1 INTERPRETATION AND DEFINITIONS
1.1 In this Agreement, unless otherwise stated or unless the context otherwise requires:
Affiliate means in respect of either party, a company which is a group undertaking (as defined in section 1161 of the Companies Act 2006) of that party.
Bribery means conduct which constitutes an offence under the Bribery Act 2010 or which would constitute an offence under the Bribery Act 2010 if that Act were in force in the jurisdiction where the conduct took place.
Confidential Information means in relation to either party to this Agreement (disclosing party) any and all information relating to the business affairs, developments, personnel, suppliers of the disclosing party (or any of its Affiliates), in whatever form (including Personal Data) that (i) is by its nature confidential; (ii) the receiving party knows or ought to know is confidential; and/or (iii) is designated by the receiving party as confidential.
Agreement means these General Conditions of Purchase and the Purchase Order, as amended from time to time in accordance with clause 2.2.
Effective Date means the Effective Date as stated on the Purchase Order or, if no such date is shown, the earlier of: (i) the date the Supplier gives notice of acceptance of the Purchase Order; or (ii) the date the Supplier gives implied notice of its acceptance of the Purchase Order by fulfilling it in whole or in part.
Fees means the amount payable for the Goods and/or Services supplied.
Goods means the items identified as such in the Purchase Order, together with all other deliverables provided by the Supplier pursuant to this Agreement.
__Intellectual Property Rights_ means patents, trade marks, service marks, logos, trade names and business names, copyright (including future copyright), database rights, design rights, domain names, rights in and to Confidential Information (including know-how, business methods, data and trade secrets), format rights and all other similar or analogous rights, in each case whether registered or unregistered, and including all applications for and renewals or extensions of such rights, in each case in any part of the world.
Insolvency Event means one or more of the following events: (i) an administrator, administrative receiver, receiver or manager, liquidator or similar officer is appointed in respect of the whole or any part of the Supplier's assets and/or a winding up petition is issued against the Supplier; or (ii) the Supplier proposes to enter or enters into any composition or arrangement with its creditors generally or any class of creditors.
Modern Slavery means conduct which constitutes an offence under the Modern Slavery Act 2015, or which would constitute an offence under that Act if it were in force in the jurisdiction where the conduct took place.
Personal Data has the meaning given in the Data Protection Addendum below.
Purchase Order means UKTV's written instruction to the Supplier to supply the Goods and/or perform the Services.
Relevant Law means any statute, enactment, ordinance, order, regulation, guidance or other similar instrument (including those relating to Bribery and Modern Slavery) in any jurisdiction, including any jurisdiction from which the Goods and/or Services are provided or in which any Goods and/or Services are received (or both), which relate to the performance of this Agreement.
Services means all the obligations of the Supplier under this Agreement, including the provision of any Goods and performance of the Services described in the Purchase Order.
Specification means the relevant description of the Goods set out in the Purchase Order.
Subcontractor means any third party who is engaged in the supply chain of the Supplier in the provision of the Goods or Services.
Supplier means the person, firm or company identified as such in the Purchase Order.
Supplier Personnel means any person named in the Purchase Order, any employee of the Supplier, any Subcontractor, agent or any other individual who may perform the Services and/or provide Goods on behalf of the Supplier.
Tax Evasion means conduct that constitutes any criminal offence of tax evasion or facilitation of tax evasion in any jurisdiction, including the tax evasion facilitation offences under section 45(1) and 46(1) of the Criminal Finances Act 2017.
UKTV means that member of the UKTV Group identified as the contracting party on the Purchase Order.
UKTV Group means UKTV Media Limited (Company No. 04266373) of 10 Hammersmith Grove, London, W6 7AP, and each of its Affiliates.
UKTV Premises means premises owned, leased, licensed or otherwise controlled and/or occupied by any member of the UKTV Group from time to time.
VAT means Value Added Tax as provided for in the Value Added Tax Act 1994.
(a) the terms including, includes, for example and in particular do not limit the generality of the words preceding those terms;
(b) a reference to a particular law is a reference to it as amended and in force for the time being, and to any legislation which re-enacts or consolidates it, and includes all orders, regulations, instruments and other subordinate legislation for the time being in force made under it;
(c) headings shall not affect the interpretation of this Agreement. If a conflict arises between these General Conditions and the Purchase Order, the terms contained in the Purchase Order shall prevail.
(d) whether a person is associated with another person shall be determined in accordance with the relevant sections of the Bribery Act 2010 (and any guidance issued under section 9 of that Act) and a person associated with the Supplier includes any Supplier Personnel.
2 APPLICATION OF TERMS
2.1 These General Conditions apply to this Agreement to the entire exclusion of all other terms and conditions contained or referred to in any acknowledgement or acceptance of order, specification, delivery note or other communication sent by the Supplier to UKTV.
2.2 No variation to this Agreement shall have any effect unless expressly agreed in writing and signed by an appropriately authorised representative of each party.
3 COMMENCEMENT AND TERM
This Agreement shall commence on the Effective Date and, if applicable, shall continue for the term set out in the Purchase Order, unless terminated in accordance with the terms of this Agreement.
