Pro Forma Interim Independent Commissioning Agreement

Interim Radio Programme Commissioning and Distribution Agreement (PDF)

Comhaontú Eatramhach um Choimisiúnú agus Dáileadh Cláir Raidió (PDF)


This Radio Programme Commissioning and Distribution Agreement (“Agreement”) is dated the ________________ day Of _______________, 20___ between:

(1) RAIDIÓ TEILIFÍS ÉIREANN is a public service broadcasting corporation in accordance with the Broadcasting Act 2009 and having its principal place of business at Montrose, Donnybrook, Dublin 4, Ireland (“RTÉ”); and

(2) [NAME] [a limited company registered [in Ireland] under company registration number [xxx] and having its registered address and principal place of business at [ADDRESS] OR [NAME] of [ADDRESS] (the “Producer”) collectively referred to as “the Parties”.

The Programme Specification:

Programme title:

Editorial Specification:

Episodes/duration:

Delivery Format:

Key Personnel:

End credit:

[XXX]

See Schedule 1 attached

[X] x [Y]minutes

See Schedule 3 attached

Producer:
Contributors:

"A [] Production for RTE" (All credits will be subject to RTE approval and RTE credit guidelines)

Programme Delivery Materials:See Schedule 3 attached

Delivery Date(s)

Script (if applicable):
Rough edit:

Final mix:

Agreed Budget:

RTE contribution


Contingency Provision (if applicable):

Cash Flow Schedule:

€[](see Schedule 2)

RTE will pay €[] in production funding to commission the production and delivery of the Programme to RTE.

€[] (included in Agreed Budget)

(a) €[] on signature of this Agreement

(b) €[] on delivery and RTE acceptance of the Programme Delivery Materials

(c) Balance on final reconciliation of production accounts

Production Bank Account (if applicable):Details to be confirmed

Special Conditions:

Background

(A) The Producer has certain skills, abilities and facilities which RTÉ wishes to utilise in connection with the commissioning by it of the Programme (as defined below) as more particularly set out below.

(B) The Producer is an independent [producer][production company] willing to provide the Programme services as set out herein to RTÉ in connection with the Programme.

(C) RTÉ wishes to commission the making of the Programme the particulars of which are set out in Schedule 1 and the Producer wishes to accept such commission on the terms set out herein.

1. Definitions and Interpretation

1.1 In this Agreement the following expressions have the following meanings unless inconsistent with the context:

“Accompanying Visual Material” means audio-visual material produced by or on behalf of RTÉ (or provided to RTÉ by the Producer) for use as an accompanying visual in relation to the Programme as streamed, downloaded or otherwise made available in accordance with this Agreement.

“Agreed Budget” means the total agreed budget for the Programme as set out in Schedule 2.

“Broadcast Rights” means the sole and exclusive right to make the Programme and/or any clips (not to exceed 30% of the Programme) (in either case with or without Accompanying Visual Material) available throughout the world for the entire copyright period (including all renewals, revivals and extensions) and thereafter in perpetuity via all forms of radio now known or hereafter invented (including without limitation via analogue, digital, terrestrial, cable, MMDS, satellite, internet and mobile phone) including but not limited to via on demand streaming and/or via simulcast on the internet (with or without geo-blocking).

“Contribution” means the total fees as agreed by RTÉ and the Producer as set out in Schedule 2 which shall represent all sums due and owing by RTÉ in respect of inter alia the Producer’s fee, all costs relating to any compilations, performances/scripting, mixing and recording undertaken in the production of the Programme and any other associated production costs.

“Cash Flow Schedule” means the cash flow schedule described in Schedule 2.

“Delivery Date” means [add date] being the date by which the completed Programme must be delivered to RTÉ as specified in Schedule 3 (Delivery Requirements).

“Download Rights” means the sole and exclusive right to make the Programme (or as edited/re-mastered in accordance with clause 3.8) and/or any clips (not to exceed 30% of the Programme) available (in either case with or without Accompanying Visual Material) via download (i.e. as a compressed digital audio data comprising content from the Programme and/or any extracts therefrom in a format that allows digital download of the Programme and/or any extracts therefrom by end-users to devices including but not limited to PCs, Macs, laptops and mp3 players): (1) on the RTÉ website; and (2) on any third party website(s) by arrangement between such third party service and RTÉ, provided that the download file is served from RTÉ’s servers or RTÉ’s designated content delivery network (in each case with or without geo-blocking) via the internet simultaneous with each such RTÉ radio broadcast of the Programme and on demand before and/or after each such radio broadcast at any time.

“Editorial Specification” means the specifications for the Programme set out in Schedule 1.

“Effective Date” means the date of signature of this Agreement.

“Initial Payment Period” has the meaning set out in Clause 7.2

“Intellectual Property Rights” means any patent, trade mark, design right, copyright, database protection right, format rights, know-how and any other industrial or commercial monopoly right whether presently existing or applied for.

“Programme Personnel” means the actors, composers, writers, musicians and such other personnel (e.g. cast members, presenters, panellists) engaged by the Producer to deliver the Programme and related services to RTÉ.

