Standard Terms and Conditions
|1 - Definitions|
|Customer means any person, firm
or company, whose request for Service(s) is accepted by the EBU and
by whom a Fee is payable. EBU means the News, Network
and Sports Services of the European Broadcasting Union of Ancienne
Route 17A, CH-1218 Grand Saconnex, Geneva, Switzerland. Eurovision
Network shall be interpreted in its widest sense and means all
transmission capacity owned, leased or otherwise co-ordinated, planned
or supervised by the EBU. Fee means the rate quoted to
the Customer by the EBU for the performance of the Service(s) which
is subject to, and payable in accordance with, the provisions set out
in Paragraph 3 below. Service(s) means any and all services
which the EBU has agreed to provide to the Customer subject to these
Terms and Conditions,which shall include, but not be limited to, one
or more of the following services: Standard Co-ordination Services;
Full or Partial transmission Services; Equipment Leasing [and Installation]
Services; Production and Transmission Services; Special Service(s) i.e., a
service which does not correspond to any of the aforementioned services.
|2 - Provision of Services|
2-1 The Customers request for Service(s) shall constitute the Customers irrevocable offer to purchase the Service(s). The EBU, if it wishes to accept the Customers offer, shall acknowledge and accept the request and such act shall constitute acceptance for the purposes of creating the Contract.
2-2 All Service(s) provided by the EBU to the Customer shall be subject to these Terms and Conditions which shall form the EBUs entire Contract with the Customer. The invalidity or unenforceability of any one of these Terms and Conditions shall not adversely affect the validity or enforceability of the remaining provisions.
2-3 The Customer accepts that, whilst the EBU will use all reasonable efforts to provide the Service(s), the provision of such Service(s) is at all times subject to the availability of the appropriate facilities.
2-4 The Customer accepts that the EBU is free to determine, at its sole discretion, the method by which it will provide the Service(s). Without prejudice to the generality of the foregoing,the Customer further accepts that in connection with the performance of the Service(s), the EBU has the right to amend any technical configuration at any time.
|3 - Fees & Payment
3-1 In consideration of the EBU providing the Service(s),the Customer agrees to pay the Fee.
3-2 Where,in order to meet the Customers requirements,the EBU considers it desirable or necessary for any reason to provide the Service(s),wholly or in part,at a substantially greater expense than originally agreed,or in a substantially different manner to that originally envisaged,the EBU may require the Customer to pay an additional charge and/or require the Customer to agree to special conditions. In the event that the EBU requires the Customer to pay an additional charge and/or requires the Customer to agree to special conditions,the Customer shall have the right to cancel the Services. The Service(s) may be suspended until such time as the Customer notifies the EBU in writing that it accepts the additional charge and/or the special conditions.
3-3 If,as a consequence of a)any breach of these Terms and Conditions by the Customer, or b)the supply of incorrect information from the Customer, the cost to the EBU in performing the Service(s)is increased, the EBU may ask for such additional costs and expenses to be reimbursed by the Customer.
3-4 All Fees are exclusive of Value Added Tax,and any other duties or taxes which may be added to the Customers invoice, where applicable.
3-5 Subject to Clause 3.8 below,all Fees due to the EBU shall be payable in full,without any right of set off,by the Customer within 30 days of the date of the invoice (the Due Date).
3-6 If an invoice for Service(s) provided by the EBU to the Customer is not paid by the Due Date, the EBU shall be entitled to terminate all Service(s) to the Customer under this Contract. Such termination shall be in addition to all other rights and remedies which the EBU may have. The EBU shall also be entitled to terminate any other agreements and/or understandings with the Customer,without further notice, and without liability to the Customer and/or any third party or parties. The Customer shall remain liable for all Fees due, including interest charges at 5% per annum,or such other rate as may be notified to the Customer from time to time,on any invoice outstanding for more than 60 days after the Due Date.
3-7 If the Customer disputes the invoice, it must notify the EBU prior to the Due Date,after which time the Customer will be deemed to have accepted the invoice.
