Exhibitor Terms and Conditions
Please read the below carefully as the following terms apply to all theatrical exploitation of content owned and or controlled by us. Without our written agreement to the contrary, you understand and acknowledge that by placing tickets on sale, you agree to be bound by these terms and conditions.
If you are an exhibitor and you have any questions or concerns regarding these terms & conditions or how they apply to your ability to exhibit our content (including notifying us of any local law which might prevent you from entering this agreement by performance), please get in touch with [email protected] as soon as possible and in any event before placing tickets on sale at any venue.
We retain the right to amend these terms occasionally at our sole discretion. Still, we shall use reasonable endeavours to notify you of any material changes affecting your booking(s).
1. ABOUT US
1.1 Trafalgar Releasing Limited (“TRL”, “our”, “us”, and “we”) is a limited liability company incorporated under the laws of England and Wales under Company Number 7070980, with offices at 8th Floor, 55 The Strand, London, WC2N 5LR. Our VAT number is 101 5279 53.
1.3 Any reference to TRL herein shall be read to mean Trafalgar Releasing Limited and those of its Group Companies, which hold a valid license to exploit the relevant Feature, as more specifically identified in your Booking Confirmation.
2. OUR CONTRACT WITH YOU
2.1 These terms & conditions for exhibitors (“ET&Cs”) apply to the booking made by you and the supply of Feature by us to you based on the deal terms set out in your Booking Confirmation. Immediately upon receipt of the Booking Confirmation, the parties hereto agree to the incorporation by reference of these ET&Cs (“Agreement”).
2.2 This Agreement shall commence on the Commencement Date and shall continue until the end of the applicable Screening Window (“Term”).
2.3 These ET&Cs and the Agreement to which they apply are made in English only, and we recommend that you print or save a copy of these ET&Cs and your Booking Confirmation for future reference.
2.4 For this Agreement, the following terms shall have the following meanings:
“APPLICABLE LAWS” means any and all regional, national, and international laws, rules, regulations, treaties, standards, and directions, including those imposed by any governmental or regulatory authority and/or any and all applicable industry standards and standards determined by any self-regulatory body which apply from time to time to the person or activity in the circumstances in question.
“CONFIDENTIAL INFORMATION” means the contents of your Booking Confirmation and any information that is directly or indirectly disclosed by one party, any of its Group Companies or their employees, officers, representatives or advisers (“Disclosing Party”), to the other party and/or any of its Group Companies, including their employees, officers, representatives or advisers (“Recipient“) specifically excluding such information that: (i) is in the public domain at the time so disclosed (unless the information so disclosed was a compilation of such publicly available information in a form not previously known); (ii) passes into the public domain after it has been disclosed, specifically excluding where such disclosure occurs as a result of Recipient’s breach of this Agreement; (iii) is given to the Recipient by a third party who is lawfully entitled to disclose it and has no duty to respect any right of confidence in the information; and/or (iv) was already known (or had been independently generated) by the Recipient prior to its receipt or disclosure.
“CONTENT OWNER” means any relevant third-party rights holder(s) by whom TRL has been granted (by way of a valid license agreement) the right to distribute the Feature and to grant the rights we have licensed to you under this Agreement.
“DCP” means a digital cinema package per the standard industry definition as may apply when this Agreement is made.
“DELIVERY METHOD” means the relevant method of high definition delivery in which the Feature is supplied for exhibition being either (a) live in real-time, via satellite or such other method of real-time delivery (“Live Broadcast”); (b) delivered live in real-time, via satellite or such other method of real-time delivery to be recorded locally by You or a relevant Site for exhibition as a digital recording on a later date (“Local Recording“); or (c) delivered as a digital recording and/or embodied in a DCP, Blu-Ray or such other physical or digital format as may be applicable (“Recorded”).
“FEATURE” means the film, performance(s), or stage production(s) to which this Agreement applies, as identified in your Booking Confirmation. To avoid doubt, where your booking relates to a series or season of content, the term ‘Feature’ as used herein shall mean both the series as a whole or each individual title, as may be applicable for the context in which it is used.
“FILM RENTAL” means the percentage of Net Box Office payable by you to us as consideration for the supply of Feature and grant of license hereunder, as specified in your Booking Confirmation.
“FIRST EXHIBITION DATE” means the initial release date for the Feature, as outlined in your Booking Confirmation, on which you shall be permitted to hold the first Screening of the Feature.
“FORCE MAJEURE EVENT” means an act, event, omission or accident beyond the reasonable control of a party which has the effect of preventing or delaying that party from performing its obligations under this Agreement, including pandemics, epidemics, national local or international state of emergency, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of the other party), failure of a utility service or transport network, act of God, war, armed conflict or terrorist attack, nuclear, chemical or biological contamination, sonic boom, riot, civil commotion, malicious damage, compliance with any Applicable Laws, accident, breakdown of plant, machinery or such other vital equipment, fire, flood, storm or extreme weather.
