplier shall agree such requirements (and shall exchange such information as is necessary for that purpose) before Supplier commences provision of the relevant Goods, Facilities and/or Services
7.3 Supplier shall: (a) assess risks to health and safety (including fire) that may affect their Staff and those that may affect Tiger 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 Tiger with a written statement of Supplier’s own safety requirements and a copy of any risk assessment carried out, (c) fully co-operate with Tiger and any others as necessary on health and safety matters as necessary to ensure all reasonably foreseeable risks to health and safety are eliminated or adequately controlled, and (d) consult with Tiger 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 Tiger shall be responsible to Supplier for any accidental physical loss or damage to the Goods whilst in the charge and control of Tiger provided that Supplier notifies Tiger promptly upon discovery of any such loss or damage.
9. Delivery of Goods
9.1 The Supplier shall ensure that any Goods are kept in a proper, careful and secure manner at Supplier’s own risk and expense until the whole or any part thereof are either delivered to Tiger at Supplier’s own risk and expense or collected by Tiger at Tiger’s own 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 Tiger 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 Tiger absolutely at such time as Tiger 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 Tiger at the time of termination.
9.3 Where any Goods are found by Tiger, upon delivery or collection or subsequently, not to conform with the Contract, Tiger reserves the right to accept or reject the whole or any part thereof and if rejected return the Goods to Supplier at Supplier’s own risk and expense, such acceptance or rejection being without prejudice to any other remedy available to Tiger.
10. Third Party Liability and Insurance
10.1 The Supplier shall indemnify Tiger against all costs and expenses (including reasonable legal costs) losses and liabilities which Tiger may incur as a result of: Supplier’s breach or non-compliance with its obligations or warranties under this agreement; the negligence or willful default of Supplier or it’s Staff; and, any claims from third parties made as a result of Supplier’s acts or omissions (including, without limitation, for personal injury or loss of or damage to property and/or relating to infringement of any intellectual property rights supplied under or used in connection with the Contract) and shall indemnify Tiger against any claim brought against Tiger by any third party for personal injury or loss of or damage to property caused by Supplier. Supplier shall arrange and maintain with a reputable insurer adequate Public Liability Insurance, and where applicable Product Liability Insurance and/or professional indemnity insurance, with an adequate indemnity limit which shall be no less than two million pounds sterling (£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 on the request of Tiger.
10.2 Where Supplier engages a sub-contractor in accordance with Clause 17 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 Supplier shall be responsible for insuring any equipment such as motor vehicles or mobile plant provided by Supplier to perform the Contract against loss or damage and liabilities to third parties or anyone carried in or on such equipment.
11. Clearance of Third Party Rights Except as otherwise agreed, Supplier shall obtain all necessary consents, permissions and/or clearances in respect of third party rights (whether copyright, intellectual property rights or otherwise) and shall hold Tiger harmless in respect of the same so that Tiger shall be entitled to use the Goods provided or the result of the Services without liability to any third party. The Supplier further warrants and represents that Supplier is the lawful owner or licensee of any software programs or other materials used by Supplier in the provision of the relevant Goods, Facilities and/or Services
12. Confidentiality Except where strictly necessary and then only on a need to know basis, Supplier shall keep confidential at all times during or after the Contract any information relating to the business of Tiger its employees, contributors or customers, including but not limited to trade secrets, programme idea, story, title, production methods, technical or financial data, or any other confidential or proprietary information, documentation, photographs or material used or owned by or relating to the programmes, films, operations, magical tricks and illusions, processes or which is obtained as a result of its relationship with Tiger under the Contract.
