Terms of Trade

Algorithm Productions LIMITED TERMS & CONDITIONS OF BUSINESS

  1. DEFINITIONS AND FORMATION OF CONTRACT

1.1 In these Conditions “Algorithm” means Algorithm Productions Limited, and any of its subsidiaries or holding companies (as defined by the Irish Companies Acts 1963 to 2003) as may from time to time be involved in the business the subject matter of the Contract. The “Customer” means any legal entity with whom Algorithm does business from time to time.

1.2 These terms and conditions (the “Conditions”) apply to all contracts for the provision or supply of goods, materials, information (each a “Deliverable”) services or facilities by Algorithm (together, including Deliverables, the “Obligations”).

1.3 These Conditions prevail over any inconsistent express or implied terms or conditions, contained in or referred to in a Customer’s order, in any correspondence between the parties or otherwise unless explicitly agreed by Algorithm in writing.

1.4 Each contract between Algorithm and the Customer (a “Contract”) shall consist of:(a) these Conditions;(b) the price set out in any quotation, invoice or estimate provided by Algorithm to the Customer (the “Estimate”) or, where no specific price is provided in the Estimate, the prices set out in the then current rate card of Algorithm (the “Rate Card”) (all such prices being exclusive of value added tax or any other tax or similar charge) (the “Price”); and(c) the description of Obligations set out in the Estimate sent to the Customer.

1.5 In the event of any ambiguity between the Conditions and any terms and conditions referred to in Clause 1.4 (b) or (c) above then these Conditions prevail. No addition to, or variation of or exclusion of these Conditions is binding on Algorithm unless explicitly agreed by Algorithm in writing. Nobody is authorised on Algorithm’s behalf to vary any Contract orally or to make any statement or representation about the goods, services or facilities which are the subject of any Contract, their fitness for any purpose or any other matter whatsoever.

1.6 Any dealings by the Customer with Algorithm following receipt by the Customer of these Conditions shall automatically be deemed acceptance of these Conditions by the Customer notwithstanding the absence of formal acceptance.

1.7 Unless otherwise explicitly stated in writing, any Estimate supplied to the Customer by Algorithm (whether or not accompanied by these Conditions) is an invitation to treat only and is not a binding offer. The Customer’s order is an offer and a Contract shall only come into existence and be binding on the parties on the earlier of acceptance by Algorithm in writing of the Customer’s offer or by Algorithm’s performance of the Obligations.

1.8 Nothing in any Contract will operate to prevent Algorithm from providing or supplying goods, services or facilities to any third party.

  1. PERFORMANCE AND DELIVERY OF OBLIGATIONS

2.1 In consideration of the payment by the Customer of the Price Algorithm agrees to provide the Obligations subject to the terms and conditions of the Contract.

2.2 All times and dates quoted by Algorithm for its performance of any Obligations are given in good faith, but time is not of the essence and the Customer shall have no right to damages or to terminate a Contract for failure by Algorithm for any reason to meet any such performance date or time, even if Algorithm agreed that time would be of the essence.

2.3 Obligations are dependent upon Algorithm’s prompt receipt from the Customer of all Customer Materials, information, complete instructions and/or approvals which Algorithm requests. Where Algorithm agrees, at its sole discretion, to a request from the Customer to alter the Obligations the Customer acknowledges that this may delay its performance of the Obligations.

2.4 Algorithm may, at any time, suspend its performance of the Obligations pending payment of any sum due from the Customer to Algorithm under any Contract between the Customer and Algorithm.

2.5 Any packaging supplied by Algorithm with a Deliverable is only intended to protect the Deliverable in normal conditions of delivery, of usual duration only.

2.6 If the Customer fails to take delivery of any Deliverable on an agreed delivery date or, if no delivery date has been agreed, when a Deliverable is ready for despatch, Algorithm shall be entitled to store and insure the Deliverable and to charge the Customer the reasonable costs of so doing.

