Terms

SkyShowtime Limited Standard Terms & Conditions For The Purchase of Goods, Licences and Services (“Terms & Conditions”)

1. Definitions and Interpretation

   1. Unless the context requires otherwise, capitalised words and phrases have the meaning assigned to them as follows or in the body of these Terms & Conditions:

      “Adoption Agreement” means an agreement entered into by another SkyShowtime Group entity and the Supplier under which these Terms & Conditions and, as applicable, any Order is/are adopted;

      “Agreement” means the contract constituted by the Supplier’s acceptance of an Order that incorporates these Terms & Conditions, in accordance with clause 2;

      “Anti-Corruption Laws” means the US Foreign Corrupt Practices Act, the UK Bribery Act of 2010, the UK Criminal Finances Act and the anti-corruption Laws of any other applicable jurisdiction.

      “Confidential Information” means any Order, data, documents, databases, designs, schedules, instructions, plans, specifications, sketches, models, samples, technical information and/or other information, written, oral or otherwise of any type, however disclosed, relating to the business activities of a party (and/or, in the case of SkyShowtime, the SkyShowtime Group and/or Service Beneficiaries);

      "Control" means the power of a person, company, association or other separate legal entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by an articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes and "Controlled" shall be construed accordingly;

      “Deliverables” means the goods, materials, licences and/or services (and any physical results thereof) described in or otherwise required or delivered pursuant to the Agreement;

      “Indemnified Entity” means any SkyShowtime Group member or Service Beneficiary;

      “IPR” means all copyrights and all rights in patents, databases, designs, trademarks, trade names, domain names, service marks, trade secrets, and know-how, and other intellectual property rights (registered or unregistered), all applications for the same and all rights having similar effect anywhere in the world;

      “Law” means any: (a) statute, regulation, by-law, ordinance or subordinate legislation in force from time to time; (b) common law or the law of equity; (c) binding court order, judgment or decree; (d) applicable industry code, policy or standard enforceable by law; or (e) applicable legally binding direction, policy, requirement, code, principle, rule or order that is given by a regulator; “Losses” means all losses (including fines, penalties and tax liabilities), demands, liabilities, claims (threatened or actual), proceedings and damages and all related costs, expenses and payments, including those made to third parties (including additional taxes, irrecoverable VAT, legal fees and disbursements, costs of investigation, litigation and settlement, judgments and interest);

      “Order” means the purchase order or order form detailing, amongst other things, the Deliverables, and the charges that together with these Terms & Conditions forms the Agreement;

      “Sanctions Laws” means any export control or economic sanctions laws or regulations administered by the US Department of the Treasury’s Office of Foreign Assets Control, the US State Department, the United Nations Security Council, the United Kingdom, or the European Union or any member thereof. “Service Beneficiary” means any Service Provider or Service Recipient; “Service Provider” means any service provider of the SkyShowtime Group; “Service Recipient” means: (a) any joint venture entity to whom SkyShowtime Limited provides technical, infrastructure or enterprise services as part of such joint venture; and (b) any of SkyShowtime’s customers receiving SkyShowtime’s products and services;

      “SkyShowtime Group”: means SkyShowtime Limited and the legal entities that: (a) are direct or indirect parents or subsidiary undertakings of SkyShowtime Limited as defined in s1162 of the Companies Act, 2006 (as amended); or (b) directly or indirectly: (i) are Controlled by SkyShowtime Limited (ii) Control SkyShowtime Limited; or (iii) are under substantially common Control with SkyShowtime Limited;

      “SkyShowtime Limited” means the entity currently named SkyShowtime Limited, incorporated in England & Wales with registered company number 13770900;

      “SkyShowtime Security Standards” means the SkyShowtime Supplier Security Standards for Information Security and Cyber Security, at corporate.skyshowtime.com/suppliers;

      “SkyShowtime” means the SkyShowtime Group entity raising, or that is the signatory of, the Order;

      “Supplier” means the addressee, or signatory with SkyShowtime, of an Order; “Supplier Personnel” has the meaning given in clause 13.1; and

      “Third Party Act” means the Contracts (Rights of Third Parties) Act 1999.

   2. Words importing the singular include the plural and vice versa. Persons include unincorporated associations, partnerships and any entity with legal standing. References to “include” or “including” are construed as being without limitation. Clause headings are for ease of reference only and do not affect the interpretation or construction of the Agreement. References to a particular Law or provision of Law shall be construed as a reference to such Law or provision as amended and in force from time to time and to any Law or provision of Law which replaces, re-enacts or consolidates (with or without modification) any such Law or provision. A reference to any remedy, consequence or right of a party pursuant to a breach of a provision by the other party does not limit any other right or remedy of the party unless it is expressly stated to do so. References to “any” means “any” or “all” as the context requires.

2. Ordering Process

   1. Any SkyShowtime Group entity may place Orders under these Terms & Conditions and in the absence of any express reference to a SkyShowtime Group entity, the contracting entity shall be SkyShowtime Limited. The Supplier shall not accept Orders from, or enter into any Orders with, Service Beneficiaries unless consented to in writing by SkyShowtime Limited. Where requested by any SkyShowtime Group entity and notwithstanding the aforegoing provisions of this clause 2.1, the Supplier shall enter into an Adoption Agreement, to create a separate and discrete contractual relationship between the Supplier and that SkyShowtime Group entity.

   2. The Supplier’s commencement of providing Deliverables pursuant to an Order, or other implied or express communication of acceptance of the Order by the Supplier, shall constitute acceptance by the Supplier of the Order on these Terms & Conditions. The Terms & Conditions shall prevail over the Order in the event of a conflict, except insofar as the relevant provisions of these Terms & Conditions are explicitly referenced and varied in the Order. However, any terms and conditions in any quote, invoice, order form or other documentation which the Supplier states apply to any Deliverables, shall have no force or effect.

   3. Regardless of the date of acceptance of the Order, these Terms & Conditions shall, absent any signed agreement between SkyShowtime and the Supplier to the contrary, be effective from the commencement of provision of any Deliverables by the Supplier and, shall apply to all goods, materials, licences and/or services predating the Order.

