PART A: GENERAL TERMS
1. Definitions “Tiger” means Tiger Aspect Productions Limited to whom the Supplier is providing the Goods, Facilities and/or Services under the Contract and Tiger shall be deemed to include all its relevant officers, servants and/or agents; the “Contract” means these Terms of Trade and the Purchase Order; the “Contract Period” shall be the period or date(s) as specified in the Purchase Order; the “Contract Price” means the price payable by Tiger to the Supplier as specified in the Purchase Order; the “Facilities” means any facilities to be provided by the Supplier pursuant to the Contract; the “Goods” means any item(s) to be constructed, manufactured or provided by the Supplier pursuant to the Contract or in the case of Services the physical product(s) of the Services; the “Purchase Order” means the Tiger pro forma(s) detailing the Goods, Facilities and/or Services to be provided; the “Services” means any services to be provided by the Supplier pursuant to the Contract (which will include where appropriate any equipment/materials provided by the Supplier to perform the Services); the “Supplier” means the organisation or individual responsible for providing the Goods, Facilities and/or Services under the Contract and the Supplier shall be deemed to include all its relevant officers, servants and/or agents.
2. Existence of Contract The Contract shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which the Supplier may purport to apply and the provision of the Goods, Facilities and/or Services shall be deemed conclusive evidence of the Suppliers acceptance of the Contract.
3. Good Faith/Outside Activities The Supplier shall act in good faith towards Tiger and shall not bring Tiger into disrepute nor, without the prior consent of Tiger, make any reference to it in association with any advertising or other promotional material or write for publication or speak in public about Tiger or its affairs.
4. Contract Price/Payment
4.1 For the Goods, Facilities and/or Services provided under the Contract Tiger shall pay to the Supplier the Contract Price inclusive of VAT (which if applicable shall be quoted at the appropriate rate) subject to Clause 4.3 and on receipt of a valid VAT invoice.
4.2 The Supplier shall submit a valid VAT invoice for the whole or any part of the Contract Price to Tiger at the address overleaf quoting the relevant Purchase Order number and production title and Tiger shall remit payment due by the end of the month following that in which the invoice date falls. The Supplier acknowledges that the Contract Price represents, and has been agreed on the basis that it represents and includes, the full and complete consideration due to the Supplier and is equitable remuneration for the exploitation of the products of the Services including without limitation the assignment and exercise of so called rental and lending rights and the communication to the public;
4.3 Tiger reserves the right to withhold payment where the Goods, Facilities and/or Services have not been provided in accordance with the Contract and shall notify the Supplier accordingly.
4.4 Supplier will not pledge Tiger’s credit nor order goods nor incur liability on Tiger’s behalf without Tiger’s prior written approval
5. Standard of Goods/Facilities/Services
5.1 The Supplier shall ensure that any Goods and/or Facilities are
(a) fit for the intended purpose of satisfactory quality as well as tested prior to delivery (and Supplier shall promptly repair or replace in the event of any fault) and where appropriate in the case of Goods are of good construction, suitable and sound material and adequate strength, and
(b) comply with all current national and international technical standards and procedures and any technical standards, requirements and procedures that the Tiger specifies to the Supplier,.
5.2 The Supplier shall be competent to fulfil its obligations under the Contract (which includes having relevant experience, training and/or qualifications), and will use proper care, skill and diligence whilst discharging its obligations under the Contract, execute the Contract in a timely and professional manner and hold any licence, permit and/or certificate required by law for the performance of the Contract.
5.3 The Supplier shall be responsible for the care, control and security, insurance and maintenance of any equipment and materials used or provided by the Supplier.
6. Health/Safety/Fire
6.1 The Supplier shall comply, and shall ensure that its officers, servants, agents and/or any sub-contractors comply, with all current relevant:
(a) health, safety and fire legislation and office Codes of Practice and Guidelines
(b) Tiger’s health, safety and fire requirements, details of which Tiger shall provide to the Supplier
6.2 Where the health, safety and fire requirements of the Contract are additional to or differ from those specified in Clause 6.1 Tiger and the Supplier shall agree such requirements (and shall exchange such information as is necessary for that purpose). before the Supplier commences provision of the relevant Goods, Facilities and/or Services
7. Hire or Loan of Goods Where the Contract consists of the hire or loan of Goods Tiger shall be responsible to the Supplier for any accidental physical loss or damage to the Goods whilst in the charge and control of Tiger provided that the Supplier notifies Tiger promptly upon discovery of any such loss or damage.