2.7 Where any Deliverable is supplied by Algorithm to the Customer the Customer shall be deemed irrevocably to have accepted that Deliverable unless the Customer objects in writing to Algorithm within 24 hours of receiving it. If any Deliverable delivered to the Customer is of unsatisfactory quality Algorithm’s sole liability shall be to replace the Deliverable and Algorithm shall not be liable in relation to any Customer Materials which may be lost or damaged as a result of the loss of supply of any such Deliverable

  1. TERMS OF PAYMENT AND PRICES

3.1 At its sole discretion Algorithm may require the Customer to pay the Price in instalments at any time during the term of a Contract or prior to delivery of a Deliverable by sending an invoice for such amount to the Customer.

3.2 Unless otherwise agreed by Algorithm in writing any invoice sent to the Customer by Algorithm is payable in full within 30 days of the date of the invoice without any set-off or counterclaim by the Customer against any invoice submitted.

3.3 If the Customer fails to pay Algorithm any sum when due Algorithm shall be entitled, without prejudice to any other right or remedy, to suspend its performance of any or all Obligations under any Contract in existence at that time without notice and to charge interest on any amount outstanding at the rate of 3% above EURIBOR from time to time, from the due date of payment to the actual date of payment.

3.4 If Algorithm agrees, at its sole discretion, at the Customer’s request, to invoice a third party for the Price or any part of it then, until it is paid, the Customer shall remain liable to pay the Price and Algorithm’s rights under Clause 3.3 shall be unaffected.

3.5 Algorithm may increase the Price at any time to reflect any increase in its direct or indirect costs of performing the Obligations due to any matter beyond Algorithm’s control including, but not limited to, foreign exchange fluctuations, currency regulation, alteration of duties, increases in the cost of labour, materials, insurance or other costs, changes in delivery dates, quantities or specifications requested by the Customer, any delays caused by the Customer, the Customer’s failure to give adequate information or instructions to Algorithm, the Customer Materials being, in the opinion of Algorithm, of unsuitable quality for normal processing or where the Customer does not fully co-operate with Algorithm in a businesslike and expeditious manner.

3.6 The Customer has the right to terminate a Contract by giving Algorithm written notice within three days of the date of any notice of an increase in the Price sent pursuant to Clause 3.5 provided that the exercise of such right is prior to the performance by Algorithm of any of its Obligations under that Contract.

  1. TERM AND TERMINATION

4.1 A Contract shall commence on the date referred to in Clause 1.7 and shall continue until completion of the Obligations, unless earlier terminated in accordance with the Contract.

4.2 Algorithm may terminate any or all Contracts with immediate effect on giving written notice if the Customer is material breach of an obligation under a Contract or is in breach of any warranty or indemnity provision of a Contract.

4.3 Save as expressly provided in a Contract, a Contract may only be terminated or varied by the Customer with the written consent of Algorithm and the giving of such consent shall not in any way prejudice Algorithm’s right to recover from the Customer full compensation for any loss or expense arising from such termination or variation.

4.4 Without prejudice to any other rights or remedies available to Algorithm if Algorithm receives notice of a cancellation of an order from the Customer less than 24 hours prior to the date for beginning performance of the Obligations, Algorithm shall be entitled to charge the Customer in full for the Obligations under Algorithm’s Rate Card current at the date of such cancellation. If Algorithm receives such a notice of cancellation less than five working days but more than 24 hours prior to the date for beginning performance of the Obligations Algorithm shall be entitled, without prejudice to any other rights or remedies available, to charge the Customer one half of the full rate for the Obligations under Algorithm’s Rate Card current at the date of such cancellation. Both parties agree that the sums payable under this clause are genuine pre-estimations of the loss which would be suffered by Algorithm as a result of such cancellations.

