TERMS & CONDITIONS FOR THIRD PARTY SUPPLIERS OF GOODS AND SERVICES
This Purchase Order is issued by MONKEY KINGDOM Limited (Co. No. 04060116) (the “Company”, which expression, where the context admits, includes its successors and assigns) to and is accepted by the person, firm or company named as supplier in the Purchase Order (the ”Supplier”, which expression, where the context admits, includes its successors and assigns) upon and subject to the following terms and conditions set out below (the “Terms”). Any reference to Supplier contained within these Terms shall also be deemed to apply to the Supplier’s employees, agents, contractors and such other persons working under Supplier’s direction (the “Personnel”) and it is Supplier’s responsibility to ensure that its Personnel agree to and abide by the conditions and obligations herein.
In this Agreement, unless otherwise stated or unless the context otherwise requires:
(a) “Agreement”: means these Terms, the Purchase Order and all other documents attached hereto (if any), all as amended from time to time in accordance with clause 9 of these Terms below.
(b) “Confidential Information”: means collectively, information of the Company and/or its parent and affiliated companies, however conveyed or presented, relating to any projects, business, affairs, operations, product information, strategies, developments, trade secrets, know-how, the commercial relationship of the Company with any financing partner together with all information derived by Supplier from any such information and any other information clearly designated by the Company as being confidential (whether or not it is marked “confidential”), or which ought reasonably be considered confidential.
(c) “Goods”: means the items identified as such in the Purchase Order and any and all other deliverables provided by the Supplier pursuant to the Agreement.
(d) “Purchase Order”: means the Company’s written instruction to the Supplier to supply the Goods and/or perform the Services issued on the printed form on the overleaf, duly signed by an authorised officer of the Company.
(e) “Services”: means all obligations of the Supplier under this Agreement, including the provision of any Goods and performance of the Services described in the Purchase Order (including the supply of any items or other deliverables required to be supplied as a consequence of performing such obligations).
2. Acceptance: This Agreement shall be deemed accepted on the earlier of the Supplier’s: (i) written or verbal acceptance, (ii) full or partial performance of the Agreement, (iii) accepting payment, or (iv) any act or omission that can reasonably be construed as acceptance.
3. Fee: The amount(s) payable for the Goods supplied and/or Services performed in accordance with this Agreement shall be as set out in the Purchase Order (the “Fee”). The Fee shall be fixed unless otherwise agreed in writing by the Company. Save as set out in clause 4 of these Terms (below) in respect of VAT and unless otherwise provided herein, such Fee includes any applicable supranational (including ‘federal’), state/national, provincial and local taxes. The Fee for Goods shall include costs for packaging, insurance and transportation to the “free on board” (FOB) destination of the Company. Other than the Fee, no monies whatsoever shall be payable to the Supplier or its personnel in relation to the use or exploitation of the Goods and/or the Work (or any part thereof) or any other rights granted hereunder (including by way of use fees, repeats, residuals or otherwise).
4. Invoicing & Payment: The Purchase Order number must be quoted on all correspondence, advice and invoices relating thereto. Invoices must be sent to the Company immediately after the Goods are despatched or Services performed, as the case may be. Statements must be rendered monthly or when requested. Unless otherwise stated in the Purchase Order, the Company shall pay the Fee within 40 (forty) days of the later of (i) the end of the month of receipt by the Company of a proper invoice and (ii) acceptance of the Goods or Services by the Company, provided that the Company shall be entitled to set-off against the monies due to the Supplier hereunder any monies due or accruing to the Company from the Supplier under any account whatsoever. In respect of an arrangement for hire of Goods, unless otherwise agreed, Supplier shall invoice for the hire charge weekly and Company shall pay the hire charges within fourteen days after receipt of each invoice. All other aspects of calculation and payment of the hire charges shall be governed by clause 3 of these terms.