“Programme” means a radio programme of [XX] minutes duration [OR a series of radio programmes comprising [X] episodes each of [XX] minutes duration) with the working title [XXXX] produced in accordance with the Editorial Specification to include the sound, speech, dialogue, music, lyrics and effects recorded and incorporated into the Programme. For the purposes of making the Programme available via download pursuant to clause 7.3 of this Agreement, “Programme” shall mean the version of the Programme edited for music rights clearance purposes pursuant to clause 3.8 of this Agreement.

“Programme Delivery Materials” has the meaning set out in Schedule 3 (Delivery Schedule);

“RTÉ Website” means the RTÉ internet site located as at the date of this Agreement at www.rte.ie.

1.2 Save as otherwise provided herein, any references in this Agreement to clauses or paragraphs are references to the clauses or paragraphs of this Agreement unless the context otherwise admits or so requires.

1.3 Words such as hereunder, hereof and herein and other words commencing with here shall unless the context clearly indicates to the contrary, refer to the whole of this Agreement and not to any particular condition hereof.

1.4 References to the singular shall include the plural and vice versa and reference to any gender shall include other genders.

1.5 The headings to the conditions in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

1.6 This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when executed and delivered shall constitute an original, all such counterparts together constituting as one and the same instrument.

1.7 Amendments to or modifications of this Agreement may be made only by mutual agreement of all parties in writing, and shall be subject to whatever approvals or appropriate authorities as may be required by law.

1.8 This Agreement and all rights and obligations hereunder shall for all purposes be treated and construed as being separate and apart from any other agreement or agreements or any rights or obligations thereunder save only insofar as the express provision requires to the contrary.

1.9 The parties hereto enter this Agreement as principals for and on their own behalf.

2. Conditions Precedent

2.1 The Producer shall be obliged to fulfil the following obligations as a condition precedent to any RTÉ obligation under this Agreement:

2.1.1 the Producer shall provide to RTÉ a current Tax Clearance Certificate (reference TC2) from the Revenue Commissioners; and

2.1.2 where the Producer is a registered company, the Producer shall provide to RTÉ written confirmation (from the company’s financial auditors or otherwise as requested by RTÉ) that the company has been registered and is up to date in its filings at the relevant Companies Registration Office. The Producer may also be requested by RTÉ to provide a copy of the last annual accounts filed at the relevant Companies Registration Office.

2.2 The parties hereby acknowledge that in the event that the Producer fails to provide the documentation listed in clause 2.1 to RTÉ, RTÉ may elect to terminate this Agreement with immediate effect and RTÉ shall have no liability to the Producer whatsoever or howsoever arising under this Agreement.

3. Producer Obligations

3.1 The Producer shall, before the commencement of production of the Programme, effect (and thereafter maintain in full force and effect up to delivery and acceptance of Programme Delivery Materials) standard production insurance policies (the level to be approved by RTÉ in each case). Proof of approved insurance coverage shall be furnished by the Producer to RTÉ. The Producer shall ensure that RTÉ shall be named as joint loss payee on all such insurance.

3.2 In consideration of the payment of the Contribution, the Producer shall: (a) procure the production and delivery of the Programme to RTÉ by the Delivery Date in accordance with the Programme Sepcification and in accordance with the Agreed Budget.

3.3 The Producer undertakes that the Programme Personnel (and any other production personnel for the production of the Programme) shall be professionally competent and that in engaging such personnel the Producer shall exercise a practice of equal opportunity for all qualified persons and that any employment, income tax and/or PRSI matters relating to production personnel engaged by the Producer for the Programme shall be a matter for the Producer and not for RTÉ. The Producer shall furnish a final list of Programme Personnel to RTÉ for RTÉ approval. The Producer shall be obliged to obtain RTÉ’s prior written approval of the Producer’s agreements with cast and writers and such other Programme Personnel as specified by RTÉ. The Producer shall obtain the prior approval of RTÉ to the termination of any agreement approved by RTÉ under this Agreement and no substitution or amendment of any of the Programme Personnel shall be made without the prior written consent of RTÉ.

3.4 The Producer will obtain all rights, releases and consents necessary to enable RTÉ to exploit the rights granted to RTÉ under this Agreement without any restriction whatsoever and without any obligation on RTÉ to make any payments in addition to the Contribution save as set out below in clause 7 in relation to payments that may be made following expiry of the Initial Payment Period. The Producer shall ensure that all agreements with any director of the Programme, any author of a copyright work included in the Programme and any performer contributing to the Programme shall include: (i) an appropriate assignment of any rental and lending rights and an acknowledgement of equitable remuneration in relation thereto; (ii) appropriate assignments, grants and waivers of all rights in relation to “qualifying performances” under the Copyright and Related Rights Acts 2000 to permit the exercise by RTÉ of the rights granted to it hereunder and an acknowledgement of equitable remuneration in relation thereto; (iii) an irrevocable and unconditional waiver of moral rights in respect of their contribution (without prejudice to any RTÉ approved credit).

3.5 The Producer shall comply with all applicable health, safety and fire legislation in the production of the Programme and all regulations and orders made under such legislation. The Producer shall nominate a person or persons competent to give appropriate safety advice during production of the Programme and shall produce the Programme safely having due regard to such advice. RTÉ shall upon request be provided with evidence of the Producer's compliance herewith.

