Exhibit 10.73
THIS CONTRACT is made 199
BETWEEN
(1) BRITISH TELECOMMUNICATIONS public limited company whose registered
office is at XX Xxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX.
registered in England No 1800000 ("BT")
AND
(2) THE HOME VIDEO CHANNEL Ltd. whose registered office is at
[Pembroke House. 00 Xxxxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxx XX00 3DX]
registered in England (& Wales No 2412178], ("the Customer")
INTRODUCTION
A. The Customer is in the business of transmitting a television service
and requires facilities to enable it to transmit the service by means
of satellite to various receive points, and
B. BT has agreed to provide the Service (defined below) to the Customer
on the terms and conditions of this Contract.
BT warrants that it has at the date of this Contract the right power
and authority to provide the Service and otherwise perform its
obligations under this Contract.
IT IS AGREED AS FOLLOWS:
1. Definition and Interpretation
1.1 In this Contract, unless otherwise specifically provided or required by
the context, the following expressions will have the following
meanings:
Charge the charge set out in Clause 5;
Compressed Channel the Signals which conform to the
specifications set out in
Schedule 2.2;
Compressed Encoders the equipment that will output the
Compressed Channel;
Contract the Clauses of the Contract
together with the Schedules set
out on the contents page above;
Customer Signals the electronic signals generated
by the Customer delivering
the Television Service to BT as
described in Schedule 3;
the Due Date (a) for the first month the
Operational Service Date; and
(b) for each succeeding month
during the Contract, the first
day of the month;
Early Termination is defined in Clause 11;
Earth Segment Facilities (a) capacity in a transmitting
earth terminal;
(b) terrestrial links from the
International Gateway to the
earth terminal;
all as set out in Schedule 2;
Expiry Date the date set out in Schedule 1
when the Contract expires;
Facilities the Space Segment Facilities and
the Earth Segment Facilities;
Force Majeure is defined in Clause 16;
International Gateway the BT Tower in London;
License any license granted, or having
effect as if granted to BT under the
Telecommunications Xxx 0000 or any
replacement of that Act, including
any amendment to such license;
Multiplex the means of aggregating each
customers' individual digital
packetised streams;
Operational Service the date set out in Schedule 1 on
which the Service commences;
Date or OSD
Pre-emption the deliberate interruption and/or
cessation of the availability of the
Space Segment Facilities by the
Space Segment Operator in its sole
and absolute discretion at any time
and from time to time; the current
policy of the Space Segment Operator
regarding preemption is set out in
Schedule 6. BT will give prompt
notice of any change of policy.
Schedule 1 states whether the Space
Segment Facilities are pre-emptible;
Renewal Period The period (set out in Schedule 1)
during which negotiations for
renewal of the Contract in
accordance with Clause 4 may take
place;
Satellite the satellite referred to in
Schedule 1;
Service means the provision and use of the
Earth Segment Facilities,
Compression Encoders, Multiplex and
conditional access to enable the
transmission of the Television
Services by means of the Signals to
the Satellite and the provision and
use of the Space Segment Facilities
to enable the transmission of the
Television Service for reception in
the countries covered by the
footprint of the satellite as given
in Schedule 2;
Signals the individual digital packetised
streams of which when aggregated
will generate a bit stream rate of
not more than 4Mbit/s/s;
Space Segment Facilities capacity in the Satellite for the
Service, described in Schedule 2;
Space Segment Operator the owner, operator and maintainer
of the Space Segment Facilities who
is named in Schedule 1;
Television Service the television programmers
and/or services of the Customer
comprising video including VBI
teletext, and audio signals
transmitted to viewers in the
direction only and delivered to the
International Gateway by the
Customer.
Termination Date the date that termination is
effective;
Termination Payment is the payment for early
termination set out in Clause 13;
Transmission Period the hours set out in Schedule 1
during which the Facilities are
available for transmission of
Television Service;
Transmission Plan a technical description agreed
between the Customer and BT and
submitted by BT for approval by the
Space Segment Operator detailing the
usage and technical parameters of
all Uplink Signals to be transmitted
via the Facilities.
Unavailability is defined in Clause 7;
Uplink Signals electronically generated carriers
described in Schedule 2;
Year any 12 months starting on the
Operational Service Date or any
anniversary of the Operational
Service Date.