“GROSS BOX OFFICE” means any and all sums generated from ticket sales related to your exploitation of the Feature under this Agreement. For the avoidance of doubt, where applicable, a Special Format Surcharge Share shall be excluded from Gross Box Office calculations.
“GROUP COMPANY” means in relation to any valid and duly incorporated legal entity, a parent undertaking of such entity or any subsidiary undertaking of any such parent undertaking or of the entity itself (“parent undertaking” and “subsidiary undertaking” bearing the meanings ascribed by section 1162 of the Companies Act 2006); and “Group Companies” shall be construed accordingly.
“NET BOX OFFICE” means Gross Box Office less any applicable (i) taxes and/or levies, (ii) amounts which have actually and verifiably been refunded to consumers, and (iii) amounts actually and verifiably paid by to performance royalty collection societies in the Territory provided that such costs are incurred solely in respect the Feature and are not comprised of costs related to or covered by any multi-content or blanket license held by you or any relevant Site with such agency;
“SALES SHEET” means the document circulated by TRL at the beginning of the booking process notifying such exhibitors that TRL has acquired the theatrical rights to the content identified therein, which we believe may be of interest to them and which contains such information as may be necessary to aide such exhibitors in their decision whether or not to make a booking request.
“SCREENING WINDOW” means the period commencing on the First Exhibition Date and continuing through to the date the final Screening of the Feature is held at any Site under this Agreement.
“SPECIAL FORMAT SURCHARGE SHARE” means the percentage of any industry standard uplift in ticket price charged to consumers viewing the Content via Theatrical Rights in a non-traditional format (i.e., format other than audio-visual 2D), which is payable by Sites to the format creator to cover additional costs associated with producing and screening content in such format.
“TERRITORY” means the relevant country or jurisdiction in which you carry out corporate functions affecting this Agreement and/or where any Site resides.
3. MAKING A BOOKING AND ITS ACCEPTANCE
3.1 Following receipt of a Sales Sheet, you may make a booking request at any time before the First Exhibition Date by contacting our Sales team via email using the details set forth therein or as are more generally available on our website (see Clause 1.2 above). We shall respond as soon as reasonably practicable to let you know whether we can move forward with your booking and, if so, to discuss proposed deal terms; please note that this does not mean that your booking has been accepted unless the conditions in Clause 3.3 below are met.
3.2 Our Booking process allows you to check, amend and correct any errors before submitting your booking request to us and discussing proposed deal terms via email. Please check all requests or proposals carefully before submitting them. You are responsible for ensuring that your booking request is complete and accurate.
3.3 Our acceptance of your booking takes place when we send a formal email to you to accept it and confirm the terms on which we are prepared to make such acceptance (“Booking Confirmation”), at which point and on which date (“Commencement Date”) the Agreement between you and TRL will come into existence. Each Agreement relates only to the specific Feature identified therein.
For the avoidance of doubt, from time to time, we may supply you with an additional term sheet containing or include within the Sales Sheet and/or email correspondence from our sales team additional terms & conditions which are specific to the Feature which you intend to screen, and any such terms & conditions shall form part of such Booking Confirmation. If there is an inconsistency between the terms contained in your Booking Confirmation and these ET&Cs, then the Booking Confirmation shall govern and control, but only to the extent of such inconsistency.
3.4 TRL reserves the right to reject any booking request in its sole discretion, and nothing in these ET&Cs shall place an obligation on TRL to confirm or accept a booking or supply Feature to any party without a valid Booking Confirmation. If we cannot accept your booking, we will inform you by email and will not process your booking after such a point.
3.5 Nothing in this Agreement limits your right to screen third-party content from any other content owner or distributor in the Territory or throughout the world.
4. CANCELLING YOUR BOOKING
4.1 If, before the First Exhibition Date, for any reason other than that which breaches, or arises from of a breach of, this Agreement, you find that you are unable to release the Feature, you may cancel your Booking by notifying our sales team in writing (e-mail shall suffice) and this Agreement will immediately terminate. Without prejudice to the preceding, we recommend that, where possible, you discuss any concerns with our sales team before cancelling your booking and/or any planned Screening under this Agreement.
4.2 You cannot cancel this Agreement after a Screening of Feature (including for the avoidance of doubt, the first title in a series) has taken place on the First Exhibition Date unless the conditions of Clause 15 of these ET&Cs apply.
4.3 TRL reserves the right to cancel the Feature release, this Agreement and/or any Screening of the Feature for any reason whatsoever in its sole discretion. Further, it is acknowledged that in the event of the Feature (including, for the avoidance of doubt, any title in a series) being cancelled for any reason, TRL may suggest alternative content to be screened in its place if any such content is available.