3. Supply of Deliverables

   1. The Supplier shall provide the Deliverables to SkyShowtime in accordance with the timings set out in the Order or as otherwise agreed in writing. The Supplier shall provide Deliverables at or to the locations specified in the Order, and if the Supplier does not do so then the Supplier will bear any additional expense in handling and delivering to the correct destination.

4. Acceptance of Deliverables

   1. If the provision of Deliverables (or a part thereof) pursuant to the Agreement is incomplete or defective, SkyShowtime may accept or reject the Deliverables so provided and cancel the balance of the Agreement. Deliverables may be inspected, tested and subsequently accepted or rejected by SkyShowtime. SkyShowtime is not obliged to accept Deliverables without full written instructions for use. Deliverables in the form of goods supplied other than in accordance with the Agreement may (at SkyShowtime’s discretion) be returned to the Supplier at the Supplier’s expense and risk, and the Supplier shall pay all SkyShowtime’s associated costs in doing so. If any, or any part of any, Deliverables (whether or not inspected, tested or accepted by SkyShowtime) do not comply with the requirements of the Agreement or are otherwise not of a satisfactory quality or fit for purpose, then SkyShowtime may : (a) require the Supplier to, and if so required, the Supplier shall, promptly (and in any event within 14 days) replace or re-perform the relevant Deliverables so that they accord with the Agreement and are of a satisfactory quality and fit for purpose; or (b) arrange to have those Deliverables supplied or performed by a third party, in which case the Supplier shall reimburse SkyShowtime for all reasonable additional costs and expenses thereby incurred; or (c) terminate the Agreement immediately by written notice to the Supplier and require the Supplier to, and if so required, the Supplier shall, promptly repay to SkyShowtime any monies which SkyShowtime has paid to the Supplier.

   2. The Supplier indemnifies the Indemnified Entities in full against any and

      all Losses awarded against or suffered or incurred or paid by the Indemnified Entities as a result of or in connection with: (a) any claim that any of the Deliverables (and/or any Indemnified Entity’s receipt and/or use of the same)

      infringe the IPR of any other person; and/or (b) any negligent act or omission of the Supplier or the Supplier Personnel and any claim arising out of such an act or omission.

   3. In the event that an Indemnified Entity receives a claim set out in clause

      4.2 (“Relevant Claim”), SkyShowtime shall: (a) as soon as reasonably practicable give written notice of the Relevant Claim (with reasonable detail) to the Supplier; (b) not make any admission of liability, agreement or compromise in relation to the Relevant Claim (save where required by Law) which may be prejudicial to the defence or settlement of that Relevant Claim without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed); and (c) at the written request of the Supplier, afford to the Supplier all reasonable assistance for the purpose of contesting any Relevant Claim, provided that the Supplier shall pay to SkyShowtime all reasonable costs and expenses (including legal costs and disbursements on a solicitor and client basis) incurred by SkyShowtime in so doing.

   4. The Supplier shall, at its own expense, conduct any litigation arising from a Relevant Claim and all negotiations in connection therewith. The Supplier shall obtain the prior written approval of SkyShowtime before entering into any settlement of a Relevant Claim.

   5. The Supplier shall forthwith notify SkyShowtime if any third party challenges or makes a claim or demand or brings an action against, or notifies the Supplier of an intention to challenge, make or bring a claim, demand or action against the Supplier in relation to the Supplier’s IPR.

   6. Without prejudice to clauses 4.2 to 4.5, in the event of a Relevant Claim or the notification of a claim against the Supplier under clause 4.5, the Supplier shall: (a) procure for SkyShowtime and the Service Beneficiaries (at no cost to SkyShowtime) the right to continue to use and enjoy the Deliverables; or (b) subject to SkyShowtime's prior written consent (such consent not to be unreasonably withheld or delayed), re-provide or modify the Deliverables in a manner which renders the Deliverables non-infringing while still being in compliance with the requirements of the Agreement.

5. Warranties

   1. The Supplier represents, warrants and undertakes to SkyShowtime that:

      (a) the Supplier has the right, power and authority to enter into and to carry out its obligations under the Agreement; (b) the Deliverables will correspond strictly with any and all of SkyShowtime’s requirements or specifications (oral or in writing) provided to, or agreed with, the Supplier by SkyShowtime or on SkyShowtime’s behalf, or, if no requirements or specifications have been so agreed or provided, the Deliverables will be of satisfactory quality, free of defects and errors and fit for their purpose; (c) the Supplier and the Deliverables will comply with: (i) SkyShowtime Limited’s Supplier Code of Conduct at corporate.skyshowtime.com/suppliers; (ii) the SkyShowtime Security Standard; and (iii) all applicable Law; (d) all Deliverables that are services will be performed by appropriately experienced, qualified and trained Supplier Personnel who will act with due care and diligence, and in accordance with best industry practice; I the Supplier will at all times maintain insurance with a reputable insurance company sufficient to meet any potential liability under the Agreement and Law; and (f) neither the Supplier, the Supplier Personnel engaged to provide the Deliverables nor the Supplier’s shareholders are, directly or indirectly, (i) the subject of any Sanctions Laws; or (ii) organized, resident in, or have a physical place of business in any country or territory that is the subject of any Sanctions Laws.

   2. Other than the warranties set out in the Agreement, the Supplier provides no other express or implied warranties.

6. Confidentiality

   1. Subject to clause 6.2 below, and except where freely and legitimately available to the public prior to disclosure, the Supplier and SkyShowtime (each being a “Receiving Party” in relation to the Confidential Information of the other party) will not use or disclose to any third party any Confidential Information of the other party (the “Disclosing Party”) for any purpose other than as strictly necessary to provide or receive the Deliverables, without the express prior written consent of the Disclosing Party. All rights in the Confidential Information of the Disclosing Party remain the rights of the Disclosing Party. The Receiving Party will keep the Confidential Information of the Disclosing Party confidential and secure. The Receiving Party shall, on demand, either destroy (with certification by one of its officers) or return the Confidential Information of the Disclosing Party, provided that SkyShowtime shall not be required to return or destroy Confidential Information in the Deliverables unless otherwise agreed between the parties in writing.

