"Contract" means the legally binding contract between Eurovision Services and the Supplier which incorporates an Order, these Terms and Conditions and other documents as agreed in writing between the Supplier and Eurovision Services.
"Deliverable(s)" means any or all deliverables (including Services and Products) in whole or in part supplied or delivered under the Contract.
“Deliverables Reactivation” means when the suspended Deliverables are reactivated by Supplier as indicated in the Suspension Termination Notice.
“Deliverables Suspension End Date” shall mean the Deliverables suspension end date as specified in Clause 15.4.
“Effective Suspension Period” means the suspension of the Deliverables in whole or in part notified by EBU to Supplier through the Suspension Notice during the Suspension Period effective from the Deliverables Suspension Start Date to the Deliverables Suspension End Date.
“Deliverables Suspension Start Date” means the Deliverables suspension start date as specified in Clause 15.4.
"Eurovision Services" or “ES” means Eurovision Services SA with its registered address at L'Ancienne-Route 17A, 1218 Grand-Saconnex, Geneva, Switzerland.
"Event(s)" means any or all of the event(s) (including but not limited to sports, news) around which the Deliverables will be supplied and/or delivered.
"Order" means Eurovision Services’s written instructions to supply and deliver the Deliverables, such as but not limited to a purchase order, request for proposal or information to tender, including any relevant annex such as but not limited to the Specification, Testing Procedures and these Terms and Conditions.
Price means the total and aggregate price agreed for the supply and delivery to Eurovision Services of the Deliverables as specified in the Order.
"Product(s)" means any equipment, product and/or Programs agreed to be supplied and delivered to Eurovision Services by the Supplier under the Contract and as specified in the Order.
"Program(s)" means any item referred to as programs or software in the Order (including any associated documentation which may be supplied with them).
"Service(s)" means all work to be supplied and delivered by the Supplier to Eurovision Services under the Contract and as specified in the Order, in accordance with the Specifications.
"Specification" means instructions, requirements, timetable, the technical description of the Deliverables to be supplied and delivered by the Supplier, as specified by Eurovision Services and as may be amended by Eurovision Services from time to time.
“Suspension Event” means any event (including without limitation total or partial cancellation or postponement or relocation of events or events held behind closed doors or before a restricted capacity audience, or more generally contents or material for whatever reasons including without limitation 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 utilisation of the Deliverables by EBU, either of which may result in a temporary suspension of the Deliverables in whole or in part at the sole and exclusive option of EBU, through the Suspension Notice during the Suspension
“Suspension Notice” means the prior written notice issued by EBU to Supplier during the Suspension Period to request the suspension of the Deliverables in whole or in part.
“Suspension Period” means any potential temporary suspension of the Deliverables in whole or in part that may be notified by EBU exclusively at any time following the occurrence of the Suspension Event through a Suspension Notice during the term of the Contract.
“Suspension Termination Notice” means the written notice issued by EBU to Supplier to notify the termination of the Suspension Event.
"Supplier" means the party supplying and delivering Eurovision Services with the Deliverables.
"Terms and Conditions" means the standard terms and conditions of purchase as set out herein.
"Testing Procedures" means the test procedures for acceptance of the Deliverables.
2.1 The Terms and Conditions apply to all Eurovision Services purchases of Deliverables.
2.2 The Terms and Conditions shall govern the relationship between the parties to the entire exclusion of all other terms and conditions.
2.3 The Terms and Conditions shall prevail over any inconsistent terms or conditions contained in or referred to in any documentation provided by the Supplier. The Supplier waives any right it otherwise might have to rely on the terms or conditions delivered with or contained in the Supplier’s proposal.
2.4 The Contract and all related transactions may involve and inure to the benefit of third parties in addition to Eurovision Services including without limitation, its affiliated entities (including parent company), as well as their respective members, clients, subcontractors and any entity they expect or intend to use, consume or resell the Deliverables, each and all of which are entitled to the rights, remedies and benefits of the Contract (“Related Entities”). The Contract shall be deemed to have been accepted by the Supplier upon receipt by Eurovision Services of any writing, including a writing transmitted by fax or other means
of electronic transmission, indicating acceptance, or by any of the following:
(i) shipment of the Products or any portion thereof, (ii) commencement of any work on site or (iii) performance of any Service(s) hereunder. To the extent Supplier’s terms and conditions are supplied with the Deliverables or where
Eurovision Services and/or Eurovision Services’ user(s) are required to “click through” or otherwise accept or made subject to any online terms and conditions in accessing or using the Deliverables, those terms and conditions will be of no legal effect and will not constitute part of the Order and/or the Contract.
2.5 Notwithstanding the foregoing, if a master agreement covering procurement of the Deliverables described in the Contract exists between Supplier and Eurovision Services (the "Master Agreement") the terms of such Master Agreement shall prevail over any inconsistent terms herein.
3. OBLIGATIONS OF SUPPLIER
3.1 The Supplier shall:
3.1.1 exercise all reasonable skill, care and due diligence and shall supply, deliver, install and implement the Deliverables in accordance with good industry and professional standards; the Supplier’s employees, agents, sub-contractors, partners, consultants or freelance workers, assigned to perform the Services and deliver the Products have the proper skills, training and background necessary to accomplish their assigned tasks in relation to the performance of the Contract.
