SUPPLIER STANDARD TERMS AND CONDITIONS
These terms and conditions form the basis of the agreement between the Distillery London, a company incorporated in England and Wales with company number 08724217 whose registered offices are at The Television Set Village, 10-11 Percy Street, London W1T 1DN (“The Client”) and you (“The Supplier”).
All services provided by The Supplier will be on these conditions to the exclusion of all other terms (including any terms the Supplier purports to apply under any purchase order, confirmation of order, specification, catalogue or other document.
1. DEFINITIONS AND INTERPRETATION
1.1. "Agreement" shall mean these terms and conditions.
1.2. “Contractor” “personnel” shall mean the named individual(s) engaged or employed by the Supplier to perform the Services on its behalf or any approved substitute. References to the Contractor or personnel shall include any approved substitute.
1.3. “Employment Losses” means all costs, claims, liabilities and expenses of any nature (including, without prejudice to the foregoing generality, in relation to negligence claims by any third party, unfair dismissal, redundancy, unlawful discrimination, breach of contract, collective consultation in terms of TUPE or otherwise, unlawful deduction of wages and equal pay) arising out of the employment of any Transferring Employee or the termination thereof (as the case may be).
1.4. “End Client” means any third party with whom the Client has a contractual or other business
relationship in respect of the provision of the Services.
1.5. “Intellectual Property Rights” shall include all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any media (existing now or in the future) in any part of the world.
1.6. “Purchase Order” means the document setting out the order details made by The Client for
1.7. "Services" shall mean the services to be performed or carried out by The Supplier under this
Agreement and as set out in the Purchase Order.
1.8. “TUPE” means the law implementing in any jurisdiction the European Council Directive 2001/23/EC on the approximation of laws of European member states relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, as amended from time to time (including, without limitation, The Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended from time-to-time).
1.9. “Works” shall mean all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software programs, inventions, ideas, discoveries, developments, improvements or innovations and all materials embodying them in whatever form, including but not limited to hard copy and electronic form, prepared by the Supplier or the Contractor in connection with the provision of the Services.
1.10. If applicable References to the End Client shall mean The Client's client and shall include, where appropriate, any person or organisation for whom the Supplier and/or the Contractor shall perform the Services (as detailed in any Purchase Order).
1.11. In this Agreement:
1.11.1. where the context so admits, references to the singular shall include the plural and
references to the masculine shall include the feminine and in each case vice versa.
1.11.2. references to any legislation shall be references to such legislation as may be
amended or re-enacted from time to time.
1.11.3. headings are for ease of reference only and shall not affect the interpretation of any
part of this Agreement.
1.12. Where there is any inconsistency between any provision in these terms and conditions and
any provision of a Purchase Order, the latter shall prevail.
2.1. Nothing in this Agreement shall be construed to mean that any personnel or Contractor is
engaged by or is an employee of the Client or the End Client.
2.2. It is hereby declared that it is the intention of the parties that this Agreement is a contract for services and the Supplier shall be responsible for all income tax liabilities and National Insurance or similar contributions in respect of the fees payable under this Agreement and the Supplier hereby indemnifies The Client in respect of any claims that may be made by the relevant authorities against The Client in respect of income tax or National Insurance or similar contributions relating to the Services hereunder.
3. DURATION AND TERMINATION
3.1. This Agreement shall commence on the date specified in the Purchase Order and shall continue unless terminated by either party in accordance with the remaining provisions of this clause 3.
3.2. Without limiting its other rights or remedies, each party may terminate the Agreement with
immediate effect by giving written notice to the other party if:
3.2.1. the other party commits a material breach of its obligations under this Agreement and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
3.2.2. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
3.2.3. the other party is considered to be insolvent, is in the process of winding up, goes into administration, becomes bankrupt or is subject to any other similar or equivalent event in the United Kingdom or any other jurisdiction;
3.2.4. the other party suspends or ceases, or threatens to suspend or cease, to carry on all
or a substantial part of its business;
3.2.5. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
3.2.6. the other party or its personnel is guilty of any fraud or dishonesty or acts in any manner which brings or is likely to bring either party or its personnel into disrepute or is materially adverse to the interests of either party.