   2. The Receiving Party may disclose the Confidential Information of the Disclosing Party to: (i) in the case of SkyShowtime, the SkyShowtime Group and Service Beneficiaries; and (ii) in the case of either party, such of its, directors, advisers, sub-contractors, agents, consultants, legal and financial advisors or

      employees, as may, in each such case, require access to the Confidential Information on a strict need-to-know basis, (“Permitted Disclosees”). The Receiving Party will ensure that its Permitted Disclosees: (i) are, in respect of the Disclosing Party’s Confidential Information, bound by confidentiality and use obligations at least as stringent as those set out in this clause 6; and (ii) have been informed of the confidential nature of the Confidential Information and the purpose for which it may be lawfully used. The Receiving Party may disclose the Disclosing Party’s Confidential Information if, and only to the extent that, it is required to do so by a regulator or a relevant stock exchange or otherwise under Law, provided that, to the extent that it is permitted to do so, it will: notify the Disclosing Party as soon as practicable upon becoming aware of the obligation to disclose; and co-operate with the Disclosing Party in avoiding or limiting the disclosure and obtaining assurances as to confidentiality from the body to whom the Confidential Information is to be disclosed.

   3. Neither party will without the other party’s prior written consent, advertise or publicise in any way any information concerning this Agreement or any customer / supplier relationship between the Supplier and SkyShowtime.

7. Data Protection

   If the Supplier is processing or will process personal data under the Agreement then the Supplier must comply with (and the Agreement shall be governed by) the Data Processing Agreement at Annex 1 to these Terms & Conditions. Without affecting any other provision of the Agreement, the Supplier hereby indemnifies the Indemnified Entities against all Losses suffered or incurred by, or brought against, them in connection with a breach by the Supplier of this clause 7.

8. Charges

   1. The price of, fees for, and charges in respect of, Deliverables are set out in the Order and, unless expressly stated otherwise, are exclusive of any applicable value added tax but inclusive of all other taxes, duties, charges, levies, royalties, labour, materials, carriage, insurance, subsistence, administration, overheads, profit or any other costs, expenses or resources required for the supply of the Deliverables. The Supplier will pass on to SkyShowtime the full benefit of any rebates/discounts given to the Supplier and that the Supplier would not have received but for SkyShowtime’s business.

   2. The Supplier may render invoices to SkyShowtime following acceptance of the Deliverables in accordance with clause 4.1 and as otherwise specified in the Agreement. Invoices must: (a) include the Order reference (or PO number); (b) conform to the Order regarding price and quantity; and (c) conform with all SkyShowtime’s other reasonable requirements. The Supplier shall, at the Supplier’s cost (if any), submit electronic invoices by email to invoices@skyshowtime.com.

   3. Unless otherwise expressly stated in the Agreement, SkyShowtime shall pay each, valid and undisputed VAT invoice before or during SkyShowtime’s batch processing week that is 60 days from the date SkyShowtime receives the invoice. Cleared funds should be received within 2 business days of being processed for payment via BACS and on the same day for foreign exchange wire payments. If SkyShowtime does not pay an undisputed invoice on time, then the Supplier may charge (and if charged SkyShowtime shall pay) interest on the overdue amount, at the rate of 2% above the Official Bank Rate set by the Monetary Policy Committee of the Bank of England from the due date until the date SkyShowtime pays the undisputed sum due.

   4. SkyShowtime may in good faith and reasonably dispute any sum in an invoice, and upon such dispute, the Supplier will promptly issue a credit note to SkyShowtime in respect of the disputed sum. An undisputed sum will be paid by SkyShowtime in accordance with the payment terms set out in this clause 8. The parties will attempt in good faith to resolve any dispute in respect of a disputed sum as soon as possible. Should resolution of the dispute entail that the Supplier may charge SkyShowtime for charges in respect of which a credit note was issued as aforesaid, the Supplier may issue an invoice to SkyShowtime for such charges, and SkyShowtime will pay in respect of such invoice in accordance with the payment terms set out in this clause 8.

   5. The Supplier agrees that the interest payable under this clause 8 is a substantial remedy for overdue amounts and is in lieu of any sums due pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 and/or the Late Payment of Commercial Debts Regulations 2013.

   6. The Supplier agrees that SkyShowtime may deduct from any monies due or becoming due to the Supplier any monies due from the Supplier to SkyShowtime, whether in connection with the Agreement or otherwise.

   7. SkyShowtime may deduct or withhold tax as required by Law and shall have no obligation to pay any additional amounts to the Supplier by way of compensation (or to otherwise gross-up any payments) as a result of any such deductions or withholdings.

   8. Except as provided in clause 8.7, neither party is liable for any taxes which the other party is legally obliged to bear and which relate to any transactions contemplated under the Agreement.

   9. SkyShowtime shall not reimburse the Supplier for travel, accommodation, subsistence or other expenses unless expressly agreed in writing prior to such expenses being incurred. Upon the request of SkyShowtime, the Supplier shall provide to SkyShowtime receipts relating to any expenses that SkyShowtime has agreed to reimburse and a summary of expenditure to support any invoice issued by the Supplier pursuant to such expenses. The Supplier shall not be entitled to charge an administrative uplift over and above charges and/or expenses.

9. Termination

   1. The Supplier may, by providing at least 30 days’ prior written notice to SkyShowtime, only terminate the Agreement if SkyShowtime has failed to pay any undisputed sum when due in accordance with the Agreement, and failed to remedy such non-payment within 60 days after the Supplier have informed SkyShowtime of such non-payment by written notice.