4.4 Without prejudice to any rights and remedies as may be available at law, it is acknowledged and agreed between the parties that TRL does not accept liability for any losses suffered by you in connection with any cancellation of a booking under this Clause 4 and/or any particular Screening as may be cancelled during the Term, including but not limited to any ticket refunds issued to consumers and/or expenses incurred for marketing and promoting your release of the Feature hereunder.
5. LICENCE TO SCREEN CONTENT
5.1 As of the Commencement Date, subject at all times to these ET&CS (in particular Clause 6 below) and the Booking Confirmation, we hereby grant to you a non-exclusive and non-transferable license in the Territory and during the Screening Window only to:
(a) exhibit and screen the Feature via the Delivery Method (as applicable) at those cinemas and/or other venues with cinema quality facilities owned and controlled by you and located within the Territory which have been approved by us in advance (“Site(s)”), to which the general public can purchase tickets to watch such Feature (“Screening(s)”) on the First Exhibition Date.
(b) subject to our prior written approval on a case-by-case basis and any conditions thereof as may be notified to you from time to time in our sole discretion, to hold additional Screenings of the Feature via the approved Delivery Method at Sites after the First Exhibition Date but during the Screening Window (“Encore Screening(s)”); and
(c) subject to any approvals required hereunder, utilise certain marketing materials produced by or provided to you by us to promote Screenings during the Term.
6. SPECIAL CONDITIONS OF CONTENT RELEASE:
6.1 Before announcing, advertising and/or conducting any Screening under this Agreement, you shall submit the details of the Site at which you intend to hold such Screening to TRL for written approval, to be granted in its sole discretion. Notwithstanding the foregoing, you acknowledge that TRL may be unable to approve any Sites(s) submitted for approval after the date, which is two (2) weeks before the First Exhibition Date, as it may not be possible to arrange sufficient delivery of content pursuant to Clause 9 of these ET&Cs in time for such screening to go ahead.
To avoid doubt, no Screening(s) of the Feature may take place at any Site which has yet to be approved in advance by TRL in writing (email to suffice).
6.2 You shall set aside a minimum of six (6) or such other number as may be identified in your Booking Confirmation, tickets for each Screening during the Term, for TRL and/or Content Owner’s exclusive use (“Comp Tickets”). If we wish to utilise any Comp Tickets, we will notify you no later than five (5) days before the Screening. If no such notification is received, you are hereby permitted to place any remaining Comp Tickets on general sale.
6.3 You understand that you are not permitted to create and/or edit any sub-titles or dubs to be displayed alongside or during the Feature at Screenings. You agree that you will not do so, nor will you allow any third party to do so on your behalf or at your behest, without TRL’s express prior written approval on a case-by-case basis.
6.4 You understand that, unless TRL has granted its prior written approval for you to do so by Clause 11, you are not permitted to design, create, manufacture, distribute and/or otherwise disseminate to the public any promotional materials and/or merchandise related to the Feature which has not provided to you by TRL expressly for such purpose. You agree that you will not do so nor allow any third party to do so on your behalf or at your behest.
6.5 Unless TRL has advised otherwise, you are responsible for obtaining any and all necessary local certification rulings in respect of the Feature in the territory. Except as expressly agreed to the contrary by TRL and included as an “Approved Deductible Cost” in your Booking Confirmation, any and all costs incurred in procuring such local certification shall be borne by you, the Exhibitor.
7. PAYMENT, TAXES & REPORTING
7.1 In consideration for the rights granted and materials supplied hereunder, you agree to pay us the Film Rental and such other fees as may be identified in your Booking Confirmation (including but not limited to satellite fees and grand rights contributions).
7.2 Commencing on the date on which you make tickets available for sale in respect of each Screening, you shall provide us with weekly ticket sales reports per Screening, detailing (i) the number of tickets sold, (ii) ticket prices and (iii) anticipated Net Box Office.
7.3 Within seven (7) days following a Screening, you shall provide us with a full report in respect of such Screening detailing (i) Gross Box Office takings, (ii) total Net Box Office, (iii) total number of actual admissions (iv) total number of concessionary admissions; (v) total number of refunds issued; (vi) ticket price paid by each attendee (including any special format surcharge uplift); (vii) total number of admissions possible if the Site were filled to its total capacity and (viii) details of any Special Format Surcharge Share deducted from Gross Box Office and paid to third party format owners (“Box Office Report”).
7.4 All monies payable to TRL under this Agreement shall be paid within thirty (30) days following your receipt of a valid invoice from us, and where applicable, any necessary currency exchange calculation (from local currency to USD($), GBP(£) or EUR(€) as appropriate) shall take place on the date of invoice, using a rate issued by a reputable global exchange commission as may be determined by TRL at its sole discretion.