5. Period of Hire: In respect of an arrangement for hire of Goods, the period of hire commences when the Goods are delivered to the address for delivery of Company as indicated overleaf or collected by Company (as the case may be) and finishes at the earlier of the end of the agreed hire period or when the Goods are returned to the premises of Supplier or collected by Supplier (as the case may be). If the period of hire is extended, these Terms shall continue to apply to the extended period. Any extension to the period of hire, when arranged verbally, shall be confirmed as soon as reasonably practicable in writing. The Goods shall be at Company’s risk during the period of hire.
6. Delivery: Deliveries and shipments shall be made as directed by the Company at its discretion. Nothing in excess of the Goods will be accepted.
7. Risk & Title: Risk of damage to or loss of any Goods shall pass to the Company upon delivery to the Company in accordance with the Purchase Order. Supplier assumes full responsibility for packing, crating, and marking, and Supplier shall be liable for loss or damages in transit, notwithstanding any agreement by the Company
to pay transportation charges. Supplier shall at its expense, fully insure Goods paid for by the Company but held for future delivery by the Supplier per the Company’s instructions. Title in the Goods shall pass to the Company upon delivery, unless payment is made prior to the delivery, in which event it shall pass to the Company once payment has been made and the Goods have been appropriated to this Agreement and, in this regard, the Supplier shall mark the Goods in any form required by the Company as evidence of the Company’s ownership on payment.
8. Inspection & Rejections: All supply of Goods and/or performance of Services (an any products of the Services thereof) shall be subject to the Company’s inspection irrespective of date of payment thereof. The Company may reject any Goods and/or Services or part(s) thereof which contain defective material or workmanship or do not conform to the Company’s designs, specifications, samples or warranties. Company may reject any Goods delivered which are not in accordance with the Order, and shall not be deemed to have accepted any Goods until Company has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent. Any Goods so rejected may be returned to the Supplier at the Supplier’s risk and expense, and at full invoice price plus applicable transportation charges both ways If, in the Company’s judgment, additional work or rework on non-conforming Goods and/or Services is required to make such Goods and/or Services acceptable to the Company, Supplier agrees that the Company, or third parties, may perform such work at Supplier’s expense and that the performance of such work shall in no way invalidate Supplier’s warranty of quality on the Goods and/or Services. Payment of Goods and/or Services before inspection shall not constitute acceptance thereof, and is without prejudice to any and all claims the Company may have against Supplier. For the avoidance of doubt, the Company shall not be liable to pay any sums in respect of such Orders or parts thereof.
9. Changes: Company may, at any time, initiate changes by providing Supplier a written notice that alters or adds to the Goods and/or Services, but which are otherwise subject to the terms of this Agreement. Supplier will promptly comply with the terms of such changes. Any assistance or technical advice provided by Company personnel to Supplier with respect to changes under this Agreement will not constitute a waiver of Supplier’s obligations or Company’s rights hereunder. Any waiver or change to be valid and binding upon the Company must be in writing and signed by an authorized representative of the Company.
10. Representations & Warranties: The Supplier represents and warrants that:
(i) it is fully authorised and free to accept the Order on these Conditions and to grant the rights contained herein; (ii) the Goods are safe and present no risk to persons or property and the Goods and/or Services comply with all applicable statutory and other regulatory requirements. (iii) the Goods and Services comply with the Order including all instructions, specifications, drawings, samples and other descriptions furnished, adopted or accepted by the Company, and are free from any charge, lien or encumbrance, are fit and sufficient for the purpose intended, are merchantable and free from defect in material and workmanship and shall be to the Company’s entire satisfaction; (iv) ay Services be performed with all reasonable skill, care and diligence; and (v) the Goods and Services do not infringe the rights of any third parties, including in respect of copyright, trademarks, trade names or patents.
11. COVID-19: As relating to the supply of Goods and/or performance of the Services hereunder, to the extent any personnel of the Supplier are performing any activities at the production location(s) of any of the Company’s programmes and/or are having in-person contact with any Company personnel in respect of the same, the Supplier shall (i) comply, and ensure its personnel comply, with all safety guidelines provided by Company and all applicable laws and government guidelines relating to COVID-19 (ii) procure its personnel undertake COVID-19 safety training as required from time to time, (iii) be responsible for monitoring whether its personnel are deemed “fit-for-work” including whether personnel are confirmed or suspected to be infected with COVID-19, (iv) cooperate with Company to mitigate potential exposure to COVID-19 by procuring its personnel agree to submit to temperature checks, testing and contact tracing procedures carried out by Supplier or by or on behalf of Company, and consent to the sharing of personal data relating to (iii) above where reasonably requested by Company for the purpose of protecting those involved in the production of the Programme, (v) notify Company of any COVID-19 related concerns which could be reasonably deemed to impact provision of the Services or the Programme.