1.2 Words in the singular include the plural and vice versa. Clause
headings for the purpose of guidance only and will not affect the
construction or interpretation of this Contract.
2. Provision of Service
2.1 BT will provide the Service to the Customer during each Transmission
Period from the Operational Service Date to the Expiry Date on the
basis set out in this Clause 2.
2.2 The Customer will deliver the Television Service by means of the
Customer Signals to BT at the International Gateway using
telecommunications circuits which do not form part of this Contract.
2.3 The Customer must ensure that the Customer Signals comply with Schedule
3, so that they do not cause any damage, loss or interference to the
Facilities or to other services using the Facilities.
2.4 BT will provide and the Customer will use the Space Segment Facilities
in accordance with the operating procedures and policy of the Space
Segment Operator. Such policy may be amended from time to time and
includes (amongst other matters) policy on Pre-emption. Schedule 1
states whether the Space Segment Facilities are pre-emptible together
with any specific requirements of the Space Segment Operator regarding
the use of the Facilities. In the event of conflict between this
Contract and the Space Segment Operators policies and operating
procedures the latter shall prevail.
2.5 At BT's request, the Customer will provide information to enable BT to
compile the Transmission Plan. BT will submit the Transmission Plan to
the Space Segment Operator and will use its reasonable endeavors to
obtain the Space Segment Operator's approval. The Customer will (if
requested by BT) assist BT in obtaining that approval.
2.6 The Customer will keep BT informed of the hours during the Transmission
Period during which the Television Service is actually being
transmitted, and of any changes to these times.
2.7 The Customer will be responsible for the content of the Television
Service, even if the Customer is not the creator of the material
comprising the Television Service.
2.8 The Customer is responsible for obtaining all necessary consents from
relevant authorities in and must observe the applicable laws of any
country where the Television Service is to be transmitted or received.
2.9 When using the Service the Customer must:
29.1. comply, in the UK, with any applicable obligations
under the Broadcasting Act of 1990 and the
Independent Television Commission Code of Practice
(including any successor legislation or code) and
with any other appropriate laws and regulations in
any other country where the Television Service is
transmitted and can be received according to the
Customer's instructions to BT regarding the
conditional access system; and
29.2. in addition not use, or permit any other person to
use, the Service contrary to any applicable mandatory
rules or guidelines or for sending any message or
communication which is, according to the
determination of the appropriate bodied appointed by
such mandatory rules or guidelines, offensive,
abusive or of an indecent obscene or menacing
character.
2.10 Use of the service in contravention of Clauses 2.8 or 2.9 is a breach
of Contract by the Customer. If in BT's reasonable opinion BT is
potentially exposed to civil or criminal liability, or other type of
action likely to be taken by any competent regulatory authority. BT may
on giving the Customer notice of the breach immediately suspend or
terminate the Service.
2.11 This Contract is subject to the continuing right of BT and the Space
Segment Operator to provide the Service. If at any time such right is
withdrawn or terminated by any competent authority then this Contract
will terminate forthwith, unless:
2.11.1. alternative facilities can be obtained within that
period under Clause 8; or
2.11.2. the Contract has already been terminated.
2.12 The customer may request in writing to BT that the transmission hours
are to be extended and/or transmission rates increased as set out under
the terms of Schedule 1. Subject to the availability of Earth and Space
Segment Facilities, and payment of the increased Charge, BT shall grant
such request.
2.13 The conditional access used for this service will be Scientific
Atlanta's PowerVu system which is subject to the approval of the Space
Segment Operator. At this moment in time such approval has been given.
2.14 BT will provide the Service with the conditional access system in
operation during the entire Transmission Periods and will authorize and
deauthorize decoders when requested by the Customer in accordance with
the procedures set out in Schedule 1 part B.
3. Delay in Commencement of Service
3.1 If BT does not provide the Service to the Customer on the Operational
Service Date and if the Customer suffers loss as a result:
3.1.1. the Customer will not be liable to pay the Charge
during such period of non- provision; and
3.1.2. in addition BT will pay to the Customer an amount
equal to the pro-rata daily rate of the Charge for
the period for which the non-provision continues up
to a maximum of the equivalent of 30 days' Charge.