3.1.2 ensure that the Deliverables supplied and delivered to Eurovision Services are fit for the purpose made known to the Supplier and provide the functionalities set out in the Contract; the Supplier shall ensure that any operating manuals supplied provide adequate instructions to enable Eurovision Services to make proper use of such
functionalities. The Deliverables (i) shall correspond, operate and comply with the Contract, (ii) be free from faults and (iii) be delivered in a timely manner in accordance with all delivery dates and delivery place(s) set out in the Order; the Supplier shall at its own cost make good all faults appearing in the Deliverables. The claims out of the foregoing warranties given by Supplier or the manufacturer of the Deliverables shall be transferable in full at no cost to Eurovision Services or Eurovision Services end-user(s) (as applicable).
3.1.3 be responsible for the performance of its obligations under the Contract whether supplied and delivered directly by the Supplier or any of its representatives and/or subcontractors. Furthermore, the Supplier shall comply with any and all applicable laws.
3.1.4 not infringe any intellectual property rights of any third party while supplying and delivering the Deliverables and during the term Eurovision Services be using the Deliverables.
3.1.5 insure the Deliverables until the risks are transferred to Eurovision Services as per the provisions of clause 4.3; during the term of the Contract, the Supplier shall maintain insurance policies with a reputable insurance company in respect of liability in damages arising from any negligent act, omission or default on the part of the Supplier and any of its representatives and/or subcontractors in the performance of the Contract in respect of any claim arising out of a single incident.
3.1.6obtain all necessary export licenses and authorisations and solely borne all fees and costs associated with export customs formalities.
3.1.7 detect and remove computer viruses in any Programs and that the Programs as delivered do not contain any computer viruses or software routines designed to disable, damage, impair or erase the Programs.
3.1.8 be responsible for the safety of all documentation and materials deposited with him by Eurovision Services in connection with the Contract,and shall be liable for any loss of or damage to such documentation and materials whilst they are in his custody. Such materials and documentation shall at all times be and remain the exclusive property of Eurovision Services and shall not be used otherwise than
as authorized by Eurovision Services.
3.1.9 ensure that Eurovision Services is regularly informed about the progress of the supply and delivery of the Deliverables.
3.1.10 provide the assistance as might be generally and reasonably required for the supply and delivery of the Deliverables.
3.1.11 Supplier warrants and undertakes that the person and/or the team responsible to Eurovision Services and in charge of the performance of the Work is competent and able to perform the Work (“Project Manager”). Supplier shall secure that this Project Manager complies with all terms and conditions set forth herein, as appropriate. In doing so, Supplier will ensure that this Project Manager does not act in any manner to the detriment of Eurovision Services or its business. Supplier shall not act in any manner which may damage the reputation of Eurovision Services. The name and qualifications of the appointed Project Manager shall be notified in writing to Eurovision Services. Any change of identity of such person and/or the team during the Implementation Plan shall be agreed in advance and in writing by Eurovision Services. In the event Eurovision Services disagrees to such change of identity, Eurovision Services shall be entitled to terminate this Contract, in whole or in part, with immediate effect without incurring any liabilities to Supplier;
3.2 The Supplier shall comply with all relevant health and safety legislation. It will ensure that the Deliverables that are potentially dangerous to health and safety, are delivered in suitable protective packaging and that the external surface
of such packaging is clearly labelled to indicate any such hazards involved in handling and using the Deliverables and the method of safe handling. A copy of any information relating to the safety aspects or proper use of the Deliverables should be sent to Eurovision Services under separate cover, on or prior to delivery. The Supplier shall be responsible for ensuring that any employees or other persons fulfilling the Order who enter Eurovision Services’ or its customers’ premise are suitably clothed, issued with appropriate protective equipment, duly warned of hazards which they may encounter on Eurovision Services’ premises and that they adhere to all health and safety at work rules and regulations and any other reasonable security or other requirements that apply at any of Eurovision Services’ or its customers’ premises from time to time.
3.3 The Supplier shall ensure that it has adequate security, business continuity and disaster recovery procedures in place to cope with the risk of major operational disruptions.
3.4 Where the Supplier send its employees, agents or consultants to Eurovision Services’ and/or Eurovision Services’ customers’ premises in connection with this Contract then, notwithstanding any technical supervision exercised by Eurovision Services or any instructions issued by Eurovision Services, such employees, agents or consultants shall remain the Supplier’s employees, agents or consultants alone. It is an express condition of this Contract and each Order that the Supplier effects and maintains in force the relevant third party liability insurance and professional liability coverage with respect to such employees, agents or consultants' actions and/or omissions, including any accident coverage. Further the Supplier shall effect and maintain for the duration of this Contract, or if any Order survives its termination, for the duration of that Order, such other insurance as is
appropriate in the circumstances taking into account industry practice, the availability of insurance in the market place and the risks and liabilities which it is accepting under this Contract. The Supplier shall provide Eurovision Services with reasonable evidence of its compliance with this obligation when requested by Eurovision Services to do so. The Supplier shall indemnify and hold harmless Eurovision Services and/or any third parties against any loss of or damage to Eurovision Services’ property and/or Eurovision Services’ customers’ property caused by the Deliverables or by the act or default of the Supplier or its employees, agents or sub-contractors. All risk of loss or theft of or damage to any property of the Supplier or belonging to the Supplier’s personnel while at Eurovision Services’ premises and/or Eurovision Services’ customers’ premises for any reason whatsoever shall be and remain the sole risk and responsibility of the Supplier.