7.5 Without prejudice to any of our rights and/or remedies at law, if you fail to pay any amount due to us under this Agreement, you agree that you shall pay interest on the overdue sum from the due date until the date of payment of the outstanding sum, whether such payment is made before or after judgement. Interest under this clause will accrue daily at a rate of 8% a year above the Bank of England’s base rate from time to time (but at 8% a year for any period when that base rate is below 0%) and shall be compounded on the last business day of each month.
7.6 You agree to comply with and accept full responsibility for all filing and payment obligations with rights management societies in the Territory for the Feature and any performances thereof or contained therein. You will promptly pay any taxes and/or duties due as a result of your exhibition of the Feature.
7.7 All amounts payable hereunder shall be subject to all Applicable Laws now or hereafter in existence, including those which require the reporting and/or deduction of withholding taxes from payments made hereunder.
7.8 Both parties have the right hereunder to make such withholding tax reporting and/or deductions in accordance with Applicable Laws, and the payment and/or reporting thereof to the governmental agency concerned in accordance with such Applicable Law shall constitute payment hereunder; the party making such reporting will make available to the other party the benefit of any rebate received in respect of tax withheld hereunder. Further, and on request, that the withholding party shall furnish to the other party official tax receipts, certificates, or other documentation with respect to withholding taxes so reported and/or deducted, within six (6) months following the withholding party’s submission of the relevant tax returns in relation to such report and/or deduction to the appropriate tax authority.
7.9 Each party agrees, at the request of the other party, to cooperate with the requesting party to enable it to enjoy the benefit of any reduced withholding tax rate under any Applicable Law.
8.1 You covenant and agree that you will keep and maintain, complete and accurate books of account and records at your principal place of business of all transactions relating to or affecting this Agreement, during the Term and for no less than six (6) years after that (“Records”).
8.2 At any time during the Term (and up to one (1) year following termination or expiry of the Term) but in any event, no more than once during any calendar year, TRL or Content Owner may appoint an independent auditor to audit the Records at your principal place of business for the sole purpose of verifying the amounts due under this Agreement (“Audit”).
8.3 In the event an Audit reveals any under payment of five per cent (5%) or more in any calendar year, you agree to promptly make an appropriate correcting payment of any monies due to TRL together with a reimbursement of any costs (including professional fees and expenses) which we or Content Owner have incurred in conducting or procuring the Audit and producing any Audit report (including professional fees and expenses).
9. DELIVERY AND SCREENING OF CONTENT
9.1 Where Feature is intended to be delivered and exhibited as a Live Broadcast:
(a) TRL shall ensure that such Feature is supplied to good technical standards; and to ensure the technical quality of the transmission(s), signals shall be verified, and sufficient time shall be permitted to troubleshoot and resolve any issues there with on the day of the live Screening. The live feed shall commence broadcasting at least one (1) hour before the Feature’s planned exhibition time.
(b) You are responsible for ensuring that the satellite receiving equipment currently installed at each Site and pointing to the relevant satellite (as notified to you by us in advance) is suitable for the live downlinking of the Feature and that such equipment meets the minimum industry standards for high-definition satellite equipment and is capable of meeting the minimum output requirements, namely:
(i) 1920×1080 capable of displaying 50i 16×9 image formats, with no less than 7000 lumens brightness; and
(ii) digital 5.1 and stereo sound.
(c) Exhibition of Feature via any equipment that does not meet the technical specifications herein will require TRL’s prior written approval before any Screening.
(d) Before each Screening and where applicable during such Screening, you agree to:
(i) be available for and participate in satellite signal path tests for the transmission signal in respect of the Feature at such times as notified to you by us and on sufficient notice to allow for any changes or repairs to be organised and completed before the Screening (“Satellite Tests”).
(ii) use reasonable endeavours to clear the relevant areas of each Site, of any members of the general public, for a minimum of two (2) hours before the planned exhibition time on the day of Screening to allow Satellite Tests to be carried out by TRL and/or Content Owner (as relevant). If such a Site cannot be kept clear as required herein, then you shall check the signal via a TV Monitor located elsewhere at the Site.
(iii) ensure that a qualified projectionist technician is available and on duty at all times during active transmission of the live feed (including Satellite Tests) and shall provide contact details for such technician to TRL before any such testing or broadcast.
(iv) adjust your technical receivers to correspond with the relevant tuning information supplied by TRL in advance.
(v) periodically review your equipment (including but not limited to the provision of sufficient technical support and supervision in advance of and on the day of the Screening) to ensure and maintain the good local quality of Features exhibited during such Screening and shall promptly report any technical issues to the nominated technical support helpline, details of which shall be supplied to you by TRL ahead of any relevant transmission.
(e) If TRL (acting reasonably) has any doubts about the technical capability of the satellite equipment or its operation, then TRL shall not be obliged to supply the Feature to you, and this Agreement shall be terminated (in whole or in part, as relevant to the particular circumstances thereof) with immediate effect.