3.6 The Producer shall notify RTÉ immediately in writing in the event that for any reason the Programme may not be delivered to RTÉ by the Delivery Date.

3.7 The Producer undertakes, subject to clause 4.2, that any musical works and sound recordings included in the Programme will be pre-cleared by the Producer for [radio broadcast by RTÉ][1] and for the purposes of clause 7.2(b) (streaming) below. It is acknowledged, subject to clause 4.2, that the Producer is not obliged to pre-clear musical works and sound recordings included in the Programme for the purposes of clause 7.3 (downloads) below or for radio broadcast by third party radio broadcasters (including any overseas public service broadcaster pursuant to clause 7.4 below) or for any non-radio exploitation throughout the world and that any such musical work and sound recording clearance costs will be a matter for RTÉ and a recoupable distribution cost for the purposes of clause 7.5 as applicable.

3.8 For the purpose of making the Programme (and part thereof) available via download pursuant to clause 7.3 below, RTÉ shall be entitled, in its discretion, to either: (b) require the Licensor to create (as part of the Agreed Budget); or (b) create at RTÉ’s own expense, an edited/re-mastered version of the Programme. The Licensor shall (or RTÉ shall, as applicable), in creating such version of the Programme, edit/re-master the music and sound recordings included therein for music rights clearance purposes to the extent required to enable such version to be made available via download so that no further music clearance fees shall be incurred by RTÉ or the Licensor in respect of the download availability of the Programme (or part thereof) other than those music clearance fees incurred in respect of the transmission of Programme on radio services and via online streaming pursuant to clause 7.2 below.

3.9 The Producer agrees to complete, in respect of any musical work or composition used or commissioned in the Programme, a music cue sheet giving full details of Title, Composer, Publisher and Duration. As part of the duties attached to this role, the Producer will be responsible for returning logs of all music, used or commissioned in the Programme to RTÉ in accordance with RTÉ’s standard requirements for commissioned programmes.

3.10 The Producer shall co-operate with RTÉ in the preparation of statistics regarding independent productions under the Broadcasting Act 2009 (or otherwise as required by any current or future national or European law or regulation, subject to notification thereof by RTÉ in advance).

3.11 The Producer undertakes that the Producer is not a subsidiary or holding company of a broadcaster. The Producer will notify RTÉ immediately if the Producer becomes a subsidiary or holding company of a broadcaster at any time prior to the Delivery Date.

4. RTÉ’s Obligations

4.1 In consideration of the rights assigned to RTÉ under this Agreement, RTÉ shall pay the Contribution on the terms set out in Clause 6 below.

4.2 RTÉ warrants and undertakes (subject to the Producer obtaining RTÉ's prior written approval in respect of any music sound recordings that the Producer wishes to include in the Programme):

4.2.1 In respect of RTÉ radio broadcasts of the Programme[2] and for the purposes of online streaming of the Programme by RTÉ on the RTÉ Website via the internet pursuant to clause 7.2(b) below RTÉ shall be responsible for the following payments:

(a) Payments in respect of the public performance right in any musical works in the Programme that are controlled by the Irish Music Rights Organisation (formerly the Performing Right Society) (“IMRO”) and covered by the current blanket agreement between RTÉ and IMRO, and

(b) Payments in respect of the mechanical synchronisation right and the dubbing right in any musical works and sound recordings in the Programme that are controlled by the Mechanical Copyright Protection Society (Ireland) Limited (“MCPS Ireland”) in respect of broadcasts in Ireland and covered by the current blanket agreement between RTÉ and MCPS Ireland, and

(c) Payments in respect of the dubbing right and the public performance right in any sound recordings in the Programme that are controlled by PPI Limited ("PPI") in respect of broadcasts in Ireland and covered by the current blanket agreement between RTÉ and PPI.

4.2.2 In respect of radio broadcasts of the Programme outside Ireland by broadcasters licensed by or on behalf of RTÉ (including any overseas public service broadcaster pursuant to clause 7.4 below), the Programme will fall within the current blanket agreement between RTÉ and MCPS Ireland so that the mechanical synchronisation right and the dubbing right in any musical works and sound recordings in the Programme that are controlled by MCPS Ireland will be cleared for purposes of radio broadcast of the Programme throughout the world excluding North America (the United States of America, Canada, Mexico and all their territories and possessions).

4.2.3 For the avoidance of doubt, the Programme shall be edited in accordance with clause 3.8 to ensure that no further music clearance fees shall be incurred by RTÉ or the Licensor in respect of the download availability of the Programme (or part thereof) other than those music clearance fees incurred in respect of the transmission of Programme on RTÉ radio services and via online streaming.

5. No Employment

5.1 For the avoidance of doubt, it is acknowledged that the Producer is an independent production company and not an employee of RTÉ and has no entitlements to employment protections or benefits under statute, contract, common law or otherwise and the Producer undertakes not to make any employment related claim of any nature against RTÉ during or after this Agreement, under statute, contract, common law or otherwise.

