The Royal Shakespeare Company is incorporated under the Royal Charter as “The Royal Shakespeare Company, Stratford upon Avon” (“RSC”) and is a Registered Charity. Its business is conducted on the assumption that sufficient funds will continue to be made available by the Arts Council of England and / or the Government to enable the RSC to continue to trade as a financially viable concern. The Board of Governors (“Board”) of the RSC cannot accept responsibility for debts in excess of realisable value of the assets of the RSC.
1.1 In these Terms and Conditions:
“Affiliate” means, in reference to a Body, any other Body that:
(a) directly or indirectly controls or is controlled by the RSC or the Supplier; or
(b) is directly or indirectly controlled by a Body that also directly or indirectly controls the RSC or the Supplier; and for the purposes of this definition, a Body controls another Body if such Body has the power to direct or cause the direction of the management and policies of the other Body, whether directly or indirectly, through one or more intermediaries or otherwise, and whether by ownership of shares or other equity interests, the holding of voting rights or contractual rights, by being the general partner of a limited partnership, or otherwise.
“Anti-Bribery Laws” means the United Kingdom Bribery Act, 2010 (as amended from time to time) and all other applicable national, regional, provincial, state, municipal or local laws and regulations that prohibit the bribery of, or the providing of unlawful gratuities, facilitation payments or other benefits to, any government official or any other person.
“Background Information” means any information or data proprietary to the Supplier, or licensed to the Supplier with the right to grant sub-licenses to third parties, which are created independently of the performance of the Services as can be adequately proved by the Supplier, from which the Services or any Work Product is derived, or which are otherwise required for the effective exploitation of any Work Product.
“Body” means any individual, entity, partnership, limited partnership, firm, trust, body corporate, company, corporation, government, governmental body, agency or instrumentality, unincorporated body of persons or association.
“Force Majeure” means, but is not limited to, any of the following events:
(a) Riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power;
(b) Earthquake, flood, fire, named cyclone / hurricane / typhoon, tidal wave, explosion and/or other natural physical disaster, but excluding weather conditions as such regardless of severity; and/or
(c) Changes to any general or local statute, ordinance, decree, or other law, or any regulation or by-law of any local or other duly constituted authority or the introduction of any such statute, ordinance, decree, law, regulation or by-law.
“Goods” means the goods to be provided by the Supplier to the RSC in accordance with these terms.
“Intellectual Property Right(s)” means patents, copyright, including software, documentation, designs, visual materials in whatever form, sound recordings, any copyright protectable work, designs, trade or service marks, semiconductor topography rights, database rights, rights in know-how, moral rights or other similar rights in any country, in each case whether or not registered, and any applications for registration of any of the foregoing, and all rights to apply to register any of the foregoing.
“RSC” means The Royal Shakespeare Company.
“Related Party” means in relation to a Party:
(a) any of its Affiliates;
(b) any person employed by that Party or its Affiliates;
(c) any director or other officer of that Party or its Affiliates; and
(d) any person acting for or on behalf of that Party or its Affiliates.
“RSC Information” means any information which is disclosed to the Supplier by or on behalf of the RSC or any Affiliate of the RSC in connection with these terms, including, without limitation, any information about the business of the RSC or any Affiliate of the RSC.
“Supplier” means the Body identified in these terms or any attachment or related document as the party responsible for providing the Services, Goods and/or Work Product to the RSC.
“Supplier Personnel” means any individual employed or supplied by the Supplier whether directly or indirectly and assigned to work in connection with the performance of these terms whether or not an employee of the Supplier, and includes subcontractors of the Supplier and their personnel.
“Scope” means the scope, and any and all relevant portions thereof as the context dictates, that the Supplier is required to supply in accordance with these terms including the delivery of the Goods and the performance of the Services (as applicable).
“Services” means the services to be provided by the Supplier to the RSC in accordance with these terms.
“Work Product” means the Goods and any and all results, conclusions and findings of the Services including all Intellectual Property Rights resultant from the results, conclusions and findings.