   2. Without prejudice to any of SkyShowtime’s other rights or remedies, SkyShowtime may, by written notice to the Supplier, immediately terminate the Agreement and any related Agreement/s without liability to the Supplier if: (a) the Supplier fails to supply any Deliverables on time; (b) the Supplier fails to remedy any other material breach within 5 days of receipt of written notice from SkyShowtime requiring the Supplier to do so; or (c) the Supplier is unable to pay its debts for the purposes of section 123 of the Insolvency Act 1986, the Supplier makes or proposes any voluntary arrangement or composition with its creditors, a bankruptcy or winding up petition is presented for the Supplier, the Supplier enters into compulsory or voluntary liquidation or has a receiver or other officer appointed over the whole or any part its the Supplier’s assets or undertaking, the Supplier has an administrator appointed to manage its affairs, business and property, or if the Supplier takes or suffers any similar action in consequence of debt or insolvency under the laws of the United Kingdom or any equivalent of the foregoing in any other jurisdiction.

   3. SkyShowtime may terminate the Agreement in whole or in part at any time on no less than 30 days’ prior written notice. Subject to the Supplier taking all reasonable steps to mitigate the Supplier’s losses, SkyShowtime will, on termination pursuant to this clause 9.3, reimburse the Supplier’s reasonable costs incurred in the performance of its obligations up to the date of termination in respect of which SkyShowtime has not yet made any payment, such costs in no circumstances to exceed the agreed charges for the Deliverables affected. If SkyShowtime terminates the Agreement in part, the Supplier will supply the remaining Deliverables in full and timeously, and the charges shall be reduced accordingly.

   4. Prior to termination or expiry of the Agreement, the Supplier shall consult with SkyShowtime about the steps to be taken to ensure an orderly cessation of the Deliverables and maintain SkyShowtime’s business continuity, including the delivery or migration of SkyShowtime data in a meaningful and useable format to SkyShowtime or a successor supplier of SkyShowtime.

10. Intellectual Property

    1. The Supplier warrants that the Deliverables (and SkyShowtime’s, the SkyShowtime Group’s and the Service Beneficiaries’ use and enjoyment of the Deliverables) will not infringe any third party’s IPR.

    2. Unless this clause is expressly overridden in an Order, all IPR in the Deliverables arising in connection with the Agreement and any media upon which such rights are contained (including any preparatory material and any media used to store such material) shall belong to and vest in SkyShowtime, and the Supplier shall assign the same to SkyShowtime with full title guarantee. To the fullest extent possible, the Supplier hereby assigns, in consideration of the sum of £1 (receipt of which is hereby acknowledged by the Supplier), such rights to SkyShowtime with full title guarantee and, where relevant, by way of a present assignment of future rights.

    3. In respect of any IPR that is expressed in an Agreement as not assigned to SkyShowtime, and notwithstanding anything to the contrary in any licence agreement entered into under an Order (unless it expressly varies this provision with specific reference to it), the Supplier hereby grants to the SkyShowtime Group a non-exclusive, perpetual, irrevocable, royalty-free, unlimited (including the right to transfer/sublicence in whole or in part) licence to use such Deliverables (and any ancillary rights necessary to enable the SkyShowtime Group and any Service Beneficiary to make full use of the Deliverables) for any purpose whatsoever.

       10.4. The Supplier hereby agrees promptly and without charge to procure the execution, completion and/or delivery of any formal consents or agreements (including waivers of moral rights) reasonably required by SkyShowtime to formalise or enforce the granting and/or assignment of rights set out herein

       or otherwise for the full enjoyment by the SkyShowtime Group and Service Beneficiaries of such rights.

11. Title and Risk

    Title and risk in the Deliverables shall pass to SkyShowtime on delivery and acceptance in accordance with the Agreement (except where the Deliverables include installation, in which case risk passes on completion of installation and acceptance by SkyShowtime).

12. Audit

    1. The Supplier shall give SkyShowtime and/or its agents reasonable, accompanied access, during working hours, to inspect and audit (“Audit”) the Supplier’s premises, systems, data, records, manuals, policies, processes, controls and other information relating to the Deliverables and the Suplier’s personnel (“Records & Controls”) in order to: (a) monitor compliance by the Supplier with its obligations under the Agreement and verify the accuracy, integrity, confidentiality and security of the Supplier’s Records & Controls to the extent relevant to the Supplier’s obligations under the Agreement; (b) verify the Supplier’s compliance with any applicable Law; (c) conduct any of SkyShowtime’s statutory audits; or (d) comply with any directions imposed on SkyShowtime by a regulator.

       12.2. SkyShowtime may give the Supplier 2 days’ notice of an Audit unless otherwise required by a regulator, in which case notice shall be as required by the regulator, and the Supplier shall provide prompt assistance to SkyShowtime and/or SkyShowtime’s agents without charge for so long as is reasonably necessary for the Audit to be carried out.

       1. SkyShowtime may conduct Audits any time up to 6 years after the end of the calendar year following expiry or termination of the Agreement.

       2. Except where otherwise stated in the Agreement, SkyShowtime will bear the cost of any Audit unless the Audit reveals that the Supplier’s not compliant, in which case the Supplier shall promptly pay all SkyShowtime’s costs in respect of the Audit. If SkyShowtime has overpaid the Supplier under the Agreement, then the Supplier shall promptly refund such overpayment to SkyShowtime, with interest. This clause 12.4 does not apply to Audits under the Data Processing Agreement at Annex 1 and does not affect SkyShowtime’s rights to separately claim damages for any breach of contract or SkyShowtime’s rights to claim under any indemnity in the Agreement.

13. Supplier Personnel

    1. The Supplier shall procure that all of its employees, workers, subcontractors (approved by SkyShowtime in accordance with clause 14.2) and agents (“Supplier Personnel”) attending SkyShowtime’s or a third party’s site in connection with this Agreement comply with: (a) any reasonable directions or instructions given to them; and (b) any applicable security, health and safety or other notices and regulations.

    2. The Supplier shall: (a) be solely responsible for all matters arising out of any contract of employment with, or engagement of, Supplier Personnel, whether express or implied; and (b) not do (or omit to do) anything which could or could be expected to imply an employment relationship between any SkyShowtime Group member and such Supplier Personnel.

