“Contract” means any agreement, including an order or an offer, entered into by, and between ES and the User, which shall be deemed to include the Standard Terms and Conditions.
“Eurovision Services” (or “ES”) means Eurovision Services S.A with its registered office located at L'Ancienne-Route 17A, 1218 Le 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 ES.
“Fee(s)” means the fee payable by the User to ES for the Service(s) which is subject to the provisions set out in the provisions of section 3.
“Service(s)” means any and/or all services which ES has agreed to provide to the User subject to the Contract.
“Parties” means collectively the User and ES
“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 ES and by whom a Fee is payable.
2. PROVISION OF THE SERVICE(S)
2.1 The Service(s) is set out in the Contract and the provision of the Service(s) is subject to these Standard Terms and Conditions.
2.2 The User accepts that, whilst ES 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 or equipment. The Service(s) is provided for the User’s use only unless otherwise agreed in writing upon by the Parties.
2.3 Equipment including connections provided by ES to the User relating to the provision of the Service(s) remains the property of ES or its suppliers, unless otherwise provided in writing in the Contract. In the event ES sells some equipment to the User, ES will provide it "as is" without warranty, guarantee, condition or other terms. ES will use its reasonable efforts to pass the benefit of any warranties offered by the manufacturer or distributor of the equipment on to the User. The risk of loss and damage to the equipment will pass to the User on delivery. The title and property in the equipment will only pass to the User when the equipment has been fully paid by the User. Until then, the equipment will remain under the ownership of ES.
2.4 The User accepts that ES 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 and notwithstanding anything to the contrary in the Contract, the User further accepts that in connection with the performance of the Service(s), ES 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 at any time at ES’ sole discretion.
2.5 ES may communicate to the User any advancement or upgrade in technology that may directly or indirectly affect the Service(s) including the equipment and may submit to the User recommendations for applying such technological advancements and upgrades to the performance of the Service(s). Application of technology advancements and/or upgrades will be subject to agreement by the Parties regarding the cost of such advancements and upgrades. If the Parties cannot agree on the cost of such advancements and upgrades, ES may suspend the provision of the Service(s) or terminate the Contract in whole or in part at any time without liability to the User and/or any third party. The User is deemed to have accepted the additional cost of such advancements and upgrades if it uses the Service(s).
2.6 The User shall notify immediately ES about any failure in the Service(s) and shall thereafter confirm to ES the default notification in writing within 72 (seventy-two) hours of the failure; notwithstanding anything to the contrary contained herein, as the User's sole and exclusive remedy for the failure in the Service(s), the Fee may be reduced in proportion to the degree of failure in the concerned Service(s) or if a service level agreement is agreed upon by ES and the User as part of the Contract (“SLA”), the User’s entitlement to claim service credits as provided in the SLA shall be User’s sole and exclusive remedy for any failure of ES to provide the Service according to the Contract. In the event no written notification is addressed to ES 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 of set off in respect of payment of the Fee relating to the Service(s).
(i) the applicable SLA (if any) for the Services shall be set forth in the Contract. To be eligible for a credit under an applicable SLA, User must be in good standing with no delinquent invoices, in addition to any other SLA requirements. If User is eligible to receive more than one credit attributable to the same SLA failure, User shall only receive one credit equal to the highest of all credits then available.
(ii) the “service level” commitments are contained in the SLA where applicable. If ES does not meet a service level and is accountable for such failure, ES will, upon User’s request, issue a credit to User as stated in the SLA. Credits must be requested in writing within 30 (thirty) calendar days after the end of the month in which the event occurred. Total monthly credits will never exceed the charges for the affected Service(s) for that month. Save where the User has the right to terminate the Contract, the User’s sole remedies for any non-performance, outages, failures to deliver or defects in Service(s) are contained in (i) the SLA (if any) applicable to the affected Service(s).
(iii) For the Service(s), the User shall not be eligible to receive a credit and ES shall not be held responsible, if a Service(s) outage (as defined in the SLA) or other service level failure occurs, directly or indirectly, due to a Force Majeure Event.
2.7 In order for ES to operate the Eurovision Network and to perform its obligations under the Contract, it may be necessary for ES: (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 ES (or its agents, providers, suppliers) 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, ES may, without consent, provide Service, or a portion of a Service, through a subcontractor, provider, supplier or through an affiliate. In some jurisdictions, ES may provide Service(s) by procuring services of third party carriers as User’s agent, and User consents to such, and appoints ES as its agent to the extent necessary to obtain Service(s).
