1.        DEFINITIONS

         “Contract” means any agreement, including an order or an offer, entered into by, and between, Eurovision Services and the User, which shall be deemed to include the Standard Terms and Conditions.

           “Eurovision Network” shall be interpreted in its widest sense and means all transmission capacity owned, leased or otherwise co-ordinated, planned or supervised by Eurovision Services.

           “Eurovision Services” means Eurovision Services SA with its registered office located at L'Ancienne-Route 17A, 1218 Le Grand-Saconnex, Geneva, Switzerland.

          “Fee” means the fee payable by the User to Eurovision Services for the Service(s) according to the provisions of section 3.

         “Parties” means collectively the User and Eurovision Services

         “Service(s)” means any and/or all services which Eurovision Services has agreed to provide to the User according to the Contract. 

          “Standard Terms and Conditions” means the terms and conditions set out below, and which shall form an integral part of the Contract.

         “User” means any person, company or other entity whose request for Service(s) is accepted by Eurovision Services and by whom a Fee is payable.

 

2.        DELIVERY OF THE SERVICE(S)

2.1      The delivery of the Service(s) is subject to the Standard Terms and Conditions.

2.2      The User acknowledges and agrees that Eurovision Services is free to determine the method by which it will deliver the Service(s). Without prejudice to the generality of the foregoing and notwithstanding anything to the contrary in the Contract, the User further acknowledges and agrees that Eurovision Services reserves the right to amend any technical configuration and/or characteristics of the transmission capacity (including but not limited to satellite, transponder, performance parameters), modify the Eurovision Network and/or to change equipment and software at any time at Eurovision Services’ sole discretion.

2.3      Eurovision Services is entitled to submit to the User recommendations for applying technological advancements and upgrades to the Service(s).  Application of technology advancements and/or upgrades will be subject to an agreement by the Parties regarding the cost of such advancements and/or upgrades. If the Parties do not agree to the cost of such advancements and/or upgrades, Eurovision Services may suspend the provision of the Service(s) or terminate the Contract in whole or in part at any time without any liability to the User and any third party. Where the User uses the Service(s), the User is deemed to have accepted the additional cost of such advancements and/or upgrades.

2.4      The User acknowledges and agrees that, whilst Eurovision Services will use all reasonable efforts to deliver the Service(s), the delivery of such Service(s) is at all times subject to the availability of the appropriate facilities and resources.

2.5      The equipment and/or software forming part of the Services(s) shall be used by the User with due care and for the sole purposes of the receipt and use of the Service(s); the User acknowledges and agrees that Eurovision Services does not manufacture equipment and produce software, nor is an agent of the manufacturer or of the licensor. The equipment and software are put at the disposal of the User "as is". The User hereby expressly waives any and all claims (of whatever nature) against Eurovision Services concerning the condition, quality (operation without interruption or error), durability and/or operation of the aforementioned equipment and software that form part of the Service(s). For the avoidance of doubt, any Internet connections and related requirements to enable the User to receive or use the Service(s) are out of the scope of the Service(s) delivered by Eurovision Services; these Internet connections and related requirements are of the sole responsibility of the User. Without prejudice to the foregoing, the User may however be required, upon Eurovision Services’ request, to enter into a separate hire agreement in respect of the provision of such equipment. In all circumstances, the place where the equipment is installed must be suitable protected against fire, theft and vandalism. If any of the equipment is lost, destroyed or damaged (except by fair wear and tear), the User is solely responsible and liable for its replacement or reimbursement at the election of Eurovision Services. The User must not interfere with any of such equipment or allow any third party to do so unless authorized in writing by Eurovision Services.

2.6      In order for Eurovision Services to operate the Eurovision Network and to perform its obligations under the Contract, it may be necessary for Eurovision Services: (i) to process, including but not limited to collect, use, revise, store and billing, utilization, traffic and other data, and to have access to and otherwise process personal data which Eurovision Services (or its subcontractors) may use along with other User data, in accordance with applicable law and regulation to provide the Service, and (ii) to transfer, process and store data outside Switzerland including the European Economic Area (“EEA”) and the United States, in accordance with applicable law and regulation, and User hereby agrees to such process and transfer). Furthermore, Eurovision Services may, without consent, deliver the Service(s), or a portion of the Service(s), through a subcontractor or through an affiliate. In some jurisdictions, Eurovision Services may deliver the Service(s) by procuring services of third party service providers as User’s agent, and the User consents to the foregoing, and appoints Eurovision Services as its agent to the extent necessary to obtain the Service(s).