12. Incorporation: Goods or Services may be incorporated into any products, or subjected to further processes of manufacture, by the Company and others authorised by the Company as it or they may elect and in no event shall any claim for royalty or other additional compensation be made by the Supplier by reason of such use.
13. Grant of Rights: The Supplier grants the Company the right to use the Goods and Services in and in connection with any television programme, including all productions, products and materials connected or derived therefrom (collectively, a “Programme”), throughout the universe in any manner and in any media now known
or hereinafter devised, and in any advertising, promotion and publicity relating to any Programme, for the entire period of any rights in the Goods or Services (as extended or renewed) and thereafter (to the extent possible) in perpetuity, free and clear of any claims for compensation. Other than in respect of a purchase order consisting of a hire arrangement, the Supplier hereby irrevocably assigns and transfers with full title guarantee to the Company the entire copyright (present and future) and all other right, title and interest of whatsoever nature, whether now known or hereafter created, whether vested or contingent, throughout the universe in and to the Goods or Services or any part thereof, wherever subsisting or acquired for the fullest period of such rights including all renewals, extensions and revivals thereof and thereafter (insofar as is or may become possible) in perpetuity (in the case of rental, Supplier hereby grants to Company an irrevocable worldwide royalty-free licence of such copyright and all rights of a similar nature in perpetuity). For the purposes of US copyright law, the Goods created or to be created, and the products of the Services, shall be deemed work made for hire for the Company and the Company shall own, solely, exclusively, forever and throughout the universe, all of the results and proceeds deriving from the Goods and Services, free of all liens, claims, encumbrances, limitations and restrictions. The Company is not under any obligation to use the Goods or Services. The grant of rights contained herein is irrevocable and not subject to rescission, limitation, restriction or any other form of injunctive and or other equitable relief. Supplier acknowledges that the sums payable hereunder are a complete buy-out of all rights and Supplier shall not be entitled to any further sums whatsoever by reason of the exploitation of any Programme or other exploitation permitted hereunder. 14. Indemnity: The Supplier shall indemnify the Company and its affiliates, licensees, agents, officers, employees and assigns and at all times keep the same fully and effectively indemnified against all actions, proceedings, costs (including reasonable legal costs), expenses, damages and awards against or incurred by the Company (including any compensation paid by the Company on the ad- vice of counsel and any VAT) in consequence of any breach, non-performance or non-observance or threatened breach, non-performance or non-observance of any of the representations, warranties, undertakings or agreements by the Supplier contained in these Conditions.
15. Termination: The Company may terminate this Agreement or part thereof at any time by notice to the Supplier. In the event of un-remedied (within 14 (fourteen) days of receipt of notice) non-payment of the Fee by the Company, the Supplier shall be entitled by written notice to the Company to terminate this Agreement without prejudice to any claim by either party up to such date of termination. In the event of termination, nothing herein shall limit the Company’s other rights and remedies at law or in equity. Clauses 9, 11, 12, 13, 19 and 23 of these Terms shall survive termination.