“Worksite” means all the lands, waters and other places on, under, in or through which Scope or activities in connection with Scope are to be supplied.
1.2 In these terms and conditions, words denoting the singular include the plural and vice versa.
2. Provision of Goods and/or Services; Warranty; Remedies; Title and Risk
2.1 Without prejudice to representations or warranties applied by law or otherwise given by the Supplier, the Supplier warrants that Goods shall be:
(a) free from defect;
(b) fit for their intended purpose or application;
(c) manufactured and supplied strictly in accordance with the relevant specification; and
(d) free of any registered or unregistered charge, lien, mortgage or other encumbrance.
2.2 Services shall be provided with all due skill and care and in accordance with industry recommended standards and practices and any delivery date specified in an RSC purchase order (“Purchase Order”) is of the essence and the Supplier will deliver to such location as may be specified by the RSC in the relevant Purchase Order.
2.3 The Supplier will pass through any applicable manufacturer’s warranty to the benefit of the RSC. If any such manufacturer’s warranty is not assignable, the Supplier shall assist the RSC in pursuing any warranty claim with the manufacturer on the RSC’s behalf.
2.4 The warranty for Goods commences on the latter of the day the RSC takes physical possession of the Goods or the Goods have been installed by the Supplier and is valid for the longer of twelve (12) months or the length of the Supplier’s, or, the manufacturer’s standard warranty period.
2.5 The warranty for Services commences on the day of completion of the Services and is valid for twelve (12) months following completion of the Services.
2.6 The Supplier shall operate a quality assurance system in accordance with industry recommended standards and practices.
2.7 The Supplier further warrants that the Supplier’s use of the Background Information shall be free from any challenges by a Person that such use violates or infringes an Intellectual Property Right of any Person.
2.8 The Supplier and the Supplier Personnel shall comply with all applicable laws and government rules, regulations and orders, including but not limited to, those related to health, safety and environment, employment rights and data protection.
2.9 The Supplier shall obtain at its own cost the required permits and shall provide the RSC such data reasonably requested by the RSC in relation thereto.
2.10 The Supplier must, to the maximum extent permitted by law, defend, hold harmless and indemnify the RSC and Affiliates of the RSC, and its and their governors, directors, officers, employees, and agents from and against any claims, proceedings, lawsuits, judgments, liabilities, losses, damages, costs (including legal costs and attorneys’ fees), fines, penalties, assessments and expenses incurred or suffered as a result of non- compliance with laws or failure to obtain permits by the Supplier or the Supplier Personnel.
2.11. The Supplier confirms that it has obtained all requisite information for the performance of these terms, in particular, but not limited to, as to the RSC site, access and transportation thereto, local conditions and facilities and any other relevant matters of whatever nature. The Supplier will attend induction training as may be required by the RSC from time to time.
2.12 Without prejudice to any other rights of the RSC hereunder or at law, in the event of defective Goods or Services or a breach of warranty, notwithstanding that such defect or breach may have been discovered by the RSC after delivery or performance, the RSC, in its sole discretion and at the Supplier’s risk and expense, may do any or all of the following:
(a) terminate the relevant agreement or terms at any time;
(b) reject and return the Goods;
(c) purchase equivalent goods elsewhere;
(d) require the Goods to be replaced or repaired by the Supplier;
(e) require the Services to be re- performed by the Supplier;
(f) have defects in the Goods repaired by others;
(g) have the Services re-performed by others.
2.13 The warranty for Goods replaced or repaired by the Supplier commences on the latter of the day the RSC takes physical possession of the Goods or the Goods have been installed by the Supplier and is valid for the longer of twelve (12) months or the length of the Supplier’s, or, the manufacturer’s standard warranty period. The warranty for Services re-performed by the Supplier commences on the day of completion of the re-performed Services and is valid for twelve (12) months following completion of the re-performed Services.