(f) Subject to TRL’s prior written approval on a case-by-case basis, you are responsible for capturing the Live Broadcast as a Local Recording during such event for exhibition at a later date if TRL has authorised Encore Screenings in such form during the Term.
9.2 Where Feature is intended to be delivered and exhibited as a recording:
(a) We shall provide you with a DCP or Blu-Ray (whichever is applicable) containing the Feature before the Screening date.
(b) You agree to test the DCP or Blu-Ray on its arrival and shall notify us immediately of any issues with such materials.
(c) You are responsible for ensuring that the equipment currently installed at each Site meets the minimum industry standards for high-definition projection equipment and is capable of meeting the minimum output requirements, namely:
(i) no less than 7000 lumens brightness; and
(ii) digital 5.1 and stereo sound.
(d) By requesting the Feature to be delivered in a DCP format, you confirm that all applicable Sites can screen content via DCP and, upon receipt thereof, will ingest the Feature onto your servers.
(e) If applicable, TRL shall arrange for delivery (before Screenings) and collection (after Screenings) of the DCP and shall notify you of the relevant delivery and collection dates in advance thereof. You acknowledge and undertake that you shall be ready to release the DCP on the specified collection date and at the collection time. Any delay in releasing such materials to TRL’s courier on such date and at such time may result in you being charged up to Two Hundred Pounds Sterling (£200).
10. MARKETING AND PROMOTIONAL OBLIGATIONS
10.1 Where relevant, TRL (in liaison with the Content Owner) shall provide access to any marketing materials for the Feature which it has in its possession, including but not limited to a trailer and posters.
10.2 You agree that you will utilise all communication channels available to you to adequately and professionally promote the Feature release using the marketing materials provided where applicable, including on location at each Site, online and via e-mail; and wherever possible, provide a hyperlink via the appropriate section of your website, to the Content Owner’s website.
10.3 You agree that any marketing materials created by you or alterations to any materials we have provided to you will be submitted to us for approval (per Clause 11 below) before their distribution or circulation to any third party. Use of materials not provided and/or approved by TRL is strictly prohibited concerning any Feature.
10.4 You acknowledge that TRL or Content Owner may seek or obtain sponsorship in respect of the Feature, and in such instances: (i) the Feature and/or marketing materials may include details relating to such sponsor(s); (ii) you are not entitled to any remuneration as a result of such sponsorship; and (iii) you are not permitted (under any circumstance) to remove or alter any sponsorship messaging from any materials provided hereunder, without TRL’s express prior written approval.
11.1 You agree to submit to TRL, for TRL’s prior written approval, to be granted in its sole and absolute discretion
(a) all marketing materials created by you (including, without limitation, printed advertisements, brochure advertising, posters, flyers, postcards, online and or e-mail advertising materials).
(b) materials which TRL or Content Owner has provided but subsequently altered by you (excepting only customary re-sizing of images); and/or
(c) all press releases and/or other announcements created by you or on your behalf regarding the Feature.
11.2 Any request for approval, consent and/or consultation required under this Agreement may be satisfied by email. Following submission of an approval request, TRL and/or Content Owner (as applicable) shall be afforded a commercially reasonable opportunity to consider the matter and/or materials in respect of which such approval, consent or consultation is sought, and the approving party in writing shall provide any response within a reasonable timeframe. Under no circumstance will any approval be deemed from any negative, silent or delayed response from the approving party.
To avoid doubt, any approval given under this Agreement shall be expressly granted in writing, and where such written confirmation is not received, the relevant matter and/or material shall be deemed not approved. Notwithstanding the foregoing, you are not permitted to alter any logos and/or credits on marketing materials provided by TRL or the Content Owner.
12. REPRESENTATIONS, WARRANTIES, AND UNDERTAKINGS
12.1 Each party to this Agreement warrants to the other that it has the full power and authority to enter into this Agreement, and in the case of TRL, it has the full power and authority to grant the license granted hereunder.
12.2 Without prejudice to the preceding, you hereby warrant, represent, and undertake that:
(a) subject to your right to cancel a booking under Clause 4.1, you will screen all Features to which this Agreement pertains.
(b) you will keep the Sites available and in a good state of repair and cleanliness for the Screenings and use reasonable care and skill to ensure that each Site and each Screening is of the highest quality.
(c) at each Screening, you will exhibit the Feature in its entirety without any cuts or alterations, and in respect of the Feature delivered as a Live Broadcast, live and in real-time, unless otherwise approved in advance by TRL.
(d) you will not exhibit any image other than those transmitted and/or provided by TRL or the Content Owner during any Screening hereunder.