5.2 The Producer is solely responsible for engaging all Producer Personnel required for delivery of the Programme and related services. The Producer is solely responsible for the discharge of all payments due to Producer Personnel and RTÉ has no liability whatsoever or howsoever arising for any failure on the part of the Producer to discharge its obligations to Producer Personnel.

6. RTÉ’s Contribution, Agreed Budget and Production Reports

6.1 RTÉ shall pay to the Producer the Contribution to be invoiced to RTÉ as set out in the Cash Flow Schedule. The Contribution breakdown shall remain fixed in accordance with the Cash Flow Schedule. For the avoidance of doubt, the final instalment of the Contribution shall not be payable until acceptance by RTÉ of the Programme Delivery Materials and audit by RTÉ of completed production accounts provided by the Producer to RTÉ and the reconciliation of same by RTÉ in accordance with the IRP Terms of Trade.

6.2 All valid undisputed invoices shall be discharged by RTÉ in full within forty five (45) days from the date of receipt of same.

6.3 It is acknowledged and agreed by the Parties that the Contribution represents consideration in full to the Producer for: (a) the assignment and transfer of all Intellectual Property Rights and any other rights that may vest in the Programme to RTÉ; (b) the grant to RTÉ of the Broadcast Rights and Download Rights in relation to the Programme; (c) all rights clearances, performances and/or other production expenses incurred by the Producer in the delivery by it to RTÉ of the completed Programme and without limiting the foregoing any expenses incurred by the Producer in providing any related services described herein.

6.4 Save as set out in this Clause 6 and Schedule 2, and any repeat fee payments due in accordance with Clause 7.2 below, no other fees or expenses whatsoever are due and payable to the Producer by RTÉ under this Agreement.

6.5 All sums payable under this Agreement are exclusive of any value added tax that may be payable by either party. It is the responsibility of the Producer to ensure that the Producer invoices the RTÉ payments at the correct rate of VAT.

6.6 The Producer shall, upon request by RTÉ (in a form and at such intervals during production of the Programme to be agreed in advance with RTÉ and with regard to the reports described in (b) and (c) in any case prior to the payment of the final instalment of the Contribution), deliver the following reports: (a) a production report describing progress on the production; (b) a cost to date report showing costs incurred broken down under the headings used in the Agreed Budget [detailing expenditure to date and creditors outstanding] [together with copies of the production bank account statements and bank reconciliation]; and (c) a detailed estimated of the costs to complete report showing the estimated cost of completing production of the Programme broken down under the headings used in the Agreed Budget. The Producer shall keep accurate books of account and records of the costs of production of the Programme and these records shall be made available for audit inspection and copying by RTÉ at RTÉ’s request for at least 3 years after accepted delivery of the Programme to RTÉ.

6.7 The Producer will notify RTÉ immediately in the event that the Agreed Budget (and, if applicable, any contingency provision) is likely to be exceeded. In the event the Agreed Budget is exceeded, the Producer agrees that the prior written approval of RTÉ shall be required in order to authorise any further expenditure and that any further payment by RTÉ shall be at RTÉ’s sole discretion provided always that in the event of RTÉ requiring the Agreed Budget to be exceeded for reasons not related to the delay or default of the Producer, then RTÉ shall in such event be responsible for all such additional costs.

6.8 The Producer shall use the Contribution [and the designated production bank account] [include only where a specific bank account for the Programme has been required by RTÉ] solely for the purpose of production of the Programme and the Producer will draw down amounts from the designated production bank account strictly in accordance with the Cash Flow Schedule. RTÉ will be entitled to access information relating to the operation of the designated production bank account.

6.9 In the event of any surplus in the Agreed Budget (excluding for the avoidance of doubt any Contingency Provision) after acceptance of the Programme by RTÉ and provision has been made for the payment of all costs of production of the Programme, the Producer shall be entitled to 50% of such surplus provided that the completed Programme complies with the Programme Specification.

7. Rights

7.1 In consideration of the payment by RTÉ of the Contribution, the Producer:

(a) hereby transfers and assigns to RTÉ all Intellectual Property Rights and any other rights that may vest in the Programme with immediate effect (where applicable by way of present assignment of future Intellectual Property Rights) together with the ownership of all physical materials created acquired or manufactured by the Producer in connection with the Programme (including all negative and positive material tapes sound material and recordings scripts research notes props costumes equipment and similar material and all outtakes and all data compiled for the radio programme) TO HOLD unto RTÉ, its successors, and assignees throughout the world for the entire copyright period (including all renewals revivals and extensions of copyright) and thereafter in perpetuity. This assignment includes, for the avoidance of doubt, all radio rights, web rights, mobile phone rights, interactive rights and secondary rights such as radio sales rights, cd/dvd and podcast rights and tie-in magazine/book publishing rights, tie-in event rights, tie-in merchandising rights, music soundtrack rights, and music publishing rights (where any specially commissioned music is created for and included in the Programme). The Producer hereby agrees to execute any and all further agreements and/or consents necessary required to vest ownership of all Intellectual Property Rights in the Programme in RTÉ; and

(b) hereby grants to RTÉ (i) the Broadcast Rights; and (ii) the Download Rights, subject to Clause 7.2 to 7.4 below.