2.8 The User acknowledges and agrees that Service(s) may be subject to additional terms, as notified by ES from time to time.
3. FEE AND PAYMENT
3.1 In consideration of ES providing the Service(s), the User agrees to pay the Fee.
3.2 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, the costs and/or expenses to ES are increased, the User shall be liable to pay ES such additional costs and expenses immediately upon demand of ES.
3.3 Inflation or fluctuations in exchange rates are beyond ES' control. In the event of material inflation or fluctuations of exchange currency rates, ES reserves the right to increase the Fee at any time without prior notice to take into account such material inflation or exchange currency rate fluctuations.
3.4 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 ES be the amount it would have received without such deductions.
3.5 ES reserves the right to charge an additional administrative fee to cover the cost of providing additional administrative services (including costs incurred in reminder fees) to the User.
3.6 Subject to the provisions of clause 3.10 below, the Fee due to ES 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”).
3.7 If a revenue share is agreed between the Parties in the Contract, such revenue share shall be calculated on the net sums actually received, after deduction of any currency control restrictions, duties, taxes, including but limited to withholding taxes, or bank transfer charges and paid as determined by ES, unless otherwise provided in the Contract. The User undertakes to keep accurate books of account and records covering all transactions relating to the Service(s) in each calendar year for a period of not less than one year following the expiry or termination of the Contract, and ES shall be entitled to cause any locally recognized third party independent accounting firm retained by ES to have the right to examine said books of account and records and all other documents and materials in the possession or under the control of the User necessary to monitor the revenue share. In the event that such audit confirms that (a) the amount of the net sums actually reported by the User as due to ES is within 2 (two) percent of that reported by the audit, ES shall bear the costs of the audit, (b) there is a discrepancy in the amount of the net sums actually reported by the User as due to the ES of more than 2 (two) percent, the costs of the audit (including without limitation, all accounting, auditing and legal fees and costs) shall be borne by the User. Any deficiency in the amount of the net sums reported shall be paid immediately by the User together with interest thereon as set out in the provisions of clause 3.8. Any overpayment shall be refunded promptly by ES.
3.8 If an invoice for Service(s) provided by ES to the User is not paid by the Due Date, ES shall be entitled to terminate all Service(s) to the User under the Contract immediately upon written notice. Such right of termination shall be in addition to all other rights and remedies which ES may have. ES shall also be entitled to terminate the Contract as a whole, any other agreements and/or understandings with the User, upon written notice and without liability to the User and/or any third party. The User shall remain liable for the Fee due, including interest charges at the rate determined by ES plus 3 (three) percent per annum on the unpaid amount of the Fee. The User shall also be responsible for all costs of collection (including reasonable attorneys' fees) to collect overdue amounts.
3.9 If the User disputes the amount invoiced, it must notify ES 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. Any undisputed amount invoiced shall be payable in full by the User in accordance with the provisions of clause 3.6.
3.10 ES reserves the right at its discretion:
3.10.1 to seek and obtain from any User part or full payment in advance before the provision of any Service(s); or
3.10.2 to require an irrevocable bank guarantee from the User before undertaking to provide the Service(s) on terms which are satisfactory to ES. In the event that the User fails to meet its payment obligations then ES shall be entitled to deduct such monies as are outstanding, or shall be outstanding to ES, from the bank guarantee before refunding any balance of such bank guarantee to the User. In addition, ES shall be entitled to deduct and/or withhold monies payable by the User as a bank guarantee in the event that the User is in breach of the indemnity provisions herein contained, or in the event that ES considers that there is a reasonable risk that the User will be in breach of such indemnity provisions.
3.11 If the User is prohibited by a governmental authority in any country from making any payment due under this Contract then the User will use its best efforts to secure from such authority permission to make such payment and will make it within 7 days of receiving such permission. If such permission is not received within 30 days of the User making a request for such permission then, at the option of ES, the User will either deposit the payment in the currency of the relevant country in a bank account designated by ES within such country or make the payment to an associated company of ES designated by ES and having an office in the relevant country or in another country designated by ES.
4. USER’S LIABILITY
4.1 The User shall promptly provide ES with all information and assistance required by ES to facilitate the performance of the Service(s). Throughout the performance of the Service(s), the User shall at all times comply with all instructions given by ES in the interests of safety of other clients and users or of the Eurovision Network as a whole. The User accepts that it is technically impracticable to provide co-ordination services or transmission services free of fault(s) and therefore ES, its providers and/or suppliers do not give any warranty express or implied in the quality and/or success of the Service(s).