16. Force Majeure: Company may, at any time and from time to time during a Force Majeure Event suspend or terminate all or any part this Agreement by written notice to the Supplier with immediate effect. For the purposes hereof, a “Force Majeure Event” shall be deemed to occur in the event of an actual occurrence, or a material risk (in the Company’s reasonable discretion) of an occurrence, of an event beyond the control of the Company (whether or not foreseeable at the date of this Agreement), which renders or may render the Company unable to make use of all or any of the Goods and/or the Services hereunder or which hinders, prevents or suspends or may hinder, prevent or suspend the operations of the Company and the production activity in respect of any of the Company’s programme(s) to which this Purchase Order relates, including without limitation, by reason of war, terrorism, epidemic or localised outbreak of an infectious disease (e.g. COVID-19), act of God, accident, criminal activity, public disorder, government or judicial order or regulation, labour controversy, disruption in transportation or communications, the failure of any lead or recurring cast member, material production personnel or material supplier to render services for any reason (including, without limitation, death, incapacity, illness, refusal or neglect). During any suspension: (i) payments hereunder will be suspended; (ii) Supplier shall continue to comply with any obligations not impacted by the suspension; (iii) all dates herein shall then be postponed for a period equivalent to the period of the Force Majeure Event and such reasonable period as agreed between the Company and the Supplier (if any) as is required by the parties to resume the provision of the Goods and/or performance of the Services; and (iv) the Company shall be entitled during the suspension to all rights granted or assigned to the Company under this Agreement (and during suspension, the Company shall not be obliged to return any of the Goods that the Company is in possession of).
17. Supplier’s Remedies: Without prejudice to clause 13 of these Terms, if the Company is in breach of any of its obligations contained herein or under statute or common law, the rights and remedies of the Supplier shall be limited to the right (if any) to recover damages in an action at law (which the Supplier acknowledges will be an appropriate remedy) and in no circumstances shall the Supplier be entitled by reason of any such breach to enjoin or restrain the distribution, exhibition, broadcast, advertisement or exploitation of any Programme.
18. General Compliance: The Supplier shall: (i) pay its employees at least the minimum compensation and benefits required under any applicable law, guild or union agreement; (ii) withhold and report contributions, insurance deductions and applicable taxes as required by law; (iii) not use forced, prison, underage or indentured labour, or subject workers to any form of compulsion or coercion; (iv) allow its workers to freely choose whether or not to organize or join associations for the purpose of collective bargaining as provided by local law; (v) prohibit physical, sexual or psychological harassment or coercion workers; (vi) maintain and enforce
a company policy requiring adherence to ethical business practices, including a prohibition on bribery of government officials; (vii) maintain security measures consistent with international standards for the protection of its operations and facilities against exploitation by criminal or terrorist individuals and organizations; and (viii) require its subcontractors and sub-suppliers to conform to similar standards. Supplier shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery, anti- corruption, competition law and human trafficking from time to time in force including but not limited to the Criminal Finances Act 2017, Modern Slavery Act 2015, Foreign Corrupt Practices Act 1977 and Bribery Act 2010. Supplier hereby ensures that it has in place reasonable procedures to prevent the breach of this clause by it and any of its associated persons or subcontractors. Failure by Company to insist on Company’s compliance with any of its obligations shall not be construed as a waiver or relinquishment of Company’s rights to insist upon strict compliance with those or any other obligations at any other time.
19. Offset: Company shall be entitled to off-set amounts due from it to Supplier with amounts due from Supplier (and/or its subsidiaries or holding company or other subsidiaries of the same holding company as such expressions are defined by Section 1159 of the Companies Act 2006 or any subsequent amendment thereto) to Company (and/or its subsidiaries or holding company or other subsidiaries of the same holding company as such expressions are similarly defined).
20. Safety and Environmental Care: Without prejudice to the Company’s rights under any condition implied by law, the Supplier undertakes the following: (i) any relevant health, safety and environmental standards, codes of practices and legislation, including any specific European or UK directives, (ii) any safety precautions required for the handling, use, operation or disposal of the Goods, where relevant to do so, shall be communicated by Supplier to the Company and agreed by the Company if required, (iii) Supplier shall not use any legally banned chemicals or any chemicals the Company has instructed the Supplier to not use, (iv) Supplier shall comply with all clean air and air pollution legislation and directives, (vi) all Goods supplied under this Agreement shall comply with all regulatory requirements and Company may test such Goods, (vii) Supplier shall take all necessary precautions to ensure Goods/Services are safe and without risk to persons or property and shall provide and bear the cost of all insurances necessary to indemnify and hold harmless the Company in relation to any negligent act or omission by Supplier, its employees, subcontractors and/or agents.