    3. The Supplier acknowledges that the draft Finance Bill 2020 (the “Bill”) and Chapter 8 of Part 2 of the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”) apply to the Agreement. The Supplier agrees that if it engages Supplier Personnel, either directly or indirectly, in the provision of the Deliverables, then SkyShowtime is the client and the Supplier is the fee payer as contemplated by and for the purposes of the Bill. The Supplier agrees that all Supplier Personnel are within scope for ITEPA. If the Supplier disputes this then it must notify SkyShowtime in writing to ContractNotices@SkyShowtime.com in a timely manner (and in any event at least two weeks prior to entering into an Agreement), providing a sufficiently detailed justification to enable SkyShowtime to make a status determination statement (“SDS”) as defined in ITEPA prior to entering an Agreement. Unless SkyShowtime provides an SDS confirming that the Supplier Personnel are outside scope of ITEPA, the Supplier warrants, represents and undertakes that it shall deduct income tax and employer and employee National Insurance contributions (“NIC”) from the Supplier Personnel’s pay and pay employer’s NIC. The Supplier shall permit SkyShowtime, on reasonable notice, to carry out an audit of the Supplier Personnel’s pay and the PAYE and NIC deductions. If the provisions of the enacted legislation differ from the provisions of the Bill, then SkyShowtime may amend the provisions of this clause 13.3 to accord with the changes.

    4. The Supplier indemnifies and holds harmless the Indemnified Entities against any Losses, including any employer or employee tax or national insurance liabilities, which any Indemnified Entities may suffer as a result of any claim or threatened claim that an employment or other relationship exists

       between any Indemnified Entities and the Supplier Personnel or arising out of the Supplier’s failure to comply with clauses 13.1, 13.2 and 13.3.

    5. Without limiting clauses 13.1 to 13.4, the Supplier indemnifies the Indemnified Entities against all Losses suffered by the Indemnified Entities, either directly, under an agreement with a successor supplier of the Deliverables to SkyShowtime, or otherwise, in connection with: (a) any breach of Regulation 13 (duty to inform and consult representatives) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended ("TUPE"); (b) any actual or alleged act or omission by the Supplier of any of its obligations or liabilities, or any other event occurring prior to the termination of the Agreement, in relation to Supplier Personnel; and/or (c) without limitation, any claim for redundancy payment, unfair dismissal compensation or notice monies and expenses or a protective award, in connection with or as a result of any claim or demand by any Supplier Personnel arising directly or indirectly from the termination or expiry (in whole or in part) of the Agreement or reduction in supply of any of the Deliverables or directly or indirectly from TUPE.

14. General

    1. The Supplier shall maintain (and provide evidence if requested of) incident and crisis management, disaster recovery and business continuity plans to meet the necessary standards prescribed by any applicable regulator and good industry practice.

    2. The Supplier shall not assign, transfer or subcontract or purport to assign, transfer or subcontract to any other person any of the Supplier’s rights and/or obligations under the Agreement without SkyShowtime’s prior written consent. SkyShowtime’s approval of a sub-contractor will not relieve the Supplier of any liability under the Agreement and the Supplier is and shall remain principally responsible and liable for all acts and omissions of its subcontractors as if they were the Supplier’s acts and omissions. SkyShowtime may transfer all or any of its rights and/or obligations under the Agreement to any SkyShowtime Group member or any successor in title to all or part of its business.

    3. No waiver of any right (including a right in respect of a breach of the Agreement) shall be considered as a waiver of any subsequent right (including a right in any subsequent breach of the same or any other provision), and any such waiver shall be specific and in writing.

    4. Save as set out in clause 9.1, rights and remedies stated under the Agreement shall be cumulative and without prejudice to any other rights and remedies available to a party hereunder or under Law.

    5. No variation of the Agreement shall be valid unless in writing (excluding writing in the body of an email) and signed (excluding by way of a signature in the body of an email) by authorised representatives of the parties.

    6. If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, then the validity of the other provisions of the Agreement shall not be affected.

    7. Each Agreement shall form the entire agreement between SkyShowtime and the Supplier relating to the Deliverables and, without affecting any of SkyShowtime’s remedies (or the Supplier’s liability) for any misrepresentation by the Supplier, the Agreement replaces and supersedes any previous proposals, correspondence, understandings or other communications whether written or oral and prevails over any inconsistent terms or conditions contained or referred to in the Supplier’s quotation or correspondence or elsewhere or implied by trade custom, practice or course of dealing.

    8. The provisions of the Agreement which expressly or by implication are intended to survive termination will do so and will continue to be binding without limit in time.

1. The SkyShowtime Group’s entire liability to the Supplier pursuant to any Agreement shall be the charges for the Deliverables to be provided by the Supplier as set out in the Agreement together with any interest due pursuant to clause 8. This clause does not in any way limit the SkyShowtime Group’s liability for death or personal injury caused by the SkyShowtime Group’s negligence or for fraud.

2. Except in respect of: (a) a breach by the Supplier of clause 6 (Confidentiality) or clause 7 (Data Protection); (b) any intentionally harmful or fraudulent act or omission by the Supplier; (c) any of the Supplier’s indemnity obligations; (d) damage to, loss or destruction of real property or tangible personal property; (e) fraudulent misrepresentation or misstatement; (f) death or personal injury caused by the Supplier’s negligence or that of the Supplier Personnel; or (g) any liability that may not otherwise be limited or excluded by Law, for which, in each case, the Supplier’s liability will be unlimited, the Supplier’s total aggregate liability to SkyShowtime whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of, or in relation to, the Agreement, will be limited to the greater of twice the charges for the Deliverables to be provided by the Supplier

as set out in the Agreement and £500 000 (five hundred thousand Pounds Sterling). Save for the exceptions set out in the foregoing subclauses (a) to (g), which are unlimited, neither party shall not be liable to the other for any indirect or consequential Losses arising out of a breach of the Agreement.

1. Should an Order include any assumptions, dependencies or obligations on SkyShowtime in respect of the provision by the Supplier of the Deliverables (each a “Dependency”) then, the Supplier will only be relieved from performing its directly affected obligations pursuant to the Agreement if, and to the extent that, the relevant non-performance directly results from a Dependency not being met and the Supplier has promptly notified SkyShowtime in writing: (i) that a Dependency has not been met; and (ii) of the Supplier’s intention to be relieved from performing the Supplier’s directly affected obligation/s. The Supplier shall in any event use all commercially reasonable efforts to perform its obligations and minimise the impact of such non-performance, notwithstanding that a Dependency has not been met.