 

3.        FEE AND PAYMENT

3.1      The User agrees to pay the Fee as set out in the Contract. The Fee shall be payable in full, without any right of set off, by the User within 30 (thirty) calendar days of the date of the invoice, unless otherwise provided in the Contract (the “Due Date”). The Fee is exclusive of Value Added Tax or any regulatory fees or surcharges which shall be payable by the User; any other deductions based on any currency control restrictions, duties, taxes, including but not limited to withholding taxes, or bank transfer charges may be added to the User’s invoice, so that the Fee payable to Eurovision Services be the amount it would have received without such deductions.

3.2      If an invoice for Service(s) provided by Eurovision Services to the User is not paid by the Due Date, Eurovision Services is entitled to terminate all Service(s) to the User under the Contract at any time with immediate effect upon written notice to the User without any liability to the User and any third party. Such right of termination shall be in addition to all rights and remedies which Eurovision Services may have.  The User shall remain liable for the Fee due, including interest charges at the rate of the London Interbank Offered Rate (LIBOR) plus 3 (three) percent per annum on the unpaid amount of the Fee, and for all costs to cover the debt and collection procedure (including reasonable attorneys' fees) incurred to collect overdue amounts.

3.3      If the User disputes the amount invoiced, it must notify Eurovision Services in writing within 30 (thirty) calendar days following the date of the invoice, after which time the User will be deemed to have accepted the invoice. For the avoidance of doubt, any undisputed amount invoiced shall be payable in full by the User in accordance with the provisions of clause 3.1.

3.4      Without any right for the User to terminate the Contract, if as a consequence of (a) any breach of the Contract by the User, or (b) the supply of incorrect information from the User, or (c) regulatory changes or change in law, the costs and/or expenses to Eurovision Services are increased, the User shall be liable to pay Eurovision Services such additional costs and expenses immediately upon demand of Eurovision Services.

 

4.        USER’S RESPONSIBILITY AND LIABILITY

4.1      The User shall promptly provide Eurovision Services with all information and assistance required by Eurovision Services to facilitate the delivery of the Service(s). Throughout the delivery of the Service(s), the User shall comply with all instructions given by Eurovision Services in the interests of safety of other users of the Eurovision Network. The User acknowledges and agrees that it is technically impracticable to deliver transmission services or coordination services free of fault(s) and therefore Eurovision Services cannot give any warranty express or implied in the quality and/or success of the Service(s).

4.2      In using the Service(s), the User represents and warrants that it is not entitled to resell or redistribute (whether for a fee or otherwise) the Service(s), or any portion thereof, or make any use of the Service(s) other than as foreseen in the Contract, Eurovision Services and/or its designee may audit the User's use of the Service(s) remotely or otherwise to ensure the User's compliance with the Contract, it has received all necessary approvals and/or licences in connection with the use of the Service(s), its use of the Service(s) will not infringe or violate any intellectual property rights of any third party and that no signals transmitted pursuant to the 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 Service(s) to other users of the Eurovision Network. The User represents and warrants that throughout the term of the Contract it has or will have the full right to access the material/content transmitted by the means of the Service(s) and is or will be entitled to receive the material/content distributed by Eurovision Services by the means of the Service(s) (and shall procure the same for any of its authorized end user) and that there is no outstanding agreement, judgment or any threatened or pending litigation or proceedings against it that would have a material adverse effect on the performance of its obligations under this Contract.

4.3      Given the nature of the Service(s), the User is solely responsible and liable for the content of the signal transmitted by the means of the Service(s), for implementing authentication measures and maintaining the security (by implementing appropriate monitoring, defensive or protective tools or measures) of the User's account login information, passwords and any other information used to gain access to the Service(s), for backing up all User content and User data and for any encryption of the User content or User data on or in connection with the Service(s), for any damages,  interferences and/or other malfunctions, howsoever caused to the Eurovision Network or any part thereof or to any third party's network. Accordingly the User shall indemnify and hold Eurovision Services and third parties harmless against any and/or all claims, costs, damages, expenses (including attorney's fees) arising out of or relating to the User's use of any/all parts of Eurovision Network, and/or arising out of a breach by the User (and/or its end users) of any of its undertakings, representations, warranties, guarantees or obligations under the Contract or when transmitting on the Eurovision Network.

4.4      The word “EUROVISION” and Eurovision Services’ logo are trademarks and nothing in the Contract can be construed as a licence or any other grant of rights in respect of such trademarks. The User will not undermine Eurovision Services’ rights in these trademarks. No public statement, disclosure or publicity or association of any kind with the aforementioned trademarks, with the Contract and/or with the event around or during which the Service(s) is being delivered (unless the User has been granted the right to associate itself with the event around or during which the Service(s) is being delivered directly by the right owner or event organizer) may be released or published by the User, whether directly or indirectly, without the prior written approval of Eurovision Services.