4 PROVISION OF GOODS AND SERVICES
4.1 The Supplier shall provide the Goods and/or perform Services in accordance with the terms and conditions set out in this Agreement (including complying with any relevant timescales or milestones).
4.2 The Supplier shall obtain a Purchase Order number from UKTV and shall ensure that the correct Purchase Order number is quoted on all correspondence, advice, invoices and credit notes relating to this Agreement.
4.3 If the Supplier is unable to perform the Services and/or supply the Goods for any reason, it will immediately inform UKTV of this fact giving the reason and the likely duration of the inability, but this shall be without prejudice to any rights or remedies available to UKTV.
4.4 The Supplier shall at all times comply with all reasonable requests and directions of UKTV and any other third party working with (and authorised by) UKTV and will take reasonable care to ensure that the provision of Goods and/or performance of the Services shall not interfere with the operations of the UKTV Group, its employees or any other third party working with any member of the UKTV Group.
4.5 The Supplier shall, and shall procure that any Supplier Personnel shall, comply with any relevant policies and procedures of UKTV which are notified to the Supplier prior to or during the term of this Agreement.
4.6 The Supplier shall, and shall procure that any Supplier Personnel shall, comply with any relevant industry regulations (including but not limited to OFCOM guidelines) which are applicable to the provision of the Goods and/or the performance of the Services.
4.7 The Supplier shall, and shall procure that any Supplier Personnel shall, if requested and at its own cost undertake relevant Health and Safety training or shall provide evidence to the satisfaction of UKTV that it/they is/are appropriately trained to an appropriate standard for the Services being provided.
4.8 If the Supplier is required or permitted to use or have access to any UKTV computer equipment or systems in the performance of the Services then the Supplier shall, and shall procure that any Supplier Personnel shall, comply with the terms of UKTV's policies regarding the use of its information technology systems, including internet and email use and shall use the latest commercially available versions of third party packaged software (under licence to the Supplier) to prevent the introduction of computer viruses, Trojan horses, worms, software bombs or similar items or computer programs into UKTV's IT environment. Such security measures shall not be charged to UKTV.
5 SUPPLIER PERSONNEL
5.1 If any Supplier Personnel are deemed by UKTV (acting reasonably) to be carrying out the Services unsatisfactorily, the Supplier shall promptly replace such personnel with personnel whose identity has been approved by UKTV beforehand.
5.2 The Supplier will ensure that all key personnel named on the Purchase Order (or otherwise agreed with UKTV as being key personnel) will be engaged in the provision of the Services and will not be removed or reassigned from the Services without UKTV's prior written consent.
5.3 UKTV reserves the right to refuse to admit to, or remove from, any UKTV Premises any Supplier Personnel (i) whose admission or presence would, in UKTV's opinion, be undesirable or who represents a threat to confidentiality or security; or (ii) whose presence would be in breach of any rules and regulations governing UKTV's own staff. UKTV shall notify the Supplier of any such refusal. The exclusion of any such individual from such UKTV Premises shall not relieve the Supplier from the performance of its obligations under this Agreement.
5.4 Nothing contained in this Agreement shall be construed or have effect as constituting any relationship of employer and employee between (i) UKTV or any member of the UKTV Group, and (ii) the Supplier or any of the Supplier Personnel.
5.5 The Supplier shall account for: (i) all income taxes and any applicable national insurance contributions arising in respect of the Fees and/or in respect of the engagement by the Supplier of any Supplier Personnel and (ii) all entitlements (if any) of Supplier Personnel to pension contributions and holiday pay.
6 DELIVERY, RISK AND OWNERSHIP
6.1 The Goods shall be delivered to the location specified in the Purchase Order (or to such other location or in such other format, whether physical or electronic, as may be specified by UKTV) at the Supplier's cost (unless the Purchase Order states otherwise), and the Supplier shall ensure that the Goods are accompanied by a delivery note which shows, inter alia, the Purchase Order number, date of Purchase Order, and a full and accurate description of the number of packages and the full contents of the delivery.
6.2 Without prejudice to clause 7 (Intellectual Property Rights), title and risk in the Goods shall pass to UKTV when delivery, whether physical or electronic (as directed by UKTV), is complete (including, in the case of physical delivery, off- loading and stacking and in the case of electronic delivery UKTV having full accessibility to the Goods through its computer environment), unless payment for the Goods is made prior to delivery in accordance with this Agreement, in which case title to the Goods shall pass to UKTV once payment has been made for the Goods by UKTV. Title to the Goods shall pass to UKTV with full title guarantee and free from all encumbrances and other tights of whatever nature exercisable by any third party right, except to the extent set out in the Purchase Order.
6.3 Where UKTV pays for Goods prior to delivery the Supplier shall: (i) ensure the Goods are stored, physically or electronically as applicable, separately from all its other stock and clearly marked as the property of UKTV; and (ii) allow UKTV access to the Supplier's premises and/or computer environment in order to take possession of the Goods on request.
6.4 The Supplier shall, at its expense and until delivery of the Goods in accordance with this Agreement, insure the Goods against all risks to their full replacement value.
6.5 The Goods shall be delivered to UKTV on the date specified in the Purchase Order or, if no date is specified, within 14 days of the date of the Purchase Order. Time of delivery shall be of the essence of this Agreement.