4.2 In utilising the Service(s), the User shall be liable and responsible without any restriction for any and/or all damages, interferences and/or other malfunctions, howsoever caused, to the Eurovision Network or any part thereof or to any third party's network, in the exercise or pursuance of any rights granted hereunder or otherwise including any acts or omissions of any of its appointed third party providers, suppliers and/or customers. Accordingly the User shall indemnify and hold ES 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 in the frame of the Contract, and/or by a breach by the User of any of its undertakings, representations, warranties, guarantees or obligations under the Contract or by in particular any third party providers, suppliers, end users and/or customers when transmitting on the Eurovision Network.
4.3 In utilising the Service(s), the User warrants that it will not 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 for User’s internal business purposes, unless otherwise agreed in writing by ES. The User warrants that it will abide by all applicable laws and that it has received all necessary approvals, permissions and/or licences in connection with the use of the Service(s). The User acknowledges that the Services may be subject to applicable trade, embargoes, import, export and re-export control and economic sanctions laws and regulations. The User shall indemnify, defend and hold ES (and its parent company and its subsidiaries) and third parties harmless from any liability arising from importing, exporting, re-exporting the Services, directly or indirectly, to any destination, entity, or end use in violation of applicable laws or regulations. The User shall ensure that its end Users’ use of the Service, if any, shall comply with all applicable laws and regulations and terms of the Contract. The User acknowledges and agrees that ES and/or its providers may audit User's use of the Service remotely or otherwise, to ensure User's compliance with the Contract. The User warrants that throughout the entire term of the Contract it (and/or its end User if any) 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 ES by the means of the Service(s). ES shall not be responsible for obtaining any necessary licenses relating to the Services. ES reserves the right to suspend or terminate the Services in whole or in part in countries that are subject to sanctions and embargoes with immediate effect (by any means including by email) without liability to User. The User represents and warrants that its use of the Service(s) will not infringe or violate any intellectual property rights of any third party. Without prejudice to the generality of the provisions of this clause 4.3, the User further warrants to ES 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 clients and users of the Eurovision Network. The User is solely liable for the content of the signal transmitted by the means of the Service(s). The User further warrants 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.
4.4 Given the nature of the Service(s), User is solely responsible for (i) all abuse, theft or other unauthorized usage or activity (e.g., leeching or hotlinking/direct linking to User content), (ii) all resulting charges and costs and (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by ES or a third party) and (iv) regularly monitoring all use of Services and Services and other activity. The User is solely responsible for implementing authentication measures and maintaining the security of User's account login information, passwords and any other information used to gain access to Service(s). User is solely responsible for backing up all User content and User data. The User shall be solely responsible for any encryption of User content or User data on or in connection with the Service(s) unless otherwise specified in the Contract.
4.5 The User shall be liable and responsible without any restriction for any equipment ES provides to the User in order to provide the Service(s), and for its proper use. The place where the equipment is installed must be suitable protected, in particular against fire, theft and vandalism. If any of this equipment is lost, destroyed or damaged (except by fair wear and tear), the User shall be responsible for its replacement, repair or its reimbursement at the election of ES. The User must not interfere with any of such equipment or allow any third party to do so unless authorized in writing by ES. Without prejudice to the foregoing, the User may be required, upon ES’ request, to enter into a separate hire agreement in respect of the provision of such equipment.
4.6 The User acknowledges that the word “EUROVISION” and ES’ logo are trademarks and that nothing in the Contract can be construed as a license or any other grant of rights in respect of such trademarks. Further in contracting with ES, the User undertakes not to take any action which may, at any time, undermine ES’ rights in these trademarks. The User shall not advertise the fact that it uses Service(s) from ES without the prior written approval of ES.
4.7 The User shall not assign, sub-license or in any other way transfer its rights or obligations under the Contract to any third party without the prior written consent of ES. The User hereby acknowledges and agrees that ES shall have the right without the User's consent and without further notice, to transfer or assign the Contract in whole or in part to any of its affiliates or third party.
4.8 The User accepts that all information received from ES, 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.
4.9 No public statement, disclosure or publicity or association of any kind relating to the Contract or to the event around or during which the Service(s) is being provided may be released or published by the User, whether directly or indirectly, without the prior written approval of ES.
5. ES’ LIABILITY
5.1 Except to the extent prohibited by applicable law, ES’ liability is limited to wilful misconduct and/or gross negligence.