4.5 Algorithm shall be entitled to terminate a Contract in whole or in part by notice in writing, without prejudice to any right or remedy accrued or accruing to Algorithm, if the Customer becomes bankrupt or insolvent or is unable to pay its debts, stops or threatens to stop making payments generally, or compounds with creditors or in the event of a resolution being passed, a petition being presented or proceedings commenced for the administration, winding-up or liquidation of the Customer (other than for a voluntary winding up for the purpose of reconstruction or amalgamation) or if a receiver, manager, administrator, examiner, trustee, or similar officer is appointed of all or any part of its assets or undertaking or if anything analogous to any of the foregoing events occurs in any applicable jurisdiction.

  1. LIABILITY

5.1 Subject to Clause 5.6, except for death or personal injury caused by the negligence of Algorithm, or any other liability which cannot be excluded by law, Algorithm’s aggregate liability for any claim whether in contract, tort (including negligence) or for any loss or damage, arising out of or in connection with a Contract or otherwise shall in no case exceed the Price payable under that Contract.

5.2 In no event shall Algorithm be liable for special, incidental, indirect or consequential damages including damages or costs incurred as a result of loss of time, loss of savings, loss of data or loss of profits.

5.3 The Customer shall indemnify and keep indemnified Algorithm in full against any direct or indirect liability for death or personal injury of any persons, or loss of or damage to any property, or which otherwise may arise out of the act, omission, default or negligence of the Customer, its employees or agents, breach of Customer’s obligations under a Contract and against all related or connected claims, demands, proceedings,damages, costs, charges and expenses whatsoever, or arising out of any act or omission of Algorithm in the course of carrying out the specific instructions of the Customer.

5.4 Any recommendations or suggestions given by Algorithm to the Customer, including, without limitation, a recommendation in respect of any Obligations or in respect of the purchase or supply of goods or services by third parties are given in good faith but it is for the Customer to satisfy itself of the suitability of these and/or the Obligations for its own particular purpose. Algorithm does not warrant that any Obligation or Deliverable to be supplied under a Contract will achieve any intended result, will be fit for any particular purpose (regardless of whether the purpose is disclosed in the Customer’s order or otherwise) or will be uninterrupted or error free, and any implied warranty or condition (statutory or otherwise) in respect of any Obligation or Deliverable is excluded to the extent permitted by law.

5.5 Algorithm provides no warranties, representation or assurances in respect of any Deliverable manufactured or created by a third party and supplied by Algorithm under a Contract, Algorithm will, however, use reasonable endeavours to pass to the Customer the benefit of any warranties received from third parties in respect of such Documentation on written request from the Customer.

5.6 Except as expressly set forth in a Contract, all warranties, conditions, representations, statements, terms and provisions express or implied by statute, common law or otherwise are excluded to the greatest extent permitted by law.

  1. INTELLECTUAL PROPERTY

6.1 The Customer warrants that it has obtained all necessary consents, licences or clearances (collectively, “Consents”) for (a) Algorithm’s use of any items, data, goods, material or information (including but not limited to video, text, sounds, pictures or any other items (the “Customer Materials”) it provides Algorithm; and/or (b) required for the purpose of Algorithm carrying out the Obligations; and/or (c) required for the subsequent exploitation or performance of any Deliverables or materials produced as a result of Algorithm carrying out the Obligations. Algorithm has no responsibility for reviewing any of the Customer Materials.

6.2 The Customer shall indemnify Algorithm against all damages, costs, charges and expenses arising from or incurred (whether direct or consequential), directly or indirectly, by reason of any work done by Algorithm in accordance with the Customer’s specifications or instructions or the use by Algorithm of any Customer Materials which is defamatory or libellous or is alleged to be defamatory or libellous, or which infringes or is alleged or claimed to infringe any third party rights (including but not limited to any performance rights, patent, trademark, copyright, registered or unregistered design, database, moral right or other intellectual property rights, or privacy or publicity rights).

  1. CUSTOMERS MATERIALS AND ASSISTANCE

7.1 Algorithm shall have no liability in respect of any loss of or damage to any Customer Materials supplied to or used or possessed by Algorithm and the Customer is responsible for ensuring that it has back-up copies of such Customer Materials.