21. Confidentiality: Supplier undertakes that it shall hold all Confidential Information in the strictest confidence and not disclose Confidential Information to any person except where it is (i) to its employees, officers, representatives, subcontractors or advisors (“Supplier’s Personnel”) who are directly involved in the provision of the Services and/or Goods hereunder and on a need-to-know basis, or (ii) as may be required by law, a court of competent jurisdiction or regulatory authority. Supplier shall not use any Confidential Information for any purpose except for the purpose that is the subject of this Agreement. Nothing in this Agreement is intended to grant Supplier, and does not grant Supplier, any right, title or interest in or to any Confidential Information except as expressly set forth in this Agreement. Nothing herein shall limit the terms and conditions of any nondisclosure or confidentiality agreement or provision between the Company and Supplier. The Supplier shall procure and ensure that the Supplier’s Personnel are aware of and comply with this clause 19 of the Terms the same. This covenant of confidentiality shall survive the termination or expiry of this Agreement.
22. Data Protection: Each party shall comply with their respective obligations under applicable data protection and privacy laws. The Supplier shall make available the Company’s Production Privacy Notice (as provided or made available to Supplier from time to time) to all Supplier’s personnel whose personal data (as defined in applicable data protection and privacy laws) may be provided to or accessed by the Company in connection with Supplier’s provision of the Goods or Services under this Agreement.
“NBCU Personal Data” means any personal data (i) which is provided by the Company or its affiliates to Supplier, or (ii) which the Supplier or its approved subcontractors generates, collects, hosts, transmits or otherwise processes, in each case in connection with the provision of the Services.
To the extent that Supplier processes any NBCU Personal Data on the Company’s behalf, Supplier shall:
(i) only process such NBCU Personal Data in accordance with the Company’s documented instructions, including in relation to transfers, unless required to do otherwise by applicable law. In which event, Supplier shall inform the Company of the legal requirement before processing such NBCU Personal Data other than in accordance with the Company’s instructions, unless that same law prohibits Supplier from doing so on important grounds of public interest;
(ii) ensure that its personnel authorised to process the NBCU Personal Data are bound by appropriate obligations of confidentiality;
(iii) implement appropriate technical and organisational measures to protect the NBCU Personal Data against unauthorised and unlawful processing and against accidental loss, destruction, disclosure, damage or alteration;
(iv) provide reasonable cooperation and assistance to the Company as the Company may require at Supplier’s cost to allow the Company to comply with its obligations as a data controller, including in relation to data security; data breach notification; data protection impact assessments; prior consultation with supervisory authorities; the fulfilment of data subject’s rights; and any
enquiry, notice or investigation by a supervisory authority; (v) at NBCU’s choice, delete or return all NBCU Personal Data to NBCU or its nominated representative after the end of the performance of Supplier’s obligations relating to processing, and delete or destroy existing copies unless applicable data protection and privacy laws or other relevant legal obligations require storage of the personal data;
(vi) not appoint any third party to process the NBCU Personal Data on the Company’s behalf (“Subprocessor”) without the Company’s prior written consent. If the Company’s consent is given, Supplier shall impose legally binding contract terms on the sub-processor which are equivalent to the provisions of these sub-clauses 21(i) to (x) inclusive of these Terms (the “Processing Clauses”);
(vii) remain liable to the Company for any breach of the Processing Clauses by any Subprocessor;
(viii) notify the Company without undue delay upon becoming aware of any personal data breach which relates to NBCU Personal Data, and provide a reasonably detailed description of the breach, the type of personal data that was the subject of the breach and (to the extent known) the identity of each affected person(s), as soon as such information can be collected or otherwise becomes available, as well as all other information and co-operation which the Company may request relating to the breach;
(ix) not transfer NBCU Personal Data outside of the United Kingdom or the European Economic Area without the Company’s prior written consent;
(x) on request, provide the Company with information necessary to demonstrate compliance with Supplier’s obligations arising under or in connection with these Processing Clauses and allow for and contribute to audits, including physical inspections, conducted by the Company or another auditor appointed by the Company.