6.6 With respect to delivery:
(a) If physically delivered, the Goods shall be properly packed and secured in such a manner as to reach their destination in a good condition having regard to the nature of the Goods and all other relevant circumstances. Packaging material shall not be charged for and UKTV shall have no obligation to return the same to the Supplier.
(b) If electronically delivered, the Goods shall be delivered securely and the Supplier shall use the latest commercially available versions of third party packaged software (under licence to the Supplier) in an effort to prevent the Goods from being lost, corrupted or accessed by any unauthorised party, and to prevent the introduction of computer viruses, Trojan horses, worms, software bombs or similar items or computer programs onto UKTV's computer environment. Such security measures relating to the electronic delivery of the Works shall not be charged to UKTV.
6.7 UKTV shall not be deemed to have accepted the Goods until it has had 30 days to inspect and/or test them following delivery. UKTV shall also have the right to reject Goods as though they had not been accepted for 30 days after any latent defect in the Goods has become apparent to UKTV. Acceptance by UKTV shall be without prejudice to any rights or remedies otherwise available to UKTV.
6.8 If the Goods are delivered to UKTV in excess of the quantities set out in the Purchase Order, UKTV shall not be bound to pay for the excess and any excess shall be and remain at the Supplier's risk and shall be returnable at the Supplier's expense.
6.9 In the event that the Goods are supplied for hire only:
(a) risk in the Goods shall pass to UKTV when delivery is complete or, where applicable, upon collection of the Goods by UKTV from the Supplier;
(b) risk in the Goods shall pass back to the Supplier upon (i) return of the Goods by UKTV to the Supplier, (ii) collection of the Goods by the Supplier, or (iii) the end of the hire period, whichever is the earlier;
(c) unless specified otherwise in the Purchase Order or agreed with the Supplier, the Supplier shall collect the Goods from UKTV at the end of the hire period; and
(d) notwithstanding clauses 6.9(b) and 6.9(c) above, the Supplier shall remain responsible for any maintenance and repair of the Goods during the hire period, whether due to fair wear and tear or any inherent fault or defect.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights belonging to a party prior to the execution of this Agreement shall, as between the parties, remain vested in that party.
7.2 Subject to clause 7.1, all Intellectual Property Rights (a) in any Goods created or developed pursuant to this Agreement, and/or (b) created or developed in the provision of the Services, (each "New IPR") shall belong to and vest in UKTV. The Supplier hereby assigns absolutely (and shall procure that all relevant third parties assign absolutely) to UKTV, by way of present assignment of existing and all future property, rights, title and interest, all New IPR, all of which shall vest in UKTV immediately upon creation of the same with full title guarantee and free from all encumbrances and other rights of whatever nature exercisable by any third party, together with the right to take action for any past, present and future damages and other remedies in respect of any infringement or alleged infringement of such New IPR. The Supplier shall ensure that all relevant third parties waive any moral rights in or relating to any New IPR and shall on request provide UKTV with written evidence of such waiver.
7.3 The Supplier hereby grants to UKTV, each other member of the UKTV Group, their agents and contractors, a worldwide, royalty- free, non-exclusive, perpetual, transferable (subject to the provisions of clause 16.3) licence (including the right to grant sub- licences) to use (i) any and all Intellectual Property Rights (excluding New IPR assigned to UKTV) in the Goods, and (ii) any other Intellectual Property Rights to the extent necessary to: (a) receive or use the Services (b) to enable the full benefit of ownership of the Goods; and/or (c) perform its obligations or exercise rights under this Agreement.
7.4 Without prejudice to the obligation under clause 9.2 (Warranties and Indemnity), if any of the Goods and/or Services (or item used in the delivery thereof) becomes, or in the reasonable opinion of UKTV is likely to become the subject of an infringement claim, the Supplier shall, upon UKTV's request:
(a) procure for the Supplier, UKTV and each other member of the UKTV Group (as applicable), the right to continue to use or receive the relevant Goods and/or Services in accordance with or as contemplated by this Agreement; or
(b) modify or substitute the relevant Goods and/or Services so that they are non-infringing, provided that any such modification or substitution shall not degrade the performance or quality of the affected item.
7.5 In the event that the Supplier or any of the Supplier Personnel are entitled to any performers rights in the products of the Services, the Supplier shall and shall procure that the relevant Supplier Personnel shall grant to UKTV such consents as may be required by law to exercise such rights at no additional cost to UKTV.
8 PRICE AND PAYMENT
8.1. The amount payable for the Goods supplied and/or Services performed in accordance with this Agreement shall be as set out in the Purchase Order and shall be exclusive of VAT (and all other equivalent or relevant sales taxes) unless otherwise stated on the Purchase Order, but inclusive of all other charges including overtime, expenses and delivery charges.
8.2 The Supplier shall submit invoices in accordance with the instructions on the Purchase Order, or if no invoice submission terms are specified, upon acceptance of the Goods and/or completion of provision of the Services. The Supplier's invoice must include the relevant Purchase Order number and UKTV contact name and telephone number. Failure to comply fully with this provision shall entitle UKTV to reject the invoice.