7.2 The Customer shall insure all the Customer Materials to their full value against all risks during the time they are in Algorithm’s possession and/or use, and against any other loss or liability which it might suffer or incur arising out of or in connection with a Contract.

7.3 The Customer shall collect and remove all Customer Materials from Algorithm within four months of the date of issue of Algorithm’s final invoice relating to the Contract or a notice from Algorithm requiring such removal, whichever is the earlier. In the event of the Customer failing to comply with this obligation Algorithm shall be entitled to return all Customer Materials to the Customer at the Customer’s sole risk, or to destroy the Customer Materials, at its discretion, and may charge the Customer for any costs and expenses incurred by Algorithm in respect of any storage, return or destruction of the Customer Materials in the event that the Customer does not collect and remove the Customer Materials, as required by this Clause.

7.4 Where the Customer provide Customer Materials to Algorithm or gives Algorithm any specific instructions in relation to Obligations, Algorithm shall accept no liability any loss, damage or costs suffered or incurred by the Customer arising from the unsuitability of those Customer Materials or by Algorithm’s adherence to such specific instructions.

7.5 The Customer grants to Algorithm a non-exclusive, non-transferable licence to use Customer Materials provided by the Customer for the purposes of providing and performing Obligations.

7.6 The Customer shall ensure that Algorithm is entitled to use any Customer Materials which it provides to Algorithm for the purposes of the Contract, and, where appropriate shall ensure that such materials have been provided in compliance with any relevant data protection legislation, and shall indemnify Algorithm for any failure in this regard.

7.7 The Customer shall be solely responsible for ensuring that all information, advice and recommendations given to Algorithm either directly or indirectly by the Customer or by the Customer’s agents, servants, consultants or advisers are accurate, correct and suitable. Examination or consideration by Algorithm of such information, advice or recommendations shall in no way limit the Customer’s responsibility hereunder unless Algorithm specifically agrees in writing to accept responsibility.

7.8 The Customer shall provide Algorithm with all necessary information, support and co-operation (including ensuring that employees and independent contractors of the Customer co-operate fully with Algorithm) that may reasonably be required to enable Algorithm to carry out its obligations to the Customer under the Contract.

7.9 The Customer will comply and will procure that the Customer employees or agents will comply with Algorithm’s policies, procedures, requirements, stipulations, regulations, standards and directions which are in force as may be amended from time to time and as notified to the Customer, including, without limitation, any relating to health and safety, while working at any of Algorithm’s premises, or security or access obligations relating to Algorithm’s premises or equipment (including any updates or re-issues of the same). Algorithm has the right to refuse admission to, or order the removal from, Algorithm’s premises any person who is in breach of any of the foregoing while on or attempting to enter Algorithm’s premises or who, in the opinion of Algorithm, is under the influence of alcohol or drugs whilst on or attempting to enter Algorithm’s premises.

  1. RISK AND TITLE

8.1 Risk shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to any Deliverable which is the subject of a Contract(a) at the time when the Deliverable or a relevant part thereof arrive at the place of delivery, if Algorithm delivers the Deliverable by its own transport or if Algorithm specific agrees to arrange transport for the Deliverable; or (b) all other circumstances at the time when the Deliverable or a relevant part thereof leaves the premises of Algorithm.

8.2 Subject to Clause 6 and 7, title to any Deliverable which Algorithm supply as part of Obligations shall only pass to the Customer upon the happening of any one of the following events:(a) the Customer has paid to Algorithm all sums due and payable by it to Algorithm under all Contracts between Algorithm and the Customer; or(b) when Algorithm serves on the Customer notice in writing specifying that title in the Deliverable or such part thereof has passed.

8.3 Algorithm may recover a Deliverable in respect of which title has not passed to the Customer at any time and the Customer hereby irrevocably authorises Algorithm, its officers, employees and agents to enter upon any premises of the Customer for the purpose of repossessing any Deliverable in respect of which title has not passed to the Customer pursuant to Clause 8.2, or for the purpose of ensuring that Clause 8.4 is being complied with.