2.14 The Supplier acknowledges that it is familiar with and will comply with all applicable laws and regulations concerning the export or re-export of goods, software or technology, or the direct product thereof, to unauthorised persons or destinations. Unless otherwise agreed to by the parties, the Supplier shall be responsible for obtaining any required government authorisations, including, but not limited to, export licenses or exemption authorisations applicable to these terms.
2.15 Any inspection by the RSC of Goods or Services shall not relieve the Supplier of any obligations of liability under these terms.
2.16 The Supplier will retain risk of loss of and damage to Goods until the RSC takes physical possession, care and custody of the Goods, or, if an Incoterm is specified for the delivery of the Goods, until delivery to the RSC is complete in accordance with the Incoterm. Notwithstanding the foregoing, the Supplier will retain risk of loss of and damage to Goods:
(a) supplied as part of Services until acceptance of the Services by the RSC, unless the RSC takes care and custody of the Goods and
(b) which are rejected by the RSC as not in compliance with these terms.
2.17 Title to Goods will pass to the RSC:
(a) along with the passing of risk of loss of and damage to Goods to the RSC; or
(b) as the RSC makes payment for the Goods, whichever occurs earlier.
2.18 Any transfer of title or risk will be without prejudice to the RSC's right to refuse to accept the Goods in case of non-conformity with the requirements of these terms.
3. HEALTH AND SAFETY
3.1 The Supplier represents and warrants to the RSC that the Supplier has satisfied itself that all necessary tests and examinations have been or will be made prior to delivery of the Goods and / or performance of the Services to ensure that:
(a) the Goods are designed and constructed so as to be safe and without risk to the health and safety of persons using the same, and that the Supplier has made available to the RSC adequate information about the use for which the Goods have been designed and have been tested and about any conditions necessary to ensure that when put to use the Goods will be safe and without risk to health; and
(b) the Services are carried out in accordance with all applicable health and safety law and standards and any methods employed in providing the Services are safe and without risk to persons who may from time to time come into contact with the same.
3.2 The Supplier shall promptly notify the RSC of any health and safety hazards which may arise in the delivery of the Goods and / or in performing the Services. The RSC shall promptly notify the Supplier of any health and safety hazards of which the RSC is aware which may exist or arise at the Premises and which may affect the Supplier in the delivery of the Goods and / or in performing the Services.
3.3 If any Goods and / or any aspects of the Services supplied in accordance with the terms contain and / or require the use of any hazardous substances or require any special precautions to be taken to ensure safety in handling, transport, storage or use, the Supplier shall, prior to delivery of the Goods and / or performance of the Services, provide the RSC with written details of the nature of those substances and the precautions to be taken and shall ensure that before despatch of the Goods and / or performance of the Services appropriate instructions and warnings are clearly and prominently attached to any containers in which the Goods are packed and / or positioned in areas where the Services are to be performed.
3.4 The Supplier shall take all measures necessary to comply with the Health and Safety at Work Act, 1974 and any other statutes, orders, regulations and Codes of Practice relating to health and safety which apply to the Supplier in the delivery of the Goods and / or in performing the Services and the Supplier shall comply with all health and safety measures implemented at the Premises.
3.5 The Supplier shall provide to the RSC, in writing, all such data, instructions and warnings as are required to comply with all applicable legislation relating to health and safety and shall indemnify the RSC against all actions, suits, claims, demands, losses, charges, costs and expenses which the RSC may suffer or incur as a result of or in connection with any breach of this clause 3.
4. METHOD OF PAYMENT AND TAXES
4.1 The Supplier shall submit to the RSC invoices in accordance with these terms. The RSC shall pay the Supplier within thirty (30) days (unless otherwise stated by the RSC) of receipt by the RSC of a correctly prepared and properly supported invoice to the address specified in the Agreement. If the RSC, in good faith, disputes the amount of any invoice or any part thereof, the RSC will notify the Supplier as to the amount the RSC concedes to be correct and the Supplier will issue two (2) invoices to the RSC an invoice containing the dispute amount and an invoice containing the undisputed amount. The RSC reserves the right to withhold payment of such disputed amount pending resolution. The parties shall endeavour to settle at the earliest possible date any invoicing matters in dispute.