13.1 Where Tiger considers that Supplier has failed to perform in part or in whole its obligations under the Contract and the failure is in the reasonable opinion of Tiger capable of remedy Tiger shall notify Supplier thereof and Supplier shall remedy the failure. If the failure is not remedied by Supplier to the satisfaction of Tiger within a reasonable period of time (but in any event within five days) from such notification Tiger may remedy the failure and recover the costs thereof from Supplier and/or terminate the Contract under Clause
13.2 Tiger may terminate the Contract with immediate effect in writing: (a) if there has been a material breach by Supplier of its obligations under the Contract, (b) if Supplier commits an act of bankruptcy, or makes any composition or arrangement with its creditors, or is declared insolvent, or if any order is made or resolution is passed for the winding up of the Supplier, or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver or administrator over the whole or any part of its assets, (c) if there is a change of control of the Supplier, where control means the ability to direct the affairs of the Supplier whether by virtue of contract, ownership, shares otherwise howsoever,(d) if the continued
performance of the Contract is prevented by reason of any event beyond the reasonable control of Tiger or the Supplier (any such occurrence being deemed an event of force majeure), (e) in accordance with Clause 36, and (f) on provision of ten(10) days notice in writing to Supplier
13.3 Termination of the Contract howsoever arising shall: (a) be without prejudice to any right of action accruing or already accrued to either party at the date of termination, and (b) not in itself give rise to a claim by Supplier for damages or otherwise beyond a claim for payment due under the Contract up to and including the date of termination.
13.4 Upon termination of the Contract for whatsoever reason Supplier shall promptly deliver up to Tiger at Supplier’s own risk and expense the whole or any part of the Goods for which payment has been made under the Contract up to and including the date of termination, any Tiger equipment/materials provided under the Contract and any Tiger swipe cardsprovided thereunder. Tiger shall be deemed to have irrevocably all powers and authority to enter Supplier’s premises or any other premises to recover and remove such items and recover the costs thereof from Supplier.
13.5 The rights and obligations of either party arising under Clauses 3, 4.3, 7, 10, 11, 12, 24, 33 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 the Equal Opportunities Commission, the Commission for Racial Equality, the Department of Employment and the Fair Employment Commission (Northern Ireland).
15. Notices Any notice required to be given by either party to the other party shall be in writing and served upon the addressee at such address as it may notify to the other party for such purpose and if none at the addressee’s address stated on the 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 Tiger assign or sub-contract any of its rights or obligations under the Contract to any third party. Tiger shall be entitled to assign the benefit of this Contract either in whole or in part to any third party .
17.2 Any sub-contractor engaged by Supplier in accordance with Clause 17.1 shall be subject to the same obligations as Supplier is subject to under the Contract and Supplier shall do all things necessary to ensure that the sub-contractor complies therewith.
18. No Agency, Partnership or Joint Venture Nothing in this Contract shall be deemed to constitute either party as the agent of the other or create a partnership or joint venture between the parties and Supplier shall have no power to bind Tiger or to contract in the name of or create a liability against Tiger 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 this Contract shall be construed as being cumulative and no one of them shall be deemed to be exclusive of the others or of any right or remedy allowed by law or equity, and pursuit of any one remedy shall not be deemed to be an election of such remedy, or a waiver of any other remedy. The sole right of the Supplier as to any breach or alleged breach hereof by Tiger shall be the recovery of money damages only (and in no event injunctive or equitable relief) and the rights granted hereunder by Supplier shall not be terminated by reason of such breach.
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. This Contract does 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 this 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 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 Tiger and Supplier in advance of Supplier discharging its obligations under the Contract. Any such claim made without evidence of such expenditure incurred will not be reimbursed by Tiger.
24. Compliance If requested by Tiger, Supplier shall provide evidence of compliance with any of 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 Tiger shall provide.
27. Broadcaster Policy Where relevant Supplier shall comply with all current relevant broadcaster policy including that contained in the relevant broadcaster’s guidelines, details of which Tiger shall supply to Supplier on request.
28. Credits Any credits awarded to Supplier in connection with the Contract shall be in accordance with the credit guidelines applicable to the relevant broadcaster and subject to Tiger’s discretion
29. Sub-contracting Where Supplier engages a sub-contractor in accordance with Clause 17 for work involving aircraft (including helicopters, balloons, gliding, microlights, model aircraft, parachutes); amourers; asbestos; diving; explosives; pyrotechnics and fire effects; flying ballet; hydraulic work platforms; lasers; location lighting; scaffolding and similar structures; specialised rigging and wiremen; smoke effects; urea-formaldehyde snow effects in enclosed areas and stunt artists Supplier shall only use those sub-contractors approved by Tiger for that purpose.