8. Delivery of Goods
8.1 The Supplier shall ensure that any Goods are kept in a proper, careful and secure manner at the Supplier’s own risk and expense until the whole or any part thereof are either delivered to Tiger at the Supplier’s own risk and expense or collected by Tiger at Tiger’s own risk and expense from the point of collection in accordance with the delivery instructions as specified in the Purchase Order. The Supplier shall ensure that the Goods are packed in such a manner as to reach Tiger in good condition, clearly labelled in accordance with the delivery instructions and accompanied by delivery notes specifying the quantity and type thereof and the relevant Purchase Order number.
8.2 Where the Contract consists of the sale of Goods ownership thereof shall vest in Tiger absolutely at such time as Tiger takes physical possession of the Goods unless the Contract is terminated pursuant to Clause 12 in which case ownership of any part of the Goods for which payment has been made under the Contract shall vest absolutely in Tiger at the time of termination.
8.3 Where any Goods are found by Tiger, upon delivery or collection or subsequently, not to conform with the Contract, Tiger reserves the right to accept or reject the whole or any part thereof and if rejected return the Goods to the Supplier at the Supplier’s own risk and expense, such acceptance or rejection being without prejudice to any other remedy available to Tiger.
9. Third Party Liability and Insurance
9.1 The Supplier shall indemnify Tiger against any claim brought against Tiger by any third party for personal injury or loss of or damage to property caused by the Supplier and the Supplier shall arrange and maintain Public Liability Insurance, and where applicable Product Liability Insurance, with an adequate indemnity limit which shall be no less than two million pounds sterling (£2,000,000) with scope of cover appropriate to the Goods, Facilities and/or Services provided under the Contract in respect of one claim or incident.
9.2 Where the Supplier engages a sub-contractor in accordance with Clause 17 the Supplier shall ensure that the insurance requirements as specified in Clause 9.1 extend to cover the legal liabilities of the sub-contractor or the sub-contractor holds its own insurance in accordance with Clause 9.1.
9.3 The Supplier shall be responsible for insuring any equipment such as motor vehicles or mobile plant provided by the Supplier to perform the Contract against loss or damage and liabilities to third parties or anyone carried in or on such equipment.
10. Clearance of Third Party Rights Except as otherwise agreed, the Supplier shall obtain all necessary consents, permissions and/or clearances in third party rights (whether copyright, intellectual property rights or otherwise) and shall hold Tiger harmless in respect of the same so that Tiger shall be entitled to use the Goods provided or the result of the Services without liability to any third party. The Supplier further warrants and represents that the Supplier is the lawful owner or licensee of any software programs or other materials used by the Supplier in the provision of the relevant Goods, Facilities and/or Services
11. Confidentiality Except where strictly necessary and then only on a need to know basis, the Supplier shall keep confidential any information relating to the business of Tiger its employees, contributors or customers, including but not limited to trade secrets, programme idea, story, title, production methods, technical or financial data, or any other confidential or proprietary information, documentation or material used or owned by or relating to the programmes, films, operations, magical tricks and illusions, processes or which is obtained as a result of its relationship with Tiger under the Contract.
12. Termination
12.1 Where Tiger considers that the Supplier has failed to perform in part or in whole its obligations under the Contract and the failure is in the reasonable opinion of Tiger capable of remedy Tiger shall notify the Supplier thereof and the Supplier shall remedy the failure. If the failure is not remedied by the Supplier to the satisfaction of Tiger within a reasonable period of time from such notification Tiger may remedy the failure and recover the costs thereof from the Supplier and/or terminate the Contract under Clause 12.2.
12.2 Tiger may terminate the Contract with immediate effect in writing if:
(a) there has been a material breach by the Supplier of its obligations under the Contract;
(b) the Supplier commits an act of bankruptcy, or makes any composition or arrangement with its creditors, or is declared insolvent, or if any order is made or resolution is passed for the winding up of the Supplier, or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver or administrator over the whole or any part of its assets;
(c) if there is a change of control of the Supplier, where control means the ability to direct the affairs of the Supplier whether by virtue of contract, ownership, shares otherwise howsoever;
(d) the continued performance of the Contract is prevented by reason of any event beyond the reasonable control of Tiger or the Supplier (any such occurrence being deemed an event of force majeure).
12.3 Termination of the Contract howsoever arising shall be without prejudice to any right of action accruing or already accrued to either party at the date of termination.
12.4 Termination of the Contract howsoever arising shall not in itself give rise to a claim by the Supplier for damages or otherwise beyond a claim for payment due under the Contract up to and including the date of termination.
12.5 Upon termination of the Contract for whatsoever reason the Supplier shall promptly deliver up to Tiger at the Supplier’s own risk and expense the whole or any part of the Goods for which payment has been made under the Contract up to and including the date of termination, any Tiger equipment/materials provided under the Contract and any Tiger swipe cards provided thereunder. Tiger shall be deemed to have irrevocably all powers and authority to enter the Supplier’s premises or any other premises to recover and remove such items and recover the costs thereof from the Supplier.