3.3. Without prejudice to its other rights or remedies, either party may terminate the Agreement by
giving the other not less than 3 months' written notice without cause.
4.1. The Supplier shall provide the Services for the Client under the terms of this Agreement.
4.2. The Supplier warrants that:
4.2.1. it shall provide the Services with reasonable care, skill and diligence and in
accordance with all applicable laws, regulations and industry standards;
4.2.2. it shall appoint suitably qualified staff to perform the Services;
4.2.3. it shall, at its own expense, supply everything necessary for the provision of the
Services unless otherwise agreed in writing by the Client;
4.2.4. it shall not do anything to bring the Client’s (or the End Client’s) reputation into
4.2.5. it shall notify the Client immediately if it becomes aware of any problems relating to
the provision of the Services;
4.2.6. its fulfilment of this Agreement and the Services or materials (including the Works) supplied by the Supplier pursuant to this Agreement, and the normal use or possession of such or materials (including the Works) by the Client and/or End Client will not infringe any Intellectual Property Rights of any third party.
4.3. The Client does not give any form of guarantee that the Services of the Supplier will be
required during the period of this Agreement.
4.4. The Client is not obliged to offer work to the Supplier and the Supplier does not have to
accept any work offered under this Agreement.
4.5. The Supplier shall be free to offer similar services to any other organisation and The Client shall be free to accept similar services from any other organisation providing this does not conflict with the provision of the Services under this Agreement.
5. THE SUPPLIER’S OBLIGATIONS
5.1. The Supplier shall provide the Services at such times and at such locations the Client and the
Supplier shall agree from time to time.
5.2. The Supplier shall ensure its personnel and the Contractor perform the Services with all reasonable care and skill and to co-operate with the Client’s staff and accept all reasonable requests with regard to the scope of the Services although this will in no way compromise the personnel’s or Contractor’s autonomy in relation to determining the method of performing the work.
5.3. The Supplier shall ensure that its personnel and the Contractor comply with any rules set by the Client or End Client when working on its premises, including without limitation rules relating to security, health & safety and the environment, to the extent that they are applicable to an independent contractor providing services on the Client or End Client's premises.
5.4. Where required, the Supplier’s personnel will submit timesheets in a form to be agreed with
the Client to provide a record of the work done by the personnel.
6. LIABILITY, INDEMNITY AND INSURANCE
6.1. The Supplier acknowledges, understands and agrees that the Client will have obligations to End Clients in respect of the performance of the Services by the Supplier and that the Client has entered into this Agreement in reliance upon a warranty and representation from the Supplier that it will perform the Services competently at all times.
6.2. The Supplier shall throughout the period of this Agreement and for a period of 5 years after the termination of this Agreement maintain adequate Employers Liability, Public Liability and Professional Indemnity insurance and comply with all terms and conditions of such insurance policies at all times. The Supplier shall, on the Client’s request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.
6.3. The Supplier shall be liable for and shall fully indemnify the Client and/or the End Client for any loss, damage, injury (including personal injury or death), liability or costs (including legal costs) incurred by The Client and/or the End Client arising in connection with the provision of the Services.
6.4. The Supplier shall be liable for and indemnify and hold the Client harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Customer as a result of or in connection with any claim made against the Client in respect of any liability, loss, damage, injury (including personal injury or death), cost or expense sustained by the Client, the Client’s employees or agents or by the End Client or other third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the provision of the Services or is otherwise as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of this agreement by the Supplier.
6.5. Subject to clause 6.6, the Client shall under no circumstances whatever be liable to the Supplier and its Contractor or personnel, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this Agreement.
6.6. Nothing in these terms and conditions shall limit or exclude any party’s liability for:
6.6.1. death or personal injury caused by its negligence, or the negligence of its employees,
agents or subcontractors; or
6.6.2. fraud or fraudulent misrepresentation.
7.1. The Client shall pay to the Supplier the fees as set out in the Purchase Order.
7.2. VAT is payable on the fees at the prevailing rate.
7.3. The Supplier shall submit invoices for Services provided under this Agreement on a periodic
basis as set out in each Purchase Order.