3-8 Notwithstanding the foregoing, the EBU reserves the right:
3-8-1 to seek and obtain from any Customer part or full payment in advance before the provision of any Service(s); or
3-8-2 to require an irrevocable bank guarantee from the Customer before undertaking to provide the Service(s) requested by the Customer,on terms which are satisfactory to the EBU. In the event that the Customer fails to meet its payment obligations then the EBU shall be entitled to deduct such monies as are outstanding,or shall be outstanding to the EBU, from the bank guarantee before refunding any balance of such bank guarantee to the Customer. In addition,the EBU shall be entitled to deduct and/or withhold monies payable by the Customer as a bank guarantee in the event that the Customer is in breach of the indemnity provisions herein contained, or in the event that the EBU considers that there is a reasonable risk that the Customer will be in breach of such indemnity provisions.
|4 - Customers Responsibilities
4-1 The Customer shall promptly provide the EBU with all information and assistance required by it to facilitate the performance of the Service(s).
4-2 The Customer acknowledges that Eurovision is a trade mark of the EBU and that nothing in this Contract can be construed as a grant of rights in respect of such mark. Further in contracting with the EBU, the Customer undertakes not to take any action which may, at any time,undermine the EBUs rights in this trade mark.
4-3 In utilizing the Service(s), the Customer warrants that it will abide by all applicable laws and that it has received all necessary approvals, permissions and/or licences in connection with its utilization of the Service(s). Without prejudice to the generality of this Paragraph 4.3, the Customer further warrants to the EBU that no signals transmitted pursuant to this Contract shall contain any material which,in any relevant jurisdiction,may be considered pornographic, excessively or gratuitously violent, obscene, indecent, or which may violate any property or civil right, any right of privacy or any material which may constitute a defamation or an infringement of copyright or which may directly or indirectly interfere with the provision of Services to other clients and users of the Eurovision Network. The EBU reserves the right to withdraw Services from the Customer in the event that it suspects that the Customer may be in breach of this warranty.
4-4 Throughout the performance of the Service(s)by the EBU,the Customer shall at all times comply with all instructions given by the EBU in the interests of safety, of other clients and users of the EBUs services,of other satellite users or of the Eurovision Network as a whole.
4-5 Where the Customer orders terrestrial and/or satellite circuits on the Eurovision Network,the Customer shall make arrangements,where necessary,only with an approved telecommunications or satellite/uplink operator for transmitting on the Eurovision Network and shall provide the EBU with documentary evidence,to the EBUs satisfaction,to this effect. The Customer accepts full responsibility for the acts or omissions of such third party operators,whose acts or omissions shall be deemed to be the acts of the Customer for the purposes of this Contract. The Customer also warrants that it will adhere and will ensure that any third party operator appointed pursuant to this Paragraph 4.6 adheres to the terms of the Eutelsat Satellite Operations Guide, any applicable ITU recommendations, as may be updated from time to time, and such operating guidelines as may be issued by the EBU.
4-6 The Customer accepts that all information received from the EBU, whether of a technical nature or otherwise is confidential information and undertakes to keep such information secure and protected against theft, damage,loss or unauthorized access,and not to use such information for any purpose except as contemplated by this Contract. The Customer shall ensure that this obligation is observed by its employees, officers, agents and contractors.
4-7 The Customer shall not assign, sub-license or in any other way transfer its rights or obligations under this Contract to any third party.
4-8 No public statement,disclosure or publicity of any kind relating to this Contract may be released or published by the Customer, whether directly or indirectly, without the prior written approval of the EBU.
4-9 The Customer is wholly responsible for any equipment the EBU provides to the Customer in order to comply with the Customers request for Service(s), and for its proper use. If any of this equipment is lost, destroyed or damaged, (except by fair wear and tear), the Customer will be responsible for its replacement, repair or its reimbursement, at the election of the EBU. The Customer must not interfere with the EBUs equipment or allow any third party to do so unless authorised by the EBU. Without prejudice to the foregoing, the Customer may be required, upon the EBUs request, to enter into a separate hire agreement in respect of such equipment.