12.6 The rights and obligations of either party arising under Clauses 3, 4.3, 6, 9.1, 10, 11, 25 and 32 shall survive termination of the Contract.
13. Equal Opportunities RequirementsThe Supplier shall:
(a) comply with all current relevant anti-discriminatory legislation (for example, race relations, equal pay, fair employment and disabled persons employment);
(b) adhere to the current relevant Codes of Practice published by the Equal Opportunities Commission, the Commission for Racial Equality, the Department of Employment and the Fair Employment Commission (Northern Ireland).
14. Compliance If requested by Tiger, the Supplier shall provide evidence of compliance with any of the Supplier’s obligations under the Contract.
15. Notices Any notice required to be given by either party to the other party shall be in writing and served upon the addressee at such address as it may notify to the other party for such purpose and if none at the addressee’s address stated on the Purchase Order by prepaid first class mail (airmail if overseas) or by personal delivery and shall be deemed to have been received immediately in the case of personal delivery and at the end of the second business day after posting if posted to an address within the United Kingdom and at the end of the seventh business day after posting if sent to or posted from an address outside the United Kingdom.
16. Waiver The failure of either party to exercise or enforce any right conferred upon it by the Contract shall not be deemed to be a waiver of any such right or operate so as to bar the exercise of enforcement thereof at any time(s) thereafter. No waiver of any term or condition of the Contract shall operate as a waiver of another or constitute a continuing waiver.
17. Assignment/Sub-contracting
17.1 The Supplier shall not without the prior writtenconsent of Tiger assign or sub-contract any of its rights or obligations under the Contract to any third party.
17.2 Any sub-contractor engaged by the Supplier in accordance with Clause 17.1 shall be subject to the same obligations as the Supplier is subject to under the Contract and the Supplier shall do all things necessary to ensure that the sub-contractor complies therewith.
18. No Agency, Partnership or Joint Venture Nothing in this Contract shall be deemed to constitute either party as the agent of the other or create a partnership or joint venture between the parties and the Supplier shall have no power to bind Tiger or to contract in the name of or create a liability against Tiger in any matter whatsoever.
19. Variation Any amendment or variation to the Contract shall be made by prior written agreement between the parties.
20. Severability The unenforceability of any single provision of the Contract shall not affect any other provision thereof.
21. Whole Contract The Contract and any appendices and any documents referred therein constitutes the entire understanding between the parties with respect to the subject matter thereof and supersedes all prior agreements, negotiation and discussions between the parties relating thereto.
22. Law The Contract shall be construed in accordance with the laws of England and Wales.
PART B: ADDITIONAL TERMS FOR SERVICES
23. Expenses Unless otherwise stipulated in the Special Provisions, expenses (including but not limited to travel and subsistence) shall not be payable. Where the Special Provisions do provide for payment of travel and subsistence expenses separately to the Contract Price the Supplier shall be entitled to reimbursement of its reasonable travel and subsistence expenditure which shall have VAT applied at the appropriate rate, the level of such expenditure (which shall be net of recoverable VAT) and terms of payment shall be agreed in writing between Tiger and the Supplier in advance of the Supplier discharging its obligations under the Contract. Any such claim made without evidence of such expenditure incurred will not be reimbursed by Tiger.
24. Replacement of Named Individual(s) Where the Contract specifies that the Supplier shall provide named individual(s) to perform in whole or in part the Supplier’s obligations under the Contract, and the individual(s) for whatsoever reason become unable to do so, the Supplier shall promptly notify Tiger thereof whereupon Tiger shall be entitled to terminate the Contract at its entire discretion. If Tiger elects to continue with the Contract, the Supplier shall, as promptly as is reasonably possible, provide a suitable replacement(s).
25. Health/Safety/Fire The Supplier shall:
(a) make an assessment of all risks to health and safety (including fire) reasonably foreseeable by it that may affect Tiger or any others arising out of or in any way connected with the performance of the Contract, promptly make and give effect to arrangements to eliminate or adequately control such risks, and shall notify Tiger accordingly;
(b) fully co-operate with Tiger and any others as necessary to ensure that all reasonably foreseeable risks to health and safety (including fire) are eliminated or adequately controlled;
(c) consult with Tiger on the procedures to be followed in the event of serious and imminent danger to any persons arising out of or in any way connected with the performance of the Contract and comply with such procedures..
26. Technical Standards The Supplier shall comply with all current relevant national and/or international technical standards and procedures.
27. Equipment/Materials
27.1 The Supplier shall be responsible for the care, control, security, insurance and maintenance of any equipment/materials provided by the Supplier to perform the Services and Tiger accepts no liability for loss of or damage to the equipment/materials otherwise than in consequence of any negligence on the part of Tiger.