7.2 As a result of the grant of the Broadcast Rights to RTÉ:

(a) RTÉ will have the right to unlimited transmissions of the Programme or any clips (not to exceed 30% of the Programme) on any form of radio services provided by RTÉ for a term starting on the date of signature of this Agreement and ending 5 years from the date of first RTÉ broadcast of the Programme on RTÉ services (or the last episode thereof if a series) (the “Initial Payment Period”). The Producer will be entitled to receive an additional fee in respect of any radio transmission of the Programme on RTÉ services taking place at any time after the expiry of the Initial Payment Period. Any such repeat fee will be subject to agreement between the Producer and RTÉ at the time of the repeat. The parties acknowledge that any such fees negotiated in respect of transmissions after the expiry of the Initial Payment Period on any RTÉ digital radio services will be nominal. In the event the Producer and RTÉ are unable to agree the repeat fee then RTÉ will be entitled to make the transmission but the matter of the amount of the repeat fee will be referred to arbitration.

(b) In addition to the above the parties acknowledge and agree that RTÉ may without any further payment to the producer:

(i) stream the Programme on the RTÉ website via the internet simultaneous with any RTÉ radio broadcast of the Programme and on demand at any time during the Initial Payment Period (with or without Accompanying Visual Material).

(ii) stream clips (not to exceed 30% of the Programme) from the Programme on the RTÉ website for promotional purposes at any time during the Initial Payment Period (with or without Accompanying Visual Material).

(iii) stream the Programme on mobile phones simultaneous with any RTÉ radio broadcast of the Programme and on demand at any time during the Initial Payment Period (with or without Accompanying Visual Material).

(iv) stream clips (not to exceed 30% of the Programme) from the Programme on mobile phones for promotional purposes at any time during the Initial Payment Period (with or without Accompanying Visual Material).

Any internet webcast or mobile phone use by RTÉ other than as set out in sub-clause (i) to (iv) above will be subject to further agreement with the Producer.

7.3 As a result of the grant of the Download Rights to RTÉ, RTÉ will have the right to publish and make the Programme and/or any clips (not to exceed 30% of the Programme) available via download (with or without Accompanying Visual Material) by end-users to devices including but not limited to PCs/Macs/laptops/mobile phones or other hand held digital devices/i-pod/MP3 players (i) via the RTÉ Website or (ii) via any third party website by arrangement between such third party service and RTÉ (provided that the download file is served from RTÉ’s servers or RTÉ’s designated content delivery network) (in each case with or without geo-blocking) at any time during the Initial Payment Period.). [The exploitation by RTÉ of the Download Rights after expiry of the Initial Payment Period will be subject to further agreement with the Producer.] No further payment shall be made to the producer in respect of any such downloads of the Programmes made available during the Initial Payment Period provided that end users are entitled to listen to the Programme download without any fee or payment being payable in respect thereof by such end-users to RTÉ (or such third party websiteArrangements in respect of pay-podcasts/downloads are dealt with under clause 7.5.

7.4 PSB Programme Exchange: In addition to the above, RTÉ may make the Programme and any clips (not to exceed 30% of the Programme) available to third party public service broadcasters worldwide for transmission on their radio services as part of any public service broadcaster content exchange programme in which RTÉ participates from time to time. No further payment shall be made to the Producer provided that RTÉ does not receive a fee or payment or other consideration (save any content provided in exchange for the radio programme) from such third party public service broadcaster in return for the right to transmit the Programme.

7.5 Commercial Exploitation: Any arrangements in respect of the exploitation of the Programme other than pursuant to clauses 7.2 to 7.4 above, and any arrangements in respect of the exploitation of radio sales rights, cd/dvd rights (or other formats now known or hereinafter invented), pay-podcasts/downloads, tie-in magazine/book publishing rights, tie-in event rights, tie-in merchandising rights, music soundtrack rights, and music publishing rights (where there is specially commissioned music) will be agreed between RTÉ and the Producer, the exploitation arrangement offering the best commercial deal for RTÉ and the Producer to be the one to be implemented provided always that RTÉ will not be required to agree to any exploitation of a nature that may bring the Programme or RTÉ into disrepute or conflict with RTÉ’s reasonable commercial interests. The revenues from any exploitation agreed pursuant to this clause 7.5 remaining after deduction of any applicable costs and distribution fees will be divided 50% to the Producer and 50% to RTÉ. If RTÉ seeks to handle the exploitation of some or all of these rights and the exploitation terms offered by RTÉ are better than those offered by any third party then RTÉ will be appointed to handle the exploitation of those rights.

[7.6 SMS/IVR Voting: [Net profits (if any) received by RTÉ from mobile and fixed line service operators in respect of SMS/IVR voting relating to the Programme and remaining after deduction of any related costs including any fee payments by RTÉ to the service providers, any additional technical or production or auditing costs incurred by RTÉ in the making of the Programme, and RTÉ overhead fee of 15% will be divided as follows: X% to RTÉ and X% [can be up to 30%] to the Producer.][only include where SMS/IVR voting used]

8. Editorial Control and Promotion

8.1 In light of RTÉ’s obligations under The Broadcasting Acts, RTÉ shall have the right to listen to all Programme production material during the course of production and shall have the right of approval at rough edit stages. The Producer hereby acknowledges that all editorial control over the Programme shall vest exclusively in RTÉ. The Producer shall carry out all such acts including but not limited to the execution of all necessary agreements and consents as may be required by RTÉ in order to ensure that editorial control over the Programme vests exclusively in RTÉ.