(e) you will not act in any manner which may (i) be harmful to the goodwill of TRL and/or Content Owner; (ii) bring TRL and/or Content Owner into disrepute or otherwise prejudice or detrimentally affect the business thereof; (iii) be defamatory, obscene or otherwise actionable in law; and/or (iv) infringe the intellectual property rights of TRL, Content Owner and/or any other third party rights holder in respect of the Feature;
(f) carry out such commercially reasonable continual security checks if the Feature and/or marketing materials (or any part thereof) are delivered to you by TRL, as are required to protect and ensure the security of such files.
(g) immediately notify TRL as soon as you become aware of any materially significant vulnerability in, or unauthorised access to, its internal security system.
(h) promptly notify TRL of any infringement, of which you become aware, relating to TRL and/or Content Owner’s intellectual property rights (including without limitation copyright and/or trademark infringement, any unauthorised screening, reception and/or recording by a third party of the Feature).
(i) You will not alter or impair the copyright notice or acknowledgement of TRL and/or Content Owner’s intellectual property rights or any credits that may appear in the Feature and/or any associated marketing materials, including but not limited to any trademarks, logos and/or production or sponsorship credits as may appear therein.
13.1 Subject to Clauses 17 and 13.2 below, each party to this Agreement agrees to fully indemnify and keep indemnified the other party on demand from and against any claim made against such party in respect of any liability, loss, damage, injury, cost or expense sustained by the indemnified party’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises as a consequence of (i) a direct or indirect breach of; (ii) negligent performance of; and/or (iii) failure or delay in performance of any obligation outlined in; the terms of this Agreement by the indemnifying party.
13.2 TRL will have no liability whatsoever (including but not limited to in respect of any claim for loss, damage or injury to the Site and/or any person present at a Site, and/or any costs or expenses related to it) arising out of any cancellation of a booking made hereunder nor any breach or negligent performance of any applicable health and safety laws, or any negligent act or omission made by any you, your employees or third party contractors at any Site. You agree to indemnify TRL in respect of any such claim to the fullest extent permissible by law.
13.3 Nothing contained in this Agreement shall restrict or limit a party’s general obligation at law to mitigate any loss it may suffer or incur as a result of any event which may give rise to a claim under this Clause 13.
14.1 Each party to this Agreement agrees and undertakes that it will not disclose and procures that its directors, employees, and agents will not disclose to any third-party Confidential Information belonging to the other party, save to the extent that such disclosure is
(a) made to those of its employees, officers, representatives, or advisers who need to know such information to carry out that party’s obligations under this Agreement; and/or
(b) as may be required and/or permitted by Applicable Laws or to comply with the order of any court or a governmental and/or regulatory body having jurisdiction in the Territory.
14.2 Neither party will use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
14.3 Each party agrees and undertakes that it will not release any press statement or issue any other announcement or publicity regarding the terms of this Agreement or which otherwise relates to the relationship between the parties without the prior consent of the other party; and
14.4 Neither party will, for any reason, (i) give any interview, provide any information (including but not limited to Confidential Information), whether in writing or orally, to any person, television company, radio station, newspaper, magazine or other media or public personality or organisation; or (ii) conduct themselves in such a manner; which is, and/or which they know (or ought to have known) and/or have reason to believe is, defamatory, derogatory, disparaging or prejudicial to the goodwill or reputation of the other party (or its group companies), or may otherwise adversely affect any advertising or promotional campaign of the other party.
14.5 For the avoidance of doubt, the provisions of this Clause 14 shall apply at all times during the Term and continue for a period of at least five (5) years following the expiration and/or termination of this Agreement.
15.1 Without prejudice to any other right or remedy available to it by law or as specified hereunder, either party may terminate this Agreement immediately by giving written notice to the other if:
(a) the other commits (i) a material breach; (ii) any other breach of this Agreement which is not capable of remedy; or (iii) a breach which is capable of remedy and fails to remedy such breach within fourteen (14) days following receipt of a written notice from the party not in default, such notice having provided sufficient details of such breach, and expressly required that it be remedied.
(b) the other commits repeated breaches of the terms of this Agreement and/or any other Agreements between the parties.
(c) the other is unable or admits inability to pay its debts as they fall due or is deemed or declared to be unable to pay its debts under Applicable Laws; or
(d) the other becomes insolvent, goes into liquidation, has a receiver or similar functionary appointed over any or all of its assets (save for a solvent reorganisation), makes any arrangement with its creditors or otherwise ceases, or threatens to cease to carry on its business.
15.2 If, at any time during the Term, the Content Owner terminates its license agreement with TRL in respect of the Feature for any reason whatsoever, with the result that TRL shall no longer hold the requisite rights required to grant the license granted under this Agreement, TRL shall notify you and this Agreement shall terminate with immediate effect.
16. EFFECT OF TERMINATION
16.1 Upon termination or expiry of this Agreement (i) any and all monies payable by you to TRL at such time shall immediately become due and payable and you agree to make such payments promptly; and (ii) you will, at your sole cost, return any physical materials (e.g. DCP hard-drives or Blu-Rays) and/or, if TRL has directed you to do so, destroy any and all marketing materials provided or created by TRL hereunder.