3.2 Payment under Clause 3.1 will be in full satisfaction of BT's liability
to the Customer arising out of BT's failure to provide the Service on
the Operational Service Date, but the Customer will retain its rights
to terminate under Clause 11.
3.3 BT will not be liable to make any payment under Clause 3.1, and nor may
the Customer terminate under Clause 11, in respect of any period when a
failure to provide Service to the Customer on the OSD is due to Force
Majeure or the Customer's act or omission provided that BT shall notify
the Customer as soon as reasonably practicable after the Force Majeure
event or the Customer's act or omission comes to BT's attention.
4. Renewal of this Contract
4.1 Not later than the start of the Renewal Period, the Customer may give
written notice to BT requesting the renewal of this Contract, BT will
grant a renewal, on terms and conditions to be negotiated, if:
4.1.1 this Contract has not been terminated with effect
from the Expiry Date or earlier; and
4.1.2 BT is able to contract for the necessary segment
facilities from the Space Segment Operator (which BT
will use reasonable endeavors to obtain).
4.2 BT reserves the right not to re-negotiate under Clause 4.1 if the
Customer is or has been in breach of this Contract which breach was
notified to Customer upon BT becoming aware of the breach and was not
promptly rectified by the Customer.
4.3 If BT does not receive notice under Clause 4.1 BT is not restricted or
precluded from using the Facilities for any purpose after the Expiry
Date, nor from negotiating with any other potential customer for the
Facilities during the Renewal Period.
4.4 If the Customer does not give notice to BT under Clause 4.1 above but
the parties are unable to reach agreement before the end of the Renewal
Period on any new terms, conditions and charges, then after the Renewal
Period (or sooner if the parties agree that they are unable to reach
agreement), BT may offer to provide (after the Expiry Date) services
via the Facilities to any third party on terms no more favorable than
those last offered to the Customer. If BT wants to offer more favorable
terms to any other third party then it shall first give the Customer
notice of such terms and if these are not acceptable by the Customer
within 14 {7} days, BT is free to negotiate with any other third party
on those terms.
4.5 The provision of this Clause 4 shall cease to apply and shall have no
force and effect after the Expiry Date or, if this Contract is
terminated prior to the Expiry Date, after the date of termination.
5. The Charge for the Service
5.1 The Customer agrees to pay BT's Charge for the provision of the Service
for the duration of this Contract. The Charge for the Service is stated
in Schedule 1.
5.2 The Charge will be paid in advance on the Due Date by the method and to
the bank stated in Schedule 1. Payment will be made in equal monthly
installments except for the first and last months which will be
calculated on a pro-rata basis by BT.
5.3 If BT does not receive any payment of the Charge in full, or any agreed
installment, (together with payment of VAT or other taxes as
appropriate) within 30 days of the Due Date for payment. BT may charge
interest upon the sum outstanding from the Due Date at 4 per cent per
annum above the base lending rate of Midland Bank plc.
Interest will accrue on a daily basis, will be compounded on a monthly
basis and will be computed on the basis of actual days and of a 365 day
year.
5.4 The Charge and any other sums payable are exclusive of United Kingdom
Value Added Tax and other local taxes or value added taxes. Invoices
payable under this Contract are subject to the addition of VAT or other
taxes where appropriate.
5.5 The Customer will pay the Charge (less any credits calculated by BT
under Clause 9.2 and less any payment calculated by BT under clause
3.1.2, 12.1 or 13.8) and any other sums payable under the Contract
without set off, counter claim or other deductions. Any sum falling due
on a day which is not a business day will be payable on the immediate
preceding business day. For the purposes of this Clause, a business day
is any day which is a legal business day in London.
5.6 BT will issue invoices to the Customer but the Customer's obligation
to pay will not depend on prior receipt of an invoice.
5.7 The Customer will remain liable for all Charges due or to become due
for Service provided during any period of this Contract in which the
Customer fails to comply with any provision of this Contract.