8.2 RTÉ shall control the promotion of the Programme and any copies of the Programmes issued in any media format by RTÉ. RTÉ will handle and manage all related press queries and press relations and the Producer agrees not to make any public announcement or media interview in respect of the Programme without the prior approval of RTÉ. The Producer shall not issue any copy of the Programme or part thereof in any media format without RTÉ’s prior written approval. In addition, RTÉ shall have the exclusive right to establish and maintain a website in respect of the Programme provided however that (i) RTÉ will not establish such a website without prior consultation with the Producer and (ii) the Producer may use clips of up to 30% of the Programme duration on the Producer’s corporate website for promotional purposes only.

8.3. RTÉ shall have the sole right to arrange for sponsorship in respect of the Programme. Any such arrangement shall be the subject of a contract entered into and negotiated between RTÉ and the sponsor(s) and RTÉ shall be entitled to retain all proceeds of such sponsorship.

8.4 The Producer shall not be entitled to submit and/or enter the Programme into any national or international competitions without the prior written consent of RTÉ. The Producer shall always acknowledge RTÉ as the original commissioner of the Programme.

8.5 Nothing contained in this Agreement imposes any obligation on RTÉ to broadcast the Programme.

9. Warranties

9.1 The Producer warrants that it has the right to enter this Agreement and is available to produce and deliver the Programme to RTÉ in accordance with this Agreement and to provide the related services as described herein and is not bound by any commitment which would preclude or interfere with the provision of same to RTÉ.

9.2 The Producer warrants that it shall produce and deliver the Programme in accordance with this Agreement and shall provide the related services in connection with the Programme as described herein, in accordance with the standards expected of a first class radio producer and in accordance with all due skill, care and diligence. The Programme will be audibly of first class quality and in accordance with Schedule 1.

9.3 The Producer warrants that all material provided by it under this Commissioning Agreement shall be original material and shall not breach the Intellectual Property Rights, (including copyright) or any rights whatsoever including without limitation the performing or moral rights of any third party.

9.4 The Producer warrants that the Programme is original to the Producer and nothing in the Programme nor in the making of the Programme shall be obscene, offensive, defamatory, seditious, blasphemous, indecent or constitute an injurious falsehood or slander of title or any tort or contempt of court or breach of parliamentary privilege and will not invade the privacy of any person or breach any applicable laws and codes of standards, practice and prohibitions in broadcasting standards, advertising, sponsorship, product placement and other forms of commercial promotion in broadcasting services (a copy of RTÉ 's sponsorship guidelines having been provided to and read by the Producer) or bring RTÉ into any disrepute.

9.5 The Producer warrants that all necessary waivers, releases and/or clearances have been put in place in connection with the Programme and that RTÉ shall be free to exercise the rights granted herein without any restriction whatsoever and without any obligation on RTÉ to make any payments in addition to the fee payable hereunder.

9.6 The Producer warrants that, subject to payment by RTÉ of the Contribution when due, all sums for the production of the Programme will be paid by the Producer.

10. Indemnity

10.1 The Producer agrees to indemnify and keep RTÉ indemnified at all times in respect of any and all losses, claims and damage incurred by RTÉ arising out of any breach by the Producer of this Agreement or by virtue of any wrongful act, omission, failure to act, negligence on the part of the Producer in respect of the delivery of the Programme under this Agreement and/or the provision of the related services as described herein and/or the broadcast of the Programme by RTÉ. RTÉ undertakes to indemnify the Producer against all liabilities, claims, demands, actions, costs, damages, and losses arising out of any breach by RTÉ of any of the terms of this Agreement

10.2 In the event of any claim, dispute, action, writ or summons arising in regard to matters referred to in paragraph 9 the Producer and RTÉ agree to provide full details to the other party at the earliest opportunity and shall not settle any such matter without first consulting the other party provided however that in the event of proceedings being issued against RTÉ in respect of any matter arising out of paragraph 9.4, then RTÉ shall be entitled to deal with the matter as it may wish.

11. Termination

11.1 RTÉ may by notice in writing terminate this Agreement with immediate effect if the Producer is:

11.1.1 in material breach of any of its obligations under this Agreement which in the case of a breach capable of remedy is not remedied by the Producer within 14 days of receipt by the Producer of a notice from RTÉ specifying the breach and requiring its remedy; or

11.1.2 is incompetent, commits any act of gross misconduct and/or neglect or omits, fails or refuses to perform any of its duties and/or obligations under this Agreement (with or without a written warning) for any reason including illness or incapacity; or

11.1.3 enters into bankruptcy or liquidation (other than for the purposes of reconstruction without insolvency) or passes a resolution for winding up or makes any composition with its creditors or have an administrator, examiner or administrative receiver appointed over all or part of its undertaking or assets.