8.4 Until title to the Deliverable has passed to the Customer pursuant to these Conditions the Customer shall hold the Deliverable as a bailee of Algorithm. If Algorithm requests it the Customer shall store the Deliverable separately from other goods or material. The Customer shall ensure that the Deliverable is clearly identifiable as belonging to Algorithm.

8.5 The Company shall be entitled to a lien in relation to all Customers Materials, equipment materials and property of whatever description (including without limitation any film audio tape audio-visual tape computer disks) brought by the Customer on to Algorithm’s premises, which is in the possession or custody of Algorithm or which is held by Algorithm until payment in full by the Customer of all sums owed to Algorithm, but risk in all such property shall at all times remain with and be the responsibility of the Customer.

8.6 If the Customer fails to effect payment to Algorithm whether in whole or in part of any sums due pursuant to its agreement with Algorithm shall be entitled to sell hire or charge any property over which it has a lien, to exercise any rights vested in it or assigned to it and to retain the proceeds arising from such sale or exercise for Algorithm’s own use and benefit absolutely. The Customer expressly agrees and confirms that Algorithm shall not be deemed to be a trustee in respect of sums received by it in excess of the amount due to Algorithm nor shall such excess be taken to limit or reduce any damages otherwise payable to Algorithm as a result of any breach by the Customer of its agreement with Algorithm.

  1. FORCE MAJEURE

In the event of the performance of any Obligations being prevented, delayed or in any way interfered with by a direction of weather, government, war, industrial dispute, strike, riot or civil commotion, breakdown of machinery or equipment, accident, fire or any other cause beyond Algorithm’s control Algorithm may at its option suspend performance of the Obligations for a period of time or terminate a Contract without liability for any damage or any loss resulting from such suspension or termination, without prejudice to Algorithm’s right to recover all sums owing to it in respect of the Obligations performed and/or any costs incurred by it prior to such suspension or termination.

  1. SUB-CONTRACTORS

10.1 Algorithm shall be entitled to appoint one or more sub-contractors to carry out all or any of the Obligations.

10.2 The Company will not be responsible for third party contractors, directly or indirectly referred to the client or engaged in business on behalf of the client.

  1. GENERAL

11.1 The Customer shall observe the provisions and requirement of all applicable trade union agreements and shall indemnify Algorithm against any costs, expenses or loss incurred by it as a result of any failure by the Customer to do so.

11.2 Nothing in the Contract shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the parties.

11.3 Credits shall be given for all Obligations supplied by Algorithm, unless Algorithm expressly agrees otherwise.

11.4 The Contract constitutes the entire agreement between the parties in relation to the Obligations, and supersedes any previous agreements (including any discussions, correspondence or arrangements), between the parties relating to the subject matter of the Contract.

11.5 Any notice served under the Contract shall be sufficiently served if sent by post or fax to the usual or last known place of business of the addressee and proof of despatch in the case of a letter, and receipt of a successful transmission report in the case of a facsimile transmission, shall be conclusive evidence of receipt by the addressee in due course of transmission.

11.6 A failure to exercise or delay in exercising a right or remedy provided by the Contract or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by the Contract or by law prevents further exercise of that right or remedy or the exercise of another right or remedy.

11.7 Algorithm may assign or transfer any right or obligation under the Contract. The Customer may not assign or transfer or purport to assign or transfer a right or obligation under the Contract without having first obtained Algorithm’s written consent.

  1. LAW

The Contract shall be governed and interpreted exclusively according to the laws of the Republic of Ireland and shall be subject to the jurisdiction of the Irish Courts only.

ALGORITHM PRODUCTIONS LTD. 136 Capel Street, Dublin 1.

T +353 1 244 4503 E info@algorithm.ie

Registered in Ireland No. 579726 VAT: IE 3421326JH

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