8.3 UKTV shall pay all valid invoices within 30 days of receipt.
8.4 Each party shall be entitled to receive interest on any payment not made when properly due pursuant to the terms of this Agreement, calculated from day to day at a rate per annum equal to 2 percent over the base lending rate of Barclays Bank plc., and payable from the day after the date on which payment was due up to and including the date of payment whether before or after judgement. The parties acknowledge and agree that this clause provides them with a substantial remedy in respect of any late payment of sums due under this Agreement.
8.5 If a Supplier is paid on an hourly basis, the Supplier must provide appropriate time sheets (approved by a duly authorised representative of UKTV) evidencing the time spent.
8.6. If a Supplier is paid on a daily basis, Fees shall be calculated on the basis of an 8-hour day worked between 9 a.m. and 6 p.m. on weekdays (excluding bank holidays) unless otherwise stated in the Purchase Order.
8.7 Claims for payment in respect of materials purchased by the Supplier in order to perform the Services or for reimbursement of expenses shall only be payable if provided for expressly in the Purchase Order and accompanied by the relevant receipts.
8.8. Without prejudice to any other rights or remedies available to UKTV, UKTV reserves the right to set off any amount owing by it against payments to the extent that Goods or Services have not been supplied to UKTV's reasonable satisfaction.
8.9 Payment is without prejudice to any claims or rights which UKTV may have against the Supplier and shall not constitute acceptance of the Goods and/or Services.
8.10 If UKTV disputes any sums set out in an invoice then it will notify the Supplier in writing before the due date for payment and will pay any amounts set out in that invoice to the extent they are not disputed. UKTV and the Supplier shall meet within seven (7) days of receipt of a written notice from UKTV under this clause to attempt to resolve the dispute.
9 WARRANTIES AND INDEMNITY
9.1 The Supplier warrants and represents to UKTV that:
(a) the Goods shall be of appropriate design, quality, material and workmanship, free from defects and fit for the purpose held out by the Supplier or made known to it by UKTV;
(b) the Services shall be provided in accordance with best industry practice (being not less than reasonable care and skill) and shall be fit for the purpose held out by the Supplier or made known to it by UKTV;
(c) the Goods and/or Services shall conform to the quantity, quality, standards and description set out in the Specification;
(d) the Goods shall be equal to and comply in all respects with any samples or patterns provided to and/or accepted by UKTV;
(e) it has and will at all times have full authority to grant the licences granted by the Supplier under this Agreement;
(f) the performance of its obligations under this Agreement and UKTV's receipt and use of the Services, any Intellectual Property Rights provided or made available, any Confidential Information disclosed to it by the Supplier, any of the Goods and the exercise of any rights granted under any licences granted by the Supplier to UKTV will not infringe any third party rights including Intellectual Property Rights (or moral rights);
(g) the Goods will comply with all Relevant Laws relating to the manufacture and sale (and/or hire, where applicable) of the Goods at the time when the same are supplied;
(h) it has put in place and shall maintain throughout the term of this Agreement all processes, procedures and compliance systems reasonably necessary to ensure that Modern Slavery and/or Bribery and/or Tax Evasion does not occur within the Supplier's business or its supply chain;
(i) it shall and shall procure that all persons associated with it shall (1) comply with all Relevant Laws in performing the Services and/or providing the Goods, (2) not engage in any activity, practice or conduct which would constitute Bribery and/or Modern Slavery and/or Tax Evasion, (3) immediately notify UKTV(in writing) if the Supplier or other persons associated with it who perform or have performed Services for and/or provided Goods on behalf of the Supplier is investigated by any law enforcement agency or customer in relation to Bribery and/or Modern Slavery and/or Tax Evasion, (4) immediately notify UKTV (in writing) if Bribery and/or Modern Slavery and/or Tax Evasion has occurred, or the Supplier has reasonable cause to believe any have occurred, in the Supplier's business or within the Supplier's supply chain, and (5) not do, or omit to do, any act that will cause or lead UKTV to be in breach of Relevant Laws;
(j) it shall ensure that any person associated with the Supplier who is performing Services or providing Goods in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in clause 9.1(i) (Relevant Terms). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to UKTV for any breach by such persons of any of the Relevant Terms; and
(k) it shall act in good faith at all times and not bring any member of the UKTV Group into disrepute.
9.2 The Supplier shall indemnify, keep indemnified, defend and hold harmless each member of the UKTV Group (each an Indemnified Party) against any and all losses, costs, expenses, damages, claims and proceedings (Losses) made against, incurred or suffered by any of them, and whether wholly or in part resulting directly or indirectly from, or connected in any way with any of the matters listed below, whether or not such Losses were foreseeable at the date of entering this Agreement:
(a) any infringement or alleged infringement by an Indemnified Party of any Intellectual Property Rights of any third party as a result of UKTV's (or the relevant Indemnified Party's) receipt of the Services or its use or possession of any Goods or Intellectual Property Rights provided or otherwise made available to any Indemnified Party by the Supplier;
(b) any breach by the Supplier of its warranties in clause 9.1;
(c) any breach by the Supplier of its obligations under this Agreement in relation to Confidential Information or Personal Data;
(d) the wilful misconduct or wilful default of the Supplier, any Supplier Personnel or the Supplier's agents;
(e) any fraudulent or dishonest act or omission by the Supplier, any Supplier Personnel or the Supplier's agents;
(f) any death or personal injury arising from the act or omission of the Supplier, any Supplier Personnel or the Supplier's agents;
(g) any claim brought by a third party against any member of the UKTV Group to the extent that such claim is, or is alleged to be, caused by or based on any default, act or omission of the Supplier, any Supplier Personnel or the Supplier's agents;
(h) any claim by the Supplier or any of the Supplier Personnel that they are an employee or a worker (as defined in Regulation 2 of the Working Time Regulations 1998) of UKTV or any member of the UKTV Group including any claim for unfair dismissal, for a statutory redundancy payment, or for paid holiday entitlement;
(i) any claim by HM Revenue and Customs or any other relevant authority in respect of income tax and/or national insurance contributions and/or similar contributions or liabilities and/or VAT arising in respect of the Fees or in respect of the engagement by the Supplier of any Supplier Personnel in the provision of the Goods and/or the performance of the Services.