5.2 ES shall not be 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, including any provider and/or supplier of ES.
5.3 ES shall not be liable for any failure to fulfil its obligations under the Contract which is caused by an event of force majeure which means any event which is beyond ES’ reasonable control, including but not limited to, Act of God, fire, flood, explosion, accident, interference, lightening, storm, earthquake or other climatic or meteorological catastrophes, disease, epidemic, virus, equipment failure and/or malfunction, optic cable cut or maintenance, satellite failure, malfunction or maintenance and/or satellite pre-emption, double illumination, unauthorized third party's access to signal(s), failure or delay of common carrier or impairment or lack of adequate transportation facilities, accident or repair to machinery, acts or omissions of its providers and/or suppliers, technology changes, war, strike or labour disturbance, 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, civil or military authority, terrorism and industrial dispute, regulatory changes 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 ES and/or any of its subcontractors, suppliers, agents, representatives, employees; and could not have been prevented, avoided or remedied by ES taking reasonable precautions (“Force Majeure Event”). If due to a Force Majeure Event, ES cannot provide the Service(s) or in the event the Service(s) shall be provided 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 provided by ES and the User shall pay the costs and expenses incurred by ES 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, ES 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 OF THE SERVICE(S) OR CONTRACT, CONSEQUENCE OF TERMINATION
7.1 Unless otherwise provided in the Contract, the Contract shall be valid and binding as from the acceptance by ES’ request for Service(s), as from the date of signature of the Contract or from the date of first provision of the Service(s) by ES, whichever occurs first.
7.2 ES may suspend the provision of the Service(s) or terminate at any time the Contract in whole or in part and/or any other agreements and/or understandings with the User without liability to the User and/or any third party 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;
7.2.2 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;
7.2.3 the User is in breach of any representations and warranties or of any of its obligations of confidentiality under the Contract;
7.2.4 the User is in breach of any of its obligations under the Contract and fails to remedy such breach (if capable of remedy) within the time stipulated by ES following receipt of written notice from ES informing the User of such breach;
7.2.5 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;
7.2.6 there is a Force Majeure Event;
7.2.7 the Service(s) shall be provided around and/or during an event (such as but not limited to a sport, news or entertainment event) and such event is cancelled, postponed or changed (e.g. held behind close doors) in part or in its entirety or is staged at another venue;
7.2.8 there are changes (including but not limited to regulatory or technical changes) whether or not made by the provider or supplier or content owner and/or event rights owner, organizer and/or their agent, which affect the Service(s);
7.2.9 in the event of epidemic, pandemic, disease, illness, governmental action, government order, national or regional emergency, quarantine, public order, health and/or safety, decision of event or content owner or of any public and/or administrative and/or judicial authority) impacting the provision of any of the Services, either of which may result in a temporary suspension of the Services in whole or in part at the sole and exclusive option of ES, during the suspension period as notified by ES to the User;
7.2.10 where foreseen in the Contract.
7.3 If ES 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 ES, 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 ES in connection with the early termination of the Contract (together “Termination Fee”).
7.4 Any suspension or termination in accordance with the provisions of clause 7.2 shall be in addition to any other rights and remedies which ES may have under the Contract or at law.
7.5 After termination or expiry of the Contract, the User shall with due care disconnect, dismantle and package the equipment and shall return at its costs any equipment or other property of ES or its providers and/or suppliers, or - if agreed in advance with ES in writing - ensure that ES is able to collect or remove its equipment or other property, or that of its suppliers, without delay. ES shall not bear the costs related to the re-establishment of the initial condition of any premises into which the technical equipment may have been installed and subsequently dismantled. The User shall have responsibility for such costs and in the event the User does not comply with this obligation it shall be liable for all damages which may result.
7.6 All clauses that survive the termination of this Contract by their nature shall survive expiry or termination of this Contract.
Unless otherwise provided in the Contract, any notice, request 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 email (which shall be deemed to be received the following business day), 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 section 8. The Parties are entitled to disregard any notice, summons or communication, which is not sent as herein described.
9. 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 any general or other terms and conditions of the User are excluded.
10. AMENDMENT AND WAIVER
10.1 No amendment or variation of the provisions of the Contract shall be valid or binding unless expressly agreed in writing and signed by ES.
10.2 The failure of ES 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.
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.
12. GOVERNING LAW AND JURISDICTION
12.1 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.
12.2 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.
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