3.5 The Supplier shall indemnify, defend and hold Eurovision Services, its affiliated entities (including parent company) and its customerrs harmless against any and all claims, liabilities, losses, damages, settlements, costs and expenses (including attorneys' fees) made against or sustained by ES arising from or relating to Supplier’s breach of any of its obligations under the Contract.
DELIVERY, TITLE AND RISKS
4.1 The time stipulated in the Order for supply and delivery of the Deliverables shall be of the essence.
4.2 The Supplier shall deliver and make ready for use the Deliverables in accordance with the delivery date(s) and delivery place(s) set out in the Order.
4.3 The Supplier shall pass full and free title to, and ownership of, the Deliverables, on delivery date save for the Deliverables which are not recorded as successful following completion of the Testing Procedures.
4.4 For Deliverables delivered in instalments, the Order shall be construed as a single contract in respect of each instalment. However, where ES has the right to reject any particular instalment, it may at its option reject the entire Order or the instalment.
5.1 Where the Deliverables include Programs, which shall include all or any embedded software, and/or where and to the extent that any intellectual property rights subsist in the Deliverables, then, subject always to the provisions of clause 10.2, the Supplier hereby grants ES an irrevocable, perpetual, non-exclusive licence, with authority to sell or grant sub-licences directly or indirectly to ES’ end user, to use and/or to permit third parties to use each copy of such Programs and to make such other copies as are necessary to support such licensed use.
5.2 Where the Deliverables are created or modified for ES, the Supplier hereby grants ES a licence in the terms of the provisions of clause 5.1 (save that such licence shall be exclusive) for the period commencing immediately upon their creation or modification until such time as all intellectual property rights are fully and completely vested in ES pursuant to the provisions of clause 10.2.
INSPECTION, ACCEPTANCE / REJECTION
6.1 Prior to delivery of the Deliverables to ES, ES shall be entitled to inspect and test the Deliverables. In the event the results of the testing of the Deliverables causes ES to be of the opinion that the Deliverables do not conform with the Contract, ES shall inform the Supplier and the Supplier shall immediately at his own expense take such action as is necessary to ensure conformity. Notwithstanding any inspection or testing, the Supplier shall remain fully responsible for the Deliverables and any such inspection or testing shall not affect the Supplier’s obligations under the Contract.
6.2 On completion of delivery of the Deliverables, ES reserves the right to conduct the Testing Procedures.
6.3 Notwithstanding the testing and without prejudice to any other rights or remedies that ES may have under the Contract or at law, ES shall be entitled at any time to require the Supplier to remedy any fault(s) in the deadlines specified by ES using its best efforts.
6.4 In the event the Deliverables delivered are not recorded as successful following completion of the Testing Procedures, ES shall, without prejudice to any other rights or remedies that ES may have under the Contract or at law, be entitled to:
6.4.1 extend the acceptance test period for a period determined by ES during which the Supplier shall at its sole costs and expenses correct the fault(s) which laid to the unsuccessful delivery; and/or
6.4.2 provide acceptance of such part(s) of the Deliverables
that are successfully delivered and, at its sole discretion, decide to pay a prorated fee for the delivery of such part(s) of the Deliverables; and/or
6.4.3 reject the Deliverables and terminate the Contract at any time with immediate effect without any liabilities whatsoever.
6.5 In the event ES extends the acceptance test period pursuant to the provisions of clause 6.4.1 and that the Deliverables delivered are not recorded as successful following completion of the repeat Testing Procedures, ES shall, without prejudice to any other rights or remedies that ES may have under the Contract or at law, be entitled to:
6.5.1 extend the acceptance test period for a period determined by ES during which the Supplier shall at its sole costs and expenses correct the fault(s) which laid to the unsuccessful delivery; and/or
6.5.2 provide acceptance of such part(s) of the Deliverables that are successfully delivered and, at its sole discretion, decide to pay a prorated fee for the delivery of such part(s) of the Deliverables; and/or
6.5.3 reject the Deliverables and terminate the Contract at any time with immediate effect without any liabilities whatsoever.
6.6 Without prejudice to any other rights or remedies that ES may have under the Contract or at law, any moneys or expenses incurred by ES while proceeding to the Testing
Procedures leading to the unsuccessful delivery of the Deliverables shall be paid by the Supplier. Any Price already paid by ES to the Supplier the unsuccessful delivery of the Deliverables shall be refunded within 15 (fifteen) calendar days following ES’ written notification to do so.
7.1 The Supplier shall inform ES immediately of any circumstances likely to jeopardise the timely performance of the Contract.
7.2 In the event the Supplier fails to supply and deliver the Deliverables by the delivery date at the delivery place, the Supplier shall pay ES a penalty amounting to 10% of the Price for every day of delay for any loss or damages sustained by ES resulting from the delay unless otherwise agreed in writing in the Contract. In addition, in the event the Supplier fails to deliver the Product and/or Services on the delivery date, ES shall, without prejudice to any other rights or remedies that ES may have under the Contract or at law, be entitled to terminate the Contract and/or the Order in whole or in part at any time with immediate effect without any liabilities whatsoever.