11.2 In the event that this Agreement is terminated by RTÉ in accordance with the provisions of clauses 11.1 above, RTÉ shall have no further liability to the Producer and shall not be obliged to discharge any outstanding Contribution. The Producer shall deliver all complete recordings of the Programme completed up to and including the date of termination of this Agreement to RTÉ and RTÉ shall retain ownership of same in accordance with the terms of this Agreement.

12. Confidential Information

12.1 The Producer shall treat as secret and confidential and not at any time during or subsequent to the termination of this Agreement for any reason disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any confidential information which is not information in the public domain relating to RTÉ’s activities, processes, business affairs where knowledge or details of the information was received during the period of this Agreement or previously. The Producer acknowledges the obligations of RTÉ under the Freedom of Information Act.

13. Take-Over Default and Abandonment

13.1 In the event that the Producer commits an act of default under this Agreement including but not confined to running over the Agreed Budget, failure to obtain necessary licences, consents and approvals, departure from Programme Specification or breach of warranty, non-performance of material obligations and personal or corporate insolvency or the right of termination arises under paragraph 8, RTÉ shall have the right if it so decides to take over production of the Programme by itself or at its discretion arrange for the production to be taken over by another company and either complete the production or abandon it provided however that in such event RTÉ will give no less than 14 days written notice to the Producer (3 days during principal recording) stating the basis upon which it believes that the Producer is in breach and the Producer fails to remedy the breach within the time given.

14 RTÉ OPTION TO RECOMMISSION [AND THE PROGRAMME FORMAT] [only include format where the programme has an original format. For format provision see Rider 1]

14.1 RTE will have the first option and last refusal to commission further programme(s) based on the Programme (including spin-offs) from the Producer, such first option to be exercised by RTÉ in writing not later than 6 months after first RTÉ radio broadcast of the last episode of the Programme. RTÉ and the Producer will following such notice conduct exclusive bona fide negotiations regarding the editorial and financing details for such further programme(s), it being agreed that any agreement for such further programme(s) will be in substantially the same form as this Agreement. In the event that RTÉ does not give written notification to the Producer within the first option period or if such notice is given but no agreement is reached after 1 month of bona fide negotiations the Producer may negotiate with third parties provided however that RTÉ will have a right of last refusal to match any third party offer which the Producer wishes to accept, such right to be exercised by RTÉ not later than 21 days after receipt by RTÉ of written details of any bona fide final offer made to the Producer by the third party.

15 Limitation of Liability

15.1 Neither party excludes or restricts in any way its liability for death or personal injury or for negligence or for fraudulent misrepresentation.

15.2 Except for the provisions of clauses 11.1 and 15.1, in no event shall the Producer, its officers, employees, contractors and agents be liable for indirect, special, incidental, punitive or consequential loss or damages including but not limited to whether occasioned by the act, breach, omission, default or negligence of its personnel. For the avoidance of doubt, such consequential loss shall include without limitation, loss of profits, loss of revenue, loss of use of data, loss of sales, loss of turnover, loss of savings or anticipated savings, loss of investments, loss of or damage to goodwill, loss of or damage to business, interruption to business, loss of or damage to reputation, loss of contracts, loss of, or loss of use of any (i) software or (ii) data, loss of use of any computer or other equipment or plant; cost of capital, losses or liabilities under or in relation to any other contract whether or not foreseeable, arising out of or in connection with this Agreement whether based on contract, tort or any other legal theory, even if the Producer has been advised of the possibility of such damages and for the purposes of this clause 15.2, the term “loss” includes a partial loss or reduction in value as a complete or total loss.

15.3 Except for the provisions of clause 15.1, in no event shall RTÉ, its officers, employees, contractors and agents be liable for indirect, special, incidental, punitive or consequential loss or damages including but not limited to whether occasioned by the act, breach, omission, default or negligence of its personnel. For the avoidance of doubt, such consequential loss shall include without limitation, loss of profits, loss of revenue, loss of use of data, loss of sales, loss of turnover, loss of savings or anticipated savings, loss of investments, loss of or damage to goodwill, loss of or damage to business, interruption to business, loss of or damage to reputation, loss of contracts, loss of, or loss of use of any (i) software or (ii) data, loss of use of any computer or other equipment or plant; cost of capital, losses or liabilities under or in relation to any other contract whether or not foreseeable, arising out of or in connection with these Conditions whether based on contract, tort or any other legal theory, even if RTÉ has been advised of the possibility of such damages and for the purposes of this clause 15.3, the term “loss” includes a partial loss or reduction in value as a complete or total loss.

16. General

16.1 This Agreement is in substitution for any previous agreements between RTÉ and the Producer (which shall be deemed to have been terminated by mutual consent). Any amendment or alteration to this Agreement must be in writing and signed by an authorised signatory of each of the parties.

16.2 Any waiver of any breach of, or default under, any of the terms of this Agreement by RTÉ shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of this Agreement.

16.3 In the event that this Agreement cannot be performed or obligations fulfilled for any reason beyond the reasonable control of either party including war, industrial action, floods or Acts of God then such non-performance or failure to fulfil obligations shall be deemed not to be a breach of this Agreement and either party may give written notice to the other to suspend performance of its obligations hereunder and following such notice the parties shall consult with each other and use their reasonable endeavours to limit and reduce expenditure on the production while the suspension continues. In the event that this Agreement is suspended pursuant to this clause 16.3 for a continuous period of [six] months then either party may, at its discretion, terminate this Agreement by notice in writing at the end of that period without prejudice to any rights that may have already vested in either party.