6. Maintenance
6.1 BT reserves the right to interrupt the Service for maintenance,
adjustments or repair of the Facilities. BT will, except in case
emergency, give as much prior notice to the Customer of such
interruption as is reasonably practicable. Notice of BT's requirement
to interrupt the Service shall state the date time and anticipated
length of interruption and where ever possible BT shall use its
reasonable endeavors to complete the maintenance adjustments or repair
of the Facilities as speedily as is reasonably practicable and to
interrupt the Service at a time and date causing the Customer the least
inconvenience and generally to have regard to the interests of the
Customer in comparison with those of other users of the Facilities and
not to discriminate against the interests of the Customer in that
comparison and to disrupt the Service as little as is reasonably
practicable in the circumstances.
6.2 The parties will agree suitable times for interruptions for routine
maintenance of the Facilities.
7. Unavailability of the Service
7.1 The Service will be regarded as Unavailable during the Transmission
Period in the following circumstances:
7.1.1. failure of the Service or its degradation below
the specifications in Schedule 4;
7.1.2. failure of the Space Segment Facilities or their
degradation below the parameters set out in
Schedule 2 section 3:
7.1.3. failure of the Earth Segment Facilities to maintain
the specifications in Schedule 2 section
2;
7.1.4. withdrawal or interruption of Service for
maintenance and repairs;
7.1.5. if the Service cannot be provided because of an
event of Force Majeure; or
7.1.6 if the Space Segment Facilities have been pre-empted
by the Space Segment Operators, of the Space Segment
Facilities are pre-emptible and "Unavailable" and
"Unavailability" will be construed accordingly.
7.2 Any loss of Service caused by the act or omission of, or a request by,
the Customer its employees, or agents or contractors will not be
counted as "Unavailability provided that BT shall give the Customer
notice of such act or omission as soon as reasonably practicable after
the same comes to BT's attention.
7.3 Periods of Unavailability will be recorded in accordance with Schedule
5 section 3. Such periods will be measured from the time such
Unavailability is reported to BT (and confirmed by BT's operations
staff) or such other time (if earlier) when the Unavailability becomes
known to BT. Unavailability will continue until the time the Service is
restored to the standard specified in relevant Schedules or as
otherwise agreed in writing between the parties.
8. Alternative Facilities
8.1 If the Earth or Space Segment Facilities have been Unavailable during a
Transmission Period BT will consult with the Customer and use
reasonable endeavors to identify alternative earth or space segment
facilities:
8.1.1 after the Space Segment Facilities have been
Unavailable for:
(a) a continuous period of 8 hours, or
(b) sooner if in BT's reasonable judgment the
Unavailability is unlikely to be remedied within
that period.
8.1.2 after the Earth Segment Facilities have been
Unavailable for:
(a) a continuous period of 1 hour or more; or
(b) sooner when in BT's reasonable judgment the
Unavailability is unlikely to be remedied within 4 hours from the start
of such Unavailability.
8.2 After written approval from the Customer of the nature, duration, and
cost to the Customer of any identified alternative facilities (which
will not be unreasonably withheld or delayed), BT will make the
alternative facilities available to the Customer wile the Space Segment
Facilities or Earth Segment Facilities are Unavailable and will
reinstate the original facilities as soon as this is reasonably
practicable. The Customer shall continue to pay the Charge while the
alternative facilities are being provided.
8.3 BT will bear the cost of providing alternative space segment
facilities to the amount stated in Schedule 1 and the Customer will
bear the rest of the costs in addition to the Charge.
8.4 When BT provides alternative earth segment facilities out of resources
already then available to it, BT will bear the entire cost of providing
them.
8.5 Where alternative earth segment facilities are made available other
than pursuant to Clause 8.4. BT will:
8.5.1. bear the cost of providing them where they have to
be provided as a result of any act or omission on
the part of BT or of any of its employees or
agents; or
8.5.2. in any other case, bear the cost of providing them
up to the daily rate set out in Schedule 1 and the
Customer will bear the rest in addition to the
Charge.
8.6 If BT is unable to provide alternative earth segment facilities which
are acceptable to the Customer (such acceptance not to be unreasonably
withheld or delayed) and the Earth Segment Facilities have been
Unavailable for a continuous period of 24 hours, then the Customer may
nominate alternative earth segment facilities not owned or controlled
by BT.