7.4. The Client agrees to meet the Supplier’s invoices in full within 30 days of receipt.
8. CONFIDENTIAL INFORMATION
The Supplier agrees and shall ensure that the Contractor and personnel agree to treat as confidential and not at any time for any reason disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any information in whatever form (whether or not recorded in documentary form or stored on any magnetic or optical disk or memory) relating to the Client or End Client's productions, technology, technical processes, business affairs or finances or any such information relating to an associate, supplier,
customer or client of the Client or End Client where knowledge or details of the information was received during the period of this Agreement.
9. INTELLECTUAL PROPERTY
9.1. The Supplier acknowledges that all Intellectual Property Rights associated with or deriving from the Works are and shall remain vested absolutely in the End Client or The Client (as appropriate).
9.2. The Supplier warrants to the Client that it has obtained from the Contractor a written and valid assignment of all existing and future Intellectual Property Rights in the Works and of all materials embodying such rights and a written irrevocable waiver of all the Contractor’s statutory moral rights in the Works to the fullest extent permissible by law and that the Contractor has agreed to hold on trust for the Client or the End Client (as appropriate) any such rights in which the legal title has not passed (or will not pass) to the Client or the End Client. The Supplier agrees to provide the Client with a copy of this assignment on or before the date of this Agreement.
9.3. The Supplier hereby assigns to the Client all existing and future Intellectual Property Rights in the Works and all materials embodying such rights to the fullest extent permitted by law. Insofar as they do not so vest automatically by operation of law or under this agreement, the Supplier holds legal title in such rights on trust for the Client or the End Client (as appropriate).
9.4. The Supplier undertakes to the Client:
9.4.1.to notify the Client in writing full details of all Works promptly on their creation;
9.4.2. whenever requested to do so by the Client and in any event on the termination of this Agreement, promptly to deliver to the Company all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Works and the process of their creation which are in his possession, custody or power;
9.4.3. not to register nor attempt to register any of the Intellectual Property Rights in the
Works, unless requested to do so by the Client; and
9.4.4. to do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Works has passed, or will pass, to the Client or the End Client (as appropriate), and confirms that the Contractor has given written undertakings in the same terms to the Client.
9.5. The Supplier undertakes to execute all documents, make all applications, give all assistance and do all acts and things, at the expense of the Client and at any time either during or after this Agreement, as may, in the opinion of the Client, be necessary or desirable to vest the Intellectual Property Rights in the name of the Client or the End Client (as appropriate) and otherwise to protect and maintain the Intellectual Property Rights in the Works. The Supplier confirms that the Contractor has given written undertakings in the same terms to the Supplier.
9.6. This Clause 9 shall not affect any intellectual property rights belonging to the Supplier prior to providing the Services. The Supplier shall grant a perpetual, royalty-free licence to the Client or End Client in respect of the Supplier's intellectual property to the extent necessary for the Client or End Client to receive the benefit of the Services.
10.1. For the duration of this Agreement and for 12 months after its termination, the Supplier shall
not and shall ensure that the Contractors shall not without the consent of The Client:
10.1.1. solicit, interfere with or endeavour to entice from the Client or the End Client any person, firm, contractor or company who was at any time during the period of this Agreement a contractor, client or customer of the Client or End Client;
10.1.2. solicit additional or further work from the End Client with the intention of performing
services for the End Client otherwise than directly through The Client.
11. OBLIGATIONS ON TERMINATION
11.1. On termination of this Agreement the Supplier shall, and shall procure that the Contractor
11.1.1. immediately deliver to the Client all documents, books, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Client or the End Client or their business contacts, any keys, and any other property of the Client or the End Client, which is in its or his possession or under its or his control;
11.1.2. irretrievably delete any information relating to the business of the Client and the End Client stored on any magnetic or optical disk or memory and all matter derived from such sources which is in its or his possession or under its or his control outside the premises of the Supplier; and
11.1.3. provide a signed statement that it or the Contractor has complied fully with its or his
obligations under this clause 11.