10 LIABILITY AND INSURANCE
10.1 The Supplier shall take out and maintain adequate insurance in respect of all risks it is prudent for the Supplier to insure against, having regard to the Supplier's possible liabilities to UKTV including, but not limited to, public liability insurance and professional indemnity insurance or product liability insurance with a reputable insurance company of no less than £5 million (or such higher amount as UKTV may specify in writing) in respect of any one claim or incident and shall provide the relevant certificates upon UKTV's request.
10.2 Nothing in this Agreement limits or excludes the liability of either party (i) in respect of any deceit, theft, fraud or fraudulent misrepresentation by it or its employees, and in the case of the Supplier, by Supplier Personnel; (ii) for death or personal injury caused by its negligence or that of its employees, and in the case of the Supplier, by Supplier Personnel; (iii) under clause 9.2 (Warranties and Indemnity); (iv) under clause 15 (Transfer); (v) for breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (vi) to the extent such limitation or exclusion is not permitted by law.
10.3 Subject to clause 10.2, UKTV shall not be liable to the Supplier for (i) any consequential or indirect loss or damage; or (ii) any loss of profits, in each case whether arising from breach of contract, tort (including negligence), breach of statutory duty or otherwise.
10.4 Subject to clause 10.2, the total aggregate liability of UKTV and each other member of the UKTV Group to the Supplier (in addition to payment of any amounts properly due) under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise howsoever, shall in no event exceed the greater of (i) the aggregate amount which UKTV is obliged to pay the Supplier hereunder (excluding any amounts that are not quantifiable at the Effective Date) for the relevant Goods and/or Services, or (ii) the actual amount paid by UKTV hereunder at the date of a claim, or (iii) £100,000.
11 TERMINATION AND REMEDIES
11.1 UKTV shall have the right to terminate this Agreement in whole or in part for convenience by giving the Supplier not less than 14 days prior written notice. On such termination, UKTV shall pay to the Supplier such pro-rated amount (reduced) amount of the Fees as represents the Supplier's reasonably committed, unavoidable and demonstrable costs incurred in connection with this Agreement.
11.2 UKTV may terminate this Agreement, in whole or in part, with immediate effect on giving written notice to the Supplier, if (a) the Supplier is affected by an Insolvency Event, or (b) the Supplier undergoes a change of control (as defined by section 1124 Corporation Taxes Act 2010).
11.3 Without prejudice to any other right or remedy UKTV may have, if any Goods and/or Services are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of this Agreement, UKTV shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods and/or Services have been accepted by UKTV:
(a) reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid by the Supplier;
(b) require the Supplier to remedy at its expense any defect in the Goods, or to supply replacement Goods and/or carry out any other necessary work to ensure that the terms of this Agreement are fulfilled;
(c) refuse to accept any further deliveries of the Goods or the provision of any further Services without any liability to the Supplier:
(d) claim damages; and/or
(e) terminate this Agreement in whole or in part, immediately upon giving written notice to the Supplier, in the event that the breach is material (being a single event or a series of events which are together a material breach) which is either not capable of being remedied or, if the breach is capable of being remedied, the Supplier fails to remedy such breach within 14 days of receiving written notice requiring it to do so.
11.4 Any termination or expiry of this Agreement shall be without prejudice to the accrued rights and liabilities of each party, or the coming into force or continuation of any other clauses and provisions of this Agreement which are expressly or by implication intended to come into force or continue in force on or after termination or expiry.
11.5 On expiry or termination of this Agreement for any reason, the Supplier shall immediately (a) deliver to UKTV all materials, information, data and equipment belonging to or provided by UKTV to the Supplier for the purpose of this Agreement, together with all Confidential Information, and if the Supplier fails to do so, UKTV shall be entitled to enter the Supplier's premises and take possession of any items that should have been returned to it, (b) vacate any UKTV location/premises from which it is performing Services in connection with this Agreement, (c) provide all such reasonable assistance to UKTV and any third party nominated by UKTV to enable the smooth and orderly transfer of the Services to UKTV or its nominated third party, including the transfer of any knowledge relevant for the continued provision of the Services.
12.1 Each party (the Receiving Party) shall treat and keep all Confidential Information (1) first disclosed to it by the other party, or (2) learnt, acquired or developed by the Receiving Party in connection with this Agreement, secret and confidential, and will not, without the other party's consent, disclose Confidential Information to any other person other than in accordance with this Agreement.