8.7 BT will use reasonable endeavors to procure the use of alternative
earth segment facilities nominated under Clause 8.6 provided that:
8.7.1. BT and the Space Segment Operator have given written
consent to the use of such alternative earth segment
facilities (BT's consent not to be unreasonably
withheld or delayed). BT will promptly seek the Space
Segment Operator's consent and convey to it any
representations on the Customer's behalf which the
Customer may reasonably request;
8.7.2. all appropriate government regulatory requirements
have been satisfied. The Customer must
provide reasonable evidence of such satisfaction
(where it is reasonable for BT to require
such evidence);
8.7.3. the Customer must indemnify BT in respect of any
damage to the Satellite or loss to third
parties to the extent that the damage or loss is
caused by the nominated alternative earth
segment facilities;
8.7.4 BT will not be responsible in any respect for the
Earth Segment Facilities of the Service from such
nominated alternative earth segment facilities; and
8.7.5. BT will bear the cost of providing the cost of
providing the alternative facilities up to the amount
stated in Schedule 1 and the Customer will bear the
rest of the costs in addition to the Charge.
9. Credits
9.1 Subject to Clause 9.3. the Customer will receive credit calculated as
provided in Schedule 1 for and continuous periods of Unavailability
lasting one minute or more.
9.2 The calculation of credit under Clause 9.1 above will be carried out
for each calendar month of this Contract. BT will allow an appropriate
credit to the Customer in the next but one monthly invoice and the
Customer will pay the invoice for that month's portion of the Charge
reduced by the amount of the credit. Where any credit becomes due to
the Customer for the penultimate or the last month of the term of this
Contract BT will pay to the Customer an amount equal to such credit on
or before the last day of the month immediately following that last
month.
9.3 For the avoidance of doubt credit will not be given under this Clause
9 for:
9.3.1 periods of Unavailability while alternative
facilities are being provided to the Customer;
9.3.2 periods when Service is not being provided due
directly or indirectly to the act or omission of, or
request by, the Customer or any of its employees,
agents or contractors provided that BT shall give the
Customer notice of any such acts or omissions as soon
as reasonably practicable after the same come to BT's
attention;
9.3.3 periods when Service is not being provided due to
sun outage or adverse weather conditions;
or
9.3.4 periods during which the Service is suspended
pursuant to Clause 14 of this Contract.
9.4 Allowance of credits by BT under this Clause shall be in full and
final settlement of any claim arising from any period of
Unavailability.
10. Information
10.1 BT will, as far as is practical, keep the Customer informed of:
10.1.1. the plans, practices and policies of the Space Segment
Operator to the extent that they may adversely affect the provision
of the Service;
10.1.2. any changes in the operating characteristics of the Satellite
to the extent that such change adversely affect the provision of the
Service; and
10.1.3. all tests, repairs or maintenance work which will, or are
likely to, cause Unavailability of the Service.
10.2 By the fifteenth day of each calendar month, for the duration of this
Contract, BT will deliver to the Customer a summary of any periods of
Unavailability occurring during the immediately preceding month. Such
summary will include the times and duration of such periods and will
describe the reason for such Unavailability and shall where possible be
accompanied by an analysis of the results of the monitoring agreed to
be performed by BT in accordance with Schedule 4.
10.3 The obligations of BT under this Clause 10 relate only to such
information as is in BT's possession (or which BT can reasonably
obtain) and which BT can reveal without being in breach of any duty to
a third party. The Customer will comply with all BT's reasonable
requirements which it notifies to the Customer for protecting the
confidentiality of such information.
11. Termination by the Customer
11.1 The Customer may terminate this Contract before the Expiry Date
immediately by written notice to BT.
11.1.1. for Unavailability of the Space Segment Facilities:
(i) after they have been Unavailability for a single
continuous period of 30 days; or
(ii) sooner when it is clear to both parties that the
Unavailability will continue for longer than 30 days from the day it
started and alternative space segment facilities will not be provided
within that 30 day period.
11.1.2. For Unavailability of the Earth Segment Facilities;
(i) after they have been Unavailable for a single
continuous period of 15 days; or
(ii) sooner when it is clear to both parties that the
Unavailability will continue for longer than 15 days from the day it
started and suitable alternative earth segment facilities will not be
provided within that 15 day period; or
(iii) if the aggregate of all continuous Unavailability of 30
minutes or more duration during Transmission Periods within any 90 day
period exceeds the total time comprised in 6 Transmission Periods.