7.3 The Supplier acknowledges and agrees that:
7.3.1 the amount of the penalty is fair and reasonable and represents a fair pre-estimate of any resulting loss or expense of ES.
7.3.2 the payment of the penalty shall not relieve the Supplier from its obligations to supply and deliver the Deliverables or from any other liability obligation under the Contract.
7.3.3 ES shall be entitled to deduct any amount of penalty from any amount due and payable to the Supplier.
PRICE AND PAYMENT
8.1 The Price is set out in the Order and not subject to variation. The Price shall be considered as the total consideration for the supply and delivery of the Deliverables and a complete buy-out of all rights assigned by the Supplier to ES pursuant to the Contract, including any and all taxes and duties (including VAT and withholding tax), packaging, packing, shipping, freight, carriage, transportation, insurance costs and expenses of any kind. The Supplier shall have no claim for any further or additional payment in respect of any form of use and exploitation of the Deliverables.
8.2 The Supplier is responsible for all taxes and duties that are due in the country of origin of the Deliverables and for obtaining at its expense any import or export licence or government consents necessary for the provision of the Deliverables, including those required under any export regulations.
8.3 The payment plan of the Price is set out in the Order.
8.4 The payment of any sum by ES shall in no circumstance imply acceptance of any Deliverables and shall be without prejudice to any rights or remedies that ES may have under the Contract or at law.
8.5 The Price shall be paid by ES within 90 (ninety) calendar days of receipt of the invoice or after the delivery of the Deliverables whichever is the latest, unless otherwise specified in the Order.
8.6 Any invoice or part thereof disputed by ES will be notified to the Supplier and state the reasons for withholding the payment.
8.7 Notwithstanding anything to the contrary contained herein and without prejudice to any other right or remedy ES may have under this Contract or at law, ES reserves the right to set-off any amount owed to Supplier with any amount due by the Supplier to ES, its parent company or its subsidiaries, whether under the Contract or any other agreement. The Supplier waives its right to set-off any amount owed to ES with any amount due by the latter to the Supplier.
REPRESENTATIONS AND WARRANTIES OF SUPPLIER
9.1 The Supplier represents and warrants that:
9.1.1 it has full capacity and authority to enter into the Contract and all necessary licences, permits and consents to supply and deliver the Deliverables and for use in accordance with the terms and conditions set out in the Contract during the term of the Contract.
9.1.2 the Deliverables supplied and delivered are (i) in a new and unused condition and (ii) fit for any purpose made known to the Supplier whether expressly or by implication and free from all faults.
9.1.3 the provision of the Deliverables and ES’ use of the Deliverables shall not infringe any intellectual property rights of any third party. Supplier represents and warrants that where signals, audio and/or audiovisual images of the Event(s) produced or recorded by Supplier (forming or not part of the Deliverables), such content/material shall be the exclusive property of ES and/or its designee(s); ES and/or its designee(s) shall have all rights under copyright law or otherwise relating thereto. No use of the audio or audiovisual images or the signal or parts thereof by any third party shall be permitted unless the prior written consent of ES has been obtained. Furthermore, Supplier agrees that should any right, titles or interests with regard to the performance of the Deliverables become vested in it (by operation of law or otherwise), it shall unconditionally and irrevocably assign, free of charge, all such right, title or interest to ES and/or its designee(s) and execute any documents necessary in connection therewith. The Supplier shall procure that all Supplier's personnel or third party involved in the supply and delivery of the Deliverables
waived such right, title or interest absolutely and irrevocably prior to supplying and delivering the Deliverables.
9.1.4 it shall keep accurate records and books of accounting showing all charges and related expenses incurred in the performance of its obligations under the Contract. Such records shall be maintained in conformance with generally accepted accounting principles and procedures. ES shall have the right to inspect such records and perform an audit for 7 (seven) years from termination or expiry of the Contract, on the Supplier’s premises during business hours or to assign the performance of such an audit to third parties.
9.1.5 payment, inspection, testing or acceptance of any Deliverables by ES shall not relieve the Supplier of any of its obligations under the Contract, nor shall it constitute acceptance or approval of any Deliverables or constitute or operate as a waiver of any fault(s), non-conformity or any rights or remedies available under the Contract or at law.
9.1.6 it shall be responsible for contracting all employees, agents, subcontractors, consultants or freelance workers and procuring all equipment and facilities necessary for the performance of its obligations under this Contract and be solely responsible for all of the aforementioned personnel engaged in performing the work with respect to all matters and obligations relating to the employment, including tax, health and safety, insurance and immigration.
9.1.7 it shall secure that any employees, agents, sub-contractors, consultants or freelance workers have executed the necessary relevant assignment of any intellectual property rights to the fullest possible extent to ES in order to secure its compliance with the provisions of clause 5.2 and clause 10.2. The scope of involvement of such external subcontractors, consultants or freelance workers shall be specifically detailed in their respective contract.
