Standard Terms and Conditions
1 - Definitions
“Contract” means any agreement, including an order or an offer, entered into by, and between, the EBU and the User, which shall be deemed to include the Standard Terms and Conditions.
“EBU” means the European Broadcasting Union with its headquarters located at L'Ancienne-Route 17A, 1218 Le Grand-Saconnex, Geneva, Switzerland.
“EBU Network” shall be interpreted in its widest sense and means all transmission capacity owned, leased or otherwise co-ordinated, planned or supervised by the EBU.
“Fee(s)” means the fee due and payable by the User to the EBU for the Service(s) which is subject to the provisions set out in the provisions of Clause 3.
“Service(s)” means any and/or all services which the EBU has agreed to provide to the User subject to the Standard Terms and Conditions
“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 the EBU and by whom a Fee is payable.
2 - Provision of Service(s)
2.1 The Service(s) is set out in the Contract and the provision of the Service(s) is subject to the Standard Terms and Conditions.
2.2 TThe User accepts that, whilst the EBU will use all reasonable efforts to provide the Service(s), the provision of such Service(s) is at all times subject to the availability of the appropriate facilities or equipment. The Service is provided for the User’s use only unless otherwise agreed in writing upon by the Parties.
2.3 Equipment including connections provided by the EBU to the User relating to the provision of the Service(s) remains the property of the EBU or its suppliers, unless otherwise provided in writing in the Contract. In the event the EBU sells some equipment to the User, the EBU will provide it "as is" without warranty, guarantee, condition or other terms. The EBU will try 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 the EBU.
2.4 The User accepts that the EBU is free to determine, at its sole discretion, the method by which it will provide the Service(s). Without prejudice to the generality of the foregoing and notwithstanding anything to the contrary in the Contract, the User further accepts that in connection with the performance of the Service(s), the EBU 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 EBU Network and/or to change equipment at any time at EBU’s sole discretion.
2.5 EBU 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 both parties regarding the cost of such advancements and upgrades. If the parties cannot agree on the cost of such advancements and upgrades, the EBU 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 the EBU about any failure in the Service(s) and shall thereafter confirm to the EBU 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 EBU and the User as part of the Contract, User’s entitlement to claim service credits as provided in the service level agreement shall be User’s sole and exclusive remedy for any failure of EBU to provide the Service according to the Contract. In the event no written notification is addressed to the EBU 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).
3 - Fee & Payment
3.1In consideration of the EBU 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 the EBU are increased, the User shall be liable to pay the EBU such additional costs and expenses immediately upon demand of the EBU.
3.3 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 the EBU be the amount it would have received without such deductions.
3.4 The EBU reserves the right to charge an additional administrative fee to cover the cost incurred in reminder fees to the User.
3.5 Subject to Clause 3.8 below, the Fee due to the EBU 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”).
3.6 If an invoice for Service(s) provided by the EBU to the User is not paid by the Due Date, the EBU 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 the EBU may have. The EBU 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 of the London Interbank Offered Rate (LIBOR) 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.
3.7 If the User disputes the amount invoiced, it must notify the EBU 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 Clause 3.5.
3.8 The EBU reserves the right at its discretion:
3.8.1 to seek and obtain from any User part or full payment in advance before the provision of any Service(s); or
3.8.2 to require an irrevocable bank guarantee from the User before undertaking to provide the Service(s) on terms which are satisfactory to the EBU. In the event that the User fails to meet its payment obligations then the EBU shall be entitled to deduct such monies as are outstanding, or shall be outstanding to the EBU, from the bank guarantee before refunding any balance of such bank guarantee to the User. In addition, the EBU 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 the EBU considers that there is a reasonable risk that the User will be in breach of such indemnity provisions.
4 - User's Liability
4.1 The User shall promptly provide the EBU with all information and assistance required by the EBU 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 the EBU in the interests of safety of other clients and users or of the EBU 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 the EBU, 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 EBU 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 the EBU 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 the EBU 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 EBU 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, or any portion thereof, or make any use of the Service other than for User’s internal business purposes, unless otherwise agreed in writing by the EBU. 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 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 the EBU 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 EBU by the means of the Service(s). The User represents and warrants that its use of the Service will not infringe or violate any intellectual property rights of any third party. Without prejudice to the generality of this Clause 4.3, the User further warrants to the EBU 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 Services to other clients and users of the EBU 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 The User shall be liable and responsible without any restriction for any equipment the EBU 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 the EBU. The User must not interfere with any of such equipment or allow any third party to do so unless authorized in writing by the EBU. Without prejudice to the foregoing, the User may be required, upon the EBU's request, to enter into a separate hire agreement in respect of the provision of such equipment.
4.5 The User acknowledges that the words "EBU", "UER", “EUROVISION”, the EBU logo and the Eurovision logo are trademarks of the EBU and that nothing in the Contract can be construed as a license or any other grant of rights in respect of such trademarks. The EBU shall have absolute discretion over the development and the exploitation of the trademarks of the EBU. Further in contracting with the EBU, the User undertakes not to take any action which may, at any time, undermine the EBU’s rights in these trademarks. The User shall not advertise the fact that it uses Service(s) from EBU without the prior written approval of the EBU.
4.6 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 the EBU.
4.7 The User accepts that all information received from the EBU, 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.
4.8 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 the EBU.
4.9 The User accepts that the EBU shall have the right, without the User's consent, to assign the Contract to any of its affiliated company. The EBU will notify the User of such transfer or assignment.
5 - EBU's Liability
5.1 Except to the extent prohibited by applicable law, EBU’s liability is limited to wilful misconduct and/or gross negligence.
5.2 The EBU 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 the EBU or of the User.
5.3 The EBU 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 the EBU's reasonable control, including but not limited to, Act of God, fire, flood, explosion, accident, interference, lightening, storm, earthquake or other climatic or meteorological catastrophes, 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 Services 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 Services, which or the consequence of which, is beyond the reasonable control of the EBU and/or any of its subcontractors, suppliers, agents, representatives, employees; and could not have been prevented, avoided or remedied by the EBU taking reasonable precautions (“Force Majeure Event”). If due to a Force Majeure Event, EBU 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 EBU and the User will pay the costs and expenses incurred by EBU and evidenced to the User for the purpose of fulfilling the Contract.
5.4 Each provision of this Clause 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, the EBU 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 the EBU of the User’s 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 the EBU, whichever occurs first.
7.2 The EBU 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:
7.2.2 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 the EBU following receipt of written notice from the EBU informing the User of such
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 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 where foreseen in the Contract.
7.3 If EBU 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 the EBU, equal to the total remaining Fees 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 EBU in connection with the early termination of the Contract (together “Termination Fee”).
7.4 Any suspension or termination in accordance with Clause 7.2 shall be in addition to any other rights and remedies which EBU 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 the EBU or its providers and/or suppliers, or - if agreed in advance with the EBU in writing - ensure that the EBU is able to collect or remove its equipment or other property, or that of its suppliers, without delay. The EBU 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 expiration or termination of this Contract.
8 - Notices
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 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. Each party is 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 the EBU
10.2 The failure of the EBU 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.
11 - SeverabilityThe 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 TThe 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, each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of the Canton of Geneva, Switzerland to resolve any such claim or dispute.