16.4 If any provision or part of any provision of this Agreement is found by a court or other competent authority to be void or unenforceable, such provision or part of a provision shall be deleted from this Agreement and the remaining provisions or parts of the provision shall continue to full force and effect.

16.5 Without prejudice to the right to serve notices in exceptional circumstances by any other means any notice served by RTÉ under this Agreement shall be in writing and sent to the last known address of the Producer.

16.6 Except as provided in paragraph 13 above, the Producer shall not assign, transfer, charge or make over this Agreement or any of its rights or obligations hereunder without the prior written consent of RTÉ. RTÉ shall be entitled to transfer and assign any or all of RTÉ’s rights and/or obligations under this Agreement provided that RTÉ will remain liable to the Producer for the performance of RTÉ 's obligations under this Agreement.

16.7 This Agreement shall be governed and construed in all respects in accordance with Irish Law and the parties agree to submit to the exclusive jurisdiction of the Irish courts.

Schedule 1

Editorial Specification

[Insert Editorial Specification]

Schedule 2

Agreed Budget

Agreed Budget: €0,000.00
of which Producer production fee €0,000.00

[of which contingency provision €0,000.00]

Total RTÉ Contribution €0,000.00

RTÉ Contribution to be invoiced by the Producer to RTÉ as follows:

(a) [€XX] on signature of this Agreement;

(b) [€XX] on delivery and RTÉ acceptance of the Programme Delivery Materials; and

(c) Balance on final reconciliation of production accounts

Schedule 3

[Insert delivery specification]

IN WITNESS whereof the parties hereto have executed this Agreement the day and year first herein written

SIGNED for and on behalf of RAIDIÓ TEILIFÍS ÉIREANN by:

_____________________________________________
NAME:

SIGNED for and on behalf of [insert name of Producer/Production Company] by:

_____________________________________________
NAME:

Rider 1 – Clause 14 where format rights of Programme are in issue

14. RTÉ OPTION TO RECOMMISSION AND THE PROGRAMME FORMAT

14.1 Subject always to clause 14.2, it is acknowledged that any format rights relating to the Programme are owned by the Producer provided that:

14.1.1 The Producer hereby grants RTÉ an irrevocable licence of such rights in the format as are necessary for the exercise of the rights granted to RTÉ under this Agreement.

14.1.2 In consideration of €1 (receipt of which is hereby acknowledged by the Producer), the Producer agrees that RTÉ will have the first option and last refusal to commission the production of further radio programme(s) based on the Programme (including spin-offs) from the Producer, such first option to be exercised by RTÉ in writing not later than [6 months] after completed first RTÉ broadcast of the Programme. In the event that RTÉ does not give written notification to the Producer within the first option period or if such notice is given but no agreement is reached after 1 month of bona fide negotiations the Producer may negotiate with third parties provided however that RTÉ will have a right of last refusal to match any third party offer which the Producer wishes to accept, such right to be exercised by RTÉ not later than 21 days after receipt by RTÉ of written details of any bona fide final offer made to the Producer by the third party.

14.1.3 The Producer undertakes that until the date ending 6 months after completed first broadcast by RTÉ of the final series of programmes based on the format that may be commissioned by RTÉ under clause 14.1.2 above there will be no English or Irish language radio programme based on the Programme format broadcast where such broadcast might be receivable in Ireland unless RTÉ agrees otherwise.

14.1.4 RTÉ will be entitled to receive [15%] of all consideration received by the Producer from the exploitation of the format rights (subject to clause 12.1.3 above) in all media throughout the world in perpetuity excluding for the avoidance of doubt (i) any revenues of the Producer pursuant to clause 8.2 and 8.5 of this Agreement and (ii) any production fees paid to the Producer where the Producer is commissioned to produce programmes based on the format and (iii) any fees and expenses paid by a third party licensee of the format rights to the Producer in respect of individual consulting producer fees PROVIDED that in the case of (ii) and (iii) such production fees and consultancy fees and expenses are in line with custom and practice in the international radio format licensing industry.

14.1.5 The Producer will keep full and accurate books of account, records and contracts in respect of all exploitation of the format. RTÉ will be entitled at its sole expense (unless an underpayment is disclosed in which case the reasonable audit costs shall be paid by the Producer) not more than once annually and on not less than 30 days written notice to have a chartered accountant or solicitor inspect the books and records of the Producer in relation to all exploitation of the format and all format revenue. The Producer will send RTÉ detailed accounting statements (together with any monies payable to RTÉ under this Agreement) within 28 days of the last day of June and December in each year.

14.2 Nothing in this Agreement shall be construed as an acknowledgement by RTÉ that the Producer owns or has exclusive rights in any unoriginal and non-distinctive elements of the Programme format.

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[1] Includes broadcast by RTE in the UK via satellite/cable
[2] Includes broadcast by RTE in the UK via satellite/cable

RTÉ 2010
Terms & Conditions