2. The Agreement is entered into by SkyShowtime for the benefit of all members of the Service Beneficiaries which may make use of the Deliverables. However, only SkyShowtime Group members may enforce any rights under the Agreement in accordance with the Third Party Act. Save for the rights of members of the SkyShowtime Group, the Third Party Act is hereby excluded.

3. Nothing in the Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

4. Any notice in connection with the Agreement shall be delivered as follows:

   In SkyShowtime’s case: to ContractNotices@SkyShowtime.com; and

   In the Supplier’s case: to the email address specified by the Supplier for the receipt of Orders during the Order set-up process, or such other address as the Supplier may notify to SkyShowtime in writing.

5. The Agreement and any non-contractual rights or obligations arising out of or in relation to it, shall be governed by and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the English courts for any dispute arising in connection with the Agreement, save that nothing in the Agreement shall prevent SkyShowtime from bringing any proceedings against the Supplier in any other jurisdiction in which the Supplier have any business or assets.

6. Neither the Supplier nor Supplier Personnel or shareholders, directly or indirectly, in private or public sector dealings, shall offer, give or agree to offer or give, receive or request to receive, any payment, gift or other advantage (whether or not by payments under the Agreement) which: (i) violates any Anti-Corruption Laws applicable to the Supplier and/or the SkyShowtime Group; or

   (ii) which a reasonable person would consider to be unethical or illegal. Without prejudice to clause 9 (Termination), if SkyShowtime suspects a breach of this clause 14.15, then SkyShowtime may terminate any Agreement/s immediately upon written notice to the Supplier.

7. the Supplier undertakes that it will, on an ongoing basis and as a material obligation of the Agreement, disclose all pertinent information regarding the Deliverables sufficient for SkyShowtime to comply with all applicable export and import Laws, including the required levels of encryption technology, and the Supplier will notify SkyShowtime sufficiently in advance when the level of encryption technology changes.

Annex 1

Data Processing Agreement

This data processing agreement (“DPA”) forms part of and is subject to the Agreement entered into by SkyShowtime and the Supplier. Terms not otherwise defined in this DPA shall have the same meaning as in the Agreement. In the event of a conflict or inconsistency between this DPA and the remainder of the Agreement, this DPA shall govern to the extent required to resolve such conflict or inconsistency, unless a provision of the Agreement explicitly overrides any provision of the DPA by specific reference to such provision(s).

1. DEFINITIONS AND INTERPRETATION

   1. The following terms shall have the meanings ascribed to them: “Applicable Data Protection Law” means all applicable laws relating to privacy and data protection including but not limited to (a) the General Data Protection Regulation (EU 2016/679) (the “GDPR”), (b) the UK GDPR, and (c) the Directive on privacy and electronic communications (2002/58/EC, as amended), as well as, all laws implementing each of (a) to (c) above, all laws implementing such Directives and/or Regulation, as amended or updated from time to time (including UK Laws). In the event, any such Directive, Regulation or laws are repealed or replaced, the successor legislation to such repealed or replaced Directive, Regulation and/or Law shall be deemed to constitute Applicable Data Protection Law.

      “Instruction” means a written instruction (including by email) from SkyShowtime to the Supplier relating to the Supplier’s processing of personal data as SkyShowtime’s processor.

      “SCCs” means in respect of personal data to which the: (i) GDPR applies, either:

      (a) where SkyShowtime acts as controller and the Supplier acts as processor, the version of the EU Commission-approved Standard Contractual Clauses containing Module Two (Transfer controller to processor), (b) where both parties act as independent controllers, the version of the EU Commission-approved Standard Contractual Clauses containing Module One (Transfer controller to controller), or (c) where SkyShowtime acts as processor and the Supplier acts as sub-processor, the version of the EU-Commission approved Standard Contractual Clauses containing Module Three (Transfer processor to processor), in each case available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914&from=EN; (ii) UK GDPR applies, a version of the applicable clauses referenced at (i) above, as amended by the UK Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner under section 119A(1) Data Protection Act 2018 (the “UK Addendum”), and (iii) Swiss Federal Act on Data Protection (“FADP”) applies, a version of the applicable clauses referenced at

      (i) above that includes all necessary amendments to make them legally effective in Switzerland, including but not limited to the following: references to the GDPR will be deemed to be references to the FADP, references to “personal data” will be deemed to include references to legal entities (until the entry into force of the revised FADP), references to “sensitive data” will be deemed to be references to “sensitive personal data and personality profiles”, and the term “Member State” shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence in accordance with Clause 18(c).

      “Third Country” means: (i) if the relevant SkyShowtime Group entity is established in the EEA or Switzerland, a jurisdiction outside the EEA or Switzerland that has not been deemed adequate for data protection purposes by the European Commission, or (ii) if the relevant SkyShowtime entity is established in the UK, a jurisdiction outside the UK that has not been deemed adequate for data protection purposes under UK law.

      “UK GDPR” has the meaning ascribed to it section 3(10) of the UK Data Protection Act 2018,

   2. Where defined in Applicable Data Protection Law, the terms “controller”, “data subject”, “data protection impact assessment”, “data protection officer”, “personal data”, “personal data breach”, “prior consultation”, “pseudonymisation”, “processor”, “processing”, “restriction of processing”, “supervisory authority concerned” shall have the same meanings as ascribed to them in Applicable Data Protection Law. Where any such term is not defined in Applicable Data Protection Law, it shall have the meaning ascribed to it in the General Data Protection Regulation (EU/2016/679).

2. ROLES OF THE PARTIES

   2.1 Save where clause 2.2 or clause 2.3 applies, SkyShowtime, acting as controller, hereby appoints the Supplier for the duration of this Agreement as its processor with respect to the data processing carried out in connection with this Agreement. The details of the personal data processing carried out by the Supplier are set out in the Order(s) and such details shall only apply in respect of the personal data processing carried out under such Order(s).