9.1.8 all equipment has to be fully compliant with all applicable European Legislation, including but not limited to the following:
-All equipment have to be CE marked in accordance with EC Directive 93/68/EEC (The CE Marking Directive);
-All equipment, between 50VAC and 1000VAC or 75VDC and 1500VDC have to comply with EC Directive 73/23/EEC (The Low Voltage Directive);
-All equipment have to comply with EC Directive 89/336/EEC (The Electromagnetic Compatibility Directive) must comply with that directive;
-All machinery has to comply with EC Directive 98/37/EEC (The machinery Directive). Furthermore, the Deliverable(s) conform to Specifications, Supplier's quotation or proposal and such Deliverable(s) are suitable for the intended use;
9.1.9 SECURITY AND DATA PRIVACY
Supplier represents and warrants that:
(i) Taking into account the state of the art, the costs of implementation and the nature, scope, context, purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Supplier shall take all applicable security measures and shall implement appropriate technical and organisational security measures to ensure a level of Data security proportional to the risks inherent in the Data processing for the individuals' rights. In assessing the appropriate level of security, Supplier shall take account in particular of the risks that are presented by processing, in particular from a Data breach;
(ii) Supplier shall implement regular testing of the effectiveness of any security measures;
(iii) Supplier shall be responsible for establishing and maintaining a Data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to : (a) ensure the security and confidentiality of Data collected, used, processed, stored, or generated as the use of the Deliverables including PII as hereinafter defined ("Data");
(b) protect against any anticipated threats or hazards to the security or integrity of Data processed; (c) protect against unauthorised disclosure, access to or use of Data processed; (d) ensure the proper disposal of Data; and (e) ensure that employees, agents and subcontractors of Supplier, if any, comply with all of the foregoing. In no case shall the safeguards of Supplier’s Data privacy and information security program be less stringent that the safeguards used by ES as necessary to comply with Privacy Laws. ES shall have the right to audit and/or review Supplier’s Data privacy and information security program from time to time during the term of the Contract and the Supplier shall cooperate and provide all requested information and documents within the deadlines required by ES. For all matters and in all cases, Data processed on behalf of ES shall be deemed Confidential Information.
(iv) Supplier shall adhere to the standards of the code of practice for information security management. Supplier shall also apply the information protection and security management practices required by international information security standard when applicable and reasonable for the type of Deliverables to be supplied and delivered.
(v) Supplier shall ensure that it has adequate security, business continuity and disaster recovery procedures in place to cope with the risk of major operational disruptions.
(vi) Any personally identifiable information (e.g. name, address, age, email address, logins, passwords, credit/debit card information, bank account information, IP address, etc.) as further defined in Privacy Laws (“PII”) collected by Supplier in the course of performing the Services, or contained in any part of the Service provided to ES will be collected, secured and maintained in accordance with any applicable privacy laws governing the collection, use and storage of such personally identifiable information. Supplier shall at all times perform its obligations under this Contract in such a manner as not to cause ES to be in violation of the Privacy Laws.
(vii) Data processed on behalf of ES shall be located and related services shall be provided solely from within Europe and on computing and Data storage devices residing therein. Should some Data be located or transferred outside
Europe and/or Data related services be provided outside Europe, the prior written consent of ES shall be required. Notwithstanding the prior written consent of ES, Supplier represents and warrants that transfer of Data to a third country shall be made only if Supplier has provided appropriate safeguards and on condition that Data subjects have enforceable rights in that country with respect to the Data processed under the Contract.
(viii) Supplier shall, within one business day of ES’ request, provide ES, without charge or without any conditions or contingencies, an extract of the Data in the format specified by ES.
(ix) As part of the Deliverables, Supplier is responsible for maintaining a backup of Data and for an orderly and timely recovery of such Data in the event that the Deliverables may be interrupted. Supplier shall maintain a backup that can be recovered within 2 (two) hours at any point of time.
(x) In the event of any act, error or omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality or integrity of Data, Supplier shall (a) notify ES as soon as practicable but no later than 24 (twenty-four) hours of becoming aware of such occurrence (b) cooperate with ES in investigating the occurrence (c) in case of PII, at ES’ sole discretion: notify the affected individuals as soon as practicable but no later than is required to comply with applicable laws or 72 hours of the occurrence whichever is earlier; or reimburse ES for any costs in notifying the individuals (d) perform any tasks or actions required to comply with applicable laws as a result of the occurrence (e) be responsible for recreating lost
Data in the manner and on the schedule set by ES without charge to ES, and (f) provide to ES a detailed plan within the deadline specified by ES describing the measures Supplier will undertake to prevent a future occurrence.
9.1.10 Supplier represents and warrants that (I) it shall comply with all trade, embargoes, import, export and re-export control and economic sanctions laws and regulations applicable to the Deliverables and (ii) it shall provide the Deliverables in compliance with all applicable export and import laws and
(iii) it shall not do anything which would cause ES to be in violation of any export and import laws. In case ES is obliged to obtain an export and/or import permit as per statutory law, the effectiveness of the Contract shall be subject to the condition precedent of the granting of an export and/or import permit. Supplier represents and warrants that it shall be responsible to obtain the necessary export and/or import permits. Supplier shall furthermore immediately upon ES request provide ES with all information and documentation necessary for obtaining permits or for compliance with other export and import rules. ES reserves the right to suspend and/or terminate the Contract in whole or in part in countries that are subject to sanctions and/or embargoes with immediate effect (by any means including by email) without liability to Supplier.
9.1.11 Supplier shall comply with all applicable laws and shall not do anything which would cause ES to be in violation of any applicable laws. If requested by ES, the Supplier agrees to provide written assurances and sign documents as may be required by ES to comply with applicable laws.