12.2 Unless otherwise specifically agreed by UKTV in writing, the Supplier shall keep confidential the fact that it is supplying UKTV and the terms of such supply.
12.3 The foregoing shall not apply to the extent that (a) the Receiving Party needs to have or disclose Confidential Information of the other party to any Affiliate, subcontractor, agent or employee of the Receiving Party in order to fulfil its obligations, exercise its rights under this Agreement or to receive the benefit of the Services, provided always that the Receiving Party shall procure that such person to whom the information is disclosed keeps the Confidential Information secret and confidential; (b) any Confidential Information is in the public domain at the Effective Date, or at a later date comes into the public domain other than through a breach of this Agreement; or (c) any Confidential Information is required to be disclosed pursuant to any Relevant Law or regulatory authority.
12.4 This clause 12 shall survive termination of this Agreement.
13 DATA PROTECTION
If the performance of the Supplier's obligations under this Agreement involves the processing by the Supplier of any Personal Data in respect of which UKTV would be a data controller, the Data Protection Addendum below shall apply.
14 SITE ACCESS AND AUDIT
14.1 The Supplier shall take all reasonable steps to ensure the health and safety of any UKTV Group employees, any Subcontractors and any other third party working with UKTV while they are working with the Supplier, and shall comply with all provisions, rules and regulations regarding (i) site access, (ii) security and/or (iii) health and safety of any of premises owned, leased or licensed by UKTV, when entering or otherwise occupying any such premises.
14.2 The Supplier shall upon the request of UKTV grant UKTV such access to the Supplier's premises or such other premises as UKTV may reasonably require for inspection of any Goods, facilities and/or UKTV equipment or materials provided under this Agreement.
14.3 Supplier shall keep at its principal place of business during and for at least 7 (seven) years after the expiry or earlier termination of this Agreement separate, complete and accurate books of account and records together with all relevant supporting documentation which relate to or affect this Agreement ("Records").
14.4 Supplier shall procure that UKTV and/or UKTV's representatives have reasonable access to Supplier's principal place of business to inspect and audit the Records (with the right to make copies and take excerpts) to verify that Supplier is performing its obligations in accordance with the terms of this Agreement, including but not limited to, verifying:
(a) the accuracy of the Fees; and
(b) Supplier's compliance with any Relevant Laws.
14.5 Any audit, investigation or monitoring undertaken in accordance with this clause 14 shall be subject to UKTV providing at least five (5) working days' notice to the Supplier of any audit it intends to carry out pursuant to these provisions save for any audit, investigation or monitoring which is either required by a regulatory authority or which is required by the UKTV for reasons of suspected fraud or non-compliance (in which case the regulatory authority or UKTV (as the case may be) shall not be required to give notice for its audit).
14.6 Any audit under this clause 14 shall be carried out during normal business hours during the term and up to 7 (seven) years after the expiry or earlier termination of the term, provided that not more than 1 (one) such inspection and audit may be carried out during any particular 12 month period.
14.7 Without prejudice to any other right or remedy available to UKTV:
(a) if an audit reveals any non-compliance by Supplier with the provisions of this Agreement, Supplier shall correct that non-compliance as soon as reasonably practicable and at no additional cost to UKTV, report to UKTV on the progress of taking the correcting action and reimburse UKTV for its costs (including professional fees and expenses) incurred in conducting the audit and producing any audit report (including professional fees and expenses).
(b) if an audit reveals an incorrect calculation of the Fees, or any other sums payable under this Agreement, Supplier shall promptly make an appropriate correcting payment of any monies due to UKTV.
(c) if the audit reveals any overcharging by the Supplier by an amount in excess of 5% of the correct value of the Fees due and payable by UKTV in any calendar year the Supplier shall reimburse UKTV for its costs (including professional fees and expenses) incurred in conducting the audit and producing any audit report (including professional fees and expenses).
14.8 Supplier shall procure that each agreement which it enters into with its Subcontractors in accordance with this Agreement permits UKTV and UKTV's auditors to exercise the rights set out in this clause 14.
14.11 Except as set out above in this clause 14, the parties shall bear their own costs and expenses incurred in respect of compliance with their obligations under this clause 14.
15.1 The parties acknowledge and agree that there shall be no transfer, whether pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 or otherwise, of the contract of any Supplier Personnel to UKTV or any future supplier of any Services ("Future Supplier") appointed by UKTV in place of the Supplier or any Subcontractor. In the event that there is any such transfer of any contract of employment, the Supplier shall indemnify UKTV fully (and pay to UKTV such sums as would, if paid to a Future Supplier, keep the such Future Supplier indemnified fully) against all costs, liabilities, claims, damages and expenses incurred directly or indirectly in relation to any such transfer (including, without limitation, in relation to the termination of any transferring contract of employment).
15.2 The Supplier shall, within 5 days of a request by UKTV, provide UKTV with a list of each and every member of Supplier Personnel assigned to the relevant Service, and shall provide to UKTV any details in respect of each such Supplier Personnel as are reasonably requested by UKTV (whether for itself or for any Future Supplier). The Supplier shall procure that such list and details are complete and accurate.