   2.2 Each party acknowledges that it is an independent data controller in respect of the personal data of the other party’s personnel that it receives and processes to maintain its business relationship with the other party in connection with this Agreement. In relation to such personal data, each party

   shall: (i) comply with Applicable Data Protection Law in its processing of such data, and (ii) only process such personal data for purposes of the Agreement, to comply with applicable law, or, where permitted by Applicable Data Protection Law, to provide the other party with information about its products and services.

   2.3 The parties acknowledge that in certain scenarios SkyShowtime and the Supplier may act as processor (acting on the instructions of a separate controller) and sub-processor respectively and this Agreement and references to the Supplier acting as processor should be construed accordingly.

3. DATA PROCESSOR OBLIGATIONS

   1. The Supplier shall comply with its obligations as processor under Applicable Data Protection Law and the Supplier acknowledges that nothing in this DPA relieves it from its responsibilities and liabilities under Applicable Data Protection Law.

   2. The Supplier shall only process personal data as SkyShowtime’s processor in accordance with SkyShowtime’s lawful Instructions, except where required to process personal data to comply with EU, EU Member State, or UK law to which the Supplier is subject, in which case it shall notify SkyShowtime of the relevant legal requirement before processing unless it is legally prohibited from doing so. The Supplier will notify SkyShowtime immediately in the event it reasonably believes any Instruction given by SkyShowtime is contrary to Applicable Data Protection Law. The Parties agree that this Agreement is comprised of SkyShowtime’s main set of Instructions and the Supplier acknowledges that SkyShowtime may issue supplemental Instructions in relation to personal data the Supplier processes as SkyShowtime’s processor, including for the Supplier to:

      1. provide reasonable assistance to SkyShowtime, taking into account the nature of processing and the information available to the Supplier, so that SkyShowtime is able to:

         1. access all documents (only in so far as they relate to personal data processed by the Supplier as SkyShowtime’s processor) which the Supplier is required to maintain under Applicable Data Protection Law (if any) about such personal data processing;

         2. manage and respond to the exercise by any data subject of any of the rights afforded to data subjects under Applicable Data Protection Law;

         3. manage and respond to any notices or questions addressed to SkyShowtime from the supervisory authority concerned;

         4. evaluate the technical and organisational measures the Supplier is required to implement under clauses 3.3, 3.4 and 3.5;

         5. manage, mitigate and resolve any personal data breach, including the preparation and filing of any notification of any personal data breach to the supervisory authority concerned or relevant data subject(s);

         6. carry out data protection impact assessments (at SkyShowtime’s discretion) and prior consultations with the supervisory authority concerned (where required under Applicable Data Protection Law) in relation to the personal data the Supplier processes as SkyShowtime’s processor; and

         7. demonstrate its compliance with its obligations under Applicable Data Protection Law; and

      2. allow for and reasonably collaborate with SkyShowtime, an auditor mandated by SkyShowtime and/or the supervisory authority concerned carrying out desk-based audits, on-site audits and/or inspections of the Supplier, any of its sub-processors (to the extent permitted under the Supplier’s agreement with that sub-processor) and/or any of the facilities and IT systems used to process personal data on SkyShowtime’s behalf from time to time (including before such processing commences) to verify the Supplier’s compliance with its obligations under this DPA and Applicable Data Protection Law.

   3. The Supplier shall:

      1. subject to clause 4, keep the personal data it processes as SkyShowtime’s processor strictly confidential;

      2. ensure that its personnel are bound by appropriate, written and enforceable confidentiality obligations concerning the personal data and that they process such personal data only in accordance with SkyShowtime’s Instructions;

      3. subject to clause 4, not allow any third party access to the personal data or otherwise transfer the personal data to any third party; and

      4. subject to clauses 4 and 5, not transfer the personal data outside of the UK or EEA.

   4. For the duration the Supplier acts as SkyShowtime’s processor under this Agreement, the Supplier shall:

      1. implement and document appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the rights and freedoms of the data subjects presented by the Supplier processing personal data as SkyShowtime’s processor, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of such

         processing as well as the varying likelihood and severity of such risk, including measures to:

         1. guard against unauthorised or unlawful processing and personal data breaches;

         2. as appropriate, apply pseudonymisation and encryption to the personal data;

         3. ensure the ongoing confidentiality, integrity, availability and resilience of the Supplier’s and any sub-processor’s processing systems and services;

         4. restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and

         5. regularly test, assess and evaluate the effectiveness of such technical and organisational measures;

      2. without prejudice to the generality of clause 3.4.1, comply with the SkyShowtime Supplier Security Standard.

   5. For the duration the Supplier acts as SkyShowtime’s processor under the Agreement, the Supplier shall implement and document appropriate technical and organisational measures in relation to the personal data it processes as SkyShowtime’s processor to ensure that it is able to promptly:

      1. provide to SkyShowtime any such personal data in a commonly used electronic format, implement the restriction of processing of any such personal data, delete any such personal data and/or modify any such personal data if it receives an Instruction to do so by SkyShowtime; and

      2. identify any data subject requests to exercise any of the rights afforded to data subjects under Applicable Data Protection Law in relation to such personal data.

   6. The Supplier shall notify SkyShowtime:

      1. promptly if it receives any notice, request, query, consultation or complaint from the supervisory authority concerned or any data subject relating to the personal data the Supplier (or any sub-processor) processes as SkyShowtime’s data (sub)processor (including the requests and/or notices referred to in clause 3.2.1(c) to 3.2.1(d)) or that otherwise concern to SkyShowtime and/or the Supplier’s compliance with Applicable Data Protection Law;

      2. without undue delay, via email to DataIncidents@Skyshowtime.com, if it becomes aware of any personal data breach or breach of this DPA or SCCs (where applicable), providing, to the extent reasonably possible, the information SkyShowtime is required under Applicable Data Protection Law to provide to the supervisory authority concerned.