16.2 Termination of this Agreement (for whatever reason) is without prejudice to the rights, duties, and liabilities of either party accrued at or prior to termination. Any clauses in these ET&Cs and/or the Booking Confirmation which expressly or impliedly have effect after termination (including without limitation Clauses 7, 8, 12 through 14, 16, 17, and 19 through 22) will continue to be enforceable.
17. LIMITATION OF LIABILITY
17.1 Nothing in this Agreement operates to exclude or limit a party’s liability for (i) fraudulent misrepresentation, (ii) death, (iii) personal injury caused by that party’s negligence, and/or (iv) any other liability not capable of being excluded by Applicable Law.
17.2 All warranties, conditions and other terms implied by (i) statute, (ii) common law, or (iii) otherwise are excluded from this Agreement to the fullest extent permitted by Applicable Law.
17.3 Notwithstanding the foregoing, TRL’s total liability to you in contract, tort (including negligence or breach of statutory duty) or otherwise, arising in connection with any Feature or Booking Confirmation, is limited to a maximum value of two hundred and fifty thousand pounds sterling (£250,000).
17.4 Save as expressly set forth in this Clause 17, neither party will be liable to the other in contract, tort (including negligence or breach of statutory duty) or otherwise for any direct or indirect loss of profit or revenues and loss of business contracts or anticipated savings or for any special, indirect, or consequential loss or damage of any nature.
18. FORCE MAJEURE
18.1 Neither Party will be liable for any failure to perform or delay in performing its obligations under this Agreement where (and to the extent that) such failure or delay arises from or is attributable to a Force Majeure Event, subject to the affected Party promptly notifying the other in writing of the cause of the delay or non-performance and the likely duration of the delay or non-performance and using all reasonable endeavours to limit the effect of the delay or non-performance on the other Party.
18.2 Should any Force Majeure Event arise, the Parties shall meet as soon as practicably possible to negotiate in good faith alternative arrangements for fulfilling their respective obligations under this Agreement.
19. DATA PROTECTION
19.1 Each party agrees that in relation to any personal data collected and processed by such party in connection with this Agreement (the “Data”), it will collect and/or process such Data in accordance with the applicable data protection and privacy legislation in force from time to time in the jurisdiction where such party operates its business, including where applicable, the General Data Protection Regulation ((EU) 2016/679) (“GDPR”), the Data Protection Act 2018, or any successor legislation and any other directly applicable regulation relating to data protection and privacy (“Data Protection Legislation”).
19.2 For the purpose of this Clause 19, ‘personal data’ and ‘processing’ have the same meaning as set out in the relevant Data Protection Legislation and shall be construed according to that legislation and to the extent that either party collects and/or processes personal data to fulfil its own obligations under this Agreement, it is acting as a data controller in relation to such data.
19.3 For the avoidance of doubt, the obligations hereunder shall be in addition to, and do not relieve, replace, or remove either party’s obligations under any and all relevant applicable Data Protection Legislation, and failure to comply with such Data Protection Legislation in respect of any Data collected or shared hereunder, will constitute a material breach of this Agreement.
20. ANTI-BRIBERY, CORRUPTION AND UNETHICAL PRACTICES
20.1 You agree that you will comply and will procure that each Site complies with all Applicable Laws relating to:
(a) anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010
(b) fair wages and modern slavery, including but not limited to the Modern Slavery Act 2015
(c) tax evasion and facilitation thereof, including but not limited to the Criminal Finances Act 2017 and
(d) any applicable trade sanctions or embargos in force at any time which affect this Agreement
20.2 In particular, you agree that you will:
(a) in respect of any activity taken outside of the UK, not engage in any activity, practice, or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice, or conduct had been carried out in the UK.
(b) not engage in any activity, practice, or conduct which would constitute either:
(i) a UK facilitation of tax evasion offence under section 45(1) of the Criminal Finances Act 2017; or
(ii) foreign facilitation of tax evasion offence under section 46(1) of the Criminal Finances Act 2017.
(c) have and maintain, throughout the Term of this Agreement, adequate procedures in place to ensure to ensure compliance with the Relevant Requirements and enforce them where appropriate.
(d) promptly report to the other party any request or demand from a third party:
(i) to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017 or any suspected tax evasion offences or facilitation of tax evasion offences, whether under the UK law or under the law of any foreign country, in connection with the performance of this Agreement.
(ii) for any undue financial or other advantage of any kind received by it or any of its employees, officers, representatives, or advisers in connection with the performance of this Agreement; and
(e) immediately notify the other party in writing if a foreign public official becomes an officer or employee of the relevant party or acquires a direct or indirect interest in such party and such party warrants that it has no foreign public officials as direct or indirect owners, officers, or employees at the date of this agreement).