16.1 Waiver: A waiver of any right under this Agreement is only effective if it is in writing and it shall apply only to the party to whom the waiver is addressed and the circumstances for which it is given.
16.2 Cumulative Rights: Unless specifically provided otherwise in this Agreement, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
16.3 Assignment and Subcontracting: The Supplier shall not, without the prior written consent of UKTV, assign, transfer, charge, sub-contract or otherwise deal with all or any of its rights or obligations under this Agreement. UKTV may, without consent, at any time assign, transfer, charge, sub-contract or otherwise deal with all or any of its rights or obligations under this Agreement to any member of the UKTV Group.
16.4 No Partnership or Agency: Nothing in this Agreement shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the parties and neither party shall have authority to bind the other in any way.
16.5 Third Party Rights: Except as set out in this clause 16.5, a person who is not a party to this Agreement has no rights under The Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. Each and every obligation of the Supplier under this Agreement is owed to UKTV and each other member of the UKTV Group who may enforce the terms of this Agreement under The Contracts (Rights of Third Parties) Act 1999 and references to UKTV in the context of the Supplier's obligations shall be construed accordingly. The parties may rescind or vary this Agreement (and any documents entered into pursuant to or in connection with it) without the consent of any other person.
16.6 Notices: Any notice given under this Agreement shall be in writing served by hand, prepaid first class recorded delivery or first class registered post, marked for the attention of the person, and sent to the address set out in the Purchase Order. All notices shall be deemed to have been served at the time of delivery. For the avoidance of doubt, notice given under this Agreement shall not be validly served if sent by email.
16.7 Further Assurance: Each party shall, at the request of the other party, execute or cause to be executed all documents and do and cause to be done all further acts and things as that other party may reasonably require to give full effect to this Agreement.
16.8 Entire Agreement: The Purchase Order and these General Conditions constitute the entire agreement and understanding of the parties and supersedes all previous agreements and understandings between the parties in relation to the subject matter of this Agreement. In entering into this Agreement, the Supplier has not relied on any statement, representation, warranty, understanding, promise or assurance of any person, other than as expressly set out in this Agreement. The Supplier waives all rights and remedies which, but for this clause 16.8, it might otherwise have had in relation to any of the foregoing. Nothing in this clause shall limit or exclude any liability for fraud, fraudulent misrepresentation or fraudulent misstatement.
16.9 Governing Law and Jurisdiction: This Agreement and any non-contractual obligations arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales and each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
Data Protection Addendum
- In this Data Protection Addendum:
1.1. "Data Protection Act" means the Data Protection Act 2018;
1.2 "Data Protection Laws" means all laws relating to data protection, data privacy and/or information security which are applicable to the Services and/or the performance by each party of its obligations under this Agreement, including the Data Protection Act, the GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003, in each case as amended, repealed, replaced or supplemented from time to time;
1.3 "GDPR" means the General Data Protection Regulation (Regulation (EU) 2016/679);
1.4 the following terms (and their derivatives) shall, where applicable, have the meanings given to each of them in the Data Protection Laws, in each case as amended, replaced or supplemented from time to time: "data controller" or "controller" (which terms are used below interchangeably); "data processor" or "processor" (which terms are used below interchangeably); "data protection officer"; "data subject"; "international organisation"; "Member State"; "personal data"; "personal data breach"; "processing_"; "supervisory authority__"; "third country"; "__Union___".
2.1 The Supplier acknowledges that in the course of performing its obligations under this Agreement it may be required to process personal data on behalf of UKTV. The parties acknowledge and agree that, in respect of any such personal data, UKTV shall be the data controller, and Supplier shall be the data processor, for the purposes of the Data Protection Laws.