12.1. The relationship of the Supplier (and the Contractor) to the Client will be that of independent contractor and nothing in this agreement shall render it (nor the Contractor) an employee, worker, agent or partner of The Client or End Client and the Supplier shall not hold itself out as such and shall procure that the Contractor shall not hold himself out as such.
12.2. This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Supplier shall be fully responsible for and shall indemnify the Client and/or the End Client for and in respect of payment of the following within the prescribed time limits any income tax, National Insurance and Social Security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with either the performance of the Services or any payment or benefit received by The Supplier and/or the Contractor (or their associates) in respect of the Services, where such recovery is not prohibited by law. The Supplier shall further indemnify the Client and/or the End Client against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by them in connection with or in consequence of any such liability, deduction, contribution, assessment or claim other than where the latter arise out of the Client’s or the End Client’s own wilful default.
12.3. The Supplier agrees that any of its personnel or any other third party who are assigned to the provision of the Services under this Agreement on behalf of the Client or End Client shall remain the employee of The Supplier or relevant third party (collectively a “Transferring Employee”).
12.4. The Supplier warrants and undertakes to The Client that there are no Transferring Employees. To the extent that there are any Transferring Employees, The Supplier shall indemnify and keep indemnified The Client against:
12.4.1. any Employment Losses arising out of or in connection with any claim by any Transferring Employee that his/her contract of employment or engagement has transferred pursuant to TUPE to The Client or the End Client, including without limitation any failure or refusal by The Client to employ or engage such Transferring Employee or relating to the termination of such employment or engagement by The
Client including without limitation any claim for unfair dismissal, discrimination, wrongful dismissal, breach of contract or statutory redundancy pay;
12.4.2. any liability for any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by any personnel, the Contractor or any substitute against the Client or the End Client arising out of or in connection with the provision of the Services, except where such claim is as a result of any act or omission of the Client or the End Client.
12.5. The parties acknowledge that the Agency Workers Regulations 2010 (AWR) may apply to the engagement under this Agreement. The Supplier shall procure that the Contractor or any substitute agrees to waive their rights under the AWR.
12.6. If, notwithstanding clause 12.5, the provisions under the AWR become enforceable against the Client or the End Client or any of them otherwise suffers any liability or claim under the AWR, the Supplier agrees to fully indemnify the Client or the End Client (as appropriate) for any liability or claim (including, in both cases, costs and expenses) relating to or arising under the AWR.
12.7. The Client may at its option satisfy such indemnity (in whole or in part) by way of deduction
from payments due to the Supplier or the Contractor.
12.8. The Supplier warrants that it is not nor will it prior to the cessation of this Agreement, become a Managed Service Company, within the meaning of section 61B, Income Tax (Earnings and Pensions) Act 2003 and agrees to fully indemnify the Client to the extent that it suffers any liability or claim (including in respect of costs and expenses) for any breach of this warranty.
13. FORCE MAJEURE
Neither party will be liable for any breach of this Agreement by reason of delay or failure to perform any obligation caused by any event of force majeure including Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, terrorism, insurrection, civil disturbance or requisition, strikes, lockouts or other industrial action or trade union dispute, power failure or breakdown in machinery or any other event outside the reasonable control of the party affected provided that if the period of delay or non-performance continues for 3 weeks either party may terminate this Agreement by giving 7 days’ notice.
No variation to this Agreement shall be valid unless it is in writing and signed by the authorised representatives of both parties.
No waiver by either party of any provision of this Agreement shall be binding unless it is expressly confirmed in writing.
If any provision of this Agreement is held to be invalid or unenforceable, this will not affect the validity or enforceability of the remaining provisions of this Agreement.
Any notice required by this Agreement to be given by either party shall be in writing and shall be served by sending the same by registered post or recorded delivery to the last known address of the other party and any receipt issued by the postal authorities shall be conclusive evidence of the fact and date of posting of any such notice.
18. RIGHTS OF THIRD PARTIES
A person who is not a party to this Agreement has no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
19. ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement and understanding between the parties in relation to the Services. The Supplier acknowledges that in entering into this Agreement it has not relied on any representation, warranty or undertaking given by or on behalf of The Client, provided that nothing in this clause shall exclude or limit liability for fraudulent misrepresentation.
20. APPLICABLE LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.