27.2 Tiger may provide a storage area for any equipment/materials provided under Clause 27.1 and where it does so the Supplier shall ensure that the storage area is fit for the intended purpose and it is used in a proper, careful and secure manner at the Supplier’s own risk and expense and Tiger accepts no liability therefor otherwise than in consequence of any negligence on the part of Tiger. Tiger reserves the right to reclaim the storage area upon notification.
27.3 The Supplier shall not use any Tiger equipment/materials without the prior consent of Tiger.
28. Budgetary Limits The Supplier shall where appropriate comply with the relevant budgetary limits, details of which Tiger shall provide to the Supplier.
29. Broadcaster Policy Where relevant the Supplier shall comply with all current relevant broadcaster policy including that contained in the relevant broadcaster’s guidelines, details of which Tiger shall supply to Supplier on request.
30. Credits Any credits awarded to the Supplier in connection with the Contract shall be in accordance with the credit guidelines applicable to the relevant broadcaster and subject to Tiger’s discretion
31. Sub-contracting Where the Supplier engages a sub-contractor in accordance with Clause 17 for work involving aircraft (including helicopters, balloons, gliding, microlights, model aircraft, parachutes); amourers; asbestos; diving; explosives; pyrotechnics and fire effects; flying ballet; hydraulic work platforms; lasers; location lighting; scaffolding and similar structures; specialised rigging and wiremen; smoke effects; urea-formaldehyde snow effects in enclosed areas and stunt artists the Supplier shall only use those sub-contractors approved by Tiger for that purpose.
32. Rights
32.1 The Supplier hereby grants and assigns to Tiger with full title guarantee (where appropriate by way of present assignment of future copyright) the entire present and future copyright and all other rights of whatsoever nature in and to the product of the Services hereunder, including the benefit of any assignments from employees or licensees throughout the world for the full period of copyright, together with all and any renewals and extensions thereof and thereafter (insofar as the Supplier is able to grant the same) in perpetuity to the extent permitted by law and so that such assignment shall be without reservation or condition and so that no right of any kind, nature or description is reserved by the Supplier. For the purpose of United States copyright law, the products of the Services shall be deemed “works made for hire” for Tiger
32.2 The Supplier grants to Tiger all consents and permissions necessary to enable Tiger to make the fullest use of the product of the Supplier’s services hereunder under the Copyright, Designs and Patents Act, 1988 and any amendment thereto (CDPA) and the Services of all or any approved substitutes, employees, licensees and sub-contractors of the Supplier and the benefit of waivers of all moral rights from the same. The Supplier recognises that Tiger has the unlimited unconditional right to edit, copy, alter, add to, take from, adapt and/or translate the products of the Services as Tiger wishes
32.3 Without prejudice to the generality of the assignment of rights set out in Clause 32.1, the Supplier hereby agrees that such assignment includes any and all rental and lending rights, whether now known or hereafter existing in any country of the world in and the Supplier hereby confirms that it shall not seek to enforce any rights to equitable remuneration in respect of any rental and lending rights which may accrue pursuant to the Copyright and Related Rights Regulations 1996 save insofar as the said legislation provides for separate payments relating thereto to be collected on the Supplier’s behalf by the relevant national collection agencies (in which case the Supplier’s claim shall be against the collection agency).
32.4 The Supplier grants to the Tiger any and all consents under the CDPA (and any modification thereof) as it may require to exploit the Products of the Supplier’s services hereunder. The Supplier hereby, waives irrevocably and warrants that the Individual(s) and any agent(s) or subcontractor(s) engaged by the Supplier to assist in providing the Products and Services have waived irrevocably the benefits of any provision of the law known as “moral rights” (including, but not limited to, any rights of the Supplier, the Individuals, agents, or sub-contractor under Sections 77 and 85 and Sections 205C and 205N of the CDPA and under any resale right arising from EU law) or any similar laws of any jurisdiction.
33. Contract for Services It is hereby agreed and declared that this agreement constitutes a contract for services and not a contract of employment and accordingly the Supplier shall be solely and fully responsible for all the Supplier’s and any individuals supplied by the Supplier’s taxes, national insurance, social security contributions, holiday pay and other employment rights, matters, liabilities, assessments or claims arising out of or made in connection with the Contract Price payable hereunder or otherwise in respect of the Suppliers and individual’s services hereunder (including, but not limited to, holiday pay (if applicable) or in respect of any hours worked by Crew any individual over and above 48 hours per week) and the Supplier shall indemnify Tiger against all costs and expenses and any penalty, fine or interest incurred or payable by Tiger in connection with or in consequence of any such liability, assessment or claim.