4.2 The Supplier must quote the RSC purchase order (“Purchase Order”) number on all Invoice/Credit Notes, and delivery notes. Any invoice received by the RSC without a valid Purchase Order number will be returned to the supplier, and may therefore result in payment being delayed.
4.3 All amounts invoiced under these terms shall be deemed to include all taxes, levies, social securities and other charges and duties imposed in connection with the provision of the Services and the supply of Goods and intangible property as well as packaging, marking, handling, freight and delivery, delivery insurance and any other applicable costs and charges. Value added tax in countries of the European Union or an equivalent sales tax which is due in respect of the supply from the Supplier to the RSC shall be clearly identified separately on the invoice and shall be payable upon receipt of a valid VAT invoice.
4.4 The RSC is entitled to set off or reduce any payments due and owing to the Supplier by any amount which the RSC claims is owed to it by the Supplier pursuant to the Agreement or any other agreement or purchase order between the parties, or pursuant to any other agreement or purchase order between Affiliates of the RSC and the Supplier. Any exercise of rights by the RSC or Affiliates of the RSC under this clause shall be without prejudice to any other rights or remedies available to same.
5.1 The Supplier shall ensure throughout the applicable duration of these terms that it maintains:
(a) Employer’s Liability Insurance of not less than Ten Million pounds (£10,000,000);
(b) Public Liability Insurance of not less than Five Million pounds (£5,000,000); and
(c) Professional Indemnity Insurance of not less than Five Million pounds (£5,000,000) with a reputable insurer in respect of its liabilities under this these terms and shall make a copy of such policies available to the RSC upon request. The RSC reserves the right to change the levels of insurance required under this clause at its sole discretion.
5.2 The Supplier shall not do or omit to do anything which may render any of such policies void or voidable.
6. TERMINATION, SUSPENSION AND VARIATIONS
6.1 The RSC shall have the right immediately upon delivery to the Supplier of written notice, to order the suspension of, or any variation to, the provision of Goods or Services, in whole or in part, provided that any variation shall only be effective if it is within the capability and resources of the Supplier. Any increase or decrease in the cost of the Goods and/or Services resulting from the suspension or variation shall be determined by the RSC in accordance with the rates and other information shown in these terms, or, in the absence of any appropriate rates and information, a fair and reasonable evaluation shall be made.
6.2 Either party has the right at any time by giving notice in writing to the other party to terminate these terms forthwith if the other party commits a material breach of any of the terms or conditions of these terms.
6.3 The RSC may terminate these terms immediately by written notice to the Supplier, if in the RSC’s reasonable opinion, the Supplier or any of its Related Parties when performing work in connection with these terms commits any or causes the RSC or any of its Related Parties to be in breach of applicable Anti-Bribery Laws.
6.4 The RSC may terminate the Agreement without cause by giving thirty (30) days prior written notice of termination to the Supplier, and the RSC shall only be liable to pay for that part of the Goods and / or Services provided in compliance with the these terms prior to such date that the Supplier receives the RSC’s written notice to terminate.
6.5 If the Supplier becomes insolvent or makes an arrangement or composition with its creditors or has a winding up petition made against it or has a liquidator or receiver appointed or enters into liquidation either voluntarily or compulsorily, the RSC may terminate these terms.
6.6 Upon termination or expiry of these terms, the Supplier shall upon request by the RSC return or provide to the RSC all data, information, records and/or documents, regardless in which form, related to the RSC or Affiliates of the RSC, or its or their business which the Supplier has obtained from the RSC or produced in performance of these terms.