9.2 The Supplier undertakes that:
9.2.1 in the case of Products, Products are in breach of warranty or provisions of this Contract then, at ES’ option, (i) the Supplier will promptly repair or, at ES’ option, replace, the Products so as to remedy the matter constituting the breach without cost (including transportation costs) to ES; or (ii) the Supplier will accept rejection and return of the Products by ES, whether or not any of the Products have been accepted, and the Supplier shall immediately upon receipt return any payments made by ES in respect of those
Products. From the avoidance of doubt, risk and title in rejected Products shall immediately on rejection revert to the Supplier.
9.2.2 in the case of Service(s), Service(s) are in breach of warranty or the provisions of this Contract, the Supplier shall promptly re-perform the Service(s) at no cost to ES. Where the Supplier fails to provide such remedy, ES may remedy or have remedied the matter constituting the breach at the cost of the Supplier.
9.2.3 in any case, the Deliverables are in breach of warranty or otherwise in breach of this Contract, ES may, at its option, terminate the Contract in whole or in part, at no cost for ES and without any liabilities with immediate effect..
9.3 Without prejudice to ES’ rights under the provisions of clause 9.2, the Products and/or the Service(s) develop any persistent defects, failures or non-conformities, the Supplier will, on ES’ request, review such defects, failures or non-conformities with ES and indicate steps or recommendations which in the Supplier’s reasonable judgement would remedy the same. Within the deadline specified by ES, the Supplier shall at its own cost remedy the defects, failures and non-conformities. Where the Supplier fails to provide such remedy, ES may remedy or have remedied the failure, defect or non-conformity at the Supplier’s cost.
9.4 The Supplier shall indemnify, defend and hold ES, its affiliated entities (including parent company) any third party and its customers, including their employees, officers, directors, representatives, agents, affiliates and/or financial institution (together Indemnitees) harmless against any and all claims, liabilities, losses, damages, settlements, fines, costs and expenses (including attorneys' fees) arising from or relating to any representations, undertakings or warranties made by the Supplier under the Contract. Supplier will not enter into settlement agreement that affects any of the Indemnitees without ES’ prior written consent. Supplier may, at its sole expense, actively participate in any suit or proceeding, through its own counsel.
9.5 ES’ rights and remedies under the provisions of section 9 are in addition to the other rights and remedies under this Contract or at law.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Supplier commits and shall procure that its
representatives and subcontractors or any company which is directly or indirectly under the control of the Supplier commit, to not register or use, in particular in the frame of the advertising or promotion of the Deliverables it supplies and delivers to third parties in any way ES’ or ES’ Supplier company name or the intellectual property rights directly or indirectly related thereto, including but not limited to in particular the words "EUROVISION" and related logos, unless otherwise expressly agreed in writing by ES.
10.2 The Supplier agrees that any information, drawings, know-how, specifications, designs, concepts, techniques, developments, inventions, technologies, signals, audio and audiovisual images of the Event(s) around which Deliverables are supplied and delivered, and other work products generated or developed in the course of work performed under the Contract by the Supplier and any intellectual property and other proprietary rights therein or thereto shall vest in ES and/or its designee(s). The Supplier assigns or shall cause to be assigned to ES and/or its designee(s) all rights, titles and interests to any and all such items and rights and to do everything necessary to perfect such rights and to protect ES’ and/or its designee(s)’ interests therein.
10.3 Without prejudice to any other rights or remedies that ES may have under the Contract or at law, the Supplier shall indemnify in full, and shall cause its representatives and/or subcontractors to indemnify in full, and to hold ES and/or its Indemnitees harmless from and against all liabilities, claims, suits, losses (including loss of profits, loss of business, depletion or goodwill and similar losses whether of a direct, indirect or consequential nature), damages, costs and expenses (including reasonable attorney’s fees), arising from or relating to a third party’s claim arguing that the Deliverables constitute infringement, violation or misappropriation of any intellectual property right or other proprietary right of a third party. Without prejudice to any
other right or remedy that ES may have under the Contract or at law , the Supplier shall procure the right for ES to continue to use the Deliverables at no extra costs to ES and agrees that it will indemnify, and shall cause its representatives and/or subcontractors to indemnify in full, and to hold ES, its affiliated companies (including parent company), and Suppliers harmless from and against all liabilities, including without limitation product liabilities, claims, loss of profits, damages, costs and expenses (including attorney’s fees), arising from or related to the Supplier’s and its representatives and/or subcontractors’ failure to comply with any of its obligations under the Contract.
11. CONFIDENTIALITY - NON-DISCLOSURE
11.1 The Supplier undertakes to maintain confidentiality with regard to any information such as but not limited to technical or commercial information, information related to an event around which the Deliverables are being supplied and delivered, Data, including as well all relevant documents, communicated by ES in the frame of their business relationship and not to use any out of the strict frame of the supply and delivery of the Deliverables, nor disclosed any to third parties.
If the Supplier’s representatives and/or subcontractors need to have access to such information, the Supplier shall procure the same undertaking from its representatives and/or subcontractors. The confidentiality obligation shall remain valid and applicable beyond supply and delivery of the Deliverables and shall survive termination or expiry of the Contract.
11.2 The Supplier may disclose information which would otherwise be confidential if and to the extent that:
11.2.1 the information has come into the public domain, otherwise than through a breach of this condition by the Supplier; or
11.2.2 it is required by any regulatory or governmental body to which it is subject.11.3 The Supplier shall not disclose the existence or the terms and conditions of the Contract, without the prior
written agreement of ES.