 

5.        EUROVISION SERVICES’ RESPONSIBILITY AND LIABILITY

5.1      The User shall inform immediately Eurovision Services about any failure in the Service(s) and shall thereafter confirm to Eurovision Services the default notification in writing within 72 (seventy-two) hours of the failure; notwithstanding anything to the contrary contained in the Standard Terms and Conditions, the User's sole and exclusive remedy for the failure in the Service(s) is the reduction of the Fee in proportion to the degree of failure in the Service(s) or, where a service level is agreed upon by Eurovision Services and the User as part of the Contract (“Service Level”), the User’s sole and exclusive remedy is the service credits as provided in the Service Level. In the event no written notification is addressed to Eurovision Services within the aforementioned deadline, the Service(s) shall be deemed accepted and the User shall not be entitled to make any claim, objection or raise any right to a credit. The Service Level must be in the Contract. To be eligible for a credit under a Service Level, the User must be in good standing with no delinquent invoices, in addition to any other express Service Level requirements. If the User is eligible to receive more than one credit attributable to the same Service Level failure, the User acknowledges and agrees that it shall only receive one credit equal to the highest of all credits then available; the User hereby expressly waives any right to claim other credits. Where Eurovision Services does not meet the Service Level and is accountable for a credit as set out above, Eurovision Services will, upon the User’s request, issue a credit to the User as stated in the Service Level. Unless stated otherwise in the Service Level, credits must be requested in writing within 30 (thirty) calendar days after the end of the month in which the failure occurred. Total monthly credits will never exceed the charges for the affected Service(s) for that month. For the avoidance of doubt, failure to meet the Service Level for reasons attributable (whether directly or indirectly) to a Force Majeure Event shall not entitle the User to enforce the Service Level.

5.2      Except to the extent prohibited by applicable law, Eurovision Services’ liability is limited to wilful misconduct and/or gross negligence. Eurovision Services is not liable in any circumstances for a) any consequential or any other indirect damages, such as but not limited to loss of income, loss of profit, loss of data, additional expenditure, additional personnel cost, savings not realized or third party claims (including but not limited to claims from subscribers, sponsors, end users and/or broadcasters for loss of broadcast exposure or for failure to deliver the content), and/or b) any damages arising from acts and/or omissions of the User or of any third party.

5.3      Eurovision Services is not liable for any failure to deliver the Service(s) which is caused by a Force Majeure Event, which means any event which is beyond Eurovision Services’ reasonable control, including but not limited to, Act of God, fire, flood, lightening, storm, earthquake or other climatic or meteorological catastrophes, equipment failure and/or malfunction, optic cable cut or maintenance, satellite failure, malfunction or maintenance, satellite pre-emption, double illumination, failure or delay of common carrier or impairment or lack of adequate transportation facilities, accident or repair to machinery, act or omission of its subcontractor, act of sabotage including but not limited to piracy or hacking, embargo, government requirement or action including the imposition of sanctions by any country against Switzerland or a country in which a party is registered or a country in which the Service(s) are deemed to be provided or delivered, war, civil or military authority, terrorism and industrial dispute, strike or labour disturbance, regulatory change or change in law, which prevents and/or affects the performance of the Contract and/or the delivery of the Service(s), which or the consequence of which, is beyond the reasonable control of Eurovision Services and/or any of its subcontractors; and could not have been prevented, avoided or remedied by Eurovision Services taking reasonable precautions (“Force Majeure Event”). If due to a Force Majeure Event, Eurovision Services cannot deliver the Service(s) or in the event the Service(s) shall be delivered around and/or during an event (such as but not limited to a sport, news or entertainment event), and if due to an event of force majeure the concerned event is cancelled in part or in its entirety or is postponed or is staged at another venue, the Service(s) shall not be delivered by Eurovision Services and the User is responsible and liable to pay the costs incurred by Eurovision Services and evidenced to the User for the purpose of fulfilling the Contract.

5.4      Each provision of this section 5 limiting or excluding liability operates separately in itself and survives independently of the others.

 

6.        CANCELLATION OF THE SERVICE(S)

           In the event of a cancellation of the Service(s) by the User, Eurovision Services may be entitled to a cancellation fee of up to 100 (one hundred) percent of the Fee. Any cancellation of the Service(s) by the User shall be in writing.

 

7.        TERM, TERMINATION AND SUSPENSION, CONSEQUENCE OF TERMINATION

7.1      Unless otherwise provided in the Contract, the Contract shall be valid and binding as from the acceptance by Eurovision Services’ request for Service(s), as from the date of signature of the Contract or from the date of first delivery of the Service(s) by Eurovision Services, whichever occurs first.