7. FORCE MAJEURE
7.1 A party will not be in breach of its obligations under these terms or otherwise liable to the other as a result of any delay or failure in the performance of its obligations if and to the extent that such delay or failure is directly caused by Force Majeure and is beyond the reasonable control of the party. The RSC will be relieved from any obligation to make payments to the Supplier for Goods and/or Services to be provided under these terms for so long as the supply of Goods and / or Services is impacted by Force Majeure.
7.2 A party whose performance of obligations under these terms is delayed or prevented by Force Majeure will without delay:
(a) notify the other party on an ongoing basis of the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure;
(b) use all reasonable endeavours to minimise the effect of the Force Majeure on its performance of its obligations under these terms; and
(c) subject to clause 7.3, promptly after the cessation of the Force Majeure, notify the other party thereof, provide the other with all reasonable information concerning the impact of and planned response to the Force Majeure, and promptly resume full performance of its obligations under these terms.
7.3 If the Supplier’s performance under these terms is prevented, hindered or delayed by an event of Force Majeure for a period exceeding one (1) month, the RSC may, in its absolute discretion terminate these terms upon giving written notice of termination.
8. CONFIDENTIAL INFORMATION
8.1 The Supplier undertakes, and warrants that it and its Affiliates undertake:
(a) to use RSC Information solely for the purpose of providing the Services and/or supplying the Goods; and
(b) not, without the prior written consent of the RSC, to disclose RSC Information to any third party.
8.2 The provisions of clause 8.1 shall not apply to any RSC Information if the Supplier can prove that it was or has become lawfully known to the Supplier without binder of secrecy or publicly available through no act or omission on the part of the Supplier.
8.3 At the request and option of the RSC, the Supplier shall either destroy or return promptly to the RSC, or its nominee, all records containing RSC Information which are in the possession of the Supplier.
8.4 The Supplier and the Supplier Personnel shall not mention / use the RSC’s name, the RSC’s trademarks or refer to the existence of these terms and the activities carried out under these terms in any publicity material or other communications to third parties without the RSC’s prior written consent.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All right, title and interest in and to the Work Product and any Intellectual Property Right shall vest exclusively in the RSC and shall be assigned to the RSC promptly upon creating or generating the same by the Supplier. The Supplier shall execute all instruments, deeds or actions necessary to vest such Intellectual Property Right in the RSC. The Supplier hereby irrevocably waives, or shall procure all necessary waivers in favour of the RSC of, all Intellectual Property Right in the Work Product.
9.2 The Supplier hereby grants to the RSC a non-exclusive, royalty-free, irrevocable and worldwide license and right for the RSC with sub- licensing rights to possess, disclose and use and/or have possessed, disclosed or used, the Background Information or any part thereof as necessary to use, copy, modify, distribute and exploit freely any Work Product.
9.3 The Supplier shall at its own expense defend, hold harmless and indemnify the RSC, and and Affiliates of the RSC, and its and their sub-licensees, governors, directors, officers, employees, and agents from and against all claims, proceedings, lawsuits, judgments, liabilities, losses, damages, costs (including legal costs and attorneys’ fees), fines, penalties, assessments and expenses arising out of any allegation or claim that the possession, disclosure, use by the RSC, an Affiliate of the RSC and/or any third party under sub-license of the RSC or any Affiliate of the RSC of any Background Information in accordance with the license provided pursuant to Clause 9.2 or the possession, disclosure, use or exploitation of any Work Product in accordance with the Agreement infringes any Intellectual Property Rights of a Body.
10. COMPLIANCE WITH ANTI-BRIBERY LAWS AND INTERNAL CONTROLS
10.1 The Supplier represents and warrants that, in connection with these terms or the business resulting therefrom:
(a) it is knowledgeable about Anti-Bribery Laws applicable to the performance of the Agreement and will comply with all such laws; and
(b) neither it nor a Related Party have made, offered or authorised or will make, offer or authorise any payment, gift, promise or other advantage, including a facilitation payment.