11.4 No public statement, disclosure or publicity or association of any kind relating to the end-user or to the Event(s) around or during which the Deliverables are being supplied and delivered by the Supplier may be released or published by the Supplier, whether directly or indirectly.
12. LIMITED LIABILITY
12.1 EXCEPT FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, FOR BREACHES OF SECTIONS 9 (REPRESENTATIONS AND WARRANTIES) and 11 (CONFIDENTIALITY - NON-DISCLOSURE), NON-COMPLIANCE WITH LAWS (INCLUDING GDPR AND PRIVACY LAWS) AND WITHOUT LIMITING INDEMNIFICATION RIGHTS UNDER THE CONTRACT, (A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; AND (B) NEITHER PARTY’S LIABILITY ARISING OUT OF THE CONTRACT WILL EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO SUPPLIER UNDER THE CONTRACT.
12.2 Each party hereby expressly acknowledges and agrees that the provisions of the indemnification and liability section are essential elements of the basis of the agreement between the parties and in the absence of such provisions, the material and economic terms of the Contract would be substantially different.
13. TERM, SUSPENSION AND TERMINATION
13.1 The term is set out in the Order unless terminated earlier in accordance with the provisions of the Contract.
Notwithstanding the foregoing and the provisions in the Contract, ES reserves the right to terminate the Contract and/or the Order in whole or in part at any time without cause and liability to the Supplier by giving a one month’ prior written notice to the Supplier.
13.2 Without prejudice to any other rights or remedies that ES may have under the Contract or at law, ES shall be entitled at any time to suspend or terminate with immediate effect the Contract and/or the Order in whole or in part upon written notice to the Supplier without any liabilities in the event that:
13.2.1 the Supplier fails to comply with any of its obligations under the Contract and fails to cure such breach within the deadline specified by ES;
13.2.2 the Supplier enters into or there is a risk that the Supplier may enter into liquidation or enters into any arrangement or composition with its creditors or any of them, or has a receiver or administrator appointed over all or part of its property or assets;
13.2.3 there is a force majeure event in accordance with the provisions of section 15;
13.2.4 there is a change in control or ownership of the
Supplier (whether direct or indirect and whether by purchase, lease, merger, consolidation or otherwise);
13.2.5 the Deliverables shall be supplied and delivered
around and/or during an Event and such Event is cancelled
in part or in its entirety or is staged at another venue or if there are changes attributable to the content owner and/or Event rights owner, organizer and/or their agent which affect the any part of the Deliverables;
13.2.6 where foreseen in the Contract.
13.3 All provisions which by their nature should survive termination or expiry shall survive termination, in particular but not limited to the provisions of section 2, 4, 8, 9, 10, 11, 12, 13, 14, 16, 18, 20 and 21.
14. CONSEQUENCES OF SUSPENSION OR TERMINATION
14.1 Without prejudice to any other rights or remedies that ES may have under the Contract or at law, in the event ES
suspends the Contract and/or the Order in accordance with the provisions of the Contract or any other condition set out
in the Contract, ES shall be entitled to suspend any payment
to be carried out to the Supplier without any liabilities to the Supplier.
14.2 Without prejudice to any other rights or remedies that ES may have under the Contract or at law, in the event ES terminates the Contract and/or the Order in accordance with the provisions of the Contract or any other condition set out in the Contract, the Supplier shall (i) refund ES with any payment carried out by ES for the supply and delivery of the Deliverables and any expense incurred by ES in order to find an alternative service provider, including but not limited to any amount in excess of the Price set out by the Supplier for the supply and delivery of the Deliverables, (ii) the Supplier shall at its cost forthwith return all ES’ confidential information and property and ES may enter into any premises to recover such items at the Supplier’s cost. In such event, ES shall have no further liabilities to the Supplier.
14.3 In the event ES requests the Supplier to continue to supply and delivery of the Deliverables during the period preceding the effective termination as determined by ES to the Supplier, the Supplier shall provide such assistance as is reasonably requested in order to facilitate the transfer of the provision of the Deliverables to any other service provider if appropriate.
14.4 Upon termination or expiry of the Contract and/or any Order or at any time during the term of the Contract and/or of the Order for whatever reason, Supplier shall at ES’ option and at no costs to ES, and in any event within 30 (thirty) calendar days from the date of cessation of any services (i) make available to ES a downloadable file, in the format specified by ES , displaying all Data gathered by Supplier during the term of the Contract and/or any Order or
(ii) delete and destroy (so that it cannot be recovered or reconstructed) all Data and certify to ES that it has done so within 30 (thirty) calendar days of the cessation date, unless legislation imposed upon the Supplier prevents it from returning or destroying all or part of the Data in which case the Supplier shall notify ES in writing of that legal requirement. Supplier warrants that it will guarantee the confidentiality of the Data and will not process the Data anymore. In that case, Supplier shall provide ES, without charge or without any conditions or contingencies whatsoever, with an unlimited use, perpetual license to any software necessary in order to gain access to the Data.