Periods during which alternative facilities are provided following
written consent pursuant to Clause 8.2 under Clause 8 will not be
counted for the purposes of this Clause 11.1.
11.2 The Customer may terminate this Contract before the Expiry Date by
written notice to BT if BT commits a substantial breach of this
Contract (other than matters provided for in Clause 11.1) and:
11.2.1. if the breach of Contract is capable of remedy, fails to
remedy the breach within 30 days of written notice to do so; or
11.2.2. if it is not possible to remedy the breach.
11.3 The Customer may terminate this Contract before the Expiry Date by
written notice to BT if BT is the subject of a bankruptcy order or
becomes insolvent or makes any arrangement or composition with or
assignment for the benefit of its creditors or goes into liquidation,
either voluntary (otherwise than for reconstruction or amalgamation) or
compulsory, or if a receiver or administrator is appointed over its
assets.
11.4 The Customer may terminate this Contract before the Expiry Date on the
day immediately preceding the 3rd anniversary of the OSD without
becoming liable for the Termination Payment subject to at least 6
months prior written notice to BT.
12. Termination by BT
12.1 BT may immediately terminate this Contract by written notice to the
Customer if the Space Segment Operator gives written notification to BT
that the Space Segment Facilities have become permanently Unavailable.
Upon such termination BT will advise the Customer of the availability,
if any, of alternative space segment facilities and will use reasonable
endeavors to arrange for the provision of alternative space segment
facilities on terms to be agreed. In the event of termination under
this Clause 12.1. BT shall repay any charges paid in advance by the
Customer.
12.2 BT may (without prejudice to any other right or remedy) without notice
summarily terminate this Contract if BT does not receive any payment
and interest due on it within 30 days of the Due Date and the Customer
fails to remedy failure to pay within 30 days of receipt of written
notice requiring it to do so.
12.3 BT may terminate this Contract before the Expiry Date by written notice
to the Customer if the Customer commits a substantial breach of this
Contract (other than matters provided for in Clause 12.2) and;
12.4 BT may terminate this Contract before the Expiry Date by written notice
to the Customer if the Customer is the subject of a bankruptcy order or
becomes insolvent or makes any arrangement or composition with or
assignment for the benefit of its creditors or goes into liquidation,
either voluntary (otherwise than for reconstruction or amalgamation (or
compulsory, or if a receiver or administrator is appointed over its
assets.
13. Effect of Termination
13.1 Termination or expiry of this Contract will be without prejudice to the
rights and liabilities of either BT or the Customer which may accrue on
or up to the Termination Date.
13.2 Where BT terminates this Contract under Clause 12 (excluding Clause
12.1) or where the Customer purports to terminate before the Expiry
Date (other than under Clause 11), the Customer must pay the
Termination Payment.
13.3 The Termination Payment is calculated:
13.3.1. by taking this aggregate of all sums payable under this
Contract up to the third anniversary of the OSD or if this has been
exceeded, the Expiry Date not received by BT on or before the
Termination Date, less the aggregate of all credits due to the Customer
under Clause 9, which have not been allowed to the Customer on or
before the Termination Date; and
13.3.2. discounting the result using the Interbank offered rate quoted
by Barclays Bank plc. London at 11:00 a.m. on the last business day of
the preceding month for three months time deposits in the Euro-Currency
market applying to the currency of the Charge calculated for the period
between the date of BT's invoice for the Termination Payment and the
Expiry Date.
13.4 The Customer must pay the Termination Payment to BT within 30 days of
the date of BT's invoice.
BT may charge interest calculated in accordance with Clause 5.3 if the
Termination Payment is not paid within 30 days of the date of BT's
invoice.
13.5 If after payment by the Customer of the Termination Payment BT secures
another customer or customers for services using the Facilities for any
of the balance of the period between the Termination Date and the
Expiry Date. BT will pay the Customer the money it obtains from the new
customer(s) less BT's reasonable costs. BT agrees to use reasonable
endeavors to mitigate the loss by securing another Customer for the
Earth and Space Segment Facilities.