7.2      Eurovision Services may suspend the delivery of the Service(s) or terminate at any time the Contract in whole or in part without any liability to the User and any third party at any time with immediate effect in the event that:

7.2.1   the User causes, or there is a risk that the User may cause any disturbance to or disruption of the Eurovision Network, or the User uses, or there is a risk that the User may use, the Service(s) in a way not permitted by the Contract or to commit illegal acts;

7.2.2   the User is in breach of any representations and warranties or of any of its obligations of confidentiality under the Contract;

7.2.3   the User is in breach of any of its other obligations under the Contract and fails to remedy such breach (if capable of remedy) within the time stipulated by Eurovision Services following receipt of written notice from Eurovision Services informing the User of such breach;

7.2.4   the User becomes, or may risk to become, the subject of any voluntary or involuntary bankruptcy, receivership, or other insolvency proceedings or makes an assignment or other arrangement for the benefit of its creditors;

7.2.5   there is a Force Majeure Event preventing the fulfilment of the Contract, or the Service(s) shall be delivered around and/or during an event (such as but not limited to a sport, news or entertainment event) and such event is cancelled in part or in its entirety or is staged at another venue;

7.2.6   there are changes (including but not limited to regulatory or technical changes) whether or not made by the content owner and/or event rights owner, organizer and/or Eurovision Services’ subcontractors, which affect the delivery of the Service(s); or

7.2.7   where foreseen otherwise in the Contract.

7.3      If Eurovision Services terminates the Contract according to the provisions of clause 7.2 or if the User terminates the Contract without cause prior to expiry of the term of the Contract, the User shall pay the Fee due and payable by the User to Eurovision Services, equal to the total remaining Fee for what had been the scheduled Services during the remainder of the term (or if not expressly foreseen as per the planned Service(s) according to the relevant rate card) as well as any costs or expenses incurred by Eurovision Services in connection with the early termination of the Contract (together “Termination Fee”). Any suspension or termination in accordance with the provisions of clause 7.2 shall be in addition to any other rights and remedies which Eurovision Services may have under the Contract or at law.

7.4      After termination or expiry of the Contract, upon request of Eurovision Services, the User shall with due care disconnect, dismantle and package the equipment and shall return it to Eurovision Services (or its designee), or if agreed in advance with Eurovision Services in writing,  ensure that Eurovision Services is able to collect or remove its equipment without delay. Eurovision Services shall not bear the costs related to the re-establishment of the initial condition of any premises into which the equipment may have been installed and subsequently dismantled. The User shall be responsible and liable for such costs.

7.5      All clauses that survive the expiry or termination of this Contract by their nature shall survive expiry or termination of this Contract.

 

8.        MISCELLANEOUS

8.1      Notices: Unless otherwise expressly provided in the Contract, any notice or other communication relating to the Contract which concerns the interpretation, validity, or other material aspect of the Contract shall be written in English and shall be sent by registered mail or by courier to the address set forth in the Contract, or to any other address which has been given according to the provisions of this clause 8.1. The Parties are entitled to disregard any notice or other communication which is not sent as herein described.

8.2      Assignment or Transfer: The User shall not assign or in any other way transfer its rights or obligations under the Contract to any third party without the prior written consent of Eurovision Services. The User acknowledges and agrees that the Service(s) is provided for the User’s use only. Eurovision Services is entitled without requiring the User's further consent and without further notice, to transfer or assign the Contract in whole or in part to any of affiliated entity.

8.3      Confidentiality: The User accepts that all information received from Eurovision Services, whether of a technical nature (including but not limited to the synopsis) or otherwise, is confidential information and undertakes to keep such information secure and protected against theft, damage, loss or unauthorised access, and not to use such information for any purpose except as contemplated by the Contract.  The User shall ensure that this obligation is observed by its employees, officers, agents and third party contractors.

8.4      Entire Contract: The Contract represents the entire understanding between the Parties in relation to its subject matter and supersedes all other agreements and representations, whether oral or in writing. No other terms and conditions shall be acceptable and the User acknowledges and agrees that its general purchase or other terms and conditions are excluded.

8.5      Amendment: No amendment or variation of the provisions of the Contract shall be valid or binding unless expressly agreed in writing and signed by the Parties.

8.6      No Waiver: The failure of Eurovision Services to exercise or enforce any of its rights under the 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.

8.7      Severability: The invalidity or unenforceability of any one of the provisions of the Contract shall not adversely affect the validity or enforceability of the remaining provisions.

8.8     Governing law and Jurisdiction: The interpretation, construction and effect of the Contract shall be governed in all respects by the laws of Switzerland without regard to choice of law principles. Where a claim or dispute arising out of or in connection with the Contract and including any question regarding their existence, validity or termination, is not settled by negotiation, the Parties irrevocably agree to submit to the exclusive jurisdiction of the courts of the Canton of Geneva, Switzerland to resolve any such claim or dispute.