15. FORCE MAJEURE, CANCELLATION OF EVENT, SUSPENSION EVENT
15.1 If ES is unable to fulfil its obligations under the Contract owing to an event of Force Majeure, which means any event which is unforeseeable without the fault or negligence of that party and which, or the consequence of which is beyond the reasonable control of ES, including lock-outs, war, fire, flood, explosion, embargo, sanctions, change in law or regulation, Act of God, then ES will not be deemed to be in breach of its obligations. The Supplier shall use its best efforts to remove the Force Majeure event as quickly as possible. In the event of a Force Majeure event, ES shall
have the right without any liabilities to Supplier to suspend or terminate part of the Contract and/or the Order so
affected or to terminate the Contract and/or the Order as a whole at any time with immediate effect and without any liability to pay the Supplier. In such event the Supplier shall reimburse ES for any payments already made for Service not performed up to the effective termination date.
15.2 In the event of a postponement, relocation, cancellation, total or partial, of any Event (for whatever reason, including Force Majeure), the Price pertaining to the Deliverables concerned by the postponed, relocated, cancelled Event shall not be paid by ES to Supplier and/or any Price or any amounts paid in advance by ES shall be refunded by Supplier to ES. However, in the event of partial cancellation, ES shall be liable for any undisputed amounts then owing to Supplier for the Deliverables rendered to ES through the date of cancellation.
15.3 Should any Event be postponed to another date or relocated to another place or country, Supplier shall provide, at the request of ES, the Deliverables in relation to the postponed Event at the same conditions than for the cancelled Event.
15.4 Notwithstanding anything to the contrary contained in this Contract, EBU may suspend the Deliverables in case of Suspension Event as follows:
EBU may suspend the Deliverables in whole or in part upon the occurrence of the Suspension Event at any time during the Suspension Period by giving the Suspension Notice in advance of the effective start date of the Suspension Period indicated in the Suspension Notice (“Suspension Notice”).
The suspension of the Deliverables (in whole or in part) will take effect on the effective start date of the Suspension Period indicated in the Suspension Notice (“Service Suspension Start Date”) and shall terminate once Supplier has been notified by EBU of the effective end date of the Suspension Period indicated in the Suspension Termination Notice (“Deliverables Suspension End Date”); together the “Effective Suspension Period”.
Upon receipt of the Suspension Termination Notice by Supplier, Supplier shall proceed with the reactivation of the Deliverables in whole (in case of suspension in whole of the Deliverables) or for the portion of the suspended Deliverables (in case of partial suspension of the Deliverables) on the effective end date of the Suspension Period (“Deliverables Reactivation”).
The obligation of payment of the Price for the Deliverables in whole (in case of suspension in whole of the Service) or for the portion of the suspended Deliverables based on the actual utilisation of the Deliverables (in case of partial suspension of the Deliverables) will be suspended during the Effective Suspension Period. In the latter case, EBU’s utilisation report shall serve as a conclusive basis for the adjustment of the Price. The Parties expressly waive all claims for any further compensation.
For the avoidance of doubt, the Suspension Event shall not be considered a Force Majeure Event and shall be considered Confidential Information.
15.5 Supplier shall secure and maintain at its expense insurance to cover the risk of loss resulting from any of the events contemplated in the provisions of section 15.
16.1 Except as expressly provided for herein, all notices which are required or permitted to be given pursuant to this Contract shall be in writing and shall be given by delivering the same by hand, depositing with an overnight courier or sending the same by email or registered post to the addresses mentioned below.
16.2 A notice delivered by hand or by overnight courier shall be deemed to have been received when delivered on proof of delivery (or, if delivery is not on a business day during business hours, at 9.00 am on the first business day following delivery at the recipient address mentioned below). A notice delivered by email shall be deemed to have been received when delivered on proof of delivery (or, if delivery is not on a business day during business hours, at 9.00 am on the first business day following delivery at the recipient address mentioned below). A correctly addressed notice sent by registered post mail shall be deemed to have been received when actually delivered upon proof of delivery but in any case at the latest on the seventh day following date of posting it. A business day/business hours is Monday to Friday from 09:00 am to 17:30 pm in the territory in which the notice is received.
17. ENTIRE CONTRACT
17.1 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.
17.2 Subject to the provisions of clause 2.5, in the event of discrepancies between the terms and conditions of the Order, these Terms and Conditions and the other documents part of the Contract the order of precedence to resolve the conflict will be in the following order: (i) Order (ii)
these Terms and Conditions (iii) other documents.
17.3 In the event portions or the whole Contract has been translated into another language, the English version shall prevail over any translation.
18.1 The Supplier shall not assign, transfer or subcontract in whole or in part the Contract without the prior written approval of ES. In the event such approval is given, the Supplier shall at all times remain ultimately responsible and liable for the performance of the Contract.
18.2 ES may assign, transfer or subcontract in whole or in part the Contract without the prior written approval of the Supplier and without further notice.
19. AMENDMENT AND WAIVER
19.1 In any event no amendment or variation of the provisions of the Contract shall be valid or binding unless
expressly agreed in writing by ES and the Supplier.
19.2 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. If any of the terms and conditions of the Contract are deemed void on account of the application of any national laws and/or regulations, the parties shall seek, in good faith, an alternative solution as close as possible to the result intended by the nullified term or condition. All other terms and conditions of the Contract shall remain in full force and
21. GOVERNING LAW AND JURISDICTION
21.1 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.
21.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of the Canton of Geneva, Switzerland.
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