13.6 The sum payable by BT under Clause 13.5 will be no greater than the
proportion of the Termination Payment which is applicable to the
re-used Facilities.
13.7 BT will pay the sum in Clause 13.5 out of money received from the new
customer(s).
13.8 Where the Customer terminates this contract under Clause 11.1 to 11.4
inclusive. BT shall refund to the Customer all advanced payments made
by the Customer in respect of any period after the termination date.
14. Suspension by BT
14.1 BT may (without prejudice to any other right or remedy) suspend the
Service;
14.1.1. by seven days' written notice if BT does not receive any
payment within 30 days of the Due Date,
together with any interest due;
14.1.2. immediately by written notice if the Customer commits a
substantial breach of this Contract; or
14.1.3. immediately by written notice if any of the events which are
grounds for suspension under Clause
2.10 occurs.
Suspension will continue until such time only as the grounds for
suspension are removed to BT's reasonable satisfaction or BT terminates
the Contract pursuant to the terms herein.
14.2 The Customer remains liable to pay the Charges for any period of
suspension.
15. Use and Assignment
15.1 The Customer may assign any rights or obligations under the Contract
only with the prior written consent of BT (such consent not to be
unreasonably withheld or delayed, provided that BT shall be entitled to
require such guarantees or other security as BT in its reasonable
discretion thinks fit in relation to performance of any obligations of
the assignee). A change in the ownership or control of the Customer or
its business or of a substantial part of the Customer's assets will
also continue an assignment. For the purposes of this Clause a change
of ownership or control shall mean the acquisition by any third party
which is not already a shareholder of the Customer of more than 50% of
the voting rights in the Customer.
15.2 If the Customer wishes to permit a third party to use part of the
Service then the Customer must notify BT in advance of that party's
name and the proposed extent of their use of the Service. The Customer
remains responsible under the Contract for the use of the Service and
will ensure that the third party is aware of and complies with the
provisions of the Contract. Notification to BT does not imply any
approval by BT of the third party or its proposed usage not does it
prejudice any of the Customer's obligations or BT's rights under the
Contract.
16. Force Majeure
16.1 If either BT or the Customer is unable to perform any obligation under
this Contract because of matters beyond its reasonable control such as
lightning, flood, exceptionally severe weather, fire, explosion, war,
civil disorder, industrial disputes (whether or not involving their
employees), sun outage, satellite or launch failure or acts of local or
central Government or other competent authorities it will have no
liability to the other party.
16.2 In addition BT will not be liable for any breach of this Contract
directly or indirectly occasioned by or resulting from:
16.2.1. compliance with the License; or
16.2.2. regulatory action taken by any relevant regulatory authority.
16.3 A party affected by Force Majeure must promptly give written notice to the
other party:
16.3.1. on commencement; and
16.3.2. on cessation of the Force Majeure event.
17. Limitation of Liability
17.1 BT's duty in performing any obligation under this Contract is only to
exercise the reasonable skill and care of a competent
telecommunications service provider .
17.2 BT accepts liability under this Contract only to the extent stated in
this Clause 17, Clause 9, Clause 12.1 and Clause 13.8.
17.3 Neither party excludes or restricts its liability for death or
personal injury resulting from its own negligence.
17.4 BT's liability to the Customer in contract, tort (including negligence)
or otherwise in relation to this Contract is limited to (pound)1
million for any one incident or series of related incidents and to
(pound)2 million for all incidents in any period of 12 months.
17.5 Neither BT nor the Customer is liable to the other either in contract,
tort (including negligence) or otherwise or loss (whether direct or
indirect) of profits business or anticipated savings or for any
indirect or consequential loss or damage whatever. This does not
relieve the Customer from obligation for the Charges in full under this
Contract.
17.6 Each provision of this Clause 17 limiting or excluding liability
operates separately. If any part is held unreasonable or inapplicable
the other parts shall continue to apply.
18. Indemnity
18.1 Subject to Clause 17 the Customer must indemnify BT against any
actions, proceedings, claims or demands for loss or damages including
death or personal injury in any way connected with this Contract
brought or threatened against BT by a third party except to the extent
that the same are directly or indirectly occasioned by, or result from
any fault of BT or are otherwise due to any act or omission, negligence
or wilful misconduct by BT, its employees, agents or contractors.