2.2 The Supplier warrants, undertakes and represents on an ongoing basis that, to the extent it processes any personal data as data processor in connection with the provision of the Services:
2.2.1 it has in place, and shall continue to have in place, appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
2.2.2 it shall process the personal data only on and in accordance with documented instructions from UKTV (which may be given by email), including with regards to transfers of personal data to a third country or international organisation, unless required to do so by Union or Member State law to which the Supplier is subject, in which case Supplier shall inform UKTV in writing of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. Supplier shall immediately inform UKTV in writing if, in its opinion, an instruction from UKTV infringes the GDPR or other Union or Member State data protection provisions;
2.2.3 it shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
2.2.4 it shall take all measures required pursuant to Article 32 (Security of Processing) of the GDPR;
2.2.5 it shall not engage another processor without the prior specific written, or general written, authorisation of UKTV. Where the Supplier has the prior general written authorisation of UKTV, Supplier shall inform UKTV in writing in advance of any intended additional or replacement processors, giving UKTV the opportunity to object to such changes. In the case of any such objection, Supplier shall not engage such additional or replacement processor;
2.2.6 if the Supplier engages another processor, the Supplier shall ensure that the same data protection obligations as set out in this Agreement (including this Data Protection Addendum) shall be imposed on that other processor by way of a written contract, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Data Protection Laws. The Supplier shall ensure that any such processor complies with such obligations and Supplier shall remain fully liable to UKTV for the performance by such other processor of such obligations;
2.2.7 it shall, taking into account the nature of the processing, assist UKTV by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of UKTV's obligation to respond to requests for exercising the data subject's rights laid
down in Chapter III (Rights of the data subject) of the GDPR;
2.2.8 it shall assist UKTV in ensuring compliance with the obligations in Section 2 (Security of personal data) and Section 3 (Data protection impact assessment and prior consultation) of the GDPR, taking into account the nature of the Supplier's processing of the personal data and the information available to the Supplier;
2.2.9 at UKTV's request, and in any event after the end of the provision of the Services, it shall promptly return all the personal data to UKTV (in a commonly readable format specified by UKTV acting reasonably), and delete all existing copies unless Union or Member State law requires storage of the personal data;
2.2.10 it shall make available to UKTV all information necessary to demonstrate compliance with the obligations set out in this Data Protection Addendum and allow for and contribute to audits, including inspections, conducted by UKTV or any auditor mandated by UKTV, and shall provide reasonable assistance to UKTV and any auditor in respect of such audits;
2.2.11 it shall comply with the Data Protection Laws and it shall not, by any act or omission, cause UKTV to be in breach of the Data Protection Laws;
2.2.12 it has sufficient expert knowledge, reliability and resources to implement technical and organisational measures which will meet the requirements of the Data Protection Laws, including for the security of the processing;
2.2.13 taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, it shall implement appropriate technical and organisational measures, including where appropriate pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of the Data Protection Laws, to protect the rights of data subjects, and to ensure and to be able to demonstrate that processing is performed in accordance with the Data Protection Laws. Those measures shall be reviewed and updated where necessary, and Supplier shall keep UKTV informed in reasonable detail from time to time and also on request as to such reviews and updates;
2.2.14 it shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility;
2.2.15 it shall not transfer, or permit the transfer, of the personal data to a third country or international organisation unless UKTV has given its prior written consent and such transfer complies Data Protection Laws (and in particular Chapter V (Transfers of personal data to third countries or international organisations) of the GDPR);
2.2.16 it shall promptly inform UKTV if any personal data is lost or destroyed or becomes damaged, corrupted or unusable and will restore such data at its own expense;
2.2.17 it shall notify UKTV within 24 hours of becoming aware of any personal data breach in relation to the personal data processed or to be processed by the Supplier pursuant to this Agreement. Such notification shall be in writing and shall include at least the information set out in Article 3 of the GDPR to the extent such information is available to the Supplier. Supplier shall immediately update such notification if additional information becomes available to it from time to time;
2.2.18 it shall only allow access to the personal data to such of the Supplier's personnel who need access to the personal data in order that Supplier can perform its obligations under this Agreement;
2.2.19 it shall not process any personal data which falls within any category of data listed in Article 9(1) of the GDPR; and
2.2.20 to the extent it processes any personal data which was not originally provided to it by UKTV, such personal data was acquired by it in a manner permitted by Data Protection Laws.
3 Without prejudice to the foregoing provisions of this Data Processing Addendum, to the extent that the provision of the Services involves any personal data in respect of which the Supplier is the data controller, the Supplier warrants, undertakes and represents on an ongoing basis that it shall comply with the Data Protection Laws with respect to all such personal data.
4 If the Supplier receives notice (whether or not from UKTV) of, or otherwise becomes aware of, any claim, complaint, request, direction, query, investigation, proceeding or other action of any data subject, court, regulatory or supervisory authority, or any body, organisation or association as referred to in Article 80 (Representation of data subjects) of the GDPR, in each case which relates in any way to any personal data processed in connection with this Agreement (collectively, "Regulatory Action"), or any threat or possibility of any Regulatory Action, then Supplier shall:
4.1 immediately notify UKTV in writing with reasonable detail of the Regulatory Action, including copies of any relevant correspondence;
4.2 obtain UKTV's prior written approval of any action that Supplier proposes to take or refrain from taking in response to or in order to comply with any Regulatory Action;
4.3 allow UKTV, at UKTV's request, to take over the conduct of any Regulatory Action;
4.4 provide UKTV with full co-operation and assistance with respect to any Regulatory Action; and
4.5 disclose and supply to UKTV in utmost good faith all facts, circumstances, information, documents and materials which might reasonably be considered relevant to, or which UKTV requests in relation to, any Regulatory Action, except, in each case, to the extent that Supplier is prohibited from doing so by applicable law. This paragraph 4 is without prejudice to Supplier's obligations under Article 31 (Cooperation with the supervisory authority) of the GDPR.
5 At UKTV's request, the parties shall review and update this Data Processing Addendum as may be reasonably required to reflect any changes to Data Protection Laws during the Term. The parties shall act in good faith and use all reasonable endeavours to agree such updates to this Data Processing Addendum within 45 days of UKTV's request. If the parties are unable to agree the required changes in a binding written agreement within such period, or such longer period as the parties agree in writing, UKTV may, on not less than 14 days' written notice to Supplier, terminate this Agreement.
6 As between UKTV and the Supplier, all personal data processed by the Supplier in connection with the provision of the Services shall be the property of UKTV. Nothing in this Agreement (including this Data Protection Addendum) shall, or is intended to, transfer any aspect of ownership in such personal data to the Supplier.