4-10 In the event that the EBU, in its sole and unfettered discretion, considers that, in utilising the Service(s), the Customer may be, or may risk being, in breach of any the above, then the EBU may immediately suspend contractual performance until the Customer has rectified matters. Alternatively, the EBU may terminate the Contract and any other agreements and/or understandings with the Customer forthwith without any obligation and/or liability, of any kind whatsoever, to the Customer and/or any third party or parties. Such termination shall be in addition to all other rights and remedies which EBU may possess in the matter.
4-11 The Customer shall be wholly liable and responsible for any/all damages, interference and/or other malfunction, howsoever caused, to the Eurovision Network or any part thereof, in the exercise or pursuance of any rights granted hereunder or otherwise. Accordingly, the Customer shall indemnify and hold the EBU and third parties harmless against any/all claims, costs, damages, expenses (including all attorneys fees) arising out of or relating to the Customer's use of any/all parts of the Eurovision Network and/or by a breach by the Customer of any of its undertakings, warranties, guarantees or obligations under this Contract.
|5 - EBU Liability|
5-1 The EBU shall not be responsible in any way for the acts or omissions of third parties and all matters other than those under the direct operational control of the EBU and provided to the Customer in accordance with this Contract. The EBUs liability in contract, law, tort or otherwise (including liability for negligence), shall in no circumstances exceed the Fee payable by the Customer.
5-2 In the case of transmission failure only, where all or part of any transmission fails and a) provided that the Customer has notified the EBU at the Eurovision Control Centre (EVC), by voice communication, during the failed transmission, and b) subject to Paragraph 5.1 above, the Fee for the transmission shall be payable by the Customer to the EBU on a pro-rata basis. Accordingly, in the event that a percentage of any transmission fails, the EBU shall, subject to the provisions of this Contract, receive from the Customer the same percentage of payment which corresponds to the Service(s) provided. The EBU shall have the right but not the obligation to re-schedule the transmission, in which case the Fee shall be payable in full.
5-3 It is technically impracticable to provide a transmission service free of faults and the EBU does not undertake to do so and the Customer accepts that from time to time faults are inevitable. Accordingly, the EBU gives no guarantee whatsoever with regard to the quality and/or success of the transmission signals and shall not be liable for any loss or damage arising out of any failure to effect the transmissions and/or perceived lack of quality of any transmission signals.
5-4 The EBU shall not be liable for any failure to fulfil its obligations under this Contract which is caused either by force majeure conditions, or by any other factors or circumstances outside the direct and reasonable control of the EBU.
5-5 The EBU shall not be liable for any loss of income or contracts or for any indirect or consequential loss or damage of any kind, howsoever arising and whether caused by negligence, breach of contract or otherwise.
5-6 Each provision of this Paragraph limiting or excluding liability operates separately in itself and survives independently of the others.
|6 - Cancellation
6-1 Any cancellation of Service(s) by the Customer, in whole or in part, must be in writing, unless this requirement is expressly waived by the EBU.
6-2 Where the Customer cancels the Service(s) prior to commencement of those Service(s), such cancellation may be subject to the EBUs standard cancellation fees as are applicable at the time of cancellation.
6-3 Notwithstanding the provisions of Paragraph 6.2, a cancellation fee of up to one hundred per cent (100%) of the Fee may be charged where the EBU has already undertaken all or part of the Service(s) requested by the Customer; and/or the Customer has requested Special Service(s); and/or the EBU has been unable to re-sell all or part of the cancelled Service(s).
|7 - Variation & Waiver|
7-1 No amendment or variation of the provisions of this Contract shall be valid or binding unless expressly agreed in writing by the EBU and by express reference to this Paragraph 7.1.
7-2 The failure of the EBU to exercise or enforce any of its rights under this Contract shall not be deemed to be a waiver of any such right and shall not prevent the exercise or enforcement of the right at any time thereafter.
|8 - Jurisdiction|
This Contract shall be governed by Swiss law and any disputes arising hereunder shall be referred to the courts of the Canton of Geneva for settlement.