18.2 Without prejudice to the generality of Clause 18.1 the Customer must
indemnify BT in the event of:
18.2.1. actual or alleged libel, slander, invasion of privacy or
infringement of copyright;
18.2.2. actual or alleged infringement of intellectual property
rights arising from use of the Service with facilities or services,
apparatus or systems not provided by BT for use with the Service;
18.2.3. use of the Service contrary to the provisions of this
Contract;
18.2.4. claims relating to quality or contents fo the Television
Service; or
18.2.5. claims relating to any actual or alleged failure, however
casued, to meet an obligation to any person to transmit the
Television Service; or
18.2.6 any actions, proceedings, claims or demand conneted with the
Service which are brought or threatened agaisnt BT due to BT acting in
accordance with the instructions of the Customer.
18.3 BT wil promptly notify the Customer of any claim to which the
indemnity in this Clause 18 relates and will:
18.3.1. make no admission without the Customer's consent;
18.3.2. allow the Customer to conduct any proceedings or settle any
claims in each case at the expense of the Customer and must do so at
BT's written request; and
18.3.3. give to the Customer at the cost and expense of the Customer
reasonable assistance in connection with such proceedings.
19. Notices
19.1 Notices given under this Contract will be in writing and will be
sent to the address of the Customer or BT specified in Schedule 1.
19.2 All notices will be:
19.2.1. delivered by hand or sent by telex, facsimile or, in the United
Kingdom, by registered post or by recorded delivery, and outside of the
United Kingdom by registered airmail letter. All notices will be deemed
to have been received when delivered by hnand or on the date on which
they would be received in the normal course of posting (if posted) or
when the proper answerback code or confirmation is received by the
sender if sent by telex or facsimile; or
19.2.2. in the case of an emergency the Customer accepts that BT may
give notice by telephone, provided that this is later confirmed in
writing as soon as is reasonably practicable.
20. Confidentiality
20.1 BT and the Customer will keep in confidence any information of a
confidential nature obtained under this Contract and will not divulge
it to any person (other than their employees who need to know the
information and subject to their employer making them fully aware of
and causing them to comply with the provisions of this Clause) without
the consent of the other party.
20.2 Clause 20.1 will not apply to:
20.2.1. information in the public domain otherwise than in breach
of this Contract;
20.2.2. information in the possession of the receiving party prior
to its disclosure to them under the terms of this Contract;
20.2.3. information obtained from a third party who is free to
divulge it;
20.2.4 information which is independently developed by the receiving
party without any breach of confidentiality under this Contract or
otherwise; or
20.2.5. the disclosure of information as required by a court of law
or other competent authority.
21. Variations and Amendments
21.1 No variation, amendment or change to this Contract will be effective
unless contained in a document agreed by the parties and signed by
their authorized representatives.
21.2 If the Customer wishes BT to modify the Service it must notify BT in
writing. If the proposed modification is acceptable to BT (such
acceptance not to be unreasonably withheld or delayed) the parties will
negotiate the applicable terms and conditions in good faith.
22. No Partnership
Nothing in this Contract will give rise to any partnership between BT
and the Customer.
23. Severability
Any part of this Contract whic is determined illegal or invalid will
not affect the legality or validity of the remainder.
24. Waiver
If either party delays in acting upon a breach of Contract by the other
that delay will not be regarded as a waiver of that breach. If either
party waives a breach of the Contract by the other that waiver is
limited to the particular breach.
25. Entire Agreement
This Contract governs the provision of the Service to the Customer to
the exclusion of all other written or verbal representations,
statements, understandings, negotiations, proposals or agreements.
26. Proper Law and Jurisdiction
This Contract will be governed and construed in accordance with English
law and the parties agree to submit to the exclusive jurisdiction of
the English Courts.
27. Security
27.1 Subject to Clause 15.1 Security is not required for the provision of
Service described in this Contract.
AS WITNESS these agreements the duly authorized representatives of the parties
have signed this Contract on the day and year stated on page 1 above.
Signed for and on behalf of the Customer
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Signature
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Name and Title
Signed for an on behalf of BT
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Signature
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Name and Title