10.2 The Supplier undertakes to immediately notify the RSC if in connection with these terms or the business resulting therefrom it receives or becomes aware of any request from any person for any payment, gift, promise or other advantage of the type set out in clause 10.1(b).
10.3 The Supplier shall indemnify, defend, and hold harmless the RSC and its Related Parties from and against any and all losses, damages, claims, expenses, fines and penalties arising out of the Supplier’s representations in this clause 10 being untrue or arising out of the Supplier’s breach of any of its warranties or undertakings in this clause 10.
10.4 The Supplier and its Affiliates shall maintain adequate internal controls and procedures to assure compliance with Anti-Bribery Laws.
11. ASSIGNMENT AND SUBCONTRACTING
11.1 The Supplier shall not assign or subcontract any of its rights and/or obligations under the Agreement in whole or in part without prior written consent of the RSC, which consent the RSC may withhold in its sole discretion Approval to subcontract shall not relieve the subcontracting party from any of its obligations under these terms, or impose any liability upon the other party to any subcontractor.
12. NO AGENCY OR PARTNERSHIP
12.1 The Supplier is acting solely as an independent contractor and is not an agent or partner of the RSC or Affiliates of the RSC.
13.1 All notices, requests, variations, and other communications by the RSC or the Supplier are to be in writing and delivered promptly to the appropriate addresses named in these terms.
14. THIRD PARTY BENEFICIARIES
14.1 Where these terms expressly confers a benefit on an Affiliate of the RSC or the Supplier who is not a party to these terms (each a “Third Party Beneficiary”) such Third Party Beneficiary will be entitled by virtue of the Contracts (Rights of Third Parties) Act 1999 to enforce the benefits specifically conferred on it by these terms, provided that the consent of any Third Party Beneficiary will not be required for the variation or termination of these terms, even if that variation or termination affects the benefit conferred on it. Except as provided in this Clause, no term herein will be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, by any Person who is not a party to these terms.
15. AUDIT RIGHTS AND RECORD KEEPING
15.1 The RSC shall have the right to audit all information, rates and costs and expenses related to these terms at any time during the provision of the services and within five (5) years after termination of these terms. The RSC shall have the right to reproduce and retain copies of any of the aforesaid records or information. The Supplier shall implement all agreed recommendations arising from the audits within a time scale, mutually agreed with the RSC.
15.2 Upon the RSC’s request the Supplier will, as soon as reasonably practicable, provide the RSC with all records relating to the terms and / or any work statement in connection therewith which are created or kept by its Related Parties or third party contractors.
16.1 Failure or delay by the RSC in enforcing or partially enforcing any provision of these terms shall not be construed as a waiver of any of its rights under these terms.
16.2 Any waiver by the RSC of any breach of, or any default under, any provision of these terms by the Supplier shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms herein.
16.3 The covenants, conditions and provisions contained in these terms which the parties intend to survive, including confidentiality obligations, intellectual property rights and liabilities, audit rights, warranties, compliance with laws and Anti-Bribery Laws, governing law, dispute resolution, and indemnities, survive termination and expiry of these terms for the benefit of the party or parties to whom they are given.
16.4 These terms along with any related documentation agreed to be included herein by the parties, constitutes the entire agreement between the parties and supersedes all prior negotiations, representations or agreements related to the subject matter thereof, either written or oral. No amendments to these terms, nor any contrary or additional conditions specified by the Supplier in any document provided by the Supplier, shall be effective unless evidenced in writing and signed by the parties hereto.
16.5 The concept of severability of clauses applies.
16.6 The rights and remedies provided by these terms are cumulative and not exclusive of any rights or remedies provided in law, equity, or otherwise and shall extend to the RSC, its successors and assigns.
17. GOVERNING LAW AND DISPUTE RESOLUTION
17.1 These terms 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 the laws of England and Wales with the exception of its private international law. The United Nations Convention on the International Sale of Goods shall not apply to these terms. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these terms or its subject matter or formation (including non-contractual disputes or claims).
11 September 2015