30 Further Documents The Supplier shall do all such acts and execute such documents as Tiger may reasonably require to vest in or confirm to Tiger or its successors in title and licensees the copyright and all other rights assigned or granted or purported to be assigned or granted by Supplier to Tiger under this Contract.
31 Claims The Supplier warrants that the are no potential, threatened or actual claims by against it by any party including without limitation by 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 Tiger 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, Staff, agents or sub-contractors engaged by Supplier (which assignments Supplier hereby warrants have been granted to Supplier with full title guarantee) throughout the world for the full period of copyright, together with all and any renewals and extensions thereof and thereafter (insofar as Supplier is able to grant the same) in perpetuity to the extent permitted by law and so that such assignment shall be without reservation or condition and so that no right of any kind, nature or description is reserved by Supplier. For the purpose of United States copyright law, products of the Services shall be deemed “works made for hire” for Tiger
32.2 The Supplier grants to Tiger all consents and permissions necessary to enable Tiger to make the fullest use of the product of 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 Tiger has the unlimited unconditional right to edit, copy, alter, add to, take from, adapt and/or translate the products of the Services as Tiger wishes
32.3 Without prejudice to the generality of the assignment of rights set out in Clause 32.1, Supplier hereby agrees that such assignment includes any and all rental and lending rights, whether now known or hereafter existing in any country of the world in and 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 Supplier’s behalf by the relevant national collection agencies (in which case Supplier’s claim shall be against the collection agency).
32.4 The Supplier grants to the Producer 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 Supplier’s services hereunder. The Supplier hereby, waives irrevocably and warrants that the Individual(s) and any agent(s) or subcontractor(s) engaged by 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 Tiger shall be entitled but not obliged to exercise the rights granted to it under this Contract and Tiger has no obligation to use all or part of the Goods, Facilities and/or Services.
33. Contract for Services It is hereby agreed and declared that this agreement constitutes a contract for services and not a contract of employment and accordingly Supplier shall be solely and fully responsible for all Supplier’s and any individuals supplied by 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 Services under this 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 Suppliers and individual’s services hereunder (including, but not limited to, holiday pay (if applicable) or pension or in respect of any hours worked by Crew any individual over and above 48 hours per week) and Supplier shall indemnify Tiger against all costs and expenses and any penalty, fine or interest incurred or payable by Tiger in connection with or in consequence of any such liability, assessment or claim. Supplier further warrants that all personnel and Named Individual(s) engaged or procured by Supplier in any capacity in connection with this Contract shall be entitled to work in the UK in accordance with the Asylum and Immigration Act 1996 (or otherwise in respect of any other locations, in accordance with relevant local laws), and that prior to any such individuals commencing services hereunder, Supplier shall have verified via receipt of the relevant documentation (UK or EEA Passport or other relevant 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 and Named Individual(s) engaged or procured by Supplier in any capacity in connection with this Contract. In addition to any skill or work specific health and safety training in respect of their role, general health and safety training to have also been successfully provided within the last three years and prior to commencement of this Contract, for (i) all senior production personnel on the basis of suitable “face to face” management level health & safety course (such as, or to the equivalent level to, “ Safe Management Productions – see http://www.1stoptiontraining.com/”) within the last three years and prior to commencement of this Contract, (ii) all other personnel and Named Individual(s) on the basis of at least suitable on-line training (such as, or to the equivalent level to Online Risk Awareness (RAW) (see http://www.1stoptiontraining.com) )
35. Replacement of Named Individual(s) Where the Contract specifies that Supplier shall provide named individual(s) to perform in whole or in part Supplier’s obligations under the Contract, and the individual(s) for whatsoever reason become unable to do so, Supplier shall promptly notify Tiger thereof whereupon Tiger shall be entitled to terminate the Contract at its entire discretion. If Tiger elects to continue with the Contract, Supplier shall, as promptly as is reasonably possible, provide a suitable replacement(s).