   7. Subject to the Supplier’s requirements under Law, if the Supplier becomes aware of any personal data breach involving personal data processed under this DPA and without prejudice to clauses 3.2.1(F) and 3.6.2, SkyShowtime is exclusively responsible for preparing and managing any notification of and/or correspondence with the supervisory authority concerned, any data subject and/or other third party relating to such personal data beach. Subject to the preceding sentence and any Instruction under clause 3.3.1(F), the Supplier shall take all reasonable steps to investigate, mitigate and resolve such personal data breach.

   8. Upon the Agreement’s or relevant Order’s (as applicable) termination or expiry (whichever is sooner) and subject to any Instruction to the contrary as well as the Supplier’s obligations under Law, return to SkyShowtime in a reasonably commonly used digital format the personal data it processes as SkyShowtime’s processor under the Agreement or the relevant Order (as applicable) and then promptly delete and cease processing all such personal data. The Supplier shall ensure that all of its sub-processors (if any) comply with this clause 3.8 and certify its and such sub-processors compliance to SkyShowtime in writing.

4. SUB-PROCESSING AND DISCLOSURES

   1. Subject to clause 4.2 below, SkyShowtime hereby consents to the Supplier appointing sub-processors listed in the Order(s) to assist the Supplier with the processing of personal data under the Agreement. Where the Supplier wishes to add or replace a sub-processor, the Supplier shall notify SkyShowtime providing reasonable details and SkyShowtime shall have 14 days from receipt of notice to object to such change. Where SkyShowtime objects to a change and the Supplier is unable to resolve SkyShowtime’s objection, the Supplier will not proceed with the relevant change. If SkyShowtime fails to respond within 14 days, it shall be deemed to have consented to the change.

   2. The Supplier shall only allow a sub-processor to process the personal data the Supplier processes under this Agreement as SkyShowtime’s processor if:

      1. the Supplier has carried out adequate due diligence and is satisfied that the sub-processor is capable of providing the level of protection for personal data that is required under this DPA and, if applicable, the SCCs;

      2. such sub-processor’s processing of such personal data is: (i) carried out exclusively from a territory that is deemed to provide an adequate level of protection under Applicable Data Protection Law, (ii) subject to an appropriate data transfer mechanism permitted under Applicable Data Protection Law (which may include SCCs) or (iii) otherwise deemed under Applicable Data Protection Law to be subject to adequate levels of protection;

      3. it notifies SkyShowtime, providing details of the identity and location of the proposed sub-processor, a description of the intended processing to be carried out by the sub-processor and confirmation that adequate due diligence has been conducted as required under clause 4.1.1;

      4. the written contract under which such sub-processor processes such personal data is not less onerous than this DPA.

         For the avoidance of doubt, the Supplier shall remain fully liable to SkyShowtime for acts and omissions of the Supplier’s sub-processors.

   3. If the Supplier is required by Law to grant access to or otherwise transfer the personal data to a third party (whether nationally or internationally), it shall:

      1. if permitted by Law, give SkyShowtime as much prior notice as is reasonably possible (including reasonable information concerning such access or transfer and the relevant requirement(s) under Law);

      2. limit such access or transfer to the minimum reasonably possible; and

      3. provide SkyShowtime with all reasonable assistance should SkyShowtime choose to challenge such access or transfer.

5. INTERNATIONAL DATA TRANSFERS

   1. If the Supplier processes personal data at or from its facilities in a Third Country as SkyShowtime’s processor or this Agreement otherwise involves an international transfer of personal data between SkyShowtime and the Supplier for which Applicable Data Protection Law requires a party or the parties to adduce an adequate level of protection, the SCCs shall be incorporated by reference into this DPA. The parties agree that the Supplier is the Data Importer and relevant SkyShowtime Group entity is the Data Exporter. The Supplier represents and warrants that it has fully and accurately completed a data transfer impact assessment (provided to it by SkyShowtime) in relation to such processing. Where this clause 5.1 applies and unless otherwise agreed by the parties:

      1. the sections of the Order identified as covering the information required for Annexes 1 and 2 of the SCCs and Tables 1 and 3 of the UK Addendum shall apply to the SCC’s and UK Addendum, as applicable;

      2. for the purposes of Section 19 of the UK Addendum, neither party shall have the right to end the UK Addendum when a revised version is issued by the ICO;

      3. option 2 of Clause 9 (general authorisation of sub-processors) of module two of the SCCs shall apply in relation to the Data Controller's authorisation of the use of subprocessors and Data Processor shall notify Data Controller in writing of any intended changes to that list through the addition or replacement of sub-processors in accordance with this DPA; and

      4. in respect of EEA personal data:

         1. option 1 of Clause 17 of module two of the SCCs shall apply and the parties agree that the governing law shall be the law of the Republic of Ireland; and

         2. any dispute arising from the SCCs shall be resolved by the courts of the Republic of Ireland in accordance with Clause 18 of module two of the SCCs,

   2. Nothing in this Agreement shall be construed to prevail over any conflicting clause of the SCCs. Each party acknowledges that it has had the opportunity to review the SCCs.

   3. If the Supplier engages a sub-processor in a Third Country to process personal data and the processing is not otherwise deemed under Applicable Data Protection Law to be subject to adequate levels of protection and the Supplier is unable to rely on an alternative data transfer mechanism permitted under Applicable Data Protection Law, the Supplier will assist SkyShowtime to adduce an adequate level of protection for such personal data. The Supplier shall provide SkyShowtime with a copy of any SCCs entered into pursuant to this section promptly on request.

   4. If, for whatever reason, any transfer of personal data under the SCCs referred to in clauses 5.1 and 5.2 ceases to be lawful, SkyShowtime may, at its discretion:

      1. require the Supplier to cease transfers of personal data to, or access to such personal data from, the relevant jurisdictions, or

      2. require the Supplier to promptly cooperate with SkyShowtime to facilitate SkyShowtime’s use of an alternative lawful data transfer mechanism to enable the transfer of such personal data.

If SkyShowtime and the Supplier are unable to promptly enter into such an alternative data transfer mechanism, then SkyShowtime may (at its option) terminate the Agreement, or reduce its scope to exclude personal data, at no additional cost to SkyShowtime.