20.3 For the purpose of this Clause 20, the meaning of adequate procedures and foreign public officials and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
You acknowledge that any breach of this Clause 20 shall constitute a material and irreparable breach of this Agreement.
21.1 Any written notice given to one party to the other under or in connection with this Agreement shall be in writing and will be delivered by a reputable national or international courier delivery service that respective party’s principal place of business and/or sent by e-mail using the contact details provided at the time of making a booking request, or as otherwise advised by such party from time to time.
21.2 Any written notice is deemed to have been received:
(a) if sent by a reputable national or international courier delivery service at 9:00 a.m. on the second business day after posting or at the time recorded by the delivery service.
(b) if sent by e-mail at 9:00 a.m. on the next business day after transmission, provided that no notification of non-delivery (including an automatic out-of-office response) was received by the sender.
21.3 This Clause 21 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22. GENERAL PROVISIONS
22.1 Nothing in this Agreement is deemed to constitute a partnership or joint venture between the parties, nor engage or permit either party to act or hold itself out as an agent for the other party for any purpose.
22.2 Except to the extent of any misrepresentation or breach of warranty which constitutes fraud, this Agreement constitutes the entire agreement between the parties relating to the Feature and supersedes any and all prior understandings or agreements, whether oral or written. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty of any person other than as expressly set out in this Agreement.
22.3 Variations to this Agreement will only be effective if agreed in writing between the parties.
22.4 You are not permitted to assign or transfer outside of any connected group companies (save in respect of such instance where the venue in question is acquired by a third party, in whole or in part), sub-license, mortgage or place any other encumbrance upon this Agreement or any part thereof; and any attempted or purported assignment or other transfer outside of its group companies (save in respect of such instance where the venue in question is acquired by a third party, in whole or in part), sublicense, mortgage or other encumbrance of this Agreement without the prior written approval of TRL shall be void and of no effect.
22.5 Each of the terms, conditions, and warranties for the benefit of TRL contained in this Agreement shall benefit any group company of TRL in accordance with the Contracts (Rights of Third Parties) Act 1999. Notwithstanding the foregoing, the parties do not intend that any of the terms of this Agreement will be enforceable by virtue of that Act by any person not a party to it, and the right of the parties to terminate, rescind or agree to any variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a party to this Agreement.
22.6 No exercise or failure to exercise or delay in exercising any right, power or remedy vested in a party constitutes a waiver by that party of that or any other right or remedy.
22.7 The clause headings and sub-headings of this Agreement are for convenience only and do not affect the interpretation of this Agreement or any clause thereof.
22.8 In the event that any provision of this Agreement is found to be invalid, illegal or unenforceable, then (and only to the extent that it is invalid, illegal or unenforceable) such provision will be given no effect and will be treated as if it were not included in this Agreement but it will not affect the validity or the effectiveness of the remainder the relevant provision and/or of this Agreement in its entirety; and where applicable, the parties agree to negotiate in good faith to agree an alternative provision having substantially the same commercial effect (to the extent permissible by Applicable Law).
22.9 This Agreement and all disputes, claims, actions, suits or other proceedings or questions arising out of or in connection with this Agreement including but not limited to the interpretation, performance, termination or expiration of this Agreement hereunder, will be exclusively governed by, and construed in accordance with, the substantive laws and decisions of the laws of England and Wales; and each party hereto hereby (a) irrevocably submits to the sole and exclusive jurisdiction of the courts of England and Wales; and (ii) irrevocably consents to the exercise of personal jurisdiction over each of the parties by such courts and waives any right to plead, claim or allege that England and Wales is an inconvenient forum or to serve proceedings in any other jurisdiction.
22.10 Each party hereto hereby absolutely, irrevocably, and unconditionally waives to the fullest extent permitted by law all right to trial by jury in any litigation directly or indirectly arising out of, pertaining to or associated with (i) this Agreement, (ii) the actions of the parties hereto in connection herewith or (iii) any agreement, instrument or document entered into by the parties in connection with this Agreement.
22.11 Where executed by signature, this Agreement may be executed in counterparts, each of which shall constitute an original but which, when taken together, will constitute one instrument. A counterpart signature page of this Agreement executed by a party and sent by facsimile or transmitted electronically as a tagged image format file (TIFF), portable document format (PDF), or such appropriate other format available for compressing image files (e.g. JPEG), shall be treated as an original, fully binding and with full legal force and effect, and the parties waive any rights they may have to object to such treatment.
22.12 Any alternative language/translated version of this Agreement as created or provided by either party is provided by that party purely for informational purposes. Neither party makes any warranty, gives any indemnity, nor accepts any liability as to the accuracy nor completeness of any foreign language translated version. This Agreement will be interpreted, governed, and construed in accordance with the English language version and not the translated version. In the event of any conflict between the English language version and the translated version, the English language version will prevail.