Where the Processing Clauses apply, the processing activities carried out by Supplier may be described as follows: (a) Subject matter: The provision of the Services, as described in the Purchase Order. (b) Duration: The duration of the Services. (c) Nature and purpose: To enable Supplier to provide the Services. (d) Data categories: NBCU Personal Data. (e) Data subjects: may include NBCU’s customers, employees, suppliers, end users and guests.
23. Compliance with Security Standards: Supplier shall comply with the NBCU Security Standards (as defined herein). In the event of a conflict with the NBCU Security Standards, the terms of clause 20 and this clause 21 of these Terms shall control. Additionally, Supplier will implement and maintain appropriate administrative, technical, physical, and organizational safeguards regarding security, back-up, and disaster recovery that are consistent with industry standards and practices and applicable laws to protect NBCU Data (as defined herein), including an information security management program that meets best industry practice, and at a minimum the controls described in the NBCU Security Standards, and any additional security measures agreed to by the parties. Supplier shall ensure compliance with such policies and standards by all of its subcontractors under this Agreement.
“NBCU Data” means all data, including but not limited to Confidential Information, NBCU Personal Data, content (including but not limited to audio visual materials and master files) in any form, and any other data received, collected, processed, created or generated by or on behalf of, or made available to Supplier in the course of providing Services to NBCU and/or its affiliates under this Agreement, and all data regarding the Company’s use of the Services, and “NBCU Security Standards” means the Company’s security standards that apply to such of its partners, suppliers and vendors (and any sub-contractors to those parties) that manage or access NBCU Data or have a connection to the Company’s network, as provided to Supplier and as updated by the Company from time to time.
24. Damage or Loss: The Company shall not be liable for any damage to or loss of any Goods caused by or due to fair wear and tear.
25. Assignment: The Company may assign, sub-license or subcontract any or all of its rights under this Agreement provided that it shall remain primarily liable for its obligations contained herein. The Supplier cannot assign, sub-license or sub-contract the Agreement in whole or in part.
26. Insurance: During the term of the Agreement, the Supplier shall at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers in respect of all risks it is prudent for the Supplier to insure against, having regard to the Supplier’s possible liabilities to the Company including, but not limited to, public liability insurance and professional indemnity insurance or product liability insurance (at such limits in respect of any one claim or incident as the Company may specify in writing). Upon the Company’s request, Supplier shall provide the Company with a certificate of insurance evidencing the coverage required by the Company and the declaration and endorsement pages of such policies showing the Company as insured (if applicable).
27. No Promotion: The Supplier shall not, without the prior written consent of the Company, in any manner advertise or publish any information relating to this Agreement, any Programme or the Company.
28. Authority: An order shall not be binding on the Company unless it is issued on the Company’s official purchase order form duly signed by an authorised representative of the Company.
29. No Waiver: The failure of the Company to exercise or delay in exercising a right or
remedy shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy by the Company shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
30. Third Parties: Company enters into this Purchase Order on its own behalf and/or on behalf of one or more of its subsidiaries, any ultimate holding company (from time to time) (each as defined by section 1159 of the Companies Act 2006 or any subsequent amendment thereto) and such companies and/or any associated companies (including, without limitation, financiers and distributors of the Programme) may enforce the terms of this Purchase Order in accordance with the Contracts (Rights of Third Parties) Act 1999.
31. Entire Agreement: This Agreement to which constitutes the entire agreement between the parties with respect to their subject matter and supersede any other agreement, arrangement or understanding between them with respect thereto. If these Terms are inconsistent with any conditions of the Supplier, these Terms shall prevail. No condition stated by the Supplier in accepting or acknowledging the Agreement shall be binding on the Company unless expressly accepted by the Company in writing and signed by an authorised representative.
32. Interpretation: The headings contained herein shall not affect the interpretation of these Terms.
33. Law & Jurisdiction: This Agreement shall be construed in accordance with and governed by the laws of England and Wales and the parties hereto agree to submit to the exclusive jurisdiction of the English Courts.
END OF PURCHASE ORDER TERMS & CONDITIONS