Exhibitor Terms and Conditions
Trafalgar Releasing
Standard Terms & Conditions For Exhibitors
Please read the below carefully as the following ET&Cs are binding on all exhibitors screening content, owned or controlled by TRL or its Group Companies (as defined below), under a Booking Confirmation.
If you are an exhibitor and you have any questions or concerns regarding these terms & conditions and/or your Booking Confirmation (including notifying TRL of any legal requirement for a formal written agreement in your country) please flag this to your Sales Representative or contact us by email on: [email protected] as soon as possible after receiving your Booking Confirmation and in any event before placing any tickets on-sale to consumers for such Content.
For the avoidance of doubt, in the absence of any written agreement duly negotiated and signed between the parties in respect of the Content which supersedes your Booking Confirmation, you understand and acknowledge that by placing tickets on-sale, you are agreeing to be bound by these ET&Cs.
TRL retains the right to amend these terms from time to time in its sole discretion, but shall use commercially reasonable endeavours to notify you of any material changes made during the Term of and which may affect your Agreement.
1. About us
1.1
Trafalgar Releasing Limited is a limited liability company incorporated under the laws of England and Wales, under Company Number 7070980, with its Registered Office being Ashcombe Court, Woolsack Way, Godalming, United Kingdom, GU7 1LG; and its principal place of business (and address for the purpose of correspondence hereunder) located at 1stFloor, 32a-37 Cowper Street, London, EC2A 4AW. (“TRL”, “our”, “us”, and “we”). Our VAT number is 101 5279 53.
1.2
Any reference to TRL in these ET&Cs shall be read to mean either TRL itself or the Group Company (including but not limited to More2Screen Limited) as identified in the relevant Booking Confirmation. For the purpose of these ET&Cs “Group Company” shall mean 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.
1.3
We operate the website http://www.trafalgar-releasing.com, http://www.more2screen.com and certain websites created for the release of our Content, and our contact details can be found here.
2. Our contract with you
2.1
These terms & conditions for exhibitors (“ET&Cs”) apply to the booking made by you and supply of Content by us to you on the basis of the deal terms set out in your Booking Confirmation and the exhibits, forms, schedules and/or riders, if any, annexed thereto. Immediately on 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 the English language 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 the purpose of this Agreement, the following terms shall have the following meanings:
“APPLICABLE LAWS”
shall mean 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”
shall mean the contents of this Agreement 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” or “TITLE”
shall mean the film, performance(s), or stage production(s) to which this Agreement applies, as identified in your Booking Confirmation. For the avoidance of doubt, where your booking relates to a series of content, term ‘Content’ or ‘Title’ 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.
“CONTENT OWNER”
shall mean 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 Content and to grant the rights we have licensed to you under this Agreement.
“DCP”
shall mean a digital cinema package, in accordance with the standard industry definition as may apply at the time this Agreement is made.
“FIRST EXHIBITION DATE”
shall mean the initial release date in respect of the Content, as set forth in your Booking Confirmation, on which you shall be permitted to hold the first Screening of the Content.
“FORMAT”
shall mean the relevant high definition format in which the Content is delivered for exhibition being (a) live in real time, via satellite or such other method of real-time delivery (“Live”); (b) delivered live in real time, via satellite or such other method of real-time but recorded locally by each Site for exhibition 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”).
“GROSS BOX OFFICE”
shall mean any and all sums generated from ticket sales related to your exploitation of the Content in accordance with this Agreement.
“NET RECEIPTS”
shall mean Gross Box Office less any applicable taxes/levies, the cost of actual verifiable refunded Screening tickets, actual and verifiable amounts paid to performance royalty collection agencies specifically related to the Content in accordance with Clause 7.6 below, and, if applicable, the Approved Deductible Costs (as defined in your Booking Confirmation), only.
“SALES SHEET”
shall mean 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”
shall mean the period commencing on the First Exhibition Date and continuing through to the date on which the final Screening of the Content is held any Site pursuant to this Agreement.
“TERRITORY”
shall mean the relevant country or jurisdiction in which you carry out corporate functions affecting this Agreement and/or where any Site resides.
“TRL’S SHARE” or “FILM RENTAL”
shall mean the percentage of Net Receipts payable by you, to us as consideration for the supply of Content and grant of license hereunder, as specified in your Booking Confirmation.
3. Making a booking and its acceptance
3.1
Following receipt of a Sales Sheet, you may make a booking request at any time prior to 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 are able to 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 when 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. This Agreement relates only to the specific Content identified in your Booking Confirmation.
For the avoidance of doubt, your Booking Confirmation may contain additional terms & conditions which are specific to the Content which you are intending to screen, and any such terms & conditions shall form part of this Agreement; and in the event that 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 Content to any party without a valid Booking Confirmation. If we cannot accept your booking, we will inform you of this by email and will not process your booking after such 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, prior to 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 Content, 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 foregoing, we would recommend that, where possible, you discuss any concerns with our sales team, prior to cancelling your booking and/or any planned Screening under this Agreement.
4.2
You cannot cancel this Agreement after a Screening of Content (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 Content release, this Agreement and/or any Screening of the Content, for any reason whatsoever in its sole discretion. Further it is acknowledged that in the event of the Content (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 the purpose of marketing and promoting your release of the Content 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 Content in either a Live or Recorded Format (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 are able to purchase tickets to watch such Content (“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 Content, in a Recorded Format, at Sites after the First Exhibition Date but during the Screening Window(“Encore Screening(s)”); and
(c)
subject to any approvals required hereunder, utilize 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
Prior to announcing, advertising and/or conducting any Screening pursuant to 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 prior to the First Exhibition Date as it may not be possible arrange sufficient delivery of content pursuant to Clause 9 of these ET&Cs in time for such screening to go ahead.
For the avoidance of doubt, no Screening(s) of the Content may take place at any Site which has not been 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”). In the event that we wish to utilise any Comp Tickets, we will notify you no later than five (5) days prior to the Screening. In the event that 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 Content at Screenings and 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 in accordance with 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 Content which has not provided to you by TRL expressly for such purpose; and 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.
6.5
Unless TRL has advised otherwise, you are responsible for obtaining any and all necessary local certification rulings in respect of the Content 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 to us, TRL’s Share of Net Receipts 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 Receipts.
7.3
Within seven (7) business 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 Receipts; (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; and (vii) total number of admissions possible if the Site were filled to its full capacity(“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 applicable) shall take place on the date of invoice, using a rate issued by a reputable global exchange commission on such date.
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 overdue 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 Content and any performances thereof or contained therein, and will promptly pay any and all taxes and/or duties due as a result of your exhibition of the Content.
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’s 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 relevant tax authority.
7.9
Each party agrees, at the request of the other party, to cooperate with the requesting partyto enable itto enjoy the benefit of any reduced withholding tax rate under any Applicable Law.
7.10
Each party warrants, represents and undertakes that it will:
(a)
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) a foreign facilitation of tax evasion offence under section 46(1) of the Criminal Finances Act 2017;
(b)
promptly report to the other party any request or demand from a third-party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017or 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;
any breach of, or failure to comply with, the provisions of Clause 7.10 shall constitute a material breach of this Agreement.
8. Audit
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 thereafter (“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 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 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 Content is intended to be delivered and exhibited in a Live Format:
(a)
TRL shall ensure that such Content is supplied to good technical standards; and in order 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 not less than one (1) hour prior to the planned exhibition time of the Content.
(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 Content 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 Content via any equipment which does not meet the technical specifications herein will require TRL’s prior written approval ahead of any Screening.
(d)
Prior to 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 Content, 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 prior to 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 prior to 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). In the event that such Site is not able to 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 in advance of 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 Content 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)
In the event that 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 Content to you and this Agreement shall be terminated (in full or in part, as relevant to the particular circumstances thereof) with immediate effect.
(f)
You are responsible for capturing the Live Content locally during such event for exhibition at a later date, in the event that TRL has authorised Encore Screenings during the Term.
9.2
Where Content is intended to be delivered and exhibited in a Recorded Format:
(a)
We shall provide you with a DCP or Blu-Ray (whichever is applicable) containing the Content, in advance of 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 Content to be delivered in a DCP format, you confirm that all applicable Sites have the capacity to screen content via DCP, and on receipt thereof will ingest the Content onto your servers.
(e)
If applicable, TRL shall arrange for delivery (prior to 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 release of such materials to TRL’s courier on such date and at such time, may results in you being charged of up to Two Hundred Pounds Sterling (£200).
10. Marketing and promotional obligations
10.1
Where relevant, TRL (in liaison with Content Owner) shall provide access to any marketing materials for the Content 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 Content 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 (in accordance with Clause 11 below) prior to their distribution or circulation to any third party.
10.4
You acknowledge that TRL or Content Owner may seek or obtain sponsorship in respect of the Content, and in such instances: (i) the Content 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. Approvals
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 have been provided by TRL or Content Owner 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;
in respect of the Content. Notwithstanding the foregoing, in no event are you permitted to alter any logos and/or credits on marketing materials provided by TRL or Content Owner.
11.2
Any request for approval, consents 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 reasonably opportunity to consider the matter and/or materials in respect of which such approval, consent or consultation is sought; and any response shall be provided by the approving party in writing within a reasonable timeframe. Under no circumstance will any approval be deemed from any negative, silence or delayed response from the approving party.
For the avoidance of 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.
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, that it has the full power and authority to grant the license granted hereunder.
12.2
Without prejudice to the foregoing, you hereby warrant, represent and undertake that:
(a)
subject to your right to cancel a booking pursuant to Clause 4.1, you will screen all Content to which this Agreement pertains.
(b)
you will keep 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 Content in its entirety without any cuts or alterations, and in respect of Content delivered in a Live Format, 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 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 Content;
(f)
carry out such commercially reasonable continual security checks, in the event that the Content and/or marketing materials (or any part thereof) is 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 Content);
(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 Content and/or any associated marketing materials, including by not limited to any trademarks, logos and/or production or sponsorship credits as may appear therein.
13. Indemnity
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 set forth 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 in attendance at such Site, and/or any costs or expenses related thereto) arising out of any breach or negligent performance of any applicable health and safety laws, or any negligent act or omission made by any employees or third party contractors at the Site; and you agree to fully indemnify TRL in respect of any such claim.
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. Confidentiality
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 for the purpose of carrying 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 expiration and/or termination of this Agreement.
15. Termination
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 seven (7) 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 the purposes of a solvent reorganisation), makes any arrangement with its creditors or otherwise ceases, or threatens to cease to carry on its business.
15.2
In the event that, at any time during the Term, the Content Owner terminates its license agreement with TRL in respect of the Content 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 promptly make such payments; 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, and 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
Specifically excluding any liability in respect of payments actually owed by one party to the other hereunder (including but not limited to TRL’s Share of Net Receipts) and/or clearances, licenses or other payment required by either party as a pre-requisite to, or a consequence of, exploitation of the Content hereunder, each party’s total liability to the other in contract, tort (including negligence or breach of statutory duty) or otherwise, arising in connection with this agreement 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, direct or indirect loss of 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 such failure or delay arises from or is attributable to:
(a)
acts, events, omissions or accidents beyond the reasonable control of that party including pandemics, epidemics, government recognised local national or international crisis, 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 law or governmental order, rule, regulation or direction, accident, breakdown of plant, machinery and/or any other technical equipment, fire, flood, storm or extreme weather; or
(b)
the closure of the Cinema or location from which Content is being broadcast (if Live) as a result of the scenarios listed in Clause 18.1(a) or due to national mourning, epidemic or on any order of the licensing or other public body;
(each 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
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 fulfill its own obligations under this Agreement, it is acting as a data controller in relation to such data.
19.2
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”).
19.3
It is not intended that any Data will be shared between the parties pursuant to this Agreement. However, in the event that any such data is shared,the parties shall agree in writing the purpose for which data is being shared (“Agreed Purpose”) and the party disclosing such Data will:
(a)
ensure that it has all necessary notices and consents in place to enable lawful transfer of the shared Data to the other party, any third parties engaged to perform obligations in connection with this Agreement and their employees (“Permitted Recipients”) for the Agreed Purposes;
(b)
give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the permitted recipients of such Data, their successors and assignees;
(c)
process the shared Data only for the Agreed Purposes; and in compliance at all times with the confidentiality obligations set forth in Clause 14 of theseET&Cs;
(d)
ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
(e)
not transfer any Data collected or received by it pursuant to this Agreement outside of the European Economic Area (“EEA”) unless the transferor: (i) complies with the provisions of Articles 26 of the GDPR (in the event that the third party is a joint controller); (ii) there are appropriate safeguards in place pursuant to Article 46 of the GDPR; or (iii) one of the derogations for the specific situations in Article 49 of the GDPR applies to the transfer.
19.4
Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party agrees to (i) consult with the other party about any notices given to data subjects in relation to any shared Data; (ii) promptly inform the other party about the receipt of any data subject access request; (iii) provide the other party with reasonable assistance in complying with any data subject access request; (iv) not disclose or release any shared Data in response to a data subject access request without first consulting the other party wherever possible; (v) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation; (vi) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and (vii) use compatible technology for the processing of shared Data to ensure that there is no lack of accuracy resulting from personal data transfers.
19.5
For the avoidance of doubt, the obligations hereunder shall be in addition to, and do not relieve, replace or remove either party’sobligations 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 and corruption
20.1
Each party shall:
(a)
comply with all Applicable Laws, relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
(b)
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;
(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 for any undue financial or other advantage of any kind received by it, or any of its employees, officers, representatives or advisersin 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);
20.2
For the purpose of this Clause 20, the meaning of adequate procedures and foreign public official 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.
21. Notices
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 am 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 am 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 Content